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HomeMy WebLinkAbout2024-017 Agrmt - MC Fire LLCCOMMUNITY WILDFIRE PROTECTION PLAN CONSULTANT: MC Fire, LLC CITY OF CONTACT: Jerry McAdams ASH LAN D 20 East Main Street ADDRESS: PO Box 50392, Boise, Idaho 83705 Ashland, Oregon 97520 HOME OFFICE: 3369 S Grenze Way, Meridian, Idaho 83642 Telephone: 54 I /488-5354 TELEPHONE: 208-869-8107 EMAIL: imcadams@mcfirellc.com This Personal Services Agreement (hereinafter "Agreement") is entered into by and between the City of Ashland, an Oregon municipal corporation (hereinafter "City") and MC Fire, LLC, ("hereinafter "Consultant"), for COMMUNITY WILDFIRE PROTECTION PLAN. NOW THEREFORE, in consideration of the mutual covenants contained herein, the City and Consultant hereby agree as follows: 1. Effective Date and Duration. This Agreement shall become effective on the date of execution on behalf of the City, as set forth below (the "Effective Date"), and unless sooner terminated as specifically provided herein, shall terminate upon the City's affirmative acceptance of Consultant's Work as complete and Consultant's acceptance of the City's final payment therefore, but not later than March 31, 2025. 2. Scope of Work. Consultant will produce a Community, Wildfire Protection Plan as more frilly set forth in the City's RFP/Scope of Services and the Consultant's Proposal dated November 11, 2023, which is attached hereto as "Exhibit A" and incorporated herein by this reference. Consultant's services are collectively referred. to in this Agreement as the "Work." 3. Compensation. City shall pay Consultant the sum of $153,965.00 (one hundred fifty-three thousand nine liundred sixty-five dollars) ("Compensation Sum") as full compensation for Consultant's performance of all Work tinder this Agreement. The Compensation Sum may be paid in progress payments. In no event shall Consultant's total of all compensation and reimbursement under this Agreement exceed the sum of $153,965.00 (one hundred fifty-three thousand nine hundred sixty-five dollars) without the express, written approval from the City official whose signature appears below, or such official's successor in office. Payments, including progress payments, shall be made within thirty (30) days of the date of receipt by the City of Consultant's invoice. Should this Agreement be terminated prior to completion of all Work, payments will be made for any phase of the Work completed and accepted as of the date of termination. Page 1 of 7: PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASHLAND AND MC FIRE LLC 4. Supporting Documents/Conflicting Provisions. This Agreement and any exhibits or other supporting documents shall be construed to be mutually complementary and supplementary wherever possible. In the event of a conflict which cannot be so resolved, the provisions of this Agreement itself shall control over any conflicting provisions in any of the exhibits or supporting documents. 5. All Costs Borne by Consultant. Consultant shall, at its own risk, perform the Work described above and, unless otherwise specified in this Agreement, furnish all labor, equipment, and materials required for the proper performance of such Work. 6. Qualified Work. Consultant has represented, and by entering into this Agreement now represents, that all personnel assigned to the Work to be performed tinder this Agreement are fully qualified to perform the services to which they will be assigned in a skilled manner and, if required to be registered, licensed, or bonded by the State of Oregon, are so registered, licensed, or bonded. 7. Ownership of Work/Documents. All Work, work product, or other documents produced in furtherance of this Agreement belong to the City, and any copyright, patent, trademark proprietary or any other protected intellectual property right shall vest in and is hereby assigned to the City. 8. Statutory Requirements. The following laws of the State of Oregon are hereby incorporated by reference into this Agreement: ORS 279B.220, 279B.230 and 279B.235. 9. Living Wage Requirements. If the amount of this Agreement is $25,335.05 or more, Consultant is required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in that chapter, to all employees performing Work under this Agreement and to any Subcontractor who performs 50% or more of the Work tinder this Agreement. Consultant is also required to post the notice attached hereto as "Exhibit B" predominantly in areas where it will be seen by all employees. 10. Indemnification. Consultant hereby agrees to defend, indemnify, save, and hold City, its officers, employees, and agents harmless from any and all losses, claims, actions, costs, expenses, judgments, or other damages resulting from injury to any person (including injury resulting in death), or damage (including loss or destruction) to property, of whatsoever nature arising out of or incident to the performance of this Agreement by Consultant (including but not limited to, Consultant's employees, agents, and others designated by Consultant to perform Work or services attendant to this Agreement). However, Consultant shall not be held responsible for any losses, expenses, claims, costs, judgments, or other damages, caused solely by the gross negligence of City. 11. Termination. a. Mutual Consent, This Agreement may be terminated at any time by the mutual consent of both parties. b. City's Convenience. This Agreement may be terminated by City at any time, so long as the City provides thirty (30) or more days' notice to Consultant. Such notice must be served by certified mail or in person. In the event of in -person notice, a copy of the termination notice Page 2 of7: PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASHLAND AND MC FIRE LLC must be sent in accordance with Paragraph 18 of this Agreement. c. For Necessity. City may terminate or modify this Agreement by necessity, in whole or in part, so long as written notice is provided to Consultant as soon as reasonably possible, and in accordance with the terms contemplated herein, or under, but not necessarily limited to, any of the following conditions: i. If City funding from federal, state, county or other sources is not obtained and continued at Ievels sufficient to allow for the purchase of the indicated quantity of services; ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement or are no longer eligible for the funding proposed for payments authorized by this Agreement; or iii. If any license or certificate required by law or regulation to be held by Consultant to provide the services required by this Agreement is for any reason denied, revoked, suspended, or not renewed. d. For Cause. Either City or Consultant may terminate this Agreement for cause and/or in the event of a breach of the Agreement by the other. Prior to such termination, the party seeking termination shall give at least fifteen (15) days' written notice of intent to terminate to the other party. The written notice must comply with Paragraph 18 of this Agreement and must further state (1) the specific breach needing to be cured; and (2) the manner by which the breaching party must cure the alleged breach. If the party committing the breach has not entirely cured the breach within fifteen (15) days of the date of the written notice, or within such other period as the party giving the written notice may authorize, then the Agreement may be terminated at any time thereafter by a written notice of termination by the party giving notice. ii. Time is of the essence for Consultant's performance of each and every obligation and duty under this Agrccment. City, by written notice to Consultant of default or breach, may at any time terminate the whole or any part of this Agreement if Consultant fails to provide the Work called for by this Agreement within the time specified herein or within any extension thereof. Notwithstanding the foregoing, City agrees that Consultant shall not be responsible for delays of performance of this Agreement that are in any way attributable to, or caused by City or another party not subject to or within the control of Consultant. iii. The rights and remedies of City provided in this subsection (d) are not exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. e. Obligation/Liabilityof Parties. Termination or modification of this Agreement pursuant to subsections a, b, or c above shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination or modification. However, upon Page 3 of 7: PERSONAL SERVICES AGREEMENT BETWEEN T14E CITY OF ASHLAND AND MC FIRE LLC receiving a notice of termination (regardless whether such notice is given pursuant to subsection a, b, c, or d of this section, Consultant shall immediately cease all activities under this Agreement, unless expressly directed otherwise by City in the notice of termination. Further, upon termination, Consultant shall deliver to City all documents, information, works -in -progress and other property that are or would be deliverables had the Agreement been completed. City shall pay Consultant for Work performed prior to the termination date if such Work was performed in accordance with this Agreement and a workmanlike manner. This provision shall not be construed as a waiver of the notice requirements or other remedies provided in law or equity, not limited to those contemplated and agreed to herein. 12. Independent Contractor Status. Consultant is an independent contractor and not an employee of the City for any purpose. Consultant shall have the complete responsibility for the performance of this Agreement. Consultant represents he is an individual owner of a single member LLC with no employees. If, at any point Consultant were to employ employees, Consultant represents he will comply with worker's compensation laws. 13. Assignment. Consultant shall not assign this Agreement or subcontract any portion of the Work without the written consent of City. Any attempted assignment or subcontract without written consent of City shall be void. Consultant shall be filly responsible for the acts or omissions of any assigns or subcontractors and of all persons employed by them, and the approval by City of any assignment or subcontract of the Work shall not create any contractual relation between the assignee or subcontractor and City. 14. Default. The Consultant shall be in default of this Agreement if Consultant: commits any material breach or default of any covenant, warranty, certification, or obligation under the Agreement; institutes an action for relief in bankruptcy or has instituted against it an action for insolvency; makes a general assignment for the benefit of creditors; or ceases doing business on a regular basis of the type identified in its obligations Linder the Agreement; or attempts to assign rights in, or delegate duties under, this Agreement. 15. Insurance. Consultant shalt, at its own expense, maintain the following insurance: a. Professional Liability insurance with a combined single limit, or the equivalent, of not less than $2,000,000 (two million dollars) per occurrence. This is to cover any damages caused by error, omission or negligent acts related to the Work to be provided under this Agreement. b. General Liability insurance with a combined single limit, or the equivalent, of not less than $2,000,000 (two million dollars) per occurrence for Bodily Injury, Death, and Property Damage. c. Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) without thirty (30) days' prior written notice from the Consultant or its insurer(s) to the City. d. Additional Insured/Certificates of Insurance, Consultant shall name the City of Ashland, Oregon, and its elected officials, officers and employees as Additional Insureds on any insurance policies, excluding Professional Liability and Workers' Compensation, required herein, but only with Page d of7: PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OFASHLAND AND MC FIRE LLC respect to Consultant's services to be provided under this Agreement. The consultant's insurance is primary and non-contributory. As evidence of the insurance coverages required by this Agreement, the Consultant shall furnish acceptable insurance certificates prior to commencing the Work under this Agreement. The certificate will specify all of the parties who are Additional Insureds. Insuring companies or entities are subject to the City's acceptance. If requested, complete copies of insurance policies; trust agreements, etc. shall be provided to the City. The Consultant shall be financially responsible for all pertinent deductibles, self -insured retentions, and/or self-insurance. 16. Nondiscrimination. Consultant agrees that no person shall, on the grounds of race, color, religion, creed, sex, marital status, familial status or domestic partnership, national origin, age, mental or physical disability, sexual orientation, gender identity or source of income, suffer discrimination in the performance of any Work under this Agreement when employed by Consultant. Consultant agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. Further, Consultant agrees not to discriminate against a disadvantaged business enterprise, minority -owned business, woman - owned business, a business that a service -disabled veteran owns or an emerging small business enterprise certified under ORS 200,055, in awarding subcontracts as required by ORS 279A. 110. 17. Consultant's Compliance with Tax Laws. 17.1 Consultant represents and warrants to the City that: 17.1.1 Consultant shall, throughout the term of this Agreement, including any extensions hereof, comply with: (i) All tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS Chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable to Consultant; and (iii) Any rules, regulations, charter provisions, or ordinances that implement or enforce any of the foregoing tax laws or provisions. 17.1.2 Consultant, further certifies that consultant is not in violation of any Oregon tax laws referenced in ORS 305.380(4). 18. Notice. Whenever notice is required or permitted to be given under this Agreement, such notice shall be given in writing to the other party by personal delivery, by sending via a reputable commercial overnight courier, by mailing using registered or certified United States mail, return receipt requested, postage prepaid, or by electronically confirmed at the address or facsimile number set forth below: If to the City: Ashland Fire & Rescue Attn: Chris Chambers 455 Siskiyou Blvd Ashland, Oregon 97520 Telephone: 541-482-2770 Page 5 of 7: PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASHLAND AND MC FIRE LLC With a copy to: City of Ashland — Legal Department 20 E. Main Street Ashland, Oregon 97520 Telephone: 54 l-488-5350 If to Consultant: MC Fire, LLC Attn: Jerry McAdams PO Box 50392 Boise, Idaho 83705 Telephone: 208-869-8107 With a copy to: McConnell Wagner Sykes and Stacey, PLLC Attn: Taylor R Brooks 827 E Park Blvd, Suite 201 Boise, Idaho 83712 208-489-0100 19. Governing Law. This Agreement shall be governed by the laws of the State of Oregon without regard to conflict of laws principles. Exclusive venue for litigation of any action arising under this Agreement shall be in the Circuit Court of the State of Oregon for Jackson County unless exclusive jurisdiction is in federal court, in which case exclusive venue shall be in the federal district court for the district of Oregon. Each party expressly waives any and all rights to maintain an action under this Agreement in any other venue, and expressly consents that, upon motion of the other party, any case may be dismissed or its venue transferred, as appropriate, so as to effectuate this choice of venue. 20. Amendments. This Agreement may be amended only by written instrument executed by both parties with the same formalities as this Agreement. 21. Nona ppropriations Clause. Funds Available and Authorized: City has sufficient funds currently available and authorized for expenditure to finance the costs of this Agreement within the City's fiscal year budget. Consultant understands and agrees that City's payment of amounts under this Agreement attributable to Work performed after the last day of the current fiscal year is contingent on City appropriations, or other expenditure authority sufficient to allow City in the exercise of its reasonable administrative discretion, to continue to make payments under this Agreement. In the event City has insufficient appropriations, limitations or other expenditure authority, City may terminate this Agreement without penalty or liability to City, effective upon the delivery of written notice to Consultant, with no further liability to Consultant. 22. THIS AGREEMENT AND THE ATTACHED EXHIBITS CONSTITUTE THE ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS AGREEMENT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL Page 6 of7: PERSONAL SERVICES AGREEMENTBETWEEN THE CITY OF ASHLAND AND MC FIRE LLC 23. 24. OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS AGREEMENT. CONSULTANT, BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. Certification. Consultant agrees to and shall sign the certification attached hereto as "Exhibit C" and incorporated herein by this reference. Force Majeure. No liability will attach to either party from delay in performance or nonperformance caused by circumstances or events beyond the reasonable control of the party affected, including, but not limited to, acts of God, fire, flood, unanticipated Site or subsurface conditions, pandemics, explosion, war, terrorism, request or intervention of a governmental authority (foreign or domestic), court order (whether at law or in equity), labor relations, accidents, delays or inability to obtain materials, equipment, fuel or transportation. Page 7 of7: PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASHLAND AND MC FIRE: LLC IN WITNESS WHEREOF the parties have caused this Agreement to be signed in their respective names by their duly authorized representatives as of the dates set forth below. CITY OF A Sabrina otta, Interim City Manager I 2 `P 1-2o-?-L1 Purchase Order No. APPROVED AS TO FORM: City Attorney 1.24.2024 Date MC FIRE, LLC By: (member) Signature Jerry McAdams (member) Printed Name Owner - Senior Consultant Title 01-25-2024 Date (W-9 is to be submitted with this signed Agreement) Page 8 of 7: PERSONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASHLAND AND MC FIRE LLC EXHIBIT B City ofAshland LIVING ALL employers described 1 1 per hour, effective June 30, 2023. or, The Living Wage is adjusted annually every June 30 by the Consumer Price Index, For all hours worked under a service contract between their employer and the City of Ashland h the contract exceeds $25,335.05 or more. i For all hours worked in a month, if the employee spends 50% or more of the employee's time in that month working on a prc�ect or particn of the business of their employer, if the en Moyer has ten or mere employees, and has received financial assistance fcr the project or business from the City of Ashland over $25,335.05; If their employer is the City of Ashland, including the Parks and Recreation Department In calculating the living wage, employers may add the value of health care, retirement, 401K, and IRS eligible cafeteria plans (including childcare) benefits to the employees amount of wages. Note: For temporary and part-time employees, the Living Wage does not apply to the first 1040 hours worked in any calendar year. For more details, please see Ashland Municipal Code Sedan 3.12.020. Call the Ashland City Manager's office at 541-488-6002 or write to the City Manager, City Hall, 20 East Main Street, Ashland, OR 97520, or visit the City's website at www.ashtand.or.us. Notice to Employers: This notice must be posted in areas where it can be seen by all employees. CITY OF -ASHLAND Page I of 1: EXHIBIT B EXHIBITIC CERTIFICATIONS/REPRESENTATIONS: Consultant, by and through its authorized representative, under penalty of perjury, certifies that (a) the number shown on the attached W-9 form is its correct taxpayer ID (or is waiting for the number to be issued to it and (b) Consultant is not subject to backup withholding because: (i) it is exempt from backup withholding, or (ii) it has not been notified by the Internal Revenue Set -vice (IRS) that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified it that it is no longer subject to backup withholding. Consultant further represents and warrants to City that: (a) it has the power and authority to enter into this Agreement and perform the Work, (b) the Agreement, when executed and delivered, shall be avalid and binding obligation of Consultant enforceable in accordance with its terms, (c) the work under the Agreement shall be performed in accordance with the highest professional standards, and (d) Consultant is qualified, professionally competent, and duly licensed (if applicable) to perform the Work. Consultant also certifies tinder penalty of perjury that its business is not in violation of any Oregon tax laws, it is an independent contractor as defined in the Agreement, it is authorized to do business in the State of Oregon, and Consultant has checked four or more of the following criteria that apply to its business. X (1) Consultant carries out the work or services at a location separate from a private residence or is in a specific portion of a private residence, set aside as the location of the business. X (2) Commercial advertising or business cards or a trade association membership are purchased for the business. (3) Telephone listing is used for the business separate from the personal residence listing. X (4) Labor or services are performed only pursuant to written contracts. _ X (5) Labor or services are performed for two or more different persons within a period of one year. X (6) Consultant assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission (professional liability) insurance or liability insurance relating to the Work or services to be provided. Consultant's signature 01-25-2024 Date Page I of 1: EXHIBIT C MCFIREL-01 TSTRADLEY '4C'oRo CERTIFICATE OF LIABILITY INSURANCE DAT1251212512D2 WY) 024 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Boise Office Marsh McLennan Agency LLC CORM ACT PHONE FAX A/C, No, El : (208) 424-2900 IAIC, No►:(877) 512-2753 960 Broadway Avenue Suite 500 Boise, ID 83706 INSURER S AFFORDING COVERAGE NAIC # INSURER A: Underwriters at Lloyd's, London KY 32727 INSURED INSURER B : INSURERC: MC Fire LLC INSURER D : PO Box 50392 Boise, ID 83705 INSURER E INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTRTYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE F_X] OCCUR X PSM0039859153 1/12/2024 1/12/2025 EACH OCCURRENCE $ 2,000,000 DAMAGE TISESORENTE occurerica PREMED EXP (Any one person $ Included $ 5,000 PERSONAL & ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: X POLICY ❑ jpe LOC OTHER: GENERAL AGGREGATE $ 2,000,000 PRODUCTS - COMP/OP AGG $ 2,000,000 $ AUTOMOBILE LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS AUTOS ONLY AUUTO ONLY COMBINED SINGLE LIMIT BODILY INJURY Perperson) $ BODILYBOODILY INJURY Per accident $ PPe�aEaIRdent AMAGE $ UMBRELLA LIAB EXCESS LIAB CLAIMS -MADE EACH OCCURRENCE $ HOCCUR AGGREGATE $ DED RETENTION$ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory In NrFI If yes, describe under DESCRIPTION OF OPERATIONS below N I A PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT $ A Profess. Liability A Profess. Liability PSM0039859153 PSM0039859153 1/12/2024 1/12/2024 1/12/2025 1/12/2025 Per Occurance Aggregate 2,000,000 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES ACORD 101, Additional Remarks Schedule, may be attached If more space is required) The City of Ashland, Oregon, and its elected officials, officers, and employees are considered additional insured per attached Blanket Additional Insured Endorsement. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Ashland ty THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 20 E Main Street Ashland, OR 97520 AUTHORIZED REPRESENTATIV E ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD S cfc 1. What you must do in the event of a claim or cyber incident If any senior executive officer becomes aware of any incident which may reasonably be expected to give rise to a claim under this Policyyou must: a. notify the claims managers as soon as is reasonably practicable (in respect of cyber incidents, a telephone call to our cyber incident response hotline will constitute notification). However, this notification must be made no later than the end of any applicable extended reporting period; b. in respect of INSURING CLAUSES 2 (SECTION D only), 3 and 5, report the theft or incident as soon as is reasonably practicable to the appropriate law enforcement authorities and provide us with a copy of this report on our request; and c. not admit liability for or settle or make or promise any payment or incur any costs and expenses without our prior written agreement (which will not be unreasonably withheld). In respect of INSURING CLAUSES 1 and 4 (SECTION F only), if you notify an incident that we agree is reasonably expected to give rise to a claim, we will accept any claim that arises out of the incident as being notified under this Policy. We require you to provide full details of the incident, including but not limited to: a. the time, place and nature of the incident; b. the manner in which you first became aware of this incident; c. the reasons why you believe that this incident could give rise to a claim under this Policy; d. the identity of the potential claimant; and e. an indication as to the size of the claim that could result from this incident. In respect of INSURING CLAUSES 2 and 3, if you discover a cyber event you may only incur costs without our prior written consent within the first 72 hours following the discovery and any third party costs incurred must be with a company forming part of the approved claims panel providers. All other costs may only be incurred with the prior written consent of the claims managers (which will not be unreasonably withheld). 2. Additional insureds We will indemnify any third party as an additional insured under this Policy, but only in respect of sums which they become legally obliged to pay (including liability for claimants' costs and expenses) as a result of a claim arising solely out of an act committed by you, provided that: CPC Underwrting Limited is Authorized and Regulated by the Financial Conduct Authority Professions v4.0 c,1999-2023 CPC Underwriting Ltd, All Rights Reserved 1 cfc a. you contracted in writing to indemnify the third party for the claim prior to it first being made against them; and b. had the claim been made against you, then you would be entitled to indemnity under this Policy. Before we indemnify any additional insured they must: a. prove to us that the claim arose solely out of an act committed byyou; and b. fully comply with CONDITION 1 as if they were you. Where we indemnify a third party as an additional insured under this Policy, this Policy will be primary and non-contributory to the third party's own insurance, but only if you and the third party have entered into a contract that contains a provision requiring this. Where a third party is treated as an additional insured as a result of this Condition, any claim made by that third party against you will be treated by us as if they were a third party and not as an insured. 3. Agreement to pay claims (duty to defend) We have the right and duty to take control of and conduct in your name the investigation, settlement or defense of any claim. We will not have any duty to pay costs and expenses for any part of a claim that is not covered by this Policy. You may ask the claims managers to consider appointing your own lawyer to defend the claim on your behalf and the claims managers may grant your request if they consider your lawyer is suitably qualified by experience, taking into account the subject matter of the claim, and the cost to provide a defense. We will endeavor to settle any claim through negotiation, mediation or some other form of alternative dispute resolution and will pay on your behalf the amount we agree with the claimant. If we cannot settle using these means, we will pay the amount which you are found liable to pay either in court or through arbitration proceedings, subject to the limit of liability. We will not settle any claim without your consent. If you refuse to provide your consent to a settlement recommended by us and elect to continue legal proceedings in connection with the claim, any further costs and expenses incurred will be paid by you. As a consequence of your refusal, our liability for the claim will not be more than the amount for which the claim could have been settled had you consented, plus any costs and expenses incurred prior to the date of your refusal. 4. Application warranty You agree that all statements made by you in the application form, including any renewal application form, and any supplemental materials you have supplied in support of the application for insurance, are your agreements and representations to us and the Policy is r g Professions v4.0