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HomeMy WebLinkAbout20220119.tiffRESOLUTION RE: APPROVE EQUIPMENT LEASE AGREEMENT FOR ARGON GAS BULK TANK AND AUTHORIZE CHAIR TO SIGN - AIRGAS USA, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with an Equipment Lease Agreement for Argon Gas Bulk Tank between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Health and Environment, and Airgas USA, LLC, commencing upon full execution of signatures, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Equipment Lease Agreement for Argon Gas Bulk Tank between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Health and Environment, and Airgas USA, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 10th day of January, A.D., 2022. ATTEST: Weld County Clerk to the Board AM /Deputy Clerk to APP D I County ttorney Date of signature: BOARD OF COUNTY COMMISSIONERS W7,COLORADO OLORADO Sc K. James, Chair iTt ikFFman, erry Moreno Lori Saine CC•. HL.CT6) 011a/22 2022-0119 HL0054 C HvaC+ It5'301 TO: Scott K. James, Chair Board of County Commissioners FROM: Mark Lawley, Executive Director Department of Public Health & Environment DATE: January 3, 2022 SUBJECT: Equipment Lease Agreement with Airgas for Bulk Tank Lease for Argon Gas For the Board's approval is an Equipment Lease Agreement between Airgas USA, LLC, and the Board of County Commissioners of Weld County for the use and benefit of the Weld County Department of Public Health and Environment (WCPHE). Airgas is currently the provider of argon, helium and nitrogen gas used by the WCDPHE laboratory. The laboratory has a new piece of equipment (Inductively Coupled Plasma Mass Spectrometry (ICP/MS) coming online and the amount of argon we will use will increase, making use of portable gas tanks inefficient & costly. The ICP/MS will be used for metals testing and can run multiple tests at the same time rather than one at a time. A larger bulk tank system, installed outside to the south of the Health Department, provides cost savings and reduced frequency of delivery, freeing up staff time for testing. The current lab remodel that is occurring was designed with this bulk tank method of gas delivery in mind. Assistant Weld County Attorney, Karin McDougal, has reviewed this Agreement and determined that its terms are acceptable. The Board approved placement of this Agreement on the Board's agenda via pass -around dated December 30, 2021. I recommend approval of Equipment Lease Agreement with Airgas. 2022-0119 (/1O �L00514 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW TITLE: Equipment Lease Agreement with Airgas for Bulk Tank Lease for Argon Gas DEPARTMENT: PUBLIC HEALTH & ENVIRONMENT DATE: December 30, 2021 PERSON REQUESTING: Mark Lawley, Deputy Director Brief description of the problem/issue: For the Board's review and approval is an Equipment Lease Agreement between Airgas USA, LLC, and the Board of County Commissioners of Weld County for the use and benefit of the Weld County Department of Public Health and Environment (WCPHE). Airgas is currently the provider of argon, helium and nitrogen gas used by the WCDPHE laboratory. The laboratory has a new piece of equipment (Inductively Coupled Plasma Mass Spectrometry (ICP/MS) coming online and the amount of argon we will use will increase, making use of portable gas tanks inefficient & costly. The ICP/MS will be used for metals testing and can run multiple tests at the same time rather than one at a time. A larger bulk tank system, installed outside to the south of the Health Department, provides cost savings and reduced frequency of delivery, freeing up staff time for testing. The current lab remodel that is occurring was designed with this bulk tank method of gas delivery in mind. Assistant Weld County Attorney, Karin McDougal, has reviewed this Agreement and has no concerns. What options exist for the Board? (include consequences, impacts, costs, etc. of options): By approving this Agreement, the County will be able to reduce costs associated with the purchase of the gas and also increase staff efficiency by substantially reducing the time it takes to deal with the delivery of gas, allowing them to focus on performing lab testing instead. If the Board does not approve this Agreement, the gas required to operate the machinery will need to be delivered in portable tanks. Further remodeling of the lab will also need to occur to adjust for this change and staff will need to dedicate time to changing out tanks (up to 4 hours per week of staff time). Recommendation: I recommend approval of this Equipment Lease Agreement with Airgas Approve Schedule Recommendation Work Session Perry L. Buck Mike Freeman_ Scott K. James, Pro -Tern Steve Moreno, Chair Lori Saine Other/Comments: EOUIPMENT LEASE AGREEMENT BETWEEN WELD COUNTY AND AIRGAS USA LLC THIS EQUIPMENT LEASE AGREEMENT is made and entered into this 4th day of November, 2021, by and between the Board of Weld County Commissioners, on behalf of the Weld County Department of Public Health and Environment, hereinafter referred to as "County," and Airgas USA LLC, hereinafter referred to as "Contractor". WHEREAS, County requires an independent contractor to supply equipment to County as set forth in the attached Exhibits; and WHEREAS, Contractor is willing and has the specific ability to supply the required equipment at or below the cost set forth in the attached Exhibits in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. Introduction. The terms of this Agreement are contained in the terms recited in this document and in the attached Exhibits, each of which forms an integral part of this Agreement and are incorporated herein. The parties each acknowledge and agree that this Agreement, including the attached Exhibits, define the performance obligations of Contractor and Contractor's willingness and ability to meet those requirements (the "Work"). If a conflict occurs between this Agreement and any Exhibit or other attached document, the terms of this Agreement shall control, and the remaining order of precedence shall based upon order of attachment. Exhibit A consists of the Equipment list with corresponding rates. 2. Service or Work. Contractor agrees to deliver and install the Equipment provided in Exhibit A. Contractor shall further be responsible for the timely completion, and acknowledges that a failure to comply with the standards and requirements of Work within the time limits prescribed by County may result in County's decision to withhold payment or to terminate this Agreement. The material and/or equipment shall be delivered to the location(s) specified herein. County currently purchases product from Contractor by separate agreement. This Agreement does not affect that purchase agreement; rather, this Agreement allows the County to utilize Contractor's equipment. The parties agree that this Agreement may be terminated by either party in the event that the purchase agreement is terminated, regardless of the reason for such termination. County agrees not to use Contractor's Equipment with any product received from any other source without permission from Contractor. 3. Installation of Equipment. Equipment provided by Contractor shall be installed and maintained in good repair and operation by Contractor. County shall have no ownership interest in the Equipment installed at the Site by Contractor and shall keep same free of any and all liens or claims of any kind. Contractor may execute and record in the name of both parties UCC statements evidencing Contractor's ownership of the Equipment. County will pay any applicable UCC statement filing Charge. County shall pay Contractor's freight costs for delivery of the Equipment to County's Location, and Contractor's crane and rigging costs associated with the ao -colt i Equipment installation, if described in Exhibit A. County shall be responsible and liable for payment of, or, if Contractor makes payment, shall reimburse Contractor for, all costs arising out of Site conditions requiring additional labor or other costs. Contractor shall not be liable for any delay in installation of any Equipment. County shall maintain adequate fire and extended coverage insurance on the Equipment, with loss payable to Seller. County shall not alter, adjust or repair any Equipment installed by Contractor at the Site. County shall be responsible for any loss of, or damage to, such Equipment unless arising as a direct result of Contractor's sole negligence. County shall not permit Equipment furnished hereunder to be filled with any product not furnished by Contractor without Contractor's permission. County shall reimburse Contractor for labor, parts and materials as the result of any service call made by Contractor or Contractor's representative, except for the standard preventative maintenance service as defined by Contractor's standard maintenance guidelines. 4. Equipment Change. If in the sole judgment of Contractor any Equipment installed by Contractor shall become inadequate, including, without limitation, because of a substantial change in County's requirements of product, Contractor shall have the right to substitute a different size or type of Equipment. This Agreement will cover all mode changes, including but not limited to: cylinders to liquid containers, liquid containers to bulk storage vessels, bulk storage vessels to on - site generation, or any combination of the preceding. 5. Term. The term of this Agreement begins upon the date of the mutual execution of this Agreement, and ends one year later. Both of the parties to this Agreement understand and agree that the laws of the State of Colorado prohibit County from entering into Agreements which bind County for periods longer than one year. This Agreement may be extended upon mutual written agreement of the Parties. 6. Termination; Breach; Cure. County may terminate this Agreement for its own convenience upon thirty (30) days written notice to Contractor. Due to the time needed for County to procure replacement equipment, Contractor may terminate this Agreement for its own convenience upon ninety (90) days written notice to County. Either Party may immediately terminate this Agreement upon material breach of the other party, however the breaching party shall have fifteen (15) days after receiving notice to cure such breach. Nothing herein shall be construed as giving Contractor the right to provide equipment under this Agreement beyond the time when such materials or services become unsatisfactory to the County. Upon termination of this Agreement by County, Contractor shall have no claim of any kind whatsoever against the County by reason of such termination or by reason of any act incidental thereto, except for compensation for work satisfactorily performed and/or materials described herein properly delivered. Contractor shall have the right to remove any Equipment installed by it within ninety days after the expiration or termination of this Agreement. County's obligation with respect to loss of, or damage to Equipment shall remain in full force and effect until Contractor effects such removal. 7. Extension or Amendment. Any amendments or modifications to this agreement shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services. 8. Compensation; Invoicing. Upon Contractor's delivery of Equipment to County at the location described in the Exhibits, and County's acceptance of the same, County agrees to pay Contractor as set forth in the Exhibits. No payment in excess of that set forth in the Exhibits will be made by County unless a Change Order authorizing such additional payment has been specifically approved by Weld County. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Contractor was improper because the service for which payment was made did not perform as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Contractor shall forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 of any year, without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). Unless otherwise provided in the Exhibits, Contractor shall invoice County for all Equipment supplied by Contractor under this Agreement within thirty (30) days of acceptance of such Equipment by County, and County shall remit payment to Contractor for all undisputed funds within thirty (30) days of receiving such invoice. County shall include a written explanation for the nonpayment of any disputed funds, and the parties shall cooperate to resolve the dispute in a reasonable timeframe. 9. Independent Contractor. Contractor agrees that it is an independent contractor and that Contractor's officers, agents or employees will not become employees of County, nor entitled to any employee benefits (including unemployment insurance or workers' compensation benefits) from County as a result of the execution of this Agreement. Contractor shall be solely responsible for its acts and those of its agents and employees for all acts performed pursuant to this Agreement. 10. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the completion of the Work without County's prior written consent, which may be withheld in County's sole discretion. 11. Acceptance of Services Not a Waiver. In no event shall any action by County hereunder constitute or be construed to be a waiver by County of any breach of this Agreement or default which may then exist on the part of Contractor, and County's action or inaction when any such breach or default exists shall not impair or prejudice any right or remedy available to County with respect to such breach or default. No assent, expressed or implied, to any breach of any one or more covenants, provisions or conditions of the Agreement shall be deemed or taken to be a waiver of any other breach. Acceptance by the County of, or payment for, the Work completed under this Agreement shall not be construed as a waiver of any of the County's rights under this Agreement or under the law generally. 12. Indemnity. The Contractor shall defend, indemnify and hold harmless County, its officers, agents, and employees, from and against any and all injury, loss, damage, liability, suits, actions, claims, or willful acts or omissions of any type or character arising out of the Work done in fulfillment of the terms of this Agreement or on account of any act, claim or amount arising or recovered under workers' compensation law or arising out of the failure of the Contractor to conform to any statutes, ordinances, regulation, judicial decision, or other law or court decree. The Contractor shall be fully responsible and liable for any and all injuries or damage received or sustained by any person, persons, or property on account of its performance under this Agreement or its failure to comply with the provisions of the Agreement. It is agreed that the Contractor will be responsible for primary loss investigation, defense and judgment costs where this contract of indemnity applies. In consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation against the County its associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers for losses arising from the work performed by the Contractor for the County. A failure to comply with this provision shall result in County's right to immediately terminate this Agreement. 13. Non -Assignment. Contractor may not assign or transfer this Agreement or any interest therein or claim thereunder, without the prior written approval of County. Any attempts by Contractor to assign or transfer its rights hereunder without such prior approval by County shall, at the option of County, automatically terminate this Agreement and all rights of Contractor hereunder. Such consent may be granted or denied at the sole and absolute discretion of County. 14. Examination of Records. To the extent required by law, the Contractor agrees that an duly authorized representative of County, including the County Auditor, shall have access to and the right to examine and audit any books, documents, papers and records of Contractor, involving all matters and/or transactions related to this Agreement. Contractor agrees to maintain these documents for three years from the date of the last payment received. 15. Interruptions. Neither party to this Agreement shall be liable to the other for delays in delivery or failure to deliver or otherwise to perform any obligation under this Agreement, where such failure is due to any cause beyond its reasonable control, including but not limited to Acts of God, fires, strikes, war, flood, earthquakes or Governmental actions. 16. Notices. County may designate its project representative ("County Representative") who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the project. All requests for contract interpretations, change orders, and other clarification or instruction shall be directed to County Representative as identified below. All notices or other communications (including annual maintenance made by one party to the other concerning the terms and conditions of this contract shall be deemed delivered under the following circumstances: (a) personal service by a reputable courier service requiring signature for receipt; or (b) five (5) days following delivery to the United States Postal Service, postage prepaid addressed to a party at the address set forth in this contract; or (c) electronic transmission via email at the address set forth below, where a receipt or acknowledgment is required and received by the sending party; or 4 Either party may change its notice address(es) by written notice to the other. Notice may be sent to: TO CONTRACTOR: Name: Mr. John Burgess Position: Vice President Bulk, Airgas Intermountain Address: 4810 Vasquez Blvd Address: Denver, CO 80216 E-mail: john.burgess@airgas.com Phone: 860-305-8119 TO COUNTY: Name: Dan Joseph Position: Director of Environmental Health Services Address: 1555 North 17th Avenue Address: Greeley, CO 80631 E-mail: DJoseph@weldgov.com Phone: 970-400-2206 17. Compliance with Law. Contractor shall strictly comply with all applicable federal and State laws, rules and regulations in effect or hereafter established, including without limitation, laws applicable to discrimination and unfair employment practices. 18. Non -Exclusive Agreement. This Agreement is nonexclusive and County may engage or use other Contractors or persons to perform services of the same or similar nature. 19. Entire Agreement/Modifications. This Agreement including the Exhibits attached hereto and incorporated herein, contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiations, representations, and understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement may be changed or supplemented only by a written instrument signed by both parties. 20. Fund Availability. Financial obligations of the County payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. Execution of this Agreement by County does not create an obligation on the part of County to expend funds not otherwise appropriated in each succeeding year. 21. Employee Financial Interest/Conflict of Interest— C.R.S. §§24-18-201 et seq. and §24- 50-507. The signatories to this Agreement agree that to their knowledge, no employee of Weld County has any personal or beneficial interest whatsoever in the service or property which is the subject matter of this Agreement. 22. Survival of Termination. The obligations of the parties under this Agreement that by their nature would continue beyond expiration or termination of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality and record keeping requirements) shall survive any such expiration or termination. 23. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 24. Governmental Immunity. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 25. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 26. Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 27. Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. In the event of a legal dispute between the parties, Contractor agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 28. Attorneys Fees/Legal Costs. In the event of a dispute between County and Contractor concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney fees and/or legal costs incurred by or on its own behalf. 29. Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. Acknowledgment. County and Contractor acknowledge that each has read this Agreement, understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with the attached Exhibits, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. CONTRACTOR: Michael Dlgitaly signed by Michael Eatmon DN: cn=Mkhael Eatmon, o=Alrgas, By: oo1ntermountaln Region, — 103tlomYw�tlmWyairgae oe , C=U5 Name: Date: 207,.1,.12 0B:40a R -0100' Title: _ Region President WELD CO�:�,,// ATTEST: Wel BY: Dep 11/12/2021 Date of Signature BOARD OF COUNTY COMMISSIONERS VELD CO TY, COLORADO 3 ott K. James, Chair JAN 1 0 2022 02O -6119 EXHIBIT A Between Weld County and Airgas USA, LLC, with an Effective Date of [Date] Buyer's Location(s): 1555 N 17th Ave, Greeley, CO Product Estimated Monthly Unit of Measure Price/Unit Eauiament Volume Industrial 10,400 SCF 7.25/CCF 700 liter Argon Microbulk tank with dual final line manifold Telemetry Monthly Facility Fee 'Estimated install charges to include freight, crane, and labor are $3,750, to be paid by Weld County upon installation completion $625.00 $35.00 ❑ Buyer Owned or Provided Equipment (Check Box if Buyer owns or is supplying any Equipment): Buyer shall at its expense (a) provide and maintain a storage system compliant with all applicable legal and safety requirements and generally accepted industry standards for the delivery into and storage of the Products; (b) provide and maintain throughout the Term a safe and secure site acceptable to Seller for deliveries in accordance with all applicable legal and safety requirements; (c) provide all foundations, bollards, pipes, fencing, and security measures to ensure safe delivery and distribution of Product(s) to and from the site; (d) provide lighting and power as specified by Seller and dedicated analog phone lines and phone service for telemetry (if deemed necessary by Seller); (e) provide continuous unencumbered access to the storage system for Seller's representatives and vehicles; and (f) provide all required permits and licenses required for storage system. Since the storage system is the property of the Buyer or a third party, all risks of loss or damage to the storage system and any liability arising out of use of the storage system (including transfilling) are assumed by Buyer, and Buyer will notify Seller immediately of any damage, malfunction or change relating to the storage system. Charges: Hazmat Charge (Product) is $40.00 per delivery Delivery Charge is $90.00 per delivery Fuel Charge is Variable WELD COUNTY (Buyer) Accepted By�T�_ Titic: Authorized Rcpresentative Date: AIRGAS USA.L.LC (Seller) Submitted By: David Sutter/Bulk Specialist au.4�Mrmo.,osa�n xegwo. Printed Name: Title: tatrn n Datea.r.707,,,.,709:40:5i-0T00' New Contract Request Entity Information Entity Name* Entity lD AIRGAS USA LLC 900004183 Contract Name * AIRGAS EQUIPMENT LEASE AGREEMENT Contract Status CTB REVIEW Contract Description* BULK TANK. EQUIPMENT LEASE AGREEMENT FOR ARGON GAS Contract Description 2 Contract Type * Department AGREEMENT HEALTH Amount* Department Email $3,750.00 CM -Health faweldgov.com Renewable * Department Head Email NO CM-Health- DeptHeadC~wveldgov.com Automatic Renewal NO County Attorney GENERAL COUNTY Grant ATTORNEY EMAIL NO County Attorney Email IGA CM_ NO COU NTYATTO RN EY 9WELDG OV.COM if this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID ❑ New Entity? Contract ID Parent Contract ID 5501 Contract Lead* Requires Board Approval AGOMEZ YES Contract Lead Email Department Project # agomez/weldgov.com Requested 8OCC Agenda Due Date Date* 01/06,2022 01/102022 Will a work session with BOCC be required?'* NO Does Contract require Purchasing Dept. to be included? NO Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnBase Contract Dates Effective Date Review Date'* Renewal Date 11,04/2021 08,01/2022 Termination Notice Period Committed Delivery Date Expiration Date* 11,042022 Contact Information Contact Info Contact Name Purchasing Purchasing Approver Approval Process Department Head TANYA GEISER DH Approved Date 01;'04:2022 Final Approval BOCC Approved BOCC Signed Date BOCC Agenda Date 01:102022 Originator AGOMEZ Contact Type Contact Email Contact Phone I Contact Phone 2 Purchasing Approved Date Finance Approver CHRIS D'OVIDIO Finance Approved Date 01/05:2022 Tyler Ref # AG 011022 Legal Counsel KARIN MCDOUGAL Legal Counsel Approved Date 01:06:2022 Hello