Exhibit 10.5
WATER SUPPLY AGREEMENT
BETWEEN THE JICARILLA APACHE TRIBE
AND PUBLIC SERVICE COMPANY OF NEW MEXICO
THIS AGREEMENT (the "Agreement") made this 17th day of July, 2000, is
between the JICARILLA APACHE TRIBE (the "Tribe") and PUBLIC SERVICE COMPANY OF
NEW MEXICO ("PNM") in its individual capacity and in its capacity as operating
agent of the San Xxxx Generating Station ("SJGS"). The Tribe and PNM are
collectively referred to as "Parties" and individually as "Party."
EXPLANATORY RECITALS
PNM, as operating agent of the SJGS, is in need of a future water
supply for electric power generation, and uses related and incidental thereto,
and
The Tribe is the owner of certain water rights pursuant to the
Jicarilla Apache Tribal Water Rights Settlement Act of October 23, 1992, 106
Stat. 2237 (the "Settlement Act"), and the Act of June 13, 1962, 76 Stat. 96
(the " NIIP/ San Xxxx-Xxxxx Act"), and
The Tribe has the right to deplete up to 25,500 acre feet per year from
the Navajo Reservoir Supply pursuant to the Settlement Act and the Contract
between the Tribe and the United States of America dated December 8, 1992 (the
"Federal Contract"), and
The Tribe has the right to market such water pursuant to the Settlement
Act and the Federal Contract, and
The Tribe desires to subcontract under the Federal Contract to market
water to PNM and PNM desires to purchase such water supply under the terms and
conditions of this Agreement.
ACCORDINGLY, in consideration of the mutual covenants in this
Agreement, the Parties agree as follows:
1
ARTICLE 1
GENERAL DEFINITIONS
1.1 "Tribe" means the Jicarilla Apache Tribe. The Tribe is a federally
recognized Indian tribe organized under the Indian Reorganization Act.
1.2 "Navajo Reservoir" or "Project" means the reservoir created by the
impoundment of the San Xxxx River at the Navajo Dam as authorized by
the Act of Congress of April 11, 1956, 70 Stat. 105, as amended.
1.3 "Navajo Reservoir Supply" means the water supply in the Navajo
Reservoir as it is defined in the Federal Contract and delivered by the
United States Bureau of Reclamation ("USBR").
1.4 "Notice" is proper notice provided pursuant to Article 10 of this
Agreement.
1.5 "NEPA" means the National Environmental Policy Act. 42 X.X.X.xx.xx.
4321 et seq.
1.6 "ESA" means the Endangered Species Act. 16 U.S.C.ss.ss.1531 et seq.
1.7 "PNM" means Public Service Company of New Mexico acting in its
individual capacity and in its capacity as operating agent for San Xxxx
Generating Station ("SJGS") and PNM's successors and assigns.
1.8 "SJGS xxxx" means the diversion structure located in the San Xxxx
River at Mile Marker 166.1, based on the San Xxxx River Recovery
Implementation Program Geomorphic Survey.
1.9 "USBR" means the United States Bureau of Reclamation.
1.10 "USBR CRSP Rate" means the calculated delivery rate ($/AF), based on a
maximum of 16,200 acre-feet of water per annum, set by the USBR for
Colorado River Storage Project ("CRSP") long term municipal and
industrial contracts. The Parties understand that the USBR CRSP Rate is
reviewed and adjusted annually in accordance with the USBR Debt Service
Methodology used for pricing water from the CRSP as follows:
1.10.1 That part of the Federal debt ("estimated debt") incurred
in developing water for consumptive uses in the CRSP
initial units served by this Agreement will be established
by USBR as of January 1, 2006.
2
1.10.2 The first annual payment will be calculated from an
amortization of the estimated debt, using the annuity due
formula, and based on a 40-year payment term at an
interest rate that is the annual average rate for 10-year
Treasury constant maturities for the year previous to the
year of contract execution.
1.10.3 For each succeeding year thereafter, the estimated debt to
be serviced shall be recalculated in accordance with the
following:
Dn = Dn-1 - Pn-1 + In-1 +/- (DELTA) Cn-1
Where:
Dn = The recalculated total debt for water to be serviced by this
Agreement;
Dn-1 = The debt to be serviced by this Agreement as it existed at the
beginning of the previous year;
Pn-1 = Payments for water service made by PNM for the
previous year;
I n-1 = Interest accrued for the previous year based on the annual
average interest rate of that year for 10-year Treasury
constant maturities;
+/-(DELTA)Cn-1 = A pro rata share of any change during the previous year in
multipurpose costs allocated to consumptive use for the
consolidated CRSP.
1.10.4 The calculated delivery rate per acre-foot for payments
after the first year shall then be determined in
accordance with the following procedure:
a. Divide Dn by 16,200 acre-feet;
b. Amortize the amount determined in step a., using the
annuity due formula, with the interest rate
determined as described above and for the number of
years equal to 40 minus the number of years the
contract has been in effect.
3
ARTICLE 2
TERM OF AGREEMENT
2.1 The term of this Agreement shall be from the date as of which it has
been executed by both Parties to December 31, 2027, unless earlier
terminated pursuant to the provisions of Article 14.
2.2 The Parties shall enter into good faith discussions no later than
January of 2022 regarding the potential extension or renewal of this
Agreement upon mutually agreeable terms.
ARTICLE 3
WATER AVAILABILITY
3.1 Beginning on January 1, 2006, and continuing through December 31, 2027,
the Tribe shall supply and deliver, through its agent USBR pursuant to
the Federal Contract, to the SJGS xxxx, sufficient water from the
Navajo Reservoir Supply to allow PNM to divert and consume up to 16,200
acre-feet of water between January 1 and December 31 of each year.
Provided, however, that in no calendar year will the Tribe, through its
agent USBR, under this Agreement, release more than 16,200 acre-feet of
water from Navajo Reservoir for all uses pursuant to this Agreement.
Delivery of water to the SJGS xxxx shall be at such times as scheduled
by PNM in coordination with the USBR, and PNM shall pay the Tribe for
the water as provided in Article 5.
3.2 PNM shall have no holdover storage rights in Navajo Reservoir from year
to year, and PNM hereby relinquishes claim to any annual water supply
to which it is entitled hereunder, but has not utilized by December 31
of each year. Any water subject to delivery hereunder not called for by
the end of each calendar year shall become integrated with the water
supply for all purposes of the Navajo Reservoir at that time.
3.3 PNM may, in its sole discretion, determine the timing and manner in
which water is diverted at the SJGS xxxx subject to an appropriate
permit from the New Mexico State Engineer ("State Engineer") and
compliance with any applicable laws and regulations.
4
ARTICLE 4
WATER USE
4.1 The water used by PNM under this Agreement shall be for the purposes of
coal mining, irrigation of reclaimed surface mined lands, electric
power generation and uses incidental to all of the foregoing, and other
beneficial industrial purposes at the SJGS, unless subcontracted by PNM
in accordance with Article 4.2.
4.2 Subject to required approvals of the Tribe and Secretary of the
Interior or designee, PNM may dispose of water acquired under this
Agreement to third parties in the event that the water is not needed at
or in connection with the SJGS, provided, that if PNM receives a price
for disposal of water to third parties in excess of the USBR CRSP rate
then current, the Parties shall share equally the amount received in
excess of the USBR CRSP rate, after deduction of PNM's reasonable
direct administrative costs. PNM shall provide an accounting of such
direct administrative costs to the Tribe.
4.3 Nothing in this Agreement shall affect PNM's right to determine the
source or order in which PNM utilizes its permitted rights that
constitute the water supply for SJGS and uses related and incidental
thereto, including water purchased pursuant to this Agreement.
ARTICLE 5
PAYMENT FOR WATER
5.1 Beginning on the execution date of this Agreement, and on January 15 of
each year thereafter for five (5) years, PNM shall make prepayments to
the Tribe totaling $2,033,073.00 as follows:
Year: 2000 2001 2002 2003 2004 2005
---- ---- ---- ---- ---- ----
Amount: $65,583 $131,166 $262,332 $393,498 $524,664 $655,830
5.2 Subject to the Tribe's ability to supply and deliver, through its agent
USBR pursuant to the Federal Contract, water during the 2006 to 2027
term of this Agreement, and except as otherwise provided herein, PNM
shall pay to the Tribe during each year of the Agreement the Annual
Contract Rate times 16,200 acre-feet, less $92,412.00, to secure PNM's
right to use up to 16,200 acre-feet each year.
5
5.2.1 The Annual Contract Rate will be established as follows:
On January 1, 2006, the Annual Contract Rate will be the
USBR CRSP Rate as of January 1, 2006. Each successive
year after establishment of the initial Annual Contract
Rate in 2006, the Annual Contract Rate will be adjusted
to the USBR CRSP Rate as of January 1 of each subsequent
year; provided, however, that any change in the Annual
Contract Rate for each year (whether an increase or a
decrease) will be limited to no more than ten percent
(10%) of the previous year's Annual Contract Rate.
5.2.2 To demonstrate the application of this rate adjustment,
hypothetical examples of contract payments have been
calculated based on the Annual Contract Rate methodology
set out in Section 5.2.1 and are attached, for
illustration purposes only, as Exhibit "A."
5.2.3 The Tribe will provide Notice to PNM of the Annual
Contract Rate. The Tribe shall provide such Notice to PNM
no later than January 10 of each year. After Notice from
the Tribe, the annual contract payment by PNM shall be
made no later than February 10 of each year and shall be
made by wire transfer to a financial institution
designated by Notice from the Tribe to PNM.
5.3 PNM will pay to the Tribe, within thirty (30) days of receipt of the
Tribe's invoice, the Tribe's share of the Navajo Dam and Reservoir
capital construction costs, provided by the Federal Contract to be
$2.60 per acre-foot per annum, which is a fixed payment of $42,120
annually during the period 2006 through 2012.
5.4 PNM will also pay the Tribe, within thirty (30) days of receipt of the
Tribe's invoice, PNM's proportionate share of the annual costs of the
operation and maintenance ("O&M") of Navajo Dam and Reservoir and
associated facilities that are assigned to the Tribe by USBR through
Section 10(a) (iii) of the Federal Contract. The Parties acknowledge
that payment of O&M costs will be determined by USBR in accordance with
the USBR's payment schedules and criteria. The Tribe and PNM will work
jointly with USBR to establish PNM's actual proportionate share and the
6
terms and conditions of this O&M payment procedure. At its own expense,
PNM may take appropriate action, by and through the Tribe, to protest,
if necessary, any change by USBR during the term of this Agreement to
the O & M rate or the annual O & M charges attributable to the water
delivered under this Agreement. The Tribe agrees to cooperate fully in
any such protest.
5.5 The payments described in this Article 5 represent the total
consideration due for the water purchased under this Agreement. Neither
PNM, SJGS nor its owners, affiliates and/or their successors or assigns
shall be subject to any regulation, fees, licenses or taxation directly
or indirectly by the Tribe as a result of the use of the water supply
or as a result of this Agreement, except as set forth herein. Each
Party shall bear its own administrative costs.
ARTICLE 6
MEASUREMENT AND RESPONSIBILITY FOR DISTRIBUTION
6.1 The water furnished under this Agreement will be supplied and delivered
by the Tribe, through its agent USBR pursuant to the Federal Contract
at the SJGS xxxx and PNM agrees to make arrangements for the
transportation of such water to place of use at PNM's own expense.
6.2 PNM will measure the quantity of water diverted from the San Xxxx River
under this Agreement with a recording or totalizing flow meter such as
a NewSonics Model CM800 or equivalent. Beginning in 2007 and for the
duration of this Agreement, records of the previous year's diversion by
PNM at the SJGS xxxx will be provided by PNM to the Tribe and USBR no
later than January 30 of each year.
6.3 The Tribe shall not be responsible for the diversions, control,
carriage, handling, use disposal, or distribution of water taken by PNM
hereunder, and PNM shall hold the Tribe harmless on account of damage
or claim of damage of any nature arising out of or connected with the
diversion, control, carriage, handling, use, disposal, or distribution
of such water.
ARTICLE 7
WATER SHORTAGES AND LIMITATIONS
7.1 The delivery of water during any calendar year is conditioned upon and
subject to the following:
7
7.1.1 Any shortages to the Navajo Reservoir Supply that are
determined to exist by the Secretary of the Interior (the
"Secretary") for any reason will be shared among Project
beneficiaries only pursuant to all Project
authorizations, the Federal Contract and any other
applicable laws. In no event shall any liability accrue
against the United States, the Tribe or any officers,
agents, or employees of either for any damage, direct or
indirect, arising from a shortage for any causes.
7.1.2 If shortages are declared by the Secretary such that the
Tribe cannot supply and deliver through its agent USBR
pursuant to the Federal Contract in accordance with
Article 3.1 of this Agreement all the water contracted
for from the Navajo Reservoir Supply, PNM's payment will
be reduced in proportion to the amount of water not
supplied, or credited against the following year's
payment. Provided, that shortage calculations will be
based on the then current, daily demand at the SJGS xxxx
for only the period of the declared shortages. The Tribe
and PNM will work with USBR to obtain an accounting of
the accumulated shortages based on PNM diversion and
demand records.
7.2 This Agreement and all water delivered pursuant hereto shall be subject
to and controlled by the Colorado River Compact, the Boulder Canyon
Project Act, the Boulder Canyon Project Adjustment Act, the Upper
Colorado River Basin Compact, the Mexican Water Treaty of February 3,
1944, the Colorado River Storage Project Act, the NIIP/ San Xxxx-Xxxxx
Act, the Colorado River Basin Project Act and other applicable federal
law. In the event deliveries to PNM are required to be curtailed under
and by reason of any of the provisions of the foregoing, PNM agrees to
a reduction of the amount of water delivered hereunder as the Secretary
determines necessary to comply with said acts. In that event, PNM's
Annual Contract Rate payment to the Tribe will be reduced in proportion
to the amount of water not supplied, or credited against the following
year's payment. Provided, that such calculations will be based on the
then current, daily demand at the SJGS xxxx for only the period of the
curtailment.
8
ARTICLE 8
PAYMENT CONDITIONED UPON DELIVERY
8.1 PNM's obligation to pay the Tribe is conditioned upon the delivery of
the water at the SJGS xxxx, all as provided for in this Agreement.
8.2 Subject to the Tribe's ability to supply and deliver, through its agent
USBR pursuant to the Federal Contract, the water contracted for from
Navajo Reservoir Supply at the SJGS xxxx or otherwise as provided in
this Agreement, PNM shall take all the water contracted for, or shall
pay for the water as if taken.
ARTICLE 9
OTHER PROVISIONS
9.0 This Agreement incorporates by reference the Federal Contract, a true
and correct copy of which is attached as Exhibit "B."
9.1 This Agreement is subject to the requirements of NEPA and ESA. The
Parties understand that USBR will conduct an Indian Trust Assets Review
in compliance with NEPA, and that such review will address any
potential concerns of the Navajo Nation and/or the Colorado Ute Tribes.
9.2 This Agreement is subject to the approval of the Secretary or his
designee pursuant to the Federal Contract.
9.3 Notwithstanding the provisions of Article 14, if a Party is in default,
which default continues for more than thirty (30) days after Notice,
the Parties may seek to remedy the default under the Dispute Resolution
provisions of this Agreement (Article 15).
9.4 The Parties agree that for the duration of this Agreement or any
extensions thereof, the Tribe will replace the USBR as the supplier of
the water to PNM from the Navajo Reservoir Supply for the purpose of
providing an otherwise historic/existing depletion for the SJGS at its
xxxx.
9.5 The provision of Section 9.4 shall in no way diminish future positions
that either Party may take regarding the disposition or
characterization of this water supply, or depletion thereof, upon
termination of this Agreement.
9
9.6 Both Parties hereby request the USBR, as the "action agency" for
purposes of complying with Section 7 of the ESA, to state in its
consultation document that the depletion will continue to occur by SJGS
at its xxxx, but that the Tribe will be acting as the supplier of the
water for that depletion.
9.7 This Agreement is contingent upon the issuance of a diversion permit
for the contracted water from the State Engineer that is final and not
appealable. All payments made pursuant to Article 5 are not subject to
refund if the diversion permit is not issued, but all payment
obligations will cease and this Agreement will terminate as of the date
and in the event of a final denial of a diversion permit by the State
Engineer.
9.8 The Tribe shall obtain all requisite approvals under the Federal
Contract.
9.9 The Tribe shall comply with all requirements of the Federal Contract
related to this Agreement.
9.10 The Parties shall cooperate in all required approval processes.
9.11 The Tribe represents, through a resolution, a copy of which is attached
as Exhibit "C," that it has obtained all requisite tribal approvals and
has delegated the requisite authority to the signatory hereof to bind
the Tribe.
9.12 PNM represents, through the signature of its authorized representative,
that PNM has authority to enter into this Agreement and that this
Agreement is a binding obligation of PNM individually and as operating
agent of SJGS.
9.13 Both Parties are relying on the advice of their own technical and legal
experts in entering into this Agreement and there are no warranties or
representations by either Party other than those expressly contained
herein. Any ambiguities herein shall not be construed in favor of or
against either Party as the drafter hereof.
ARTICLE 10
NOTICES
10.1 Any Notice, demand, or request authorized by this Agreement shall be
deemed to have been given if mailed (return receipt requested), hand
delivered, or faxed as follows:
10
To PNM:
Corporate Secretary
Public Service Company of New Mexico
Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
With a copy to:
Plant Manager
San Xxxx Generating Station
X.X. Xxx 000
Xxxxxxxxx, XX 00000
To Tribe:
President
Jicarilla Apache Tribe
X.X. Xxx 000
Xxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Nordhaus, Haltom, Taylor, Xxxxxxxx & Xxxx
000 Xxxxxxxxx Xxx. XX, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
To USBR:
Regional Director
Upper Colorado Region
Attn: UC-400
000 Xxxxx Xxxxx Xxxxxx
Xxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
All Notices and demands given or required to be given by a Party to the
other Party shall be deemed to have been properly given if and when
delivered in person, sent by facsimile (with verification of receipt)
or three (3) business days after having been deposited with the U.S.
Postal Service and sent by registered or certified mail, postage
prepaid.
11
In the event either Party delivers a Notice by facsimile, as set forth
above, such Party agrees to deposit the originals of the Notice in a
Post Office, or mail depository maintained by the U.S. Postal Service,
postage prepaid, and addressed as set forth above. Such deposit in the
U.S. Mail shall not affect the deemed delivery of the Notice by
facsimile, provided that the procedures set above are fully complied
with.
10.2 The designation of the addressee or the address may be changed by
Notice given in the same manner as provided above in Section 10.1.
ARTICLE 11
ASSIGNMENT
11.1 The provisions of this Agreement shall apply to and bind the successors
and assigns of the Parties, but no assignment of this Agreement or of
any right or interest hereunder shall be valid until approved in
writing by the other Party and the Secretary or designee, which consent
shall not be unreasonably withheld.
11.2 Notwithstanding the foregoing, PNM may, without the requirement of
prior consent, assign this Agreement to any entity, as a result of a
reorganization of the assets, business functions, or structure of PNM,
which is within the resulting group of entities under common ownership
with PNM. Any change of name by PNM shall not be considered an
assignment.
ARTICLE 12
WATER AND AIR POLLUTION CONTROL AND WATER CONSERVATION
12.1 PNM shall comply with all applicable water and air pollution control
laws now or hereafter in force, and shall be responsible for obtaining
all required licenses and permits.
12.2 Prior to accepting delivery of water under this Agreement, PNM shall
develop an effective water conservation program, which shall contain
definite water conservation objectives, appropriate economically
feasible water conservation measures, and time schedules for meeting
those objectives. At subsequent three-year intervals, PNM shall submit
a report on the results of the program to USBR and the Tribe for
review. Based on the conclusions of the review, the Tribe, in
cooperation with USBR, and PNM shall consult and agree to continue or
to revise the existing water conservation program.
12
ARTICLE 13
EQUAL OPPORTUNITY AND RELATED LAWS
13.1 PNM is an Equal Opportunity employer. Executive Orders 11246, 11625,
11701, and 11758, as amended or superseded, and all regulations issued
thereunder, as well as all applicable laws, rules and regulations
relating to Equal Employment Opportunity and affirmative action are
incorporated in this Agreement by reference.
13.2 The Tribe is exempt from the provisions of Title VII of the Civil
Rights Act of 1964 and from federal affirmative action programs
including Executive Order No. 11246.
ARTICLE 14
FORCE MAJEURE AND ECONOMIC IMPRACTICABILITY
14.1 Neither Party shall be considered to be in default in respect to any
obligation hereunder, if delays in or failure of performance shall be
due to Uncontrollable Forces. "Uncontrollable Forces" shall mean any
cause beyond the control of the Party affected and not due to its fault
or negligence, including, but not limited to, acts of God, flood,
earthquake, storm, fire, lightning, epidemic, war, riot, civil
disturbance, sabotage, strikes or other labor disturbances, or
restraint by court or public authority, any of which such Party could
not reasonably have been expected to avoid, and which by the exercise
of due diligence it is unable to overcome. Neither Party shall,
however, be relieved of liability for failure of performance if such
failure is due to removable or remediable causes which it fails to
remove or remedy with reasonable dispatch. Nothing contained herein,
however, shall be construed to require either Party to prevent or
settle a strike or other labor disturbance against its will. The Party
whose performance hereunder is so affected shall immediately notify the
other Party of all pertinent facts and take all reasonable steps to
promptly and diligently prevent such causes if feasible to do so, or to
minimize or eliminate the effect thereof without delay.
14.2 If, in PNM's sole business judgment, it becomes necessary, for any
Business Reason, to deactivate, decommission or cease operation of all
or a portion of SJGS, PNM may elect to be excused from performance of
13
all or a pro-rata portion (based on the proportional decrease in need
for water at SJGS) of its obligations under this Agreement to take and
pay for water; provided, however, that this election may be exercised
by PNM only upon satisfaction of the following conditions:
14.2.1 PNM must notify the Tribe in writing no later than thirty
(30) days after the decision has been made to deactivate,
decommission or cease operation of all or a portion of
SJGS; and
14.2.2 PNM shall pay to the Tribe, within sixty (60) days of such
notification, as liquidated damages and not as a penalty,
a sum of money no greater than the total of all payments
made hereunder by PNM to the Tribe during the previous
twelve (12) months of the term of this Agreement or a
pro-rata sum if the reduced water quantity taken pursuant
to this Article is less than the full amount to be
supplied under this Agreement. The Parties agree that such
sum is reasonable in light of any damages the Tribe may
suffer as the result of such a termination for convenience
and that any actual damages would be difficult of
ascertainment.
For purposes of this Article 14.2, the term "Business Reason" includes
but is not limited to any one or more of the following: effects of
judicial or regulatory orders or decrees; inability to obtain permits,
licenses, or authorizations from governmental bodies having
jurisdiction; lack of availability of materials, supplies, equipment or
services required to operate SJGS or a portion thereof; fuel shortages
or fuel price volatility; breakdown or damage to generation or
transmission facilities; insolvency of any of the SJGS owners; or
changes in fundamental technology impacting the economics of operating
coal-fired generation facilities.
ARTICLE 15
DISPUTE RESOLUTION
15.1 Disputes shall first be discussed and resolved by representatives of
each Party having the authority, through appropriate corporate or
tribal resolution, if necessary, to bind the Party that they represent.
Such representatives shall use their best efforts to amicably and
promptly resolve the dispute. Pending resolution of any dispute, the
Parties shall continue to perform their obligations hereunder. If the
14
Parties are unable to resolve any dispute within fifteen (15) calendar
days of the occurrence of the event or circumstances giving rise to the
dispute, either Party may give notice to the other Party that the
dispute is to be submitted to binding arbitration. Such notice shall
name a proposed arbitrator. In the event that the other Party does not
agree to the proposed arbitrator, it shall submit the name of its
proposed arbitrator, within ten (10) calendar days of said notice, and
if that person is not acceptable to the Party giving the original
notice, the arbitrators proposed by each Party shall, within five (5)
days, select a third arbitrator. All reasonable fees and costs incurred
by the arbitrators shall be split equally by the Parties and each Party
shall be responsible for payment of its own attorney's fees,
preparation fees, witness and expert fees, and other costs.
15.1.1 An arbitration hearing shall be held at a mutually agreed
location within thirty (30) days of the appointment of
the last arbitrator. At the hearing, each Party may
submit statements of fact or memoranda of law as desired
and the arbitrator(s) shall allow each Party to present
its case, evidence and witnesses, if any, in the presence
of both Parties. The arbitrator(s) shall render their
decision promptly after the hearing.
15.1.2 An award of the arbitrator(s) shall be binding upon the
Parties. The prevailing Party shall be entitled to
confirmation of any award of the arbitrator(s) and to
judgment thereon in a court of competent jurisdiction.
The Tribe waives its sovereign immunity solely for the
purpose of the obligations of this Article, including but
not limited to the entry and enforcement of the
arbitration award. This waiver of immunity is not
intended, nor shall it be construed to, (a) waive the
Tribe's sovereign immunity for any other purpose, or (b)
extend to the benefit of any person other than the
Parties to this Agreement or their successors or assigns.
This waiver of immunity from suit shall not be construed
as an admission of liability by the Tribe as to any claim
for damages or as an agreement or willingness to pay any
amount as damages absent an arbitration determination of
liability, and the Tribe shall have the right to defend
any such claim fully on the merits.
15.1.3 New Mexico law shall apply to the interpretation of this
Agreement in connection with the resolution of disputes
under this Article.
15
ARTICLE 16
AMENDMENTS
This Agreement may be amended only by written instrument executed by
the Parties with the same formalities and requisite approvals as this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed by their duly authorized representatives having the specific authority
to execute this Agreement as of the date set forth below.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By:
Printed Name:
Title:
Date:
JICARILLA APACHE TRIBE
By:
Printed Name:
Title:
Date:
16
APPROVED AS REQUIRED BY THE FEDERAL CONTRACT:
UNITED STATES BUREAU OF RECLAMATION, AS THE DULY AUTHORIZED DELEGATEE OF THE
SECRETARY OF THE DEPARTMENT OF THE INTERIOR OF THE UNITED STATES
By:
Printed Name:
Title:
Date:
APPROVED AS REQUIRED BY ___ U.S.C. ___ BY THE UNITED STATES BUREAU OF INDIAN
AFFAIRS
By:
Printed Name:
Title:
Date:
17
