020 1ei Project Management

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PROJECT MANAGEMENT AND
FISCAL SERVICES AGREEMENT
BUCKMAN DIRECT DIVERSION PROJECT
TIDS PROJECT MANAGEMENT AND FISCAL SERVICES
AGPJ:El\1ENT (hereinafter referred to as "the P~gree1nent" or "PI\1FSf\_") is entered into
by and between the Buckman Direct Diversion Project Board ("the BDD Board"), an
entity organized and existing under that certain Joint Powers Agreement by and between
the City of Santa Fe ("City") and the Santa Fe County ("County"), dated March 7, 2005,
and the Sangre de Cristo Water Division of the City of Santa Fe ("Project Manager").
WHEREAS, the City and the County, through the BDD Board, are designing,
constructing, operating and maintaining the Buckman Direct Diversion Project;
WHEREAS, in preparation for creating the Project, the City and the County
entered into the Water Resources Agreement on January 11, 2005;
WHEREAS, the City and the County entered into a Joint Powers Agreement on
March 7, 2005, governing the Buckman Direct Diversion Project, creating the BDD
Board, delegating to the BDD Board in § 12 the authority to enter into the PMFSA, and
designating in§ 13 the Sangre de Cristo Water Division of the City as the Project
Manager and Fiscal Agent of the Project until December 1, 2015;
WHEREAS, the City, the County, and Las Campanas entered into the Facilities
Operations and Procedures Agreement on October 16, 2006, which provides for
respective ownership interests of the City and the County in the shared facilities
comprising the Project, and cost sharing obligations of the City, County and Las
Campanas in connection with the Project;
WHEREAS, the purpose of this Agreement is to more specifically describe the
duties and responsibilities of the BDD Board, the duties and responsibilities of the Project
Manager, how the Project will be operated and maintained by the Project Manager on
behalf of the BDD Board, how contributions by the City, the County and Las Campanas
will be paid and credited against the obligations set out in the Project Agreements, the
duties and responsibilities of the Project Manager as fiscal agent for the Project, and other
necessary terms; and
WHEREAS, the BDD Board and the Project Manager desire to enter into the
agreement to address the items noted in the foregoing paragraph.
NOW, THEREFORE, for the covenants, promises and consideration described
herein, the BDD Board and the Project Manager agree as follows:

AGREEMENT
ARTICLE 1. DEFINITIONS.
Capitalized words or phrases used in the foregoing recitals of this Agreement
shall have the meanings assigned therein. In addition, the words and phrases defined in
this Article 1 shall have the meanings assigned in this section.
A. "The Agreement," "this Agreement," or "PMFSA" as used herein
refers to this Project 1v1anagement and Fiscal Services Agreement.
B. "Annual Operating Budget" means the annual budget for all activities
of the Project, including OMR&R, but excluding the budget for the design and
construction.
C. "Annual Operating Plan and Delivery Schedule" means the annual
operating plan and water delivery schedule prepared by the Project Manager with input
from the City, the County and Las Campanas, described in Section 27 of the FOPA and
herein.
D. "The "City" means the City of Santa Fe, New Mexico, a municipal
corporation organized and existing under the Laws of the State of New Mexico, and a
signatory of the Project Agreements.
E. "The County" means Santa Fe County, New Mexico and the Board of
County Commissioners of Santa Fe County, a political subdivision of the State of New
Mexico, and a signatory of the Project Agreements.
F. "Design-Build Contract" means the contract to be entered into by and
between the BDD Board and a design-build contractor to design and construct the
Project.
G. The "Design-Build Contractor" refers to the contractor selected to
design and construct the Project.
H. The "Design and Construction Budget" means the comprehensive,
multiyear budget for the design and construction of the Project.
I. "Fiscal Year" means a year beginning on July 1 and ending on June 30.
J. "The FOPA" means the Facility Operations and Procedures
Agreements for the Buclanan Direct Diversion Project Between the City of Santa Fe,
Santa Fe County and Las Campanas LP.
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K. "The JP A" means the Joint Powers Agreement between the City of
Santa Fe and the County of Santa Fe governing the Buckman Direct Diversion Project,
effective March 7, 2005.
L. "Las Campanas" means the Las Campanas Limited Partnership, a
Delaware Limited Partnership, and a signatory of the FOPA.
M. "OMR&R" means operation, maintenance, replacement and repair.
N. "Owners' Consuitant' means Camp, Dresser & McKee, Inc.
(hereinafter referred to as "CDM"), under contract with the BDD Board as consulting
engineer to the BDD Board, or any successor entity.
0. "The Owners' Consultant Contract" means the contract between the
BDD Board and CDM, the Owners' consultant, as amended.
P. "The Project" means the planned Buckman Direct Diversion Project
which will divert surface water from the Rio Grande as described in the final
Environmental Impact Statement for the Buckman Direct Diversion Project, and includes
diversion, treatment, transmission and related works used to deliver water to the
respective Independent Water Systems of the City and the County.
Q. The phrase "the Project Agreements" means the WRA, JPA, the FOPA
and the PFMSA.
R. "Project Expenses" means those expenditures of the Project approved
by the BDD Board and included in a budget approved by the BDD Board, the City and
the County, and reimbursement expenses retroactive to the execution date of the JPA.
S. "Project Manager" means the Sangre de Cristo Water Division of the
City of Santa Fe.
T. "WRA" shall mean the Water Resources Agreement by and between
the City of Santa Fe and Santa Fe County and dated on or about January 11, 2005.
ARTICLE 2. TERM, EFFECTIVE DATE.
This Agreement shall become effective as of the date the Agreement is approved
and executed by the BDD Board and the Project Manager. This Agreement shall remain
in full force and effect until December 1, 2015, unless terminated earlier as provided in
Article 9.E. of this Agreement.
ARTICLE 3. RESPONSIBILITIES OF THE BDD BOARD.
The BDD Board shall be responsible to do all of the following:
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A. Exercise all the responsibilities of the BDD Board as set forth in the
Project Agreements;
B. Supervise the performance of the Project Manager pursuant to §§ 4 &
12 of the JPA;
C. Review and approve all contracts for the procurement of the Project
including documents related to design, engineering, construction, operation and
maintenance of the Project, including, without limitation, requests for proposals, requests
for qualifications, contracts and expenditures in amounts greater than $20,000;
The BDD Board shall review, and if approved, execute the Owners' Consultant and the
Design-Build Contracts, pursuant to §§ 10 and 11 of the JP A.
Contracts and expenditures in amounts less than $20,000 may be reviewed, and if
acceptable, may be approved administratively by the Project Manager. In an emergency,
the Project Manager may approve contracts and expenditures up to $30,000.
D. Establish by resolution of the BDD Board a document retention and
protection policy.
E. Establish by resolution of the BDD Board the Annual Operating
Budget;
F. Provide an adequate opportunity for the City, the County, and
consistent with the FOPA, Las Campanas, and the public, to comment and make
appropriate presentations on any proposed budget;
G. Consider and, if appropriate, adopt, by resolution of the BDD Board,
amendments to a previously approved budget that the BDD Board deems advisable;
H. Create an Emergency Reserve Fund and establish procedures for its
management pursuant to §24 of the FOPA;
I. Collect, through the Project Manager, contributions of the City, the
County and Las Campanas toward design, construction, operation and maintenance of the
Project, and related expenditures, and credit those contributions towards the obligations
of the City, the County and Las Campanas as set forth in the Project Agreements;
J. Consistent with the Bateman Act, appropriately condition approval of
each budget or amendment thereto on appropriation by the City and/or the County in an
appropriate budget or budget amendment ;
K. Approve all financing and funding sources for the Project (except for
funding to be provided by the City and the County pursuant to the Project Agreements)
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and, as appropriate, enter into contracts in connection with such financing or funding
sources;
L. Monitor the performance of the Owners' Consultant pursuant to the
Owners' Consultant Contract and monitor the performance of the Design-Build
Contractor pursuant to the Design-Build Contract; and
M. Take all steps that are necessary and proper for the design,
construction, operation and maintenance of the Project.
ARTICLE 4. DELEGATION OF AUTHORITY TO AND GENERAL
RESPONSIBILITIES OF THE PROJECT MANAGER.
The BDD Board delegates to the Project Manager the authority and responsibility
to do the following:
A. Carry out the directives and policies of the BDD Board, make
recommendations to the BDD Board related to the Project, provide support staff for BDD
Board meetings, contract with independent legal counsel selected by the BDD Board,
contract with specialized legal counsel as needed to support design, construction,
operation and maintenance of the Project, and, as directed by the BDD Board, implement
the Project during design and construction and, following completion of construction,
manage, operate, and maintain the Project;
B. Seek and apply for funding (except for funding to be provided by the
City and the County pursuant to the Project Agreements) in the form of grants, loans or
loan guarantees, or other funding sources as may be deemed appropriate by the BDD
Board, for the Project as directed by the BDD Board and manage any such grants, loans
or loan guarantees;
C. Administer all funds loaned, granted or contributed by the City, the
County or Las Campanas in connection with the Project, and respond to related audits as
may be necessary;
D. Prepare and submit to the BDD Board, the City, the County and Las
Campanas no later than December 15 of each Fiscal Year, an Annual Operating Budget,
which shall include annual and 5 year projected OMR&R costs, including a 5 year
schedule with the Project Manager's proposed facilities and equipment major
maintenance and replacement costs, proposed allocation of costs among the City, the
County and Las Campanas as provided in the FOPA, a facilities and equipment major
repair and replacement fund, and an emergency reserve fund;
E. Develop and implement prior to initial operation a cost accounting
system to apportion the total fixed and variable cost of OMR&R to the City, the County
and Las Campanas in accordance with the cost sharing provisions of the FOPA;
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F. Develop a document retention and protection policy for adoption by the
BDD Board;
G. Act as fiscal agent for the Project as provided in Article 7, herein;
H. Once an Annual Operating Budget is approved by the BDD Board,
implement the budget, adhere strictly to the budget, and make recommendations for
necessary budget adjustments throughout the Fiscal Year, and contract for an annual
independent audit, consistent with GAAP and GASB and with the New Mexico Audit
Act, NMSA 1978, Sections 12-6-1-, et seq., and 2.2.2. NMAC, et seq., as amended, and
report the results of the audit to the BDD Board;
I. Prepare and submit to the BDD Board for approval all documentation to
be used for procurement in the Project including, but not limited to, documents related to
design, engineering, construction, operation and maintenance of the Project, including,
without limitation, requests for proposals, requests for qualifications and contracts in
amounts greater than $20,000;
J. Develop all procurement documents in accordance with the City's
Purchasing Manual and present same to the BDD Board;
K. Consult with staff of the City, the County, and Las Campanas
regarding the planning and design and OMR&R of the Project;
L. In consultation with the BDD Board, apply for, manage and maintain,
including the preparation and submittal of all required compliance reports, all necessary
permits for the operation of the Project, including, without limitation, those permits,
easements, and rights-of-way held in the name of the BDD Board, and those permits
required to be obtained by the BDD Board pursuant to Section 6 of the FOPA;
M. Maintain communication with the BDD Board, the City, the County
and Las Campanas, primarily via monthly BDD Board meetings, and keep these entities
informed of important matters as may be necessary in the interim between monthly BDD
Board meetings;
N. As directed by the BDD Board, act as liaison for the BDD Board and
represent the BDD Board in Project matters involving tribal governments, state and
federal government agencies, and non-governmental organizations;
0. As directed by the BDD Board, and with the consent and approval of
the City and the County, and in consultation with Las Campanas, coordinate the Project
with regional water supply planning efforts; and
P. Perform other duties as assigned by the BDD Board consistent with
funding and the Project Agreements.
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Q. Make commercially reasonable efforts to enforce the terms of all
agreements that the BDD Board approves. In the event that the Project Manager's
administrative efforts to enforce a specific contract's terms are not successful, the Project
Manager shall so inform the BDD Board and shall make specific recommendations for
the BDD Board's consideration regarding the BDD Board's contract enforcement steps
or procedures, including litigation.
ARTICLE 5. SPECIFIC RESPONSIBILITIES OF THE PROJECT MANAGER
DURING DESIGN AND CONSTRUCTION.
During design and construction of the Project (through project acceptance by the
BDD Board), the Project Manager shall do the following:
A. Supervise the Owners' Consultant pursuant to the Owners' Consultant
Contract as directed by the BDD Board;
B. On a monthly basis, provide a schedule of construction payments to
the BDD Board, track Project costs, track progress of the Project, monitor design and
construction costs to determine whether such costs are within the sum specified by the
BDD Board in the Design and Construction Budget, and manage the Design-Build
Contractor within the limits of contractual obligations such that construction of the
Project is timely and reasonably delivered pursuant to the project testing and acceptance
dates agreed to in the Design-Build Contract;
C. Negotiate and manage procurement of the Design-Build Contract in
accordance with the City's Purchasing Manual and present same to the BDD Board for
approval;
D. Oversee the Design-Build Contractor in connection with all design and
construction activities, and recommend to the BDD Board legal action to enforce
compliance with the contract, if necessary;
E. Administer requests for payment by the Design-Build Contractor
pursuant to construction draw schedules and timely present requests for Change Orders to
the BDD Board and process same;
F. Monitor testing of the completed Project in accordance with procedures
outlined in the Design Build Contract and upon successful results accept the completed
Project.
ARTICLE 6. SPECIFIC RESPONSIBILITIES OF THE PROJECT MANAGER
DURING PROJECT OPERATIONS.
During the operation, maintenance, repair and replacement phase of the Project,
the Project Manager shall do the following:
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A. Operate the Project within its design limitations to deliver treated
water in sufficient pressure and volume to meet the actual demand of the City and the
County, subject to the capacity allocations set forth in the FOPA §7, and of a quality that
meets or exceeds all applicable State and federal regulations and standards;
B. Provide the treated water referred to the previous paragraph at a point
or points of delivery at the BDD Project specified by the City or the County, provided,
however, that the Project Manager is not obligated to deliver to points of delivery not
constructed during the initial construction of the Project unless the City or the County
first construct a new point of deiivery at the BDD Project and provide the Project
Manager and the BDD Board with thirty (30) days advance written notice of the need for
water at the newly constructed point of delivery;
C. Deliver raw water to Las Campanas, at pump station 2A subject to the
capacity allocation set forth in the FOPA §7, and manage the common facilities at pump
station 2A;
D. Maintain water measurement devices that are part of the Project to
account for the actual volume, rate, and time-of-day of all water deliveries to the City, the
County and Las Campanas;
E. Use data provided from the metering facilities and monitors referred to
in the preceding paragraph to analyze whether deliveries comply with Annual Operating
Plan and the Project Agreements, and report to the BDD Board monthly;
F. Seek annually from the City, the County and Las Campanas,
information required for the Annual Operating Plan as required by Section 27 of the
FOPA;
G. From the data submitted pursuant to the previous paragraph, prepare
the Annual Operating Plan and Delivery Schedule described in Section 27 of the FOPA,
submit the report to the BDD Board, and make appropriate recommendations;
I. As soon as practicable after the end of each Fiscal Year, the Project
Manager shall calculate the actual costs experienced by the Project in the previous Fiscal
Year and the amounts paid by the City, the County and Las Campanas for the Project and
make appropriate recommendations to the BDD Board for adjustments needed in the
current Fiscal Year's budget;
J. Invoice the City, the County and Las Campanas for Project costs
according to the cost sharing principles specified in the FOPA no less frequently than
quarterly, and collect all sums so invoiced;
K. Schedule and coordinate reservoir release and Project diversion of San
Juan-Chama Project water in accordance with the procedures of the U.S. Bureau of
Reclamation and the U.S. Corps of Engineers and the conditions of City and County
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diversion permit No. 4842 issued by the State Engineer and future permits for diversion
at the BDD of San Juan-Chama Project water and as directed by the designated
representatives of the City, the County, and Las Campanas, each of whom has the
responsibility to make water available at the reservoir from which it will be released;
L. Track raw water diversions by the Project for the City, the Cotmty, and
Las Campanas, and provide to the BDD Board, with copies to the City, the County, and
Las Campanas, a monthly accounting of actual raw and potable deliveries, daily water
orders, and other statistical information as the BDD Board may require;
M. Monitor the relationship between the quantity of water actually
delivered by the Project to the City, the County and Las Campanas and the permitted
capacity of the Project's production facilities and make periodic reports of this analysis to
the BDD Board, the City, the County and Las Campanas;
N. Reduce deliveries as provided in the FOPA §9 in the event of a reduced
total capacity of the BDD Project caused by facility failure;
0. Provide all necessary staff, materials and supplies necessary to operate
and maintain the Project consistent with BDD Board funding;
P. Recruit, hire and train staff for the Project according to the BDD
Board's approved staffing plan as it may be amended from time to time and arrange for
state drinking water certification for such staff in advance of operation of the Project, so
that certified staff is available to operate the Project when the Project becomes
operational, and set forth in each proposed budget the costs of the staff apportioned
according to the respective benefit to the City and the Project
Q. Perform OMR&R duties for the Project at all relevant times in
accordance with prudent water utility practices;
R. Report to the BDD Board quarterly and as otherwise required by the
BDD Board regarding the OMR&R of the Project and all other relevant matters related to
the Project;
T. In consultation with the City, the County and Las Campanas and
pursuant to FOPA §27, prepare and present to the BDD Board for approval a
comprehensive operations manual for the Project, and updates as needed, which shall
include details of all aspects of Project operation including, but not limited to, process
control, maintenance, scheduled maintenance outages, rehabilitation and replacement,
contingency plans for unscheduled outages, and residuals management; distribute the
comprehensive operations manual to the BDD Board, the City, the County and Las
Campanas. The Project Manager may delegate, as appropriate, the preparation of the
comprehensive operations manual to the Owner's Consultant, the Design-Build
Contractor, or another;
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U. Provide for appropriate security at all Project facilities;
V. Identify and report to the County the need for Buckman Road
maintenance and reimburse the County for the apportioned cost according to the
respective benefit to the County and the Project; and
W. Identify and report warranty problems to the Design-Build Contractor
or the appropriate subcontractor or equipment supplier and, as necessary, recommend to
the BDD Board legal action to enforce such warranties.
ARTICLE 7. FISCAL AGENT RESPONSIBILITIES.
The Project Manager shall act as fiscal agent for Project during the term of this
Agreement, and as such shall have the following responsibilities:
A. Books and Accounts. The Project Manager shall maintain records of
all transactions related to the Project, including third party transactions, in accordance
with generally accepted accounting principles ("GAAP"), and standards established by
the government accounting standards bureau ("GASB"), and shall:
(1) establish a uniform system of accounts;
(2) maintain segregated books and records consistent with
GAAP to account for all separate funding sources, including, without limitation, funds
provided by the City, the County, or Las Campanas in support of construction or
subsequent OMR&R of the Project and funds secured by the BDD Board pursuant to
grants or loans from funding agencies.
(3) maintain supporting documentation and information
required by funding agencies and prepare all necessary reports to such agencies;
(4) provide access at any time to the City, the County and Las
Campanas, or each of them, and to the State Auditor, and members of the public, within
90 days following the end of each fiscal year and at any other time as may be reasonably
requested, full and complete books and records relating to the Project;
(5) provide to the City, the County and Las Campanas, or each
of them, any additional financial information or documentation relating to the Project as
may from time to time be reasonably requested;
(6) within 90 days after the end of each fiscal year, provide
copies of financial statements to the City, the County and Las Campana:s, showing the
assets, liabilities, revenues, expenses, equity balances and budget comparisons for the
Project fund on an annual basis for the prior fiscal year in accordance with GAAP and
GASB, complete the Management's Discussion and Analysis (MDA) for the annual
financial report, and provide upon request, a monthly general ledger report but may
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recommend that its auditors produce the financial statements, dependent on staff
available and the complexity of the reporting requirements;
(7) account for the separate financial contributions from, and
reimbursements to, the City, the County and Las Campanas, including crediting the
County for the contribution of revenues from the County Capital Outlay Gross Receipts
Tax imposed by the Board of County Commissioners in Santa Fe County Ordinance No.
2002-5, subject to the terms of that Ordinance;
(8) procure, contract, and pay for as budgeted an annual
independent audit, consistent with GAAP and GASB and with the New Mexico Audit
Act, NMSA 1978, Sections 12-6-1-, et seq., and 2.2.2. NMAC, et seq., as amended, and
report the results of the audit to the BDD Board.
B. Financial Operations. The Project Manager, acting as fiscal agent,
shall:
(1) receive and record deposits in connection with the Project in
compliance with applicable state and federal statutes, all applicable requirements of grant
and loan funding and requirements otherwise imposed by or on the sources of funding;
(2) make and account for all approved disbursements for the
Project, ensuring that disbursements are valid and comply with all applicable State
investment statutes, and policies and procedures adopted by the BDD Board;
(3) in consultation with the BDD Board, invest excess funds not
required for current operations or capital expenditures in accordance with applicable
statutes, City and County policies and applicable requir~ments of grant or loan funding,
assuring that investment earnings are credited to Project funds;
(4) carry over any unencumbered monies that are present at the
end of a Fiscal Year, and budget those funds to the succeeding Fiscal Year, to be utilized
for purposes consistent with the Project Agreements in the succeeding Fiscal Year; and
(5) obtain all necessary approvals for expenditure of funds,
1 including, without limitation, approvals by the BDD Board and the New Mexico
Department of Finance and Administration.; and
(6) determine and record capital assets inventory for appropriate
general ledger amounts, run and record depreciation, and submit year-end capital asset
inventory for the annual physical inventory.
ARTICLE 8. COMPENSATION.
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The Project Manager, the City and the County shall be compensated for services
rendered, or credited for services rendered prior to the date of this Agreement or of any
Project Agreement, as follows:
A. Following execution of this Agreement, the Project Manager shall be
compensated for its services as fiscal agent to the Project in an amount equal to one
percent (1 %) of the total annual operating budget of the Project in any given fiscal year,
which the Project Manager may deduct from revenues dedicated to the Project.
B. Foilowing execution of this Agreement, the Project Manager shail
confer with the City, Las Campanas and the County to assign expenditures made
previously by the City, Las Campanas or the County to the Project, including the
dedication of real or personal property to the Project, by including the same in a single
proposed supplemental budget document and presenting same to the BDD Board as
proposed expenditures of the Project. The expenditures approved by the BDD Board in
the proposed supplemental budget document shaU become Project Expenses and, the
City, Las Campanas or the County may be reimbursed for such approved expenditures or
may credit such prior expenditures against current or future obligations under the Project
Agreements. Notwithstanding the foregoing, no cash payment or credit shall be made if
it is determined by the City or the County's bond counsel, after review of the proposed
supplemental budget document, that such payment may adversely affect the federal tax
exemption of interest on the obligations issued by the City or the County to finance the
Project.
C. Following execution of this Agreement, all expenses proposed to be
incurred by the Project Manager in connection with project management of the Project
shall be set forth in the Annual Operating Budget and the Design and Construction
Budget.
D. The Project Manager shall not incur nor be paid for any additional or
extraordinary OMR&R expenses in connection with performing the services described in
this Agreement except as specified in the Annual Operating Budget, amendments thereto,
or from the Emergency Reserve Fund.
ARTICLE 9. TRANSFER OF FUNDS TO MEET OBLIGATIONS UNDER THE
PROJECT AGREEMENTS.
An obligation of a party in the Project Agreements may be met at any time by
transferring funds to "the City of Santa Fe as Project Manager for the Buclanan Direct
Diversion Project." Any such transfer shall be credited immediately against the account
of the contributing party, and the City, as Project Manager, shall be a trustee for any such
funds received on account of the Project.
ARTICLE 10. MISCELLANEOUS.
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A. Default. For purposes of this Agreement, the Project Manager shall be
deemed to be in default only in the event of a breach of its obligations hereunder.
B. Right to cure. In the event of default, the Project Manager shall have
sixty (60) days from receipt of written notification from the BDD Board to cure the
default. If the Project Manager is unable to cure the default with the sixty day period, the
Project Manager will notify the BDD Board, the City and the County at the earlier of (1)
the time the Project Manager becomes aware of the inability to cure the default; or (2)
expiration of the sixty day period.
C. Remedies on Default. In addition to the remedies specified in this
Article, if an event of default remains uncured within the sixty day cure period, the BDD
Board may elect to treat this Agreement as being in full force and effect and the BDD
Board, the City and the County shall have the right to specific performance. If the BDD
Board determines that the Project Manager cannot continue in its role as manager of the
Project, the BDD Board may declare this Agreement terminated and appoint a successor
as Project Manager for the remainder of the term of this Agreement. In the event of
termination, the duties and obligations of the parties shall remain in full force and effect.
D. Termination. If this Agreement expires or a default remains uncured
as provided in Article 9(B) of this Agreement, the BDD Board has authority to enter into
a new Agreement as provide in §13 of the JPA with the Sangre de Cristo Water Division
of the City of Santa Fe, the County of Santa Fe Water Utility, or a Regional Entity. In the
event of termination, applicable provisions of this Agreement shall continue in effect
after termination to the extent necessary to enforce or complete the duties, obligations or
responsibilities of the parties arising prior to termination and, as applicable, to provide for
final billings and adjustments related to the period prior to termination. Each party shall
remain obligated for its share of payments due pursuant to any obligations to a third party
incurred as contemplated by this Agreement or the Project Agreements.
E. Dispute Resolution. If a dispute, other than a default which the
Project Manager is unable to cure during the sixty day cure period, arises which the BDD
Board and the Project Manager cannot satisfactorily resolve, then the BDD Board and the
Project Manager agree to those forms of dispute resolution authorized by NMSA 1978,
Section 12-8A-1, et seq. (2000), except binding arbitration, to resolve conflicts arising
under this Agreement, the expenses of which shall be shared equally by the BDD Board,
the Project Manager, and, as applicable, the City, the County and Las Campanas.
Disputes shall be first discussed by representatives of each party having the authority, if
necessary, to bind the party that they represent. Such representatives shall use their best
efforts to amicably and promptly resolve the dispute.
F. Notices in writing. Notices required by this Agreement shall be
addressed to the parties at the addresses noted on Attachment A hereto, as each party may
update them from time to time by written notice to the other parties. Such notice shall
either be hand delivered or mailed, first class mail, postage prepaid, to the representatives
of the other parties. If mailed, the notice or communication shall be simultaneously sent
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by facsimile or other electronic means. Any such notice or communication shall be
deemed to have been received by the close of the business day on which it was hand
delivered or transmitted electronically (unless hand delivered or transmitted after such
close of business in which case it shall be deemed received at the close of the next
business day).
G. Representative for Notices. Each party shall maintain a designated
representative to receive notices as set out in Attachment A. Any party may, by written
notice to the other parties, change the representative or the address to which such notices
and communications are to be sent.
H. Authority of Representatives. The parties' representatives
designated above shall have authority to act for their respective principals in all technical
matters related to the performance of this Agreement and to attempt to resolve disputes or
potential disputes. However, they, in their capacity as representatives, shall not have
authority to amend or modify any provision of this Agreement.
I. Insurance. The Project Manager shall obtain and continuously
maintain insurance policies without interruption, during the term of this Agreement, for
the operations and activities on or at the Project, from a licensed insurance company or
companies deemed acceptable to the BDD Board, and the City, the Cmmty and Las
Campanas, which policies shall name the BDD Board, the City, the County and Las
Campanas as additional insured, in conformance with the specifications for insurance
coverage set forth in Attachment B and the Annual Operating Budget.
J. Term and modification of insurance. All insurance required under
this Agreement shall cover occurrences during the term and for a period of two years
after the term. If any insurance as required herein is commercially available only on a
"claims-made" basis, such insurance shall provide for a retroactive date not later than the
execution date and such insurance shall be maintained by the Project Manager for a
minimum of five years after the term. The BDD Board shall have the right during the
term to request the Project Manager to modify the insurance minimum limits specified in
Attachment Bin order to maintain reasonable coverage amounts. The Project Manager
shall make all commercially reasonable efforts to comply with any such request. If any
insurance required to be maintained by the Project Manager hereunder ceases to be
reasonably available and commercially feasible in the commercial insurance market, the
Project Manager shall provide written notice to the BDD Board, accompanied by a
certificate from an independent insurance advisor of recognized national standing,
certifying that such insurance is not reasonably available and commercially feasible in the
commercial insurance market for water utilities of similar type, geographic location, and
capacity. Upon receipt of such notice, the Project Manager shall use commercially
reasonable efforts to obtain other insurance which would provide comparable protection
against the risk to be insured and the BDD Board shall not unreasonably withhold its
consent to modify or waive such requirement.
BDDPMFSA
page 14 of 18

K. Third Party Beneficiaries. This Agreement was not intended to and
does not create any rights in any persons not a party hereto, specifically including Las
Campanas except as otherwise set forth in the Project Agreements and, specifically, the
FOPA.
L. Modifications. This Agreement may not be modified, altered,
changed, or amended orally but, rather, only by an instrument in writing executed by the
parties hereto.
I'd. Seve:rability. If any term or condition of this Agreement shall be held
invalid or non-enforceable by any court of competent jurisdiction, the remainder of this
Agreement shall not be affected and shall be valid and enforceable to the fullest extent of
the law.
N. Subcontractors. The Project Manager shall not subcontract or
delegate any portion of the services to be performed in excess of $20,000 under this
Agreement without the advance written approval of the BDD Board. Any attempted
subcontracting or delegating without the BDD Board's advance written approval shall be
null and void and without any legal effect.
0. Choice of Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of New Mexico, without regard to its
choice oflaw rules. The parties hereby submit to the exclusive jurisdiction of the courts
of the State of New Mexico, and venue is hereby stipulated in the First Judicial District
Court, State of New Mexico.
P. Sovereign immunity. No provision of this Agreement modifies or
waives any sovereign immunity or limitation ofliability enjoyed by parties or their
"public employees" at common law or under the New Mexico Tort Claims Act, NMSA
1978, Sections 41-4-1, et seq. (1976), as amended.
Q. Survival of obligations. Cancellation, expiration, or earlier
termination of this Agreement shall not relieve the parties of obligations that by their
nature should survive such cancellation, expiration, or earlier termination.
R. Binding effect. This Agreement, as it may be amended from time to
time, shall be binding on and inure to the benefit of the parties hereto and their respective
successors-in-interest, legal representatives, and assigns permitted hereunder.
S. Other Documents. The parties agree to execute such further and other
agreements as reasonably may be required from time to time to carry out the provisions
of this Agreement.
T. Execution in Counterparts. This Agreement may be executed in
counterparts with separate signature pages in the format shown below.
BDDPMFSA
page 15 of 18

IN WITNESS WHEREOF, the BDD Board and the Sangre de Cristo Water
Division of the City of Santa Fe, New Mexico have caused this Agreement to be executed
and delivered by its duly authorized representatives as of the date specified below.
ERSION BOARD
Date: -----+L_,__1/---=--f-✓t____.____7 _ _ _ _
Attest· • /}
7J;deMY c~w<~~j~
Valerie Espinoza, County Cerk/J 7' .; ~ ;() a1J
, /fu_,-i .j/ "! '-"-"-D'
THE SANGRE DE CRISTO WATER DIVISION OF THE CITY OF SANTA FE
By J:)~[)__ ~ ·
David Coss, Mayor
BDDPMFSA
page 16 of 18
Date
Date

ATTACHMENT A
Parties designated to receive notices under this Agreement:
For the Sangre de Cristo Water Division of the City of Santa Fe
Rick Carpenter
Sangre de Cristo Water Company
801 West San Mateo Street
Sa11ta Fe, l{M 87505
With copies to:
City Manager
City of Santa Fe
P.O. Box 909
Santa Fe, NM 87504-0909
City Attorney
City of Santa Fe
P.O. Box 909
Santa Fe, NM 87504-0909
For the Buckman Direct Diversion Board:
Chair, Buckman Direct Diversion Board
c/o Stephanie Trujillo, Secretary
801 West San Mateo Street
Santa Fe, NM 87505
With copies to:·
Santa Fe County
attn: County Manager
P.O. Box276
Santa Fe, New Mexico 87504-0276
County Attorney
Santa Fe County
P.O. Box276
Santa Fe, New Mexico 87504-0276
BDDPMFSA
page 17 of 18

BDDPMFSA
page 18 of 18
ATTACHMENT B
Specifications for Insurance Coverage