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CM-2023-305 - 12/15/20234885-6900-4437/ss2 CITY OF ROUND ROCK AGREEMENT FOR PURCHASE OF ANNUAL SUPPORT AND PREVENTATIVE MAINTENANCE PLAN FOR WIRELESS TRAFFIC COMMUNICATIONS SYSTEM WITH ALPHA OMEGA WIRELESS, INC. THE STATE OF TEXAS § § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: § COUNTY OF WILLIAMSON § COUNTY OF TRAVIS § THIS AGREEMENT (referred to herein as the “Agreement”), is for purchase of annual support and preventative maintenance plan for the City of Round Rock’s Wireless Traffic Communications System, and related goods services, and is made on the ____ day of the month of _______________, 2023, by and between the CITY OF ROUND ROCK, a Texas home-rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as “City”), and ALPHA OMEGA WIRELESS, INC., whose offices are located at 8707 South Congress, Suite B260, Austin, Texas 78745 (referred to herein as “Vendor”). This Agreement supersedes and replaces any previous agreements between the named parties, whether oral or written, and whether or not established by custom and practice. RECITALS: WHEREAS, City has determined that there is a need for the delineated goods and services; and WHEREAS, Section 252.022(4) of the Texas Local Government Code states that expenditures for items available for only one source are exempt from competitive bidding requirements; and WHEREAS, Vendor is the sole source provider of the goods and services being purchased pursuant to this Agreement; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 18th December CM-2023-305 2 1.01 DEFINITIONS A.Agreement means the binding legal contract between City and Vendor whereby City is obligated to buy specified goods and Vendor is obligated to sell same. The Agreement includes any exhibits, addenda, and/or amendments thereto. B.City means the City of Round Rock, Williamson and Travis Counties, Texas. C.Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D.Force Majeure means acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government and the people, civil disturbances, explosions, or other causes not reasonably within the control of the party claiming such inability. E.Goods mean the specified supplies, materials, commodities, or equipment. F.Services mean work performed to meet a demand or effort by Vendor to comply with promised delivery dates, specifications, and technical assistance specified. G.Vendor means Alpha Omega Wireless, Inc., or any of its corporate structures, successors or assigns. 2.01 EFFECTIVE DATE AND TERM A.This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated as provided herein. B.The term of this Agreement shall be for thirty-six (36) months from the effective date hereof. C.City reserves the right to review the relationship at any time, and may elect to terminate with or without cause or may elect to continue. 3.01 CONTRACT DOCUMENTS AND EXHIBITS The goods and services which are the subject matter of this Agreement are described in Exhibit “A,” incorporated herein by reference for all purposes, which together with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as if repeated herein in full. 3 4.01 SCOPE OF WORK A.The goods and services subject to this Agreement are set forth in the attached Exhibit “A.” B.Vendor shall satisfactorily provide all services described under the attached exhibits within the contract term specified in Section 2.01. Vendor’s undertakings shall be limited to performing services for the City and/or advising City concerning those matters on which Vendor has been specifically engaged. Vendor shall perform its services in accordance with this Agreement, in accordance with the appended exhibits, in accordance with due care, and in accordance with prevailing industry standards for comparable services. 5.01 COSTS The City shall be authorized to pay the Vendor an amount not-to-exceed Twenty-Two Thousand Five Hundred and No/100 Dollars ($22,500.00) for the term of this Agreement. 6.01 INVOICES All invoices shall include, at a minimum, the following information: A.Name and address of Vendor; B.Purchase Order Number; C.Description and quantity of items received; and D.Delivery dates. 7.01 NON-APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City’s current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City’s budget for the fiscal year in question. City may affect such termination by giving Vendor a written notice of termination at the end of its then-current fiscal year. 8.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by City to Vendor will be made within thirty (30) days of the date City receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date City receives a correct invoice for the goods or services, whichever is later. Vendor may charge interest on an overdue payment at the “rate in effect” on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas 4 Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by City if: A. There is a bona fide dispute between City and Vendor, a contractor, subcontractor, or supplier about goods delivered or the service performed that causes the payment to be late; or B. There is a bona fide dispute between Vendor and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or C. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or D. The invoice is not mailed to City in strict accordance with any instruction on the purchase order relating to the payment. 9.01 GRATUITIES AND BRIBES City may, by written notice to Vendor, cancel this Agreement without incurring any liability to Vendor if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by Vendor or its agents or representatives to any City officer, employee or elected representative with respect to the performance of this Agreement. In addition, Vendor may be subject to penalties stated in Title 8 of the Texas Penal Code. 10.01 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in Vendor’s charges. 11.01 INSURANCE Vendor shall meet all insurance requirement set forth on the City’s website at: https://www.roundrocktexas.gov/wp-content/uploads/2014/11/CORR-Insurance-07.2011.pdf 12.01 CITY’S REPRESENTATIVE City hereby designates the following representative(s) authorized to act in its behalf with regard to this Agreement: 5 Clay Ericson, Assistant Superintendent Transportation Department 3400 Sunrise Road Round Rock, TX 78665 (512)341-3185 cericson@roundrocktexas.gov 13.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party’s intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 14.01 DEFAULT If Vendor abandons or defaults hereunder and is a cause of City purchasing the specified services elsewhere, Vendor agrees that it will not be considered in the re-advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. Vendor shall be declared in default of this Agreement if it does any of the following: A.Fails to make any payment in full when due; B.Fails to fully, timely and faithfully perform any of its material obligations hereunder; C.Fails to provide adequate assurance of performance under the “Right to Assurance” section herein; or D.Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 15.01 TERMINATION AND SUSPENSION A.City has the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days’ written notice to Vendor. B.In the event of any default by Vendor, City has the right to terminate this Agreement for cause, upon ten (10) days’ written notice to Vendor. C.Vendor has the right to terminate this Agreement only for cause, in the event of material and substantial breach by City, or by written mutual agreement to terminate. D.In the event City terminates under subsections (A) or (B) of this section, the following shall apply: Upon City’s delivery of the referenced notice to Vendor, Vendor shall 6 discontinue all services in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after notice of termination, Vendor shall submit a statement detailing the goods and/or services satisfactorily performed under this Agreement to the date of termination. City shall then pay Vendor that portion of the charges, if undisputed. The parties agree that Vendor is not entitled to compensation for services it would have performed under the remaining term of the Agreement except as provided herein. 16.01 INDEMNIFICATION Vendor shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney’s fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Vendor, or Vendor’s agents, employees or subcontractors, in the performance of Vendor’s obligations under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or Vendor (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 17.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES A.Vendor, its agents, employees and subcontractors shall use best efforts to comply with all federal and state laws, City’s Charter and Ordinances, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. B.In accordance with Chapter 2271, Texas Government Code, a governmental entity may not enter into a contract with a company for goods or services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel and will not boycott Israel during the term of this contract. The signatory executing this Agreement on behalf of Vendor verifies Vendor does not boycott Israel and will not boycott Israel during the term of this Agreement. 18.01 ASSIGNMENT AND DELEGATION The parties hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 19.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: A.When delivered personally to recipient’s address as stated in this Agreement; or 7 B.Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient’s address as stated in this Agreement. Notice to Vendor: Alpha Omega Wireless, Inc. 8707 South Congress Avenue, Suite B260 Austin, TX 78745 Notice to City: City Manager Stephanie L. Sandre, City Attorney 221 East Main Street AND TO: 309 East Main Street Round Rock, TX 78664 Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Vendor. 20.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 21.01 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between City and Vendor. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing, duly authorized by action of the City Manager or City Council. 22.01 DISPUTE RESOLUTION City and Vendor hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 23.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any such void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions hereof shall not prevent this entire Agreement from being void should a provision that is of the essence of this Agreement be determined to be void. 24.01 MISCELLANEOUS PROVISIONS Standard of Care. Vendor represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed in a manner according to generally accepted industry practices. Time is of the Essence. Vendor understands and agrees that time is of the essence and that any failure of Vendor to fulfill obligations for each portion of this Agreement within the agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Vendor’s failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City’s additional legal rights or remedies. Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. [Signatures on the following page.] IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates indicated. City of Round Rock, Texas Alpha Omega Wireless, Inc. By: _____________________________ By: _______________________________ Printed Name: ____________________ Printed Name: ______________________ Title: ___________________________ Title: _____________________________ Date Signed: _____________________ Date Signed: ________________________ For City, Attest: By: _____________________________ Meagan Spinks, City Clerk For City, Approved as to Form: By: _______________________________ Stephanie L. Sandre, City Attorney Joe Pisano Regional Sales Manager Joe Pisano 12/06/2023 City Manager Laurie Hadley 12/18/2023 Product & Services Agreement City of Round Rock Attention: City of Round Rock 221 E. Main Street Round Rock, TX 78664 Date 09/18/2023 Valid To 12/17/2023 Quote Number CRR2024WS - 2024 PM Support Alpha Omega Wireless, Inc. 8708 S. Congress Ave Suite B260 Austin, TX 78745 Alpha Omega Wireless is providing the following prices for product and/or services listed below as a budgetary statement. For a complete Statement of Work and complete build of materials list, a site survey must be performed. Costs Quantity Rate Amount Annual Support & Maintenance - Silver NOTE: Pricing discounted for City of Round Rock based on number of links Also included is maintenance for the WiMax equipment installed by AO Wireless as part of the project of six SAF links installations. Service Dates: Year 1: 10/1/2023 - 9/30/2024 Year 2: 10/1/2024 - 9/30/2025 Year 3: 10//1/25 - 9/30/26 3 Year Term invoiced annually @ $7,500 each year. 1.00 7,500.00 7,500.00 Subtotal 7,500.00 Taxable 0.00 Total 7,500.00 ***CONFIDENTIAL*** Exhibit "A" Annual Maintenance and Support Alpha Omega Wireless offers to its clients an annual maintenance and support program at various levels to suit our clients’ needs. This service is in addition to any Extended Warranty plans by the manufacture for equipment failure. This service includes on call support and annual recertification of each link. Exhibit "A" Exhibit "A"