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CM-2019-0262 - 8/30/2019CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES RELATED TO THE "GO ROUND ROCK" ADVERTISING CAMPAIGN WITH AJR MEDIA GROUP THE STATE OF TEXAS § THE CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS COUNTY OF WILLIAMSON § THIS AGREEMENT for professional consulting services related to a "Go Round Rock" Advertising Campaign (hereinafter referred to as the "Agreement") is made by and between the CITY OF ROUND ROCK, a Texas home -rule municipal corporation with offices located at 221 East Main Street, Round Rock, Texas 78664-5299, (the "City") and AJR MEDIA GROUP, located at 25132 Oakhurst Drive, ##201, Spring, TX 77386 (hereinafter the "Consultant"). RECITALS: WHEREAS, professional services related to the "Go Round Rock" Advertising Campaign are desired by the City (the "Project"); and WHEREAS, City has determined there is a need for the delineated services; and WHEREAS, City desires to enter into an Agreement with Consultant for professional consulting services for the Project; 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: 1.0 EFFECTIVE DATE; 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 for twelve (12) months from the effective date. B. City reserves the right to review the Agreement at any time, and may elect to terminate the Agreement with or without cause pursuant to Section 9.0. 0 4Q 3oio5-52�C� �2co2 2.0 SCOPE OF SERVICES A. Consultant has issued its proposal for services, such proposal being attached to this Agreement as Exhibit "A" titled "Scope of Services," which shall be referred to as the Scope of Services of this Agreement and incorporated herein by reference for all purposes. B. Consultant shall satisfactorily provide all services and deliverabIcs described under the referenced Scope of Services within the contract term specified in Section 1.0. Consultant shall perform its services in a professional and workmanlike manner. C. Consultant shall not undertake work that is beyond the Scope of Services set forth in Exhibit "A." However, either party may make written requests for changes to the Scope of Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described in Section 4.0 hereof. 3.0 CONTRACT AMOUNT In consideration for the professional co suiting services to be performed by Consultant, City agree to pay Consultant an amount n to -exceed Forty -Five Thousand and No/100 Dollars ($45,000.00). This amount represents the absolute limit of City's liability to Consultant hereunder unless same shall be changed by Supplemental Agreement, and City shall pay, strictly within the not -to -exceed sum recited herein, Consultant's professional fees for work done on behalf of City. This amount includes all reimbursable expenses, including travel costs, if applicable. 4.0 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or by the City Manager, if City determines that there has been a significant change in (1) the scope, complexity, or character of the services to be performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. Consultant shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. 5.0 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment, Consultant shall prepare and submit a series of monthly detailed invoices to City for services rendered. Each invoice for professional services shall detail the service performed, along with documentation. All payments to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by City. V, Should additional backup material be requested by City, Consultant shall comply promptly. In this regard, should City determine it necessary, Consultant shall make all records and books relating to this Agreement available to City for inspecting and auditing. If City has any dispute with work performed, then then City shall notify Consultant within thirty (30) days after receipt of invoice. In the event of any dispute regarding the work performed, then and in that event Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide City with an appropriate credit. Payment of Invoices: City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of an invoice, City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 8.0 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which arc late because of a good faith dispute between Consultant and City or because of amounts which City has a right to withhold under this Agreement or state law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. 6.0 INSURANCE Consultant shall meet all City of Round Rock Insurance Requirements set forth at: https:,i%%-%vw_rotindrocktcxas.,aovhvp-content/uploads/2014/12/corr insurance 07_20112.odf 7.0 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 effect such termination by giving Consultant a written notice of termination at the end of its then -current fiscal year. 8.0 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by City to Consultant 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 convect invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the `Yate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by City in the event: (a) There is a bona fide dispute between City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or 3 (b} There is a bona fide dispute between Consultant 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. 9.0 TERMINATION This Agreement may be terminated for any of the following conditions: (l) By City for reasons of its own, with or without cause, and not subject to the mutual consent of any other party, provided a written termination notice is given to Consultant not less than thirty (30) days prior to termination. (2) By mutual agreement and consent of the parties, provided such agreement is in writing. (3) By either party for failure by the other to perform the services set forth herein in a satisfactory manner, provided such notice is given to the other party in writing. (4) By either party for failure by the other party to fulfill its obligations herein. (5) By satisfactory completion of all services and obligations described herein. Should City terminate this Agreement as herein provided, no fees other than fees due and payable at the time of termination shall thereafter be paid to Consultant. City shall pay Consultant for all uncontested services performed to date of notice of termination. If City terminates this Agreement for default on the part of the Consultant, then City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to City, the cost to City of employing another firm to complete the useable work, and other factors will affect the value to City of the work performed at the time of default. The termination of this Agreement and payment of an amount in settlement as set forth above shall extinguish all rights, duties, and obligations of City and the Consultant to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to cancellation. 4 10.0 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership, employer-employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and City agree to the following rights consistent with an independent contractor relationship: (1) Consultant has the right to perform services for others during the term hereof (2) Consultant has the sole right to control and direct the means, manner and method by which it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and City shall not hire, supervise, or pay assistants to help Consultant. (5) Neither Consultant nor its employees or subcontractors shall receive training from City in skills necessary to perform services required by this Agreement. (b) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. (7) Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City. 11.0 NON -SOLICITATION All parties agree that they shall not directly or indirectly solicit for employment, employ, or otherwise retain staff of the other during the term of this Agreement. 12.0 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by the City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. 5 The parties recognize and understand that the City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to the City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party's prior written consent, which consent shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees of the confidential nature of the Confidential Information and of the prohibitions herein. Notwithstanding anything to the contrary contained herein, neither party shall be obligated to treat as confidential any information disclosed by the other party (the "Disclosing Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other with prompt written notice and allows the other party to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other with prompt written notice and allows the other party to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Neither the City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, the City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than Deliverables). Consultant shall have the right to retain copies of the Deliverables and other items for its archives. ConsuItant's working papers and Consultant's Confidential Information (as described herein) shall belong exclusively to the Consultant. "Working papers" shall mean those documents prepared by Consultant during the course of performing the Project including, without limitation, schedules, analyses, transcriptions, memos, designed and developed data visualization dashboards and working notes that serve as the basis for or to substantiate the Project. In addition, Consultant shall retain sole and exclusive ownership of its know-how, concepts, techniques, methodologies, ideas, templates, dashboards, code and tools discovered, created or developed by Consultant during the performance of the Project that are of general application and that are not based on City's Confidential Information hereunder (collectively, "Consultant's Building Blocks"). To the extent any Deliverables incorporate Consultant's Building Blocks, Consultant gives City a non- exclusive, non -transferable, royalty -free right to use such Building Blocks solely in connection with the deliverables. Subject to the confidentiality restrictions mentioned above, Consultant may use the deliverables and the Building Blocks for any purpose. Except to the extent required by law or court order, City will not otherwise use, or sublicense or grant any other party any rights to use, copy or otherwise exploit or create derivative works from Consultant's Building Blocks. City shall have a non-exclusive, non -transferable license to use ConsuItant's Confidential Information for City's own internal use and only for the purposes for which they are delivered to the extent that they form part of the Deliverables. 13.0 WARRANTIES Consultant warrants that all services performed shall be performed consistent with generally prevailing professional or industry standards, and be performed in a professional and workmanlike manner. Consultant shall re -perform any work no in compliance with this warranty. 14.0 INDEMNIFICATION Consultant agrees to hold harmless, exempt, and indemnify City, its officers, agents, directors, servants, representatives and employees, from and against any and all suits, actions, legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and claims of any character, type, or description, including but not limited to any and all expenses of litigation, court costs, attorneys' fees and all other costs and fees incident to any work done as a result hereof. 7 To the extent allowable by law, City agrees to hold harmless, exempt, and indemnify Consultant, its officers, agents, directors, servants, representatives and employees, from and against any and all suits, actions, legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and claims of any character, type, or description, including but not Iimited to any and all expenses of litigation, court costs, attorneys' fees and all other costs and fees incident to any work done as a result hereof 15.0 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party may assign any rights or delegate any duties under this Agreement without the other party's prior written approval, which approval shall not be unreasonably withheld. 16.0 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. City will not do the following: (1) Withhold FICA from Consultant's payments or make FICA payments on its behalf; (2) Make state and/or federal unemployment compensation contributions on Consultant's behalf; or (3) Withhold state or federal income tax from any of Consultant's payments. If requested, City shall provide Consultant with a certificate from the Texas State Comptroller indicating that City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 17.0 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES A. Consultant, its consultants, agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to City at the expiration of the term of this Agreement. B. In accordance with Chapter 2270, Texas Government Code, a governmental entity may not enter into a contract with a company for goods and services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of a contract. The signatory executing this Agreement on behalf of Consultant verifies Consultant does not boycott Israel and will not boycott Israel during the term of this Agreement. 8 18.0 FINANCIAL INTEREST PROHIBITED Consultant covenants and represents that Consultant, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required hereunder. 19.0 DESIGNATION OF REPRESENTATIVES City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Nancy Yawn Convention and Visitors Bureau Director City of Round Rock 231 East Main Street Round Rock, TX 78664 Consultant hereby designates the following representative authorized to act in its behalf with regard to this Agreement: 20.0 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (1) When delivered personally to recipient's address as stated herein; or (2) 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 Consultant: AJR Media Group 25132 Oakhurst Drive, #201 Spring, TX 77386 Notice to City: City Manager, City of Round Rock 221 East Main Street Round Rock, TX 78664 9 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 21.0 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 alI of the terns 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 Texas. 22.0 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 23.0 DISPUTE RESOLUTION City and Consultant 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 Iimitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 24.0 FORCE MAJEURE Notwithstanding any other provisions hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war, insurrection, riots, fres, floods, explosion, theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Consultant shall not be deemed to be in default of its obligations to City if its failure to perform or its substantial delay in performance is due to City's failure to timely provide I0 requested information, data, documentation, or other material necessary for Consultant to perform its obligations hereunder. 25.0 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any 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 of 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 of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 26.0 STANDARD OF CARE Consultant represents that it is specially trained, experienced and competent to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed, whether by Consultant or designated subconsultants, in a manner acceptable to City and according to generally accepted business practices. 27.0 GENERAL AND MISCELLANEOUS The section numbers and headings contained herein arc provided for convenience only and shall have no substantive effect on construction of this Agreement. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. This Agreement may be executed in multiple counterparts, which taken together shall be considered one original. City agrees to provide Consultant with one fully executed original. [Signatures appear on the following page.] IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Round Rock, Texas AJR Media Group By: Printe Title: Date c For City, Attest: Sara L. White, City Cl. 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O m rn z C m CL mm m n ,� aDo CL s ? m u a b ifl p 0 O p O a m 3 m cQ v M ID r s Gi m n mm nom, R 3„ -, m RO T a. O' 7 C m tv ro° 3 3 o a — sfl a o 'a a m sa 3 so. b° -0 a 5" a 3 m - nom—, - o '° T � c a Q c F N a m b m a s a d a C T N Uk N n`, % �• a q 01 rn�o Asn _ m m en m a b m �• rD ro `0 s 0 to n, ,p a• � fD � pT! 1 0 3 n a m x, ' o, m a s sa m p `� D a_ m a p m " �' a 7 O N vii W d mfu CL C2. n sv m bcr Fn cu n' j ro - fl- � ^ p_ "O viix m 3lQ OL Q 0, G O n 'm rL O O m 7 cr rD Q d cr Q r0 O Z a to m n -i 1 D CL j 7f i 3 CD O 0 n O .i O �C 3 CD 0 - FO LO O c 0 n O 3 0 w w `0 z D n m x E r- 1TECity of Round Rock XROCK Agenda Item Summary Agenda Number: Title: Consider executing a Professional Consulting Services Agreement with AJR Media Group for services related to the "Go Round Rock" advertising campaign. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 8130/2019 Dept Director: Chad Mckenzie Cost: $45,000.00 Indexes: Hotel Occupancy Tax Fund Attachments: CMAF AJR Media Group 2019, AJR Media Group 2019 Docs Department: Sports Management and Tourism Text of Legislative Fife CM -2019-0262 Contract approval request for the City of Round Rock Convention and Visitors Bureau desires to enter into an Agreement with AJR Media Group for professional consulting services for the project relating to "Go Round Rock" advertising campaign. Cost: $45,000.00 Source of Funds: HOT Funds City of Round Rack Page f Pdafed on 8129/2018