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GM-10-10-04-001 DELTA DELTA CONSULTANTS STANDARD SERVICE AGREEMENT THIS AGREEMENT is effective on the 24th day of September, 2010 by and between Brushy Creek Regional Utility Authority ("Client') and DELTA CONSULTANTS ("Delta") for services that Delta will perform at Cedar Park Water Treatment Plant(the"Site"). SCOPE OF SERVICES Delta will provide Client with the services described in Delta's proposal, attached as Attachment I and incorporated by reference(the"Work"). COMPENSATION Client agrees to pay Delta the fees stated in Attachment I. Client agrees to pay for any services that are (a) required because of a material increase in the scope of the Work or (b) requested in addition to the Work as provided in Attachment I. This Agreement is subject to the following General Conditions: SECTION 1: FEE PAYMENT 1.1 Delta will submit invoices to Client monthly with a final invoice on completion of the Work or at such other times as specifically provided for in Attachment I. 1.2 Payment is due upon receipt of invoice. If the invoice is not paid within thirty (30) days after invoice date, Client will also pay a finance charge thereon of 1.5 percent or the maximum rate allowed by law, whichever is less, for each month thereafter or portion thereof that an invoice remains unpaid. 1.3 If Client fails to pay Delta within sixty (60) days after invoice date, Delta may deem failure to pay a breach of this Agreement, terminate the same, and be relieved of any and all duties under this Agreement. SECTION 2: PROJECT INFORMATION 2.1 Client will provide to Delta in writing information known to Client regarding existing and proposed conditions of the Site. The information will include without limitation, but only as appropriate to the work, reproducible record drawings, mechanical drawings, construction specifications, operating and performance criteria for mechanical systems, site plans, topographic surveys and mapping, property line surveys, hydrologic data, subsurface or latent physical conditions at the Site, previous soil data including borings, field or laboratory tests, and written reports, material safety data sheets for any chemical or material which Delta may encounter on site if that chemical or material is one for which the Client or its vendors are required by law to supply a material safety data sheet, and notice of all known hazardous, toxic, radioactive, pollutant, or irritant conditions at the Site ("Project Information"). Delta Consultants-0718 Standard Client Service Agreement Page 1 of 7 elm- 10-f D- t)q Dc/ 2.2 Client will immediately transmit to Delta any updates, revisions, or additions to the Project Information as they become available to it or its consultants. SECTION 3: OWNERSHIP OF DOCUMENTS, CONFIDENTIALITY, AND PATENTS AND COPYRIGHTS 3.1 Delta will prepare and deliver to Client certain reports, drawings, plans, designs, or specifications as instruments of the professional services performed ("Reports"). All Reports delivered to Client will become the property of Client upon final payment due Delta for the Work. Delta may retain copies of the Reports for its files. 3.2 Client agrees that all Reports furnished to the Client that are not paid for will be returned to Delta upon written demand by Delta and will not be used by Client for any purpose. 3.3 Delta will retain Reports and all pertinent records ("Records") relating to the Work for a period of three (3) years after the Report is delivered. During that time, the Reports and Records will be made available to Client during Delta's normal business hours. 3.4 Reports and Records are not suitable for use or reuse by Client, its employees, agents, or subcontractors on any continuation or extension of the Work or on any other project without the written consent of Delta. This consent is required to permit Delta to evaluate Report and Record applicability under new circumstances such as, but not only, passage of time. Client agrees to indemnify, defend, and hold Delta harmless from and against any and all claims, damages, losses, and expenses, including reasonable attorney's fees, awards, fines, or judgments arising out of or resulting from the unauthorized reuse of any Reports or Records. 3.5 All Reports, Records, and Project Information disclosed or delivered to Delta, or information that Delta uncovers, acquires, or generates in the course of performing the Work will be treated by Delta as confidential information and will not be disclosed or made available to others by Delta without prior consent of Client. The foregoing obligation will not apply to any information that Delta establishes: (a) is already known to Delta at the time of its receipt from Client as shown by Delta's records, (b) is or subsequently becomes available and accessible to the public through no fault of Delta, (c) is disclosed to Delta by a third party on a non-confidential basis, (d) is deemed necessary by Delta to warn of an imminent danger to life or property, or(e) is required to be disclosed pursuant to legal process, subpoena, court order, applicable law, or agency regulation. 3.6 Notwithstanding any other provision to the contrary, Delta retains the right of ownership of any patentable or copyrightable concepts arising from its services. SECTION 4: STANDARD OF CARE 4.1 Techniques for investigating, mitigating, or remediating hazardous, toxic, radioactive, pollutant, or irritant conditions are rapidly evolving and new solutions are continually being developed. Likewise, the standards and regulations being imposed by various government entities are subject to rapid and continuing change. Given this dynamic situation, Delta will perform the Work consistent with that level of care and skill ordinarily exercised by members of its profession currently practicing under similar conditions. NO OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IS MADE RESPECTING THIS AGREEMENT OR Delta Consultants-0718 Standard Client Service Agreement Page 2 of 7 THE EQUIPMENT, DOCUMENTATION, REPORTS, AND SERVICES TO BE PROVIDED HEREUNDER, OR THE DELIVERY, USE, OR PERFORMANCE THEREOF. 4.2 Sampling procedures employed by Delta during the Work can indicate actual conditions only at the precise locations from which, and only at the time, samples are taken. Delta may make inferences based upon the results of sampling or related testing to form a professional opinion of conditions in areas beyond those from which samples were taken. However, because a sampling program cannot prove the non-existence or non-presence of conditions or materials, Delta cannot warrant, represent, or certify the non-existence or non-presence, or the extent of existence or presence, of conditions or materials, and Client's obligations under this Agreement will not be contingent upon Delta's delivery of any warranties, representations, or certifications. 4.3 Delta opinion of probable costs for construction, operation, and maintenance are made on the basis of professional judgment. Delta does not guaranty that proposals, bids or total construction costs will not vary from opinions of probable cost unless the Work includes such construction, operation, or maintenance on a lump sum basis. See Attachment I. SECTION 5: INDEMNIFICATION AND LIMITATION OF LIABILITY 5.1 Client and Delta each agree to indemnify and hold the other (and its officers, employees, and agents) harmless for losses resulting from and to the extent of its own negligence or willful misconduct, except as provided in Section 5.2. 5.2 Client recognizes that certain federal, state, or local laws or regulations provide that where multiple parties are considered responsible for any hazardous, toxic, radioactive, pollutant, or irritant condition ("Condition") each may be held liable for the Condition under the doctrines of joint and several liability or strict liability. Client agrees that it is not the purpose of this Agreement that Delta be exposed to any liability arising out of any pre-contract Condition at the Site, the activities of others, or the non-negligent performance by Delta of the Work. Accordingly, Client waives any claims and agrees to indemnify, defend, and save harmless Delta, its agents, employees, or subcontractors from any demands, suits, judgments, expenses, attorney fees, and losses by reason of any injury to persons, death, or damage to property arising in connection with any Condition at the Site. This obligation exists irrespective of whether the Condition was generated or introduced before or after the execution of this Agreement or whether Client was aware of or involved in the generation or introduction of the Condition. This obligation does not apply to any Condition brought to the Site by Delta or to the extent Delta negligently contributed to any Condition. 5.3 Client and Delta each agree that neither will be responsible for any incidental, indirect, or consequential damages (including loss of profits) sustained by the other, its successors or assigns. 5.4 Nothing herein will be deemed a waiver of any statutory limitation of liability or any obligation set out in this Agreement. 5.5 Delta's liability for claims (other than claims covered by Delta's obligation to the Client under Section 5.1)will not exceed payments received from the Client for the Work. SECTION 6: INSURANCE Delta Consultants-0718 Standard Client Service Agreement Page 3 of 7 Delta will carry: (a) workers' compensation and employer's liability insurance to comply with laws of the state in which any project is undertaken by Delta under this Agreement and applicable Federal laws, (b) comprehensive general liability insurance with a combined limit for bodily injury and property damage in an amount not less than $1 million per occurrence and $2 million aggregate and with completed operations coverage having a $1 million aggregate limit, and (c) comprehensive automobile liability insurance, covering all automobiles, trucks, and miscellaneous powered and automotive equipment owned or used by Delta, with a combined limit for bodily injury and property damage in an amount not less than $1 million per occurrence, Certificates for insurance will be provided to Client upon request. Delta's liability for damages arising from occurrences covered by these policies of insurance will not exceed the coverage provided therein. SECTION 7: ATTORNEY'S FEES In the event of any controversy, claim, dispute, or litigation between the parties related to this Agreement or its breach, the prevailing party will be entitled to recover from the other party, in addition to other relief as may be granted, a reasonable sum as and for its attorney's fees together with expert's fees and other costs incurred as may be determined by a court of competent jurisdiction. Client also agrees to pay all costs of collection, including reasonable attorney's fees, in the event payment is not received as provided herein; this liability for attorney fees is not contingent upon suit being filed by Delta. SECTION 8: SITE LOCATION/ACCESS Jr PERMITS AND APPROVALS 8.1 Client will delineate to Delta the property lines of the Site. 8.2 Client will provide access to the Site for Delta personnel and equipment as Delta may deem necessary to complete the Work. 8.3 Delta will apply for and obtain permits and approvals necessary for Delta to perform the work; provided, however, nothing herein will be construed or interpreted as requiring Delta to (a) assume the status of generator, storer, treater, or disposal facility as those terms appear within the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seg., as amended, or within any state statute governing the treatment, storage, or disposal of waste, or (b) enter into contracts of indemnity or provide any guaranty or warranty to any federal, state, or local govemment or regulatory agency, or any other third party, with respect to obtaining permits and approvals. Any failure to obtain any permit or approval because Delta elects not to assume such status or enter into such contracts or because any agency refuses to issue any permit or approval properly applied for will not be a breach of this Agreement. 8.4 Delta will take reasonable precautions to minimize damage to property on which it performs Work. Client agrees, however, that some damages may occur to property in the normal course of work absent negligence by Delta and that the correction of any damage to property will be undertaken by Delta and billed to Client. In the event of negligence by Delta or its subcontractors resulting in damage to property, Delta will bear the cost of correcting the damage in proportion to its own or its subcontractor's negligence. SECTION 9: AGENCY/RIGHT OF ENTRY Delta Consultants-0718 Standard Client Service Agreement Page 4 of 7 In order to permit timely access to properties owned by third parties where access is deemed to be necessary or beneficial to the Work, Client hereby appoints Delta and its employees as its agent authorized to execute right of entry agreements on behalf of Client. An example of the right of entry agreement that Delta may sign for Client is provided in Attachment II, which is incorporated by reference (the "Right of Entry"). Delta is not authorized to make any changes or amendments to the Right of Entry except as agreed to in advance by the Client. Further, Client agrees that Delta's failure to obtain entry to property owned by third parties will not be deemed a breach of this Agreement and Delta will have no obligation to provide indemnification of third-parties, or otherwise obligate itself, in order to obtain entry to property. SECTION 10: UTILITIES Delta will take reasonable precautions in locating and identifying all subterranean structures or utilities and to avoid damage or injury to subterranean structures or utilities. However, Delta may reasonably rely on Project Information and information provided by local utilities related to structures or utilities and will not be liable for damages incurred where Delta has proceeded with reasonable precautions and in reliance on that information. SECTION 11: DISPOSAL OF MATERIALS The Work may include coordination by Delta for the lawful disposal of materials such as, but not limited to, samples, drilling cuttings, purge water resulting in the course of the Work, or other materials excavated or otherwise to be removed from the Site. Delta will assist client in selecting a disposal firm and facility and the costs of such disposal will be the responsibility of the Client. Client agrees, however, that Delta will not be obligated to execute any documents identifying Delta as the owner or generator of these materials, which status will continue to be held by Client, and Client will cooperate with Delta and execute documents necessary to permit the disposal of the materials. SECTION 12: FORCE MAJEURE If completion of any portion of the Work is delayed for causes beyond the control of or without the fault of Delta including Force Majeure, the time of performance of the Work will be extended for a period equal to the delay. Force Majeure includes, without limitation, acts of God; acts of the public enemy; acts of federal, state, local, or foreign governments; acts of Client's subcontractors or agents; fires; floods; epidemics; strikes; riots; freight embargoes; and unusually severe weather. SECTION 13: TERMINATION 13.1 This Agreement may be terminated by either party upon seven (7) calendar days written notice. If this Agreement is terminated prior to completion of all reports contemplated herein or if the Work is suspended for more than three (3) months, Delta may complete analyses that are in progress and may also complete a summary report on the Work done prior to termination. 13.2 Upon termination, Delta will be paid for services, plus reasonable termination expenses, which expenses will include direct costs of completing the analyses, and summary referred to above. SECTION 14: ASSIGNMENT Delta Consultants-0718 Standard Client Service Agreement Page 5 of 7 Neither party may delegate duties or assign interest in this Agreement without obtaining the prior written consent of the other party, which consent will not be unreasonably withheld, except Delta may use the services of persons and entities not in its employ when it is customary for Delta to do so. These may include, without limitation, surveyors, specialized consultants, drilling contractors, testing laboratories, and construction contractors. SECTION 15: DELTA SUBSIDIARIES/EFFECTIVE CONTRACT "Delta", shall mean Delta Consultants, Delta Environmental Consultants, Inc., Delta Environmental Consultants of Michigan, Inc., Delta Environmental Consultants of North Carolina, Inc., Delta Environmental Consultants of Ohio, Inc., Delta Environmental Consultants of Illinois, Inc., or any other Delta Consultants, wholly-owned subsidiary. All rights and obligations under this Agreement shall run to Delta Consultants, or its wholly-owned subsidiary or whichever performs the Work. SECTION 16: MISCELLANEOUS 16.1 The section headings of this Agreement are included for purposes of convenience only and will not affect the construction or interpretation of any provision. 16.2 The parties acknowledge that this Agreement supersedes all written and oral agreements, if any, between the parties, and that this Agreement constitutes the entire and only agreement pertaining to the Work. 16.3 This Agreement will be binding upon and will inure to the benefit of the parties and their successors and assigns. 16.4 This Agreement will be construed, the rights and obligations created hereby will be governed, and the remedies available will be provided in accordance with the laws of the state in which the Work is performed, regardless of the conflict of law principles customarily applied by the courts of any jurisdiction. Venue and adjudication will be in that state. 16.5 Any of the terms or conditions of this Agreement may be waived at any time by the party that is entitled to benefit therefrom, but no waiver will affect or impair the right of the waiving party to require observance, performance, or satisfaction of any other term or condition hereof. Any of the terms or provisions of this Agreement may be amended or modified at any time by agreement in writing executed by each party hereto. 16.6 All provisions of this Agreement allocating responsibility between Client and Delta will survive the completion of the Work or termination of this Agreement. 16.7 Any provision or part of this Agreement adjudicated to be void or unenforceable under any law will be deemed deleted, such deletion to apply only with respect to the jurisdiction in which such adjudication is made, and all remaining provisions will continue to be valid and binding upon the parties. The parties agree that this Agreement will be reformed to replace the deleted provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the deleted provision. 16.8 In keeping with the intent of the parties that this is the entire Agreement between them, the parties agree that the preprinted terms and conditions of any Client activating letter / purchase order issued to request Work pursuant to this Agreement will not apply to the Work, regardless of whether Delta executes the activating letter/purchase order in acceptance of the Work. Delta Consultants-0718 Standard Client Service Agreement Page 6 of 7 16.9 Client has authority to enter into this Agreement and any person signing it on Client's behalf has been duly authorized to sign. WHEREUPON, the parties caused this Agreement to be duly executed and to be effective on the date first above written. SIGNATURES Delta Consultants L Signature n Ricketts, Vice President Name and Title Brushy Creek Regional Utility Authority Client Name 221 E. Main, Round Rock, Texas 78664- 5271 Address (D�, . :,-/ 10410 Signature Name and Title U Delta Consultants-0718 Standard Client Service Agreement Page 7 of 7 ATTACHMENT DELTA'S WORK AND FEES PROPOSAL Lump Sum Amount of$775.00 Delta Consultants-0718 Standard Client Service Agreement Attachment I ATTACHMENT II RIGHT OF ENTRY (the "License") The property owner(s) (referred to in this Agreement as the "Owner(s)"), have the sole right to possession of the property for which a right of entry is granted by this document. The property is located at: The Owner(s) give (the "Licensee"), its agents, employees, and assigns, the right to enter upon the property to do all activities required to complete their work. The Owner(s) acknowledge that Delta Consultants ("Delta") is an agent of the Licensee. This License is effective immediately upon signing. Licensee agrees to repair or cause to be repaired any damage to the property resulting from entry onto the property by Licensee, its agents, employees, or assigns by restoring the property, as much as reasonably possible, to its condition immediately prior to the entry. Dated this day of , 20 "Owner(s)" "Licensee" By Delta Consultants Agent for Licensee Signature Signature Its Its Typed Name Typed Name Delta Consultants-0718 Standard Client Service Agreement Attachment 11