HomeMy WebLinkAbout2020-771-E Health-UNC COVID freezer rental agreement
FREEZER USE AGREEMENT
THIS FREEZER USE AGREEMENT (“Agreement”) is entered into by and among THE UNIVERSITY
OF NORTH CAROLINA AT CHAPEL HILL for Finance and Operations, Facilities Services Division, a North
Carolina public university (“University”) and Orange County, North Carolina, a local political subdivision
of the State of North Carolina, for and on behalf of the State of North Carolina for its Health Department
(“Lessee”). Each party may be referred to in this Agreement singularly as a “Party” and collectively as the
“Parties.”
WHEREAS, on March 11, 2020, the World Health Organization declared the novel coronavirus
disease, COVID-19, a global pandemic, and on March 13, 2020, the United States declared a national
emergency concerning COVID-19 (such events, the “Pandemic”); and
WHEREAS, due to the Pandemic, and emergency declarations related thereto from local, state,
and federal governments, and international bodies, and in light of Lessee’s need to store COVID-19
vaccines, the University is willing to make available two (2) of its -80° freezers (collectively, “Freezers”)
to Lessee, as further described herein, so that Lessee may store and administer such vaccines during the
Pandemic;
WHEREAS, the Parties acknowledge that the arrangement contemplated by this Agreement is
an emergency measure in response to the Pandemic;
WHEREAS, the Parties acknowledge that they may enter into one or more amendments or
addenda to address specific issues regarding the subject matter of this Agreement; and
WHEREAS, the Parties agree to enter into this Agreement and to be bound by the terms and
conditions set forth herein.
NOW THEREFORE, for and in consideration of the premises and covenants contained herein,
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties agree as follows:
1. TERM
This Agreement shall commence on December 18, 2020 (“Effective Date”) and continue for six
(6) months thereafter unless terminated earlier as provided herein (“Term”).
2. UNIVERSITY COMMITMENTS
To the extent the University has the personnel and resources available, the University will make
the Freezers available to Lessee. One Freezer will be located in the University’s Environment, Health,
and Safety Building (University Asset Number 051632), located at 1120 Estes Drive Extension, Chapel
Hill, North Carolina 27599-1650 and is accessible by Lessee 24 hours per day, 7 days per week, as long as
Lessee’s access does not interfere with the University’s operations and other duties and obligations . The
second Freezer to be made available to Lessee (University Asset Number 018732) will be delivered to
the Orange County Emergency Management Operations Center, located at 510 Meadowlands Drive,
Hillsborough, North Carolina 27278. During the Term of this Agreement, the University is relieved of its
obligation to maintain and clean the Freezers. If during the Term a Freezer stops working and is beyond
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repair, the University is under no obligation whatsoever to purchase a replacement, identify a substitute
freezer for Lessee, or to reimburse Lessee for the cost and expense of the Freezer’s contents. Under no
circumstances whatsoever does or shall the University assume any responsibility, risk, or liability for, or
control of any contents stored in the Freezers during the Term.
3. LESSEE COMMITMENTS
Lessee assumes full and complete responsibility, risk, and liability for, and will control, any and
all contents stored in the Freezers during the Term. Lessee shall be responsible for any and all damage
to the Freezers during the Term. The University will maintain the Freezers during the Term. If there is
any maintenance issue with a Freezer, Lessee should promptly submit a work order to the University to
report such issue. Should a Freezer fail during the Term, the University may, in its sole discretion, choose
to replace the Freezer within twenty-four (24) hours. While on University property, Lessee and its
employees shall comply with all applicable University policies and guidelines. Lessee agrees that during
the Term: only Orange County personnel shall access the Freezers; Lessee will be responsible for the
cleaning and sanitation of the Freezers; and that concurrently with the execution of this Agreement, the
Lessee’s personnel who will access the Freezers shall execute a waiver and release.
The Parties agree to work collaboratively to the extent there are any clearances, approvals,
waivers, or other authorizations required by any governmental entity (“Governmental Authorizations”)
relating to the Equipment, including assisting in obtaining or submitting information to any
governmental entity.
4. TERMINATION
Either Party may terminate this Agreement at any time with or without cause by written notice
to the other Party. The Parties agree to consider in good faith and amendments and addenda to this
Agreement and the arrangement contemplated hereunder as needs arise related to the Pandemic. Upon
expiration or termination of this Agreement, the University will pick up the Freezer (University Asset
Number 018732) within twenty-four (24) hours of such expiration or termination.
5. NO WARRANTIES OR REPRESENTATIONS
The University hereby disclaims all warranties of any kind related to the Freezers, including any
implied warranties of title, merchantability, fitness for a particular purpose or non-infringement. The
University makes no commitment or representation regarding quality, sufficiency, fitness for any
particular purpose. Lessee agrees to accept the Freezers in as-is, where-is condition, with all faults.
Lessee is responsible for ensuring that the Freezers can achieve and maintain the temperature required
for Lessee’s purposes.
6. INDEMNIFICATION
Lessee agrees, to the fullest extent permitted by law, to indemnify and hold harmless the
University and its affiliates, and its and their respective current and former trustees, directors, officers,
employees, faculty, students, and agents (“Indemnitees”) from and against any actions, claims, losses,
costs, liabilities, fines, penalties, governmental proceedings, damages, harm, or expenses, without
limitation (“Damages”), arising directly or indirectly from, or related to, the arrangement contemplated
by this Agreement, the use, or failure of the Freezers, or claims or actions by any person related to the
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subject matter of this Agreement, including claims or actions by individuals or third parties. Lessee
further agrees that the University shall have no responsibility for any Damages resulting from injury or
illness to any of Lessee’s employees, volunteers, residents, diners, or to any other person, as a result of
use, deployment, or failure of the Freezers or the arrangement contemplated by this Agreement.
7. GENERAL PROVISIONS
7.1 Assignment. No Party may assign, delegate, or subcontract any portion of this
Agreement without the prior written consent of the other Parties.
7.2 Governing Law and Forum. Any dispute, claim, or controversy relating to the
Agreement, and all the rights and obligations of the Parties shall, in all respects, be
interpreted, construed, enforced, and governed by and under the laws of the State of
North Carolina, without giving effect to any choice of law or conflict of law rule or
provision that would cause the application of the laws of another jurisdiction. All actions
relating in any way to the Agreement shall be brought in a court of competent
jurisdiction in the State of North Carolina.
7.3 Counterparts. The Parties hereto may execute this Agreement in any number of
counterparts, each of which, when executed and delivered by the Parties hereto, will
have the force and effect of an original, but all such counterparts will constitute one and
the same instrument. Electronic signatures, including via facsimile transmission, email,
or .pdf, shall have the same effect as original manual signatures.
7.4 Relationship of the Parties. Lessee’s relationship to the University is that of an
independent contractor. Neither Lessee, on the one hand, nor the University, on the
other hand, is a partner of the other. The Agreement shall not serve to create a joint
venture, partnership, trust, or similar such relationship. Neither Party has the right or
ability to bind the other to any agreement with a third party or to incur any obligation or
liability on behalf of the other Party.
7.5 Amendment. For any Amendment to be effective, it must be made in written form and
signed by a duly authorized representative of each Party.
7.6 Waiver of Remedies. In the event that a Party elects to waive its remedies for any
breach by the other Party of any covenant, term, or condition of the Agreement, such
waiver shall not limit its remedies for any succeeding breach of that or of any other
term, covenant, or condition of the Agreement. Any waiver must be in writing to be
effective.
7.7 Force Majeure. Neither Party’s failure to perform its obligations shall be a breach of this
Agreement if such failure is caused by an event beyond its reasonable control, including
without limitation, one (1) or more of the following: fire, flood, explosion, invasion,
hostilities, act or threat of war, act or threat of terrorism, riot, strike, civil insurrection,
acts of public officials, earthquake, hurricane, tornado, other catastrophic natural event
or act of God, failure of third party hardware or software, Governmental acts, orders, or
restrictions, power or communications failures, or national or regional emergency,
pandemic, epidemic, quarantine, or social distancing measures to limit the spread of a
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contagious or communicable disease; provided that such Party uses reasonable efforts,
under the circumstances, to promptly notify the other Party of the cause of such delay
and to resume performance as soon as possible in light of the circumstances giving rise
to the force majeure event.
7.8 COVID-19. The Parties acknowledge the uncertainty and risks associated with the
Pandemic, and that the University or Lessee may suspend some or all operations or
activities. To the extent that any such suspension affects either Party’s ability to meet its
performance obligations under the Agreement, the Parties will cooperate in good faith
to reasonably modify operations in a way that most nearly reflects the original intent of
the Parties with respect to the affected operations. In the event such modification(s)
represents a material change to the obligations contained herein, the Parties shall
negotiate in good faith a valid, legal, and enforceable Amendment that most nearly
reflects the original intent of the Parties with respect to the affected obligations. All
other provisions of the Agreement shall remain in full force and effect and shall be
liberally construed in order to carry out the intent of the Parties as nearly as possible.
7.9 Notice. All notices required or contemplated herein shall be sufficient and deemed given
if in writing and either delivered by hand, sent via overnight mail via nationally
recognized courier service with proof of delivery, sent by facsimile or electronic mail, in
.pdf format addressed to the Parties as set forth below, or to such other address as may
be changed from time to time by notice duly given pursuant to this Section.
University
Name: Anna Wu
Title: Associate Vice Chancellor for Facilities Services
The University of North Carolina at Chapel Hill
305 South Building, CB# 1000
Chapel Hill, North Carolina 27599-1000
Telephone: 919- 962.7248 (office) 919-381-0771 (mobile)
Email: annaw@fac.unc.edu
Lessee
Name: Rebecca Crawford
Title: Finance and Administration Services Director
Orange County Health Department
300 W. Tryon Street
Hillsborough, North Carolina 27278
Telephone: 919-245-2414
Email: rcrawford@orangecountync.gov
A notice shall be deemed to be given (i) on the date of delivery or refusal, if delivered by hand;
(ii) on the date of deposit with a recognized overnight courier service, if delivered by overnight mail; or
(iii) on the date of electronic confirmation of successful transmission if delivered by facsimile or
electronic mail in .pdf format.
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IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed in the
manner and the form sufficient to bind them.
THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL
__________________________________
Nathan Knuffman
Interim Vice Chancellor for Finance and Operations
ORANGE COUNTY, NORTH CAROLINA
______________________________________
Quintana Stewart
Health Director
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