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HomeMy WebLinkAboutContract 56138 CSC No.56138 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND PENGUIN RANDOM HOUSE LLC ON BEHALF OF DAN BARBARISI TO PERFORM FOR THE FORT WORTH PUBLIC LIBRARY This PERFORMANCE AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and Penguin Random House Speaker's Bureau, a division of Penguin Random House LLC, a renowned Publishing Company ("Publisher") acting as booking agent to Dan Barbarisi ("Author"). WHEREAS, the City is sponsoring an online,virtual author visit for the Fort Worth Public Library ("Event") on September 23,2021;and WHEREAS,Publisher,acting only in its capacity as booking agent for Author,the author of "Chasing the Thrill",has arranged for Author to participate in the Event to help promote literacy and interest in reading and writing; and WHEREAS,City wishes to contract with the Publisher for Author to participate in an online, virtual artist visit,which includes participation in a question and answer session; and WHEREAS,the Parties agree that the City is retaining the services of Author,not Publisher. Publisher only has authority to negotiate and sign on Author's behalf and to handle payments from City in connection with the Event. The Parties acknowledge and agree that Publisher shall not be responsible in any way for Authors'acts,omissions,statements or any commitments made by Speaker or Sponsor. NOW,THEREFORE,the City and the Publisher,for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: I. TIME AND PLACE OF PERFORMANCE 1. Publisher will arrange for Author to appear online and speak about his writing and participate in a question and answer session ("Performance") with the audience at 7 p.m. CT on September 23, 2021, ("Performance Date") for the Fort Worth Public Library. 2. The Parties mutually agree to allow for the public attendance to include online patrons,given that online patrons join through a password secure link through a secure invitation. 3. Either party may request that the Performance be reschedule for any reason with thirty days written notice to the other party. If the Performance is rescheduled, for any reason, the parties agree to execute an amendment to this Agreement setting forth the rescheduled Performance date. If the Parties are unable to come to an Agreement on a rescheduled performance date, or if Performance cannot occur on the rescheduled performance date based on the Publisher's or Author's schedule, and the Parties do not agree to reschedule the Performance for a new date,then the City may terminate this Agreement without penalty and Author shall fully refund any and all deposits paid to the Author OFFICIAL RECORD AGREEMENT between the City of Fort Worth,TX CITY SECRETARY and Penguin Random House FT. WORTH, TX by the City within thirty(30)days of written request.The Parties shall use good faith efforts to mutually determine the rescheduled Performance Date. II. COMPENSATION 1. As fair compensation for the services provided by the Author at the Performance on the Performance Date to City under this Agreement, City shall pay the Publisher on behalf of the Author a total amount of one thousand dollars ($1,000.00). City shall pay the Publisher a deposit in the amount of five hundred dollars ($500.00) within 30 days of execution of this Agreement and Publisher registering as a vendor in the City's system,which shall be applied toward the total amount to be paid to Publisher under this Agreement. The remaining balance shall be paid to Publisher within thirty (30) days of the Performance Date. 2. In no event shall City be required to pay any amount in excess of one thousand dollars ($1,000.00) for the Performance or any service or act done pursuant to or in connection with this Agreement. 4. The Parties agree that the City shall not be liable for any payment, cost, or fee of any kind directly to Author. III. PUBLISHER'S OBLIGATIONS 1. Publisher agrees to ensure that Author log-ins for the online Performance no later than 7:00 p.m. ("Performance Time") on the Performance Date unless the Performance Time is mutually changed by both Parties in writing.In the event that Author will not be able to log-in by the designated Performance Time on the Performance Date, the Publisher or its agent, including Author, shall contact Jennifer Demas at 682-287-4306 as soon as the Author is aware of such delay. 2. The Publisher shall ensure that Author is present online to speak about his writing and participate in a question and answer session with the audience at the Performance. 3. The Publisher shall sign up as an official City vendor via the City of Fort Worth website. The Publisher is required to register as an official City vendor in order to receive payment. The deposit and final payment cannot be made until registration has been completed. The Publisher will provide pertinent payment remit information to the City when registering online. 4. The Publisher will provide invoices to the City for the deposit and final payment. 5. The Publisher shall provide all personnel necessary to facilitate the safe and enjoyable participation by the public at the Performance. AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 2 of 13 IV. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed by City pursuant to this Agreement. 2. City will provide the necessary access and licenses to host the Performance online. City will provide log-in information to the Author prior to the Performance Date. 3. The City agrees that no additional appearances or activities shall be expected of the Author unless expressly contained as a part of this Agreement or mutually agreed to later in writing. The Fee is understood to be solely for the Event as specified in this Agreement. V. DUTY TO PERFORM/FORCE "EURE 1. In the event or circumstance of Force Majeure that is beyond the reasonable control of that party,without such party's fault or negligence, and which by its nature could not have been foreseen by such party on or near the day of the Performance,neither Party shall be held liable for delaying the Performance. Acts of Force Majeure shall include,without limitation, severe weather events such as hurricanes,tornadoes, floods,ice storms,or hail,and disasters such as fires,acts of public enemy,acts of superior governmental authority, epidemics, pandemics, riots, rebellion, sabotage, or any similar circumstances not within the reasonable control of either party. Neither City nor Publisher shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure.The terms of this clause shall not exempt,but merely suspend,any Party from its duty to perform the obligations under this Agreement until as soon as practicable after the Force Majeure condition ceases to exist. For the avoidance of doubt, in the event that a Party is unable, due to a Force Majeure condition, from performing its obligations on the Event Date,the foregoing Clause requires the Parties to make good faith efforts to reschedule the Event on a date to be mutually agreed. If the Performance is not rescheduled within ninety (90) days, the Publisher shall fully refund any and all deposits paid to the Publisher by the City within thirty days of written request from the City. 2. In the event that the Author is unable to perform,as described herein,due to sickness,accident or other conditions beyond the control of the Author then Publisher shall fully refund any and all deposits paid to the Publisher by the City within thirty (30) days of written request. VI. PERMISSION TO USE PHOTOGRAPHS & VIDEOS OR FILMS It is understood and agreed that without the express written consent of Publisher, which may be withheld in their sole discretion (a) Author's name and likeness may not be used in connection with any endorsements of products or services. If permission of the audio and/or video recording of the Event for Author's private and/or archival purposes is given,(i)a copy of any video or audio recording must be sent to Publisher and (ii) the Speaker shall retain all intellectual property rights in the portion of the Event in which the Speaker appears,notwithstanding such permission. In addition,the Speaker reserves the right to audio-and/or videotape the portion of the Event in which they appear, in their discretion. AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 3 of 13 By eftfer-i�iftfa this Agreeffiefif,the Publisher afid the Author hereby give gieif liffiifed Pefn4S__*___ postiftg oft aft offieial web site or pttffi�oft > > VII. INDEPENDENT CONTRACTOR The Publisher shall operate under this Agreement as an independent contractor and not as an officer, agent, servant, or employee of City. The Publisher shall have the exclusive right to control the details of the Performance. City shall have no right to exercise any control over or to supervise or regulate the Publisher or its agents, including Author, in any way other than stated herein. The doctrine of Respondeat Superior shall not apply as between the parties, and nothing herein shall be construed as creating a partnership or joint enterprise between the parties. VIII. TERM AND TERMINATION 1. This Agreement shall begin upon execution by both Parties and shall continue in full force and effect until AuVsf 31, November 1, 2021, unless terminated earlier in accordance with this Agreement. 2. The City shall have the right to terminate this Agreement for any reason by providing written notice to Publisher in accordance with this agreement and subject to subsection 4 of this Section VIII. 3. This Agreement may also be terminated at any time by the City for cause or material breach and upon notice to the Publisher. In the event either party materially breaches this Agreement and such breach is not cured to the reasonable satisfaction of the non-breaching party within thirty (30) days after the non- breaching party serves written notice of the default upon the defaulting party (the "Default Notice"), the non-breaching party may terminate this Agreement. Failure by Author to appear at the Performance Site on the Performance Date as required herein shall not be subject to a cure period and shall result in the immediate termination of this Agreement and Publisher shall refund all amounts paid by City within thirty (30) days. 4. If the City terminates this Agreement pursuant to section two of this section VIII with notice sixty (60) days or more prior to the Event Date,City shall not owe any compensation to the Publisher and Publisher shall refund any deposits paid within thirty(30) days of the notice.If the City terminates this Agreement pursuant to section two of this section VIII,with notice less than sixty (60) days and more than thirty (30) days prior to the Event Date, the deposit of $2,500.00 shall be forfeited to Publisher but no additional compensation shall be owed. If City terminates this Agreement pursuant to section two of this section VIII thirty (30) days or less prior to the Agreement, full payment will be due and payable within thirty days of the notice to Publisher. If this Agreement is terminated pursuant to section three of this section VIII, City shall not owe any compensation to the Publisher and Publisher shall refund any deposits paid within thirty days of the notice. 5. So long as at least thirty days' notice was provided, notice that the event is to be rescheduled or termination by City due to inability to agree on a rescheduled performance date as described in AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 4 of 13 Section I(3) above shall not be deemed "termination" for the purposes of this section VIII, and the terms of repayment listed in section I(3) shall control. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. EACH PARTY SHALL BE LIABLE FOR ITS OWN ACTS, OMMISSIONS, OR ERRORS AND THE ACTS, OMMISSIONS, OR ERRORS OF ITS EMPLOYEES, AGENTS, OR OFFICERS. NEITHER PARTY SHALL BE LIABLE FOR THE ACTS, OMMISSIONS, OR ERRORS OF THE OTHER PARTY OR THE OTHER PARTY'S EMPLOYEES,AGENTS, OR OFFICERS.LIABILITY.BTT ITY THE AUTHOR T'7"HO Cu A T T BE LIABLE A RT E AND RESPONSIBLE FOR ANY AND ALL PROP R TY LOSS, T'PROPERV PERSONS, OF ANY KJND OR CHARACTER, WHETHE REAL OR ASSERTED, TOTHE EXTENT CAUSED BY THE ACT(S), ERRORS, OR 7 MALFEASANCE OR iNTEN IO T MISCONDUCT OF THE AUTHOR) T T'T'HO T~rs- on1L'L'Tz ICERS,AGEMS,SERVi?T4c OR ENIP OVR In no event shall either Party be liable to the other for indirect, incidental, consequential, special, or exemplary damages such as, but not limited to, loss of revenue or anticipated profits or lost business, incurred by a Party whether in an action in contract or tort even if the other Party has been advised of the possibility of such damages, except for the payment obligations of City under this agreement, and any indemnification obligations of the Parties, and any damages arising from one Party's misappropriation of the other's intellectual property or Confidential Information. 2. GENERAL INDEMNIFICATION. PUBLISHER COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE,CITY FROM AND AGAINST ANY AND ALL THIRD-PARTYCLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, REASONABLE ATTORNEY'S FEES AND COSTS OF DEFENSE, PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS, ACTS OF NEGLIGENCE OR WILLFUL MISCONDUCTINCLUDINm ,-, qP NOT T Tr,r14ED TO,THOSE FOR 7TDll7TL'R4AZ T OS 7 BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY-7 LOST PROFITS, 7 BUT NOT LIMITED TO) PERSONS, DEATH) TO ANY AND OF WHAT SOEVE TlTND OR CHARACTER, WHETHER REAL OR ASS WTED- APdSI G OUT OF OR RESULTING FROM ANY ACTS ERRORS OR OMMISSIONS OF THE AUTHOR SOLELY IN CONNECTION WITH THE EXECUTION, PERFORMANCE,ATTEMPTED PERFORMANCE,OR NONPERFORMANCE OF THIS AGREEMENT. TO THE EXTENT PERMITTED BY TEXAS LAW AND THE TEXAS CONSTITUTION, CITY COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY,HOLD HARMLESS,AND DEFEND,AT ITS OWN EXPENSE,AUTHOR AND PUBLISHER, INCLUDING THEIR AGENTS, EMPLOYEES AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, OR AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 5 of 13 COSTS ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS, ACTS OF NEGLIGENCE OR WILLFUL MISCONDUCT PROVIDED THAT NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING THE CITY TO CREATE A SINKING FUND OR LEVY TAXES. 3. Intellectual Property. Author shall retain any and all intellectual property rights to the copyrighted materials that she/he may use in connection with the Event: participant materials, components,workshops,training procedures,printed materials,including books,author photographs, publicity and promotional materials and other material in print and other media and services collectively referred to as"Materials" and City shall obtain no rights to the Materials unless specifically agreed to by Speaker in writing. The Publisher agrees to assume full responsibility for complying with all State and Federal Intellectual Property Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third-party copyrighted works by Author. City expressly assumes no obligations,implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize,permit,or condone the reproduction or use of copyrighted materials by Publisher or Author without the appropriate licenses or permission being secured in advance. IT IS FURTHER AGREED THAT PUBLISHER SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,ATTORNEY'S FEES,TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF PUBLISHER'S OR AUTHOR'S USE OF ANY COPYRIGHTED MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the Publisher. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE PUBLISHER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. CITY SHALL NOT BE RESPONSIBLE FOR PAYMENTS RELATED TO ANY DEFENSE PROVIDED BY PUBLISHER PURSUANT TO THIS SECTION. 5. IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. > > AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 6 of 13 7. _ iftdemnify ift favor of Gify in stthstantially-the same form as above. 8. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. X. CORRESPONDENCE All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, or its authorized agent, employee, servant, or representative, or (ii) received by the other party or its authorized agent, employee, servant, or representative by reliable overnight courier or United States Mail, postage prepaid, return receipt requested, at the address stated below or to such other address as one party may from time to time notify the other in writing. CITY PUBLISHER City of Fort Worth Penguin Random House Library Director Amy Hagedorn 500 W 3id Street, Assistant Publicist Forth Worth,Texas 76102 360 7th St Brooklyn New York,NY 11215 With copy to: Assistant City Attorney 200 Texas Street Fort Worth,Texas 76102 The Publisher and City agree to notify the other party of any changes in addresses. XI. NON-ASSIGNABILITY This Agreement is non-assignable, and any unauthorized purported assignment or delegation of any duties hereunder,without the prior written consent of the other party,shall be void and shall constitute a material breach of this Agreement. XII. ENTIRETY This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. There are no other agreements and understandings, oral or written,with reference to the subject matter hereof that are not merged herein and superseded hereby. AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 7 of 13 XIII. MODIFICATION No amendment,modification,or alteration of the terms of this Agreement shall be binding unless the same is in writing,dated subsequent to the date hereof, and duly executed by the parties hereto. XIV. SEVERABILITY Should any portion,word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be modified or deleted in such a manner as to make this Agreement,as modified,legal and enforceable to the fullest extent permitted under applicable law. XV. GOVERNING LAW/VENUE If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall he in state courts located in Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. XVI. WAIVER No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. XVII. NO THIRD-PARTY BENEFICIARIES The provisions and conditions of this Agreement are solely for the benefit of City and the Publisher, and any lawful successor or assign,and are not intended to create any rights,contractual or otherwise, to any other person or entity. XVIII. CONTRACT CONSTRUCTION The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 8 of 13 XIX. FISCAL FUNDING OUT If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to the Publisher of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. XX. AUDIT The Publisher agrees that City will have the right to audit the financial and business records of the Publisher that relate to this Agreement (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Publisher shall make all Records available to City on 200 Texas Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier termination of this Agreement. XXI. COUNTERPARTS AND ELECTRONIC SIGNATURES This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. XXII. NON-DISCRIMINATION In the execution, performance, or attempted performance of this Agreement, the Publisher will not discriminate against any person or persons because of disability,age, familial status, sex,race,religion, color, national origin, or sexual orientation, nor will the Author permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17,Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and the Publisher hereby covenants and agrees that the Author,its officers,agents,employees,and subcontractors have fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against by either the Publisher,its officers, agents, employees, or subcontractors. XXIII. GOVERNMENTAL POWERS Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 9 of 13 XXIV. HEADINGS NOT CONTROLLING Headings and tides used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. XXV. REVIEW OF COUNSEL The Parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. XXVI. LICENSES, PERMITS AND FEES/COMPLIANCE WITH LAWS 1. The Publisher agrees to obtain and pay for all applicable licenses, permits, certificates, inspections, and all other fees required by law necessary to perform the services prescribed for the Author to perform hereunder. 2. This Agreement is subject to all applicable federal, state,and local laws, ordinances,rules,and regulations, including, without limitation, all provisions of the City's Charter and ordinances, as amended. XXVII. CONDITION OF THE FACILITY/WARRANTIES EXCLUDED The Publisher hereby represents that it has had the opportunity to inspected the facilities at the Event Site intended for the performance,including any improvements thereon, and that the Publisher finds same suitable for all activities and operations agreed to hereunder, and that the Publisher does so on an "as is" condition. The City hereby expressly excludes any and all warranties in regard to the facilities,including,without limitation, fitness for any particular purpose. XXVIII. INSURANCE During the term of this Agreement, the Publisher shall maintain in full force and effect, at its own cost and expense, Commercial General Liability Insurance in at least the minimum amount of $500,000 per occurrence, and in the annual aggregate, and the City shall be included as an additional insured on the insurance policy. The Publisher shall be responsible for any and all wrongful or negligent acts or omissions of its employees and agents,including Author,and for any causes of action arising under strict liability. Additional Insurance Requirements: AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 10 of 13 1. Certificates of Insurance evidencing that the Publisher has obtained all required insurance shall be delivered to the City prior to Publisher proceeding with the Agreement. 2. Applicable policies shall contain blanket additional insured endorsement(s)which shall include the City an Additional Insured thereon,as its interests may appear.The term City shall include its employees, officers, officials, agents,and volunteers as respects the Contracted services. 3. Certificate(s) of Insurance shall document that insurance coverage specified herein are provided under applicable policies documented thereon. 4. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. 5. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be provided to the City by Publisher. A minimum ten (10) day notice shall be required in the event of non-payment of premium. Notice shall be sent to Department of Risk Management, City of Fort Worth,200 Texas,Fort Worth,Texas 76102. a. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the City; and, such insurers shall have minimum A.M. Best ratings of A-,VII. b. Applicable policies shall contain blanket waivers of subrogation. C. The City shall not be responsible for the direct payment of any insurance premiums required by the Agreement. It is understood that insurance cost is an allowable component of Publisher's overhead. d. All insurance required above shall be written on an occurrence basis in order to be approved by the City. e. Subcontractors to the Publisher shall be required by the Contractor to maintain the same or reasonably equivalent insurance coverage as required for the Publisher.When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subcontractor's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by the Publisher of the Agreement. XXIX. OTHER PROVISIONS Confidentiality: The Parties agree that the terms of this Agreement, including the financial terms are confidential (the "Confidential Information") and other than as may be required by applicable law, government order or decree,neither Party will publicly disclose Confidential Information. Each Party is fully responsible for the acts of its employees, officers and agents and any breach of this provision, whether intentional or negligent, shall be deemed a material breach of this Agreement and the AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 11 of 13 breaching Party will be held liable.The term"Confidential Information"shall not include information that: (a) is or becomes generally available to the public, other than as a result of a disclosure or other fault by the Party receiving Confidential Information ("Recipient") of any of its Representatives (as hereinafter defined) in violation of this Agreement; (b) was rightfully in Recipient's possession free of any obligation of confidence before,at,or subsequent to the time such portion was communicated to Recipient by the Disclosing Party ("Discloser"); or (c) was communicated to Recipient on a non- confidential basis from a source other than the Discloser,provided that such source is not bound by a duty of confidentiality prohibiting the disclosure thereof Any disclosure by Recipient of Confidential Information in response to a valid order by a court or other governmental agency, or otherwise required by applicable law, shall not be considered to be a breach of this Agreement by Recipient; provided, however, that Recipient shall provide prompt prior notice thereof to Discloser to enable Discloser to seek a protective order or otherwise prevent such disclosure,and Recipient shall limit the extent of such disclosure solely to the extent required by such order or law and Recipient shall use its commercially reasonable efforts to ensure that such disclosed information is treated strictly confidentially by all recipients thereof Notwithstanding anything to contrary herein, the Parties acknowledge that City is a Texas governmental body and is subject to the Texas Public Information Act, which requires that certain information be released to the public. In the event that the City receives a request for this Agreement,City will provide Publisher the opportunity to submit arguments to the Texas Attorney General regarding the public nature of this document in accordance with the Texas Public Information Act. Publisher and Author shall be solely responsible for submitting arguments to the Texas Attorney General and the City will not be required to submit any arguments against disclosure. In the event that the Attorney General rules that the City must release the Agreement,the Parties acknowledge that the Agreement will then be public and City shall not be liable for any release. XXX. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the person or entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. Should that person or entity not be authorized, the terms and conditions of this Agreement shall be binding as against the signatore and the signatore shall be subject to the terms and conditions of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 12 of 13 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this 09 day of August ,2021. CITY OF FORT WORTH PUBLISHER ON BEHALF OF AUTHOR DAN BARBARISI by: - by: . Manya Shorr Name: Amy Hagedorn Library Director Title: Assistant Publicist Recommended by: Marilyn Marvin Assistant Library Director APPROVED AS TO FORM AND LEGALITY by:, Jessika J. Williams Assistant City Attorney Ordinance No. 24161-04-2020 a ATTEST: ���ICY a°° °°°O d� ° �vo oT ���gs.z9 o2�y o o Ronald P. Gonzales Y) °°° a Acting City Secretary ���SEX Asap M&C—No M&C Required Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. OFFICIAL RECORD Timothy Shidal CITY SECRETARY Administrative Services Manager FT. WORTH, TX AGREEMENT between the City of Fort Worth,TX and Penguin Random House Page 13 of 13