HomeMy WebLinkAboutContract 56335 FORT WORTHCSC No. 56335
CITY OF FORT WORTH
COOPERATIVE PURCHASE AGREEMENT
This Cooperative Purchase Agreement ("Agreement") is entered into by and between Pendar
Technologies, LLC ("Vendor") and the City of Fort Worth, ("City"), a Texas home rule municipality.
The Cooperative Purchase Agreement includes the following documents which shall be construed in the
order of precedence in which they are listed:
1. This Cooperative Purchase Agreement;
2. Exhibit A— Seller's Quote, Scope of Services or Purchase Order;
3. Exhibit B — Cooperative Agency Contract(e.g., NJPA, DIR, BuyBoard); and
4. Exhibit C—Conflict of Interest Questionnaire
Exhibits A, B, and C, which are attached hereto and incorporated herein, are made a part of this
Agreement for all purposes. Vendor agrees to provide City with the services and goods included in
Exhibit A pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all
exhibits thereto.
City shall pay Vendor in accordance with the fee schedule in Exhibit A and in accordance with
the provisions of this Agreement. Total payment made under this Agreement for the first year by City
shall be in the amount of Sixty Four Thousand Dollars($64,000). Vendor shall not provide any additional
items or services or bill for expenses incurred for City not specified by this Agreement unless City
requests and approves in writing the additional costs for such services. City shall not be liable for any
additional expenses of Vendor not specified by this Agreement unless City first approves such expenses
in writing.
The term of this Agreement shall be for one year beginning on September 9, 2021 and ending
on July 27, 2022. City shall be able to renew this agreement for three (3) one-year renewal options by
written agreement of the parties.
Vendor agrees that City shall,until the expiration of three(3)years after final payment under this
Agreement, or the final conclusion of any audit commenced during the said three years, have access to
and the right to examine at reasonable times any directly pertinent books, documents,papers and records,
including, but not limited to, all electronic records, of Vendor involving transactions relating to this
Agreement at no additional cost to City. Vendor agrees that City shall have access during normal
working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work
space in order to conduct audits in compliance with the provisions of this section. City shall give Vendor
reasonable advance notice of intended audits.
1. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or
liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
2. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall
be governed by, and construed in accordance with the laws of the United States and state of Texas,
exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a
court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be
governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and
any such terms are hereby deleted from the Agreement and shall have no force or effect.
3. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, limits
the liability of Vendor or requires City to indemnify or hold Vendor or any third party harmless from
damages of any kind or character, City objects to these terms and any such terms are hereby deleted from
the Agreement and shall have no force or effect.
4. Confidential Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of the Act,
City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and
shall have no force or effect. In the event there is a request for information marked Confidential or
Proprietary, City shall promptly notify Vendor. It will be the responsibility of Vendor to submit reasons
objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by
City, but by the Office of the Attorney General of the State of Texas or by a court of competent
jurisdiction.
5. Cooperative Agreement Controlling. If any provisions of the attached exhibits, conflict
with the terms of this cooperative agreement, are prohibited by applicable law, conflict with any
applicable rule, regulation or ordinance of City, the terms in this cooperative agreement shall control.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have
been delivered when (1) hand-delivered to the other party, its agents, employees, servants or
representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3)
received by the other party by United States Mail, registered, return receipt requested, addressed as
follows:
To CITY: To VENDOR:
City of Fort Worth Pendar Technologies, LLC
Attn: Jesus Chapa, Deputy City Manager Attn: Seamus J. Fogarty, Chief Financial
200 Texas Street Officer
Fort Worth, TX 76102-6314 30 Spinelli Place
Facsimile: (817) 392-8654 Cambridge, MA 02138
Facsimile: N/A
With copy to Fort Worth City Attorney's Office
at same address
The undersigned represents and warrants that he or she has the power and authority to execute this
Agreement and bind the respective Vendor.
CITY OF FORT WORTH:
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
By: Jtsus J.Chapa(Sep 20,202109:02 CDT) responsible for the monitoring and administration
Name: Jesus Chapa of this contract,including ensuring all performance
Title: Deputy City Manager and reporting requirements.
Date: Sep 20,2021
APPROVAL RECOMMENDED: By:
Name: Cynthia Garcia
Title: Assistant Finance Director
By: Reginald Zen (Sep17,202119:08CDT) APPROVED AS TO FORM AND LEGALITY:
Name: Reginald Zeno
Title: Chief Financial Services Officer
ATTEST: g�.0° 00 d By: Taylor P is(Sep 20,202108:30 CDT)
P.vo o�=� Name: Taylor Paris
/�/ *' °o* Title: Assistant City Attorney
?""'I �aA 00 000000 �7
By � a��ExASba CONTRACT AUTHORIZATION:
Name: Ronald P. Gonzales M&C: N/A
Title: City Secretary
VENDOR:
Pendar Technologies, LLC
Seamus Digitally signed by Seamus
FogaiTy:A0109B300000173B .,a,,F°garty:A0109B300000173B6293A4F
,,,
By: 6293A4F0001B6B4 Date:2021.09.1710-56-15-04'00'
Name: Seamus J. Fogarty
Title: Chief Financial Officer
Date: 17-S E P-2021
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Exhibit A
Pendar Technologies, LLC. Quote
■ 30 Spinelli Place
i ■
'As
:K* Suite 101
Cambridge, MA 02138 Qoute# DATE
PE N DAR Phone: +1 617-588-2128 SW-T:02/26B 6/26/21
TECHNOLOGIES
BILL TO
Lt. Edward Fishman
Fort Worth Arson/Bomb Squad
715 Texas St
Fort Worth
TX 76102 RFQ Ref/No. Order Lead Terms
120 Days ARO Net 30
GSA Contract# 470SWA20DO08W
Expiration Date 27-Jul-25
Line-Sch ITEM/DESCRIPTION Qty UOM RATE AMOUNT
1 Handheld PendarX10 Raman standoff chemical detector 1 ea. $63,199.00 $63,199.00
Part Number 100001-02
2 Delivery 1 ea. $0.00
3 Training 1 ea. $0.00
Thank you for your business! TOTAL $63,199.00
PENDAR
FECHNOLOGI_
PENDAR GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES
1. Applicability.
(a) All orders for the sale of all products,services,or both,are subject to review, approval, and acceptance by Pendar
Technologies, LLC("Pendar"). If an order is accepted by Pendar,these terms and conditions of sale (these"Terms")
are the only terms which govern the sale of the products sold by Pendar (the "Products"),and any associated services
("Services"),or both,to the buyer named in a quote, purchase order,or proposal (the "Buyer"). Notwithstanding
anything herein to the contrary,if a written contract signed by Pendar and the Buyer is in existence covering the sale
of the Products and Services covered hereby,the terms and conditions of said contract shall prevail to the extent they
are inconsistent with these Terms.
(b) BY PLACING A PURCHASE ORDER OR OTHER AGREEMENT FOR PENDAR'S PRODUCTS,SERVICES, OR BOTH
ASSOCIATED WITH PENDAR'S QUOTATION OR PROPOSAL FOR THE PRODUCTS,SERVICES,OR BOTH OR USING
ANY PART OF THE PRODUCTS,SERVICES, OR BOTH,YOU ACKNOWLEDGE THAT YOU HAVE READ THE
QUOTATION OR PROPOSAL,THESE TERMS AND CONDITIONS,THAT YOUR COMPANY OR OTHER ENTITY
UNDERSTAND THEM AND THAT YOUR COMPANY OR OTHER ENTITY AGREE TO BE BOUND LEGALLY BY THESE
TERMS AND CONDITIONS.
(c) The accompanying quote or proposal (which identifies the Products or Services sold) which may include a statement of
work(collectively,the "Proposal") and these Terms (collectively,this "Agreement") comprise the entire agreement
between the parties,and supersede all prior or contemporaneous understandings,agreements,negotiations,
representations and warranties, and communications, both written and oral.These Terms prevail over any of Buyer's
terms and conditions of purchase regardless of any terms or conditions which may be included in Buyer's purchase
order form or other communication from Buyer. Pendar's acceptance is conditional upon Buyer's assent to,or if this
writing is construed as the offer,acceptance hereof is expressly limited to the terms and conditions set forth herein. It
is agreed that sales are made only on the terms and conditions herein and any terms or conditions other than those
set forth herein are hereby objected to by Pendar and shall not become a part of the agreement of sale unless
expressly agreed to in writing by an authorized representative of Pendar. Pendar objects to all supplemental or
inconsistent terms and conditions in any purchase order or other communication from Buyer. Pendar's failure to object
to any specific term or condition contained in Buyer's purchase order or other communication shall not be deemed to
be acceptance of such term or condition. Pendar quotations are not firm unless expressly indicated,with a specific
period of time during which the quotation will remain firm on the face thereof. Fulfillment of Buyer's order does not
constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
2. Delivery of Products and Performance of Services.
(a) The Products will be delivered to Buyer at the dates specified in Buyer's purchase order that has been accepted by
Pendar,subject to availability of and the manufacturing schedule for the finished Products and availability of the
Services. Pendar shall not be liable for any delays, loss or damage in transit. In no event will Pendar be liable for
increased costs, loss of profits or goodwill,or any other incidental or consequential damages caused by late delivery
or non-delivery of Products or Services.
(b) Pendar may,without notice,discontinue the production or sale or modify the design or material specification of any
Product or parts thereof. In such an event, Pendar has no liability or obligation to the Buyer,including without
limitation, any obligation to modify a Product previously ordered. Pendar does not warrant the continued availability
of any of the Products or Services and Buyer expressly releases Pendar from any liability for any loss or damage to
Buyer arising out of or by virtue of Pendar's ability to accept or fulfill any Proposal due to particular shortages or
general product unavailability.
(c) Unless otherwise agreed in writing by the parties, Pendar shall cause the delivery of the Products to Buyer's specified
location (the "Delivery Point") using commercially reasonable standard methods for packaging and shipping such
Products. Buyer shall take delivery of the Products within two calendar days of Pendar's written notice that the
Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide
equipment and labor reasonably suited for receipt of the Products at the Delivery Point.
(d) Pendar may,in its sole discretion,without liability or penalty,make partial shipments of Products to Buyer. Each
shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or
partial fulfillment of Buyer's purchase order or other agreement.
(e) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Pendar's notice
that the Products have been delivered at the Delivery Point,or if Pendar is unable to deliver the Products at the
Delivery Point on such date because Buyer has not provided appropriate instructions,documents,licenses or
authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii)the Products shall be deemed to have been
delivered; and (iii) Pendar,at its option,may store the Products until Buyer picks them up,whereupon Buyer shall be
liable for all related costs and expenses(including,without limitation,storage and insurance).
(f) Pendar shall use reasonable efforts to meet any performance dates to render the Services specified in the Proposal,
and any such dates shall be estimates only.
(g) With respect to the Services, Buyer shall (i) cooperate with Pendar in all matters relating to the Services and provide
such access to Buyer's premises,and such office accommodation and other facilities as may reasonably be requested
by Pendar,for the purposes of performing the Services; (ii) respond promptly to any Pendar request to provide
direction,information,approvals, authorizations,or decisions that are reasonably necessary for Pendar to perform
Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as
Pendar may reasonably request to carry out the Services in a timely manner and ensure that such Buyer materials or
information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses
and consents and comply with all applicable laws in relation to the Services before the date on which the Services
are to start.
3. Non-Delivery.
(a) Pendar shall not be liable for any non-delivery of Products(even if caused by Pendar's negligence) unless Buyer
gives written notice to Pendar of the non-delivery within three calendar days of the date when the Products would,in
the ordinary course of events,have been received.
(b) Any liability of Pendar for non-delivery of the Products shall be limited to replacing the Products within a reasonable
time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer's exclusive remedies for the
delivery of Nonconforming Products. Except as provided under Section 3(c),all sales of Products to Buyer are made
on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Pendar.
4. Shipping Terms. Delivery of the Products shall be made FOB Destination. Pendar shall make delivery to the location
specified on the face of the Proposal.
5. Title and Risk of Loss.Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point.As
collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Pendar a lien on and
security interest in and to all of the right,title and interest of Buyer in,to and under the Products,wherever located,and
whether now existing or hereafter arising or acquired from time to time,and in all accessions thereto and replacements or
modifications thereof,as well as all proceeds(including insurance proceeds) of the foregoing.The security interest
granted under this provision constitutes a purchase money security interest under the Massachusetts Uniform Commercial
Code.
6. Buyer's Acts or Omissions. If Pendar's performance of its obligations under this Agreement is prevented or delayed by any
act or omission of Buyer or its agents,subcontractors,suppliers,consultants,or employees, Pendar shall not be deemed in
breach of its obligations under this Agreement or otherwise liable for any costs,charges,or losses sustained or incurred by
Buyer, in each case,to the extent arising directly or indirectly from such prevention or delay.
7. Inspection and Rejection of Nonconforming Products.
(a) Buyer shall inspect the Products within three calendar days of receipt("Inspection Period"). Buyer will be deemed to
have accepted the Products unless it notifies Pendar in writing of any Nonconforming Products during the Inspection
Period and furnishes such written evidence or other documentation as reasonably required by Pendar.
"Nonconforming Products" means only the following: (i) product shipped is different than identified in Buyer's
purchase order;or (ii) product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Pendar of any Nonconforming Products, Pendar shall,in its sole discretion,(i) replace such
Nonconforming Products with conforming Products,or (ii) credit or refund the Price for such Nonconforming Products,
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together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall
ship, at its expense and risk of loss,the Nonconforming Products to Pendar's facility as identified by Pendar.If
Pendar exercises its option to replace Nonconforming Products, Pendar shall,after receiving Buyer's shipment of
Nonconforming Products,ship to Buyer,at Buyer's expense and risk of loss,the replaced Products to the Delivery
Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(a) are Buyer's exclusive remedies for the
delivery of Nonconforming Products. Except as provided under Section 8(b), all sales of Products to Buyer are made
on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Pendar.
8. Price.
(a) Buyer shall purchase the Products and Services from Pendar at the prices (the "Prices") set forth in Pendar's Proposal.
(b) All prices are firm,and the Proposal cannot be divided into separate procurements. If all proposed Products,
Services,or both are not ordered, all Prices are subject to change.
(c) All Prices are exclusive of all sales,use,and excise taxes, and any other similar taxes,duties,and charges of any
kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all
such charges,costs and taxes; provided,that, Buyer shall not be responsible for any taxes imposed on,or with
respect to, Pendar's income, revenues, gross receipts, personal or real property,or other assets.
9. Payment Terms.
(a) Pendar will invoice at time of shipment of the Product to Buyer or upon performance of Services,as agreed. Buyer
shall pay all invoiced amounts due to Pendar fifteen days from the date of such invoice, unless the Proposal states
otherwise. Buyer shall make all payments hereunder in U.S. Dollars by wire transfer to: Berkshire Bank,ABA#
21 1 871 691,SWIFT Code BERKUS33,Account number 66220241 1. The Account name is Pendar Technologies LLC.
(b) Until such time that payment in full is received by Pendar, Buyer grants Pendar a security interest in and lien on all
delivered Products and all accounts,chattel paper,instruments,contract rights, general intangibles, accounts
receivables, and the proceeds of those not existing or later arising out of Buyer's sale or other disposition of the
Products. Buyer shall cooperate in whatever manner is necessary for Pendar to perfect and record such security
interested and lien by completing a UCC-1 form (or any similar form that may be applicable) and any other security
as Pendar may reasonably request from time to time.
(c) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate
permissible under applicable law,calculated daily and compounded monthly. Buyer shall reimburse Pendar for all
costs incurred in collecting any late payments, including,without limitation,attorneys' fees. In addition to all other
remedies available under these Terms or at law (which Pendar does not waive by the exercise of any rights
hereunder), Pendar shall be entitled to suspend the delivery of any Products or performance of any Services if Buyer
fails to pay any amounts when due hereunder and such failure continues for ten days following written notice thereof.
(d) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute
with Pendar,whether relating to Pendar's breach, bankruptcy or otherwise.
10. Software License Agreement. All software and firmware made available by Pendar to Buyer is subject to the terms and
conditions of Pendar's applicable Software License Agreement(s) (SLA),which is fully incorporated into this Agreement as
Attachment A. Except for the right to use the software and Products for the purposes provided herein which arises by
operation of law, and except as expressly provided herein,nothing contained in this Agreement shall be deemed to grant
Buyer or Buyer's End Users either directly or by implication,estoppel,or otherwise,any license or right under any patents,
copyrights,trademarks or trade secrets of Pendar or any third party.
1 1. U.S. Government Orders. Pendar's Products are Commercial Items as defined in Federal Acquisition Regulation (FAR)
2.101. If this Agreement is in furtherance of a sale to a U.S.federal government prime contractor,only those FAR
provisions that are mandatory and to the extent applicable,under FAR Subpart 12.5 are applicable to this Agreement.
Further,the Products meet the definition of a commercial item and information technology as defined in FAR 2.101,
therefore consistent with FAR 25.103(e), acquisitions of information technology meeting the commercial item definition, and
using fiscal year 2004 or subsequent funds are exempt from the Buy American Act and Balance of Payments Act.
Pendar makes no representation or certifications with respect to the ability of the Products,Services,or prices,to satisfy
any laws, regulations or provisions governing or relating to sales to the U.S. Government,including, but not limited to,
place of product origin,manufacture,or assembly. (i.e.,under the Buy American Act or Trade Agreements Act),contracting
with small,minority,or diversity suppliers, payment of prevailing wages,or price guarantees and commitments.
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The following clauses,if applicable pursuant to the regulatory language,are incorporated by reference from the FAR
with the some force and effect as if they were given in full text.
52.203-1 3 Contractor Code of Business Ethics and Conduct (Jun 2020)
52.203-17 Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights
(Jun 2020)
52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment
(Aug 2020)
52.209-6 Protecting the Government's Interest when Subcontracting with Contractors Debarred,Suspended,or
Proposed for Debarment (Jun 2020)
52.21 2-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items(Aug
2020)
52.21 9-8 Utilization of Small Business Concerns (Jul 201 3)
52.222-17 Nondisplacement of Qualified Workers (Jan 201 3)
52.222-26 Equal Opportunity (Mar 2007)
52.222-35 Equal Opportunity for Veterans (Jun 2020)
52.222-36 Equal Opportunity for Workers with Disabilities (Jun 2020)
52.222-40 Notification of Employee Rights Under the National Labor Relations Act (Dec 2010)
52.222-41 Service Contract Act of 1965 (Nov 2007)
52.222-50 Combating Trafficking in Persons (Feb 2009)
52.222-51 Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration,or Repair
of Certain Equipment--Requirements (Nov 2007)
52.222-53 Exemption from Application of the Service Contract Act to Contracts for Certain Services--Requirements (Feb
2009)
52.222-54 Employment Eligibility Verification (Jul 201 2)
52.225-26 Contractors Performing Private Security Functions Outside the United States (Jul 201 3)
52.226-6 Promoting Excess Food Donation to Nonprofit Organizations. (Mar 2009)
52.247-64 Preference for Privately-Owned U.S. Flag Commercial Vessels (Feb 2006)
No other FAR or FAR Supplement provisions,nor any other prime contract provisions,are accepted by Pendar,even if
referenced in Buyer's purchase orders,unless Pendar expressly agrees to such,in writing. Pendar does not represent that
any ordered items necessarily meet new materials requirements.
12. Warranty and Warranty Disclaimer.
(a) Pendar warrants to Buyer that,for a period of 12 months from the date of delivery of the Product,such Product shall
be free from defects in material and workmanship ("Original Warranty Period"). Buyer has the option, during the
Original Warranty Period to purchase from Pendar an extended warranty for up to 5 years at pricing to be
provided by Pendar if and when Buyer exercises such option.All Products that have been damaged or tampered
with,are not eligible for the extended warranty.
(b) For Product to be returned under the provisions of this Section 12,the Buyer must provide the serial numbers of
Products to be returned and obtain a Return Material Authorization number("RMA") from Pendar for the specific
Product and quantity to be returned. Buyer will return the Product in a suitable shipping carton with the RMA number
displayed on the outside of the carton. The return must be received by Pendar within thirty (30) days from date of
issuance of the RMA number.If Pendar finds no defects or deviations from the Product and cannot duplicate the
problem the Buyer agrees to accept such Products and pay the cost of return shipment.
(c) Pendar reserves the right to repair or replace the Product at its sole discretion. In repairing or replacing any Product,
or part of a Product under this warranty, Pendar may use new, remanufactured, reconditioned, refurbished,or
functionally equivalent Products or parts. Returned Products that are not repaired and returned to the Buyer will
become the property of Pendar.
(d) EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 12, PENDAR MAKES NO WARRANTY WHATSOEVER
WITH RESPECT TO THE PRODUCTS OR SERVICES,INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B)
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE;WHETHER EXPRESS OR IMPLIED
BY LAW,COURSE OF DEALING, COURSE OF PERFORMANCE,USAGE OF TRADE OR OTHERWISE. NO ORAL OR
WRITTEN REPRESENTATIONS MADE BY PENDAR SHALL CREATE A WARRANTY FROM PENDAR.
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13. Intellectual Property.
(a) Pendar, and its licensors,shall own and shall retain all right,title and interest in and to: (a) any of its intellectual
property rights,including any development thereof (including all copies,modifications,improvements and derivative
works thereof, by whomever produced); (b) all of its service marks,trademarks,trade names or any other
designations associated with their technology and products; and (c) all mask works,copyrights, patent rights,trade
secret rights, and other proprietary rights relating to the technology and products,whether registered or not
(collectively"Intellectual Property Rights").All intellectual property rights in work or resulting from work done by or
on behalf of Pendar pursuant to this Agreement, if performed,and any subsequent modifications to some shall
exclusively vest in Pendar.
(b) Buyer shall not translate, reverse engineer,decompile, disassemble,or make any other unauthorized use of the
Products provided under this Agreement. Buyer acknowledges and agrees that in addition to any other remedies
available to Pendar or its suppliers, Pendar or its suppliers are entitled to equitable relief to protect any trade
secrets,including without limitation,temporary and permanent injunctive relief without proof of damage.
(c) Buyer shall not make or permit the removal or modification of any trademarks or tags, proprietary notices, labels,or
other identifying marks placed by Pendar on the Products or associated packaging,manuals,or other associated
material.
14. Other Governmental Matters. Buyer or its end-user,if any,is solely responsible for obtaining any licenses or other
authorizations required by other federal,state,or local governmental agency. Buyer,or its end-user, if any, is solely
responsible for complying with applicable laws, rules and regulations of any other federal,state,or local government
agency. In all other governmental matters, Pendar is not an agent of Buyer or Buyer's end-user.
15. Limitation of Liability.
(a) IN NO EVENT SHALL PENDAR BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR
PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY,OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT,TORT OR
OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PENDAR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,AND NOTWITHSTANDING THE FAILURE OF ANY
AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL PENDAR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT,TORT,OR OTHERWISE RELATED TO THE
PROVISION OF PRODUCTS HEREUNDER SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO PENDAR FOR
THE PRODUCTS SOLD HEREUNDER. PENDAR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT,WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT,TORT OR OTHERWISE RELATED
TO THE PROVISION OF SERVICES IS FOR THE RE-PERFORMANCE OF SUCH SERVICES ONLY.
(c) The limitation of liability set forth in Section 1 5(a) shall not apply to (i) liability resulting from Pendar's gross
negligence or willful misconduct and (ii) death or bodily injury resulting from Pendar's acts or willful omissions.
16. Intellectual Property Indemnification. If Buyer becomes a defendant in a suit based on a claim that any Product furnished
under this Agreement directly infringes on a U.S. patent or copyright, Buyer shall provide Pendar with prompt notice, in
writing,of the suit. If such prompt notice is provided, Pendar, in its sole discretion,will be given control of the suit and
Buyer shall cooperate with all requested assistance to Pendar for defense. This indemnity does not extend to any suit
based on any infringement or alleged infringement of any patent or copyright resulting from the combination of any
Product furnished under this Agreement with other elements,nor does it extend to any product of Buyer's design or
otherwise.
17. Indemnification. Each party will indemnify,defend and hold the other harmless against all claims,losses, liabilities,
damages and costs(including reasonable attorneys' fees) for death, bodily injury and tangible property damage (other
than damage to the Products) arising out of or resulting from any negligent or intentional act or omission of such party or
any of its employees,agents,contractors or representatives.This indemnity shall only be enforceable provided that: (i) the
party being claimed against shall promptly notify in writing the party who is providing the indemnification of the claim; (ii)
the party who is providing indemnification will have sole control of the defense and all related settlement negotiations;
and (iii)the party being claimed against shall give the party who is providing indemnification all information and
reasonable assistance related to the defense of the claim.
18. Compliance with Laws and Export Control. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer
shall maintain in effect all the licenses, permissions,authorizations,consents,and permits that it needs to carry out its
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obligations under this Agreement. Buyer assumes all responsibility for shipments of Products requiring any government
export clearance. Buyer agrees that it shall not and shall inform its End Users that they may not,in any form export, re-
export, resell,ship or divert or cause to be exported, re-exported,resold,shipped or diverted directly or indirectly any
Products,parts,source code or technical data in any form or a direct product thereof without obtaining appropriate
export or re-export licenses from the respective government authority of the United States of America.
19. Termination. In addition to any remedies that may be provided under these Terms, Pendar may terminate this Agreement
with immediate effect upon written notice to Buyer,if Buyer: (a) fails to pay any amount when due under this Agreement
and such failure continues for ten days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise
performed or complied with any of these Terms, in whole or in part;or(c) becomes insolvent,files a petition for
bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization,
or assignment for the benefit of creditors.
20. Waiver. No waiver by Pendar of any of the provisions of this Agreement is effective unless explicitly set forth in writing
and signed by Pendar. No failure to exercise,or delay in exercising,any right, remedy, power or privilege arising from
this Agreement operates,or may be construed,as a waiver thereof. No single or partial exercise of any right, remedy,
power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
21. Pendar Authorized Representative. Only Pendar authorized representative,Seamus Fogarty may accept or approve
changes to these terms and conditions.
22. Confidential Information. All non-public,confidential or proprietary information of Pendar,including but not limited to,
specifications,samples, patterns,designs, plans,drawings,documents, data, business operations,customer lists,pricing,
discounts,or rebates, disclosed by Pendar to Buyer,whether disclosed orally or disclosed or accessed in written,electronic
or other form or media,and whether or not marked,designated,or otherwise identified as "confidential"or"proprietary"
in connection with this Agreement is confidential,solely for the use of performing this Agreement and may not be disclosed
or copied unless authorized in advance by Pendar in writing. Upon Pendar's request, Buyer shall promptly return all
documents and other materials received from Pendar. Pendar shall be entitled to injunctive relief for any violation of this
Section.This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of
disclosure; or(c) rightfully obtained by Buyer on a non-confidential basis from a third party.
23. Force Majeure. Pendar shall not be liable or responsible to Buyer,nor be deemed to have defaulted or breached this
Agreement,for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such
failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Pendar including,
without limitation, acts of God, flood,fire,earthquake,explosion,governmental actions,war, invasion,or hostilities
(whether war is declared or not),terrorist threats or acts, riot,or other civil unrest,national emergency, revolution,
insurrection,epidemics, pandemics, lockouts,strikes or other labor disputes (whether or not relating to either party's
workforce),or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable
materials,materials or telecommunication breakdown or power outage), provided that,if the event in question continues
for a continuous period in excess of sixty days, Buyer shall be entitled to give notice in writing to Pendar to terminate this
Agreement.
24. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the
prior written consent of Pendar.Any purported assignment or delegation in violation of this Section is null and void. No
assignment or delegation relieves Buyer of any of its obligations under this Agreement.
25. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in
this Agreement shall be construed as creating any agency, partnership,joint venture or other form of joint enterprise,
employment or fiduciary relationship between the parties,and neither party shall have authority to contract for or bind
the other party in any manner whatsoever.
26. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors
and permitted assigns and nothing herein,express or implied,is intended to or shall confer upon any other person or
entity any legal or equitable right, benefit,or remedy of any nature whatsoever under or by reason of these Terms.
27. Governing Law.All matters arising out of or relating to this Agreement are governed by and construed in accordance with
the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or
rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than those of the Commonwealth of Massachusetts.
28. Time for Claim. Except for money due on an open account,no action for breach of this Agreement may be brought more
than two years after the cause of action accrues.Where there is a shorter limitation period provided by applicable law
for a particular cause of action,no action may be brought after that period expires.
6
29. Submission to Jurisdiction.Any legal suit,action,or proceeding arising out of or relating to this Agreement shall be
instituted in the federal courts of the United States of America or the courts of the Commonwealth of Massachusetts in each
case located in the County of Middlesex and each party irrevocably submits to the exclusive jurisdiction of such courts in
any such suit, action,or proceeding.
30. Notices.All notices,requests,consents,claims,demands,waivers,and other communications hereunder (each, a "Notice")
shall be in writing and addressed to the parties at the addresses set forth on the face of the Proposal or to such other
address that may be designated by the receiving party in writing.All Notices shall be delivered by personal delivery,
nationally recognized overnight courier(with all fees pre-paid),facsimile(with confirmation of transmission),or certified or
registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this
Agreement,a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has
complied with the requirements of this Section.
31. Severability. If any term or provision of this Agreement is invalid, illegal,or unenforceable in any jurisdiction,such
invalidity,illegality,or unenforceability shall not affect any other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other jurisdiction.
32. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any
termination or expiration of this Agreement including, but not limited to,the following provisions: Warranty, Limitation of
Liability,Compliance with Laws,Confidential Information,Intellectual Property Indemnification,Indemnification,Governing
Law,Submission to Jurisdiction and Survival.
33. Headings.Section and paragraph headings used in this Agreement are for convenience only and cannot be used to
construe the provisions of this Agreement.
34. Amendment and Modification.These Terms may only be amended or modified in a writing stating specifically that it
amends these Terms and is signed by an authorized representative of each party.
7
Exhibit B Mn
I ON
PENDAR
General Services Administration .-HNOLOGIES
Federal Supply Service
Authorized Federal Supply Schedule Price List
Multiple Award Schedule - MAS
On line access to contract ordering information,terms and conditions,up to date pricing,and the
option to create an electronic delivery order are available through GSA Advantage!®,a menu driven
database system.The INTERNET address GSA Advantage!®is: GSAAdvantage.gov.
Contract Number: 47QSWA20DO08W
Federal Supply Group: Scientific Management and Solutions
FSC/PSC Codes: 6630
For more information on ordering from Federal Supply Schedules go to the GSA Schedules page at GSA.gov.
Contract Period: July 28, 2020 through July 27, 2025
Contractor Name: Penddll f echnologies, LLC
Address: 30 Spinelli PI
Cambridge, MA, 02138
Phone Number: 617-909-5726
Fax Number: 617-463-9154
E-mail: sfogartyPpendar.com
Website: www.pendar.com
Contract Administrator: Seamus J. Fogarty
Business Size: Small Business
Prices Shown Herein are Net(discount deducted)
Pricelist Current Through Modification PO-0001, Effective July 28, 2020
click here to view all clauses for this contract
Contract Number: 47QSWA20DO08W
PENDAR
TECHNOLOGIES
Customer Information
1a.Table of Awarded Special Item Number(s) with appropriate cross-reference to item
descriptions and awarded price(s):
334516/RC/STLOC Analytical Instruments 5
1b.Identification of the lowest priced model number and lowest unit price for that model for each
special item number awarded in the contract. This price is the Government price based on a unit
of one,exclusive of any quantity/dollar volume,prompt payment,or any other concession
affecting price. Those contracts that have unit prices based on the geographic location of the
customer,should show the range of the lowest price,and cite the areas to which the prices apply.
334516/RC/STLOC 500000-01 $6,319.90
1c. If the Contractor is proposing hourly rates a description of all corresponding commercial job
titles,experience,functional responsibility and education for those types of employees or
subcontractors who will perform services shall be provided. If hourly rates are not applicable,
indicate"Not applicable"for this item. N/A
2.Maximum Order:
334516/RC/STLOC $250,000
3.Minimum Order: 1 Unit
4.Geographic Coverage: Domestic Delivery Only
S.Point of production: US
6.Discount from list prices or statement of net price: Prices Shown Herein are Net(discount
deducted).
7. Quantity discounts: None
B.Prompt payment terms: Net 30. Information for Ordering Offices: Prompt payment terms cannot be
negotiated out of the contractual agreement in exchange for other concessions.
9.Foreign items: None
2
Contract Number: 47QSWA20DO08W
FPENDAR
OLOGIES
ime of Delivery:TBD at Task Order
10b.Expedited Delivery: Items available for expedited delivery are noted in this price list.
10c.Overnight and 2-day delivery: Contact Contractor
10d.Urgent Requirements: Please note the Urgent Requirements clause of this contract and contact
Contractor
11.F.O.B Points: Destination
12a. Ordering Address: Pendar Technologies,LLC
Attn: Seamus J. Fogarty
30 Spinelli Place
Cambridge, MA 02138
Phone: 617-909-5726
Fax: 617-463-9154
12b.Ordering procedures: For supplies and services,the ordering procedures,information on
Blanket Purchase Agreements (BPA's) are found in Federal Acquisition Regulation (FAR) 8.405-3.
13.Payment address: Pendar Technologies, LLC
Attn:Accounts Receivable
30 Spinelli Place
Cambridge, MA 02138
Phone: 617-909-5726
Fax: 617-463-9154
Email: sfogarty(a pendar.com
14.Warranty provision: Standard Commercial Warranty
15.Export Packing Charges (if applicable): N/A
16.Terms and conditions of rental,maintenance,and repair: N/A
17.Terms and conditions of installation: N/A
18a.Terms and conditions of repair parts indicating date of parts price lists and any discounts
from list prices: N/A
18b.Terms and conditions for any other services: N/A
19.List of service and distribution points: N/A
20.List of participating dealers: N/A
21. Preventive maintenance: N/A
3
Contract Number: 47QSWA20DO08W
PENDAR
TECHNOLOGIES
22a.Special attributes such as environmental attributes(e.g.,recycled content,energy efficiency,
and/or reduced pollutants): None.
22b.If applicable,indicate that Section 508 compliance information is available on Electronic and
Information Technology(EIT) supplies and services and show where full details can be found (e.g.
contractor's website or other location.) The EIT standards can be found at:www.Section508.gov/.
23.Unique Entity Identifier (UEI)number: 969569131
24. Notification regarding registration in System for Award Management(SAM) database:
Pendar Technologies, LLC is registered in the SAM Database
4
Contract Number: 47QSWA20DO08W
PENDAR
TECHNOLOGIES
Approved GSA Price List
Part Product Name Product Description U01 GSA Price
Number
At a standoff distance of up to 3 feet,Pendar X10 is a
portable handheld Raman spectrometer that enables
rapid identification of hazardous chemicals including
100001-02 Pendar X10 highly fluorescent, dark, and sensitive materials. By EA $63,198.99
increasing measurement distance and strongly reducing
the risks of laser-induced explosion and eye damage,
Pendar X10 offers new levels of safety, accuracy,and
speed in the field. Price includes One (1)year warranty.
Pendar X10 Year Additional 1 Year Extended Warranty for Pendar X10
500000-01 2 Warranty Note: Not for standalone purchase. Must be purchased 1 Year $6,319.90
in addition to part number"100001-02"
Pendar X10 Year Additional 1 Year Extended Warranty for Pendar X10
500000-02 Note:Not for standalone purchase. Must be purchased in 1 Year $6,319.90
3 Warranty addition to part number"500000-01"
5
Exhibit C
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
For vendor doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. OFFICE USE ONLY
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who Date Received
has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the
vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local governmental entity not later
than the 7th business day after the date the vendor becomes aware of facts that require the statement to be
filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An
offense under this section is a misdemeanor.
jJ Name of vendor who has a business relationship with local governmental entity.
Pendar Technologies, LLC
2
❑ Check this box if you are filing an update to a previously filed questionnaire.(The law requires that you file an updated
completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which
you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 Name of local government officer about whom the information is being disclosed.
N/A
Name of Officer
4 Describe each employment or other business relationship with the local government officer, or a family member of the
officer,as described by Section 176.003(a)(2)(A). Also describe any family relationship with the local government officer.
Complete subparts A and B for each employment or business relationship described. Attach additional pages to this Form
CIO as necessary.
A. Is the local government officer or a family member of the officer receiving or likely to receive taxable income,
other than investment income, from the vendor?
Yes F-1 No
B. Is the vendor receiving or likely to receive taxable income,other than investment income,from or at the direction
of the local government officer or a family member of the officer AND the taxable income is not received from the
local governmental entity?
Yes F-1 No
5 Describe each employment or business relationship that the vendor named in Section 1 maintains with a corporation or
other business entity with respect to which the local government officer serves as an officer or director,or holds an
ownership interest of one percent or more.
None
s
ElCheck this box if the vendor has given the local government officer or a family member of the officer one or more gifts
as described in Section 176.003(a)(2)(B), excluding gifts described in Section 176.003(a-1).
71 Seamus Digitally signed by Seamus
Fogarty:A0109B300000173B6293A B4garty:A0109B300000173B6293 A4F0001 B6
4F0001 B6B4 Date:2021.09.17 10:40:39-04'00' 14-S E P-2021
Signature of vendor doing business with the governmental entity Date
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
Acomplete copy of Chapter 176 of the Local Government Code maybe found at http://www.statutes.legis.state.tx.us/
Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form.
Local Government Code 4 176.001(1-a): "Business relationship"means a connection between two or more parties
based on commercial activity of one of the parties. The term does not include a connection based on:
(A) a transaction that is subject to rate or fee regulation by a federal,state,or local governmental entity or an
agency of a federal, state,or local governmental entity;
(B) a transaction conducted at a price and subject to terms available to the public;or
(C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and
that is subject to regular examination by, and reporting to, that agency.
Local Government Code§176.003(a)(2)(A)and(B):
(a) A local government officer shall file a conflicts disclosure statement with respect to a vendor if:
(2) the vendor:
(A) has an employment or other business relationship with the local government officer or a
family member of the officer that results in the officer or family member receiving taxable
income, other than investment income, that exceeds $2,500 during the 12-month period
preceding the date that the officer becomes aware that
(i) a contract between the local governmental entity and vendor has been executed;
or
(ii) the local governmental entity is considering entering into a contract with the
vendor;
(B) has given to the local government officer or a family member of the officer one or more gifts
that have an aggregate value of more than$100 in the 12-month period preceding the date the
officer becomes aware that:
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor.
Local Government Code 4 176.006(a)and (a-1)
(a) Avendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship
with a local governmental entity and:
(1) has an employment or other business relationship with a local government officer of that local
governmental entity,or a family member of the officer,described by Section 176.003(a)(2)(A);
(2) has given a local government officer of that local governmental entity, or a family member of the
officer,one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B),excluding any
gift described by Section 176.003(a-1);or
(3) has a family relationship with a local government officer of that local governmental entity.
(a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator
not later than the seventh business day after the later of:
(1) the date that the vendor:
(A) begins discussions or negotiations to enter into a contract with the local governmental
entity; or
(B) submits to the local governmental entity an application, response to a request for proposals
or bids, correspondence, or another writing related to a potential contract with the local
governmental entity;or
(2) the date the vendor becomes aware:
(A) of an employment or other business relationship with a local government officer, or a
family member of the officer,described by Subsection (a);
(B) that the vendor has given one or more gifts described by Subsection (a);or
(C) of a family relationship with a local government officer.
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015