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Consultant has no control over the cost of labor, materials, services were performed consistent with the Standard of
<br /> equipment, or services furnished by others, or over the Care.Consultant owes Client only that level of performance
<br /> Contractor(s)' methods of determining prices, or over defined in this Section 5.1, and nothing herein shall be
<br /> competitive bidding or market conditions. Consultant's construed as creating a fiduciary relationship.
<br /> opinions of probable Total Project Costs and Construction
<br /> Costs provided for herein as appropriate are made on the If at any time prior to construction Client believes
<br /> basis of Consultant's experience and qualifications and Consultant's services are deficient due to not meeting the
<br /> represent Consultant's judgments as an experienced and Standard of Care, Client must immediately inform
<br /> qualified professional consultant familiar with the Consultant in writing and shall afford Consultant the
<br /> construction industry. Consultant makes no warranty that opportunity to correct such deficiency. If, upon review by
<br /> the Client's actual Total Project or Construction Costs, Consultant it is determined there is a deficiency that fails to
<br /> financial aspects,economic feasibility,or schedules will not meet the standard of care and it is attributable to
<br /> vary from the Consultant's opinions, analyses, projections, Consultant, the deficiency shall be corrected at no
<br /> or estimates. If Client wishes greater assurance as to any additional cost to Client.
<br /> element of the Total Project or Construction cost,feasibility,
<br /> or schedule, Client will employ an independent cost 5.2 Limitation of Liability
<br /> estimator,contractor,or other appropriate advisor. Client and Consultant agree to allocate certain of the risks
<br /> so that, to the fullest extent permitted by law, Consultant's
<br /> 4.8 Discovery of Unanticipated Pollutant and total liability to Client is limited to the available amount of
<br /> Hazardous Substance Risks insurance,this being the Client's sole and exclusive remedy
<br /> 4.8.1 If Consultant, while performing the services, for any and all injuries,damages,claims,losses,expenses,
<br /> discovers pollutants and/or hazardous substances that or claim expenses(including attorney's fees)arising out of
<br /> pose unanticipated risks,it is hereby agreed that the scope this Agreement from any cause or causes. Such causes
<br /> of services, schedule, and the estimated cost of include, but are not limited to, Consultant's negligence,
<br /> Consultant's services will be reconsidered and that this errors, omissions, strict liability, breach of contract, or
<br /> Agreement shall immediately become subject to breach of warranty.
<br /> renegotiation or termination.
<br /> 4.8.2 In the event that the Agreement is terminated 5.3 No Special or Consequential Damages
<br /> because of the discovery of pollutants and/or hazardous Client and Consultant agree that to the fullest extent
<br /> substances posing unanticipated risks, it is agreed that permitted by law neither party shall be liable to the other for
<br /> Consultant shall be paid for its total charges for labor any special, indirect, or consequential damages
<br /> performed and reimbursable charges incurred to the date of whatsoever, whether caused by either party's negligence,
<br /> termination of this Agreement, including, if necessary, any errors, omissions, strict liability, breach of contract, breach
<br /> additional labor or reimbursable charges incurred in of warranty, or other cause or causes. This mutual waiver
<br /> demobilizing. of consequential damages shall not apply to the damage
<br /> 4.8.3 Client also agrees that the discovery of claims of third parties that are tendered to Consultant by the
<br /> unanticipated pollutants and/or hazardous substances may Client.
<br /> make it necessary for Consultant to take immediate
<br /> measures to protect health and safety. Consultant agrees 5.4 Indemnification
<br /> to notify Client as soon as practically possible should The Consultant agrees, to the fullest extent permitted by
<br /> unanticipated pollutants and/or hazardous substances be law,to indemnify and hold harmless the County,its officers,
<br /> suspected or encountered. Client authorizes Consultant to directors and employees (collective, County) against all
<br /> take measures that in Consultant's sole judgment are damages, liabilities, or costs, including reasonable
<br /> justified to preserve and protect the health and safety of attorneys'fees and defense costs, to the extent caused by
<br /> Consultant's personnel and the public. Client agrees to Consultant's negligent performance of services under this
<br /> compensate Consultant for the additional cost of taking Agreement and that of its subconsultants or anyone for
<br /> such additional precautionary measures to protect whom the Consultant is legally liable. Neither the County
<br /> employees'and the public's health and safety. This section nor the Consultant shall be obligated to indemnify the other
<br /> is not intended to impose upon Consultant any duties or party in any manner whatsoever for the other party's own
<br /> obligations other than those imposed by law. negligence or for the negligence of others.
<br /> SECTION 5-Professional Responsibility 5.5 No Third Party Beneficiaries
<br /> 5.1 Performance of Services Client and Consultant expressly agree that this Agreement
<br /> Consultant shall perform its services consistent with the does not confer upon any third party any rights as
<br /> professional skill and care ordinarily provided by firms beneficiary to this Agreement. Consultant accepts no
<br /> practicing in the same or similar locality under the same or responsibility for damages, if any, suffered by any third
<br /> similar circumstances(hereinafter the"Standard of Care"). party as the result of a third party's use of the work product,
<br /> Consultant expressly disclaims all express or implied including reliance, decisions, or any other action taken
<br /> warranties and guarantees with respect to the performance based upon it.
<br /> of professional services,and it is agreed that the quality of
<br /> such services shall be judged solely as to whether the Client agrees that Consultant's services and work products
<br /> are for the exclusive present use of Client. Client agrees
<br /> Lee Co Parks&Rec Consulting Agmmt
<br /> February 2021
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