AMENDMENT AND SUPPLEMENT NO. 1
TO
SUPPLEMENTAL AND ADDITIONAL INDENTURE OF LEASE
BETWEEN
THE NAVAJO TRIBE OF INDIANS
AND
ARIZONA PUBLIC SERVICE COMPANY,
EL PASO ELECTRIC COMPANY,
PUBLIC SERVICE COMPANY OF NEW MEXICO,
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT
AND POWER DISTRICT,
SOUTHERN CALIFORNIA EDISON COMPANY,
AND
TUCSON ELECTRIC POWER COMPANY
AMENDMENT AND SUPPLEMENT NO. 1
TO
SUPPLEMENTAL AND ADDITIONAL INDENTURE OF LEASE
TABLE OF CONTENTS
SECTION PAGE
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1. Parties 1
2. Recitals 1
3. Agreement 3
4. Effective Date 6
5. Leasing Provisions 6
6. Consent to Grants of Rights-of-Way
by Secretary 21
7. Relocation Procedures 21
8. Future Rights-of-Way 22
9. Rental For Additional Land 26
10. Lease Rentals 28
11. Water Rights 30
12. Labor Policy 31
13. Navajo Scholarships 31
14. Supplemental Lease to Remain in Effect 33
AMENDMENT AND SUPPLEMENT NO. 1
TO
SUPPLEMENTAL AND ADDITIONAL OF LEASE
1. PARTIES:
The Parties to this Amendment and Supplement No. 1 to Supplemental and
Additional Indenture of Lease (hereinafter referred to as "Amendment
No. 1") are THE NAVAJO TRIBE OF INDIANS, acting through the Navajo
Tribal Council and its chairman for and on behalf of the Navajo Tribe
of Indians (hereinafter) referred to as the "Tribe"), as Lessor, and
ARIZONA PUBLIC SERVICE COMPANY, EL PASO ELECTRIC COMPANY, PUBLIC
SERVICE COMPANY OF NEW MEXICO, SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT, SOUTHERN CALIFORNIA EDISON COMPANY, and
TUCSON ELECTRIC POWER COMPANY, formerly Tucson Gas & Electric company
(hereinafter collectively, together with their successors and assigns,
referred to as "Lessees," and singly referred to as "Lessee"), as
Lessees.
2. RECITALS:
The Parties are entering into this Amendment No. 1 with reference to
the following facts, among others:
2.1 Effective July 6, 1966, the Parties entered into the Supplemental
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and Additional Indenture of Lease ("Supplemental Lease"), which
among other things amended the Amended Original Lease in
certain respects and further granted the Lessees certain
leasehold rights to construct, reconstruct, use, operate,
maintain, locate, and remove the Four Corners Project.
2.2 Since the Supplemental Lease was signed in 1966, a number of
matters have arisen which were not addressed therein or which,
if addressed, require modifications to the Lease and to the
coal lease between the Tribe and Utah Mining (now named Utah
International, Inc.), the coal supplier to the Four Corners
Project, in order to satisfy the purposes and objectives of
the Parties.
2.3 Among the more important modifications from the Tribe's point
of view is a substantial increase in the royalties payable on
coal mined by Utah Mining, which eventually will be borne by
the Lessees and their customers, thereby creating
consideration to the Tribe for additional benefits conferred
on Lessees by this Amendment No. 1.
2.4 The Parties desire through this Amendment No. 1 to address and
resolve to the extent feasible the matters referred to in
Sections 2.2 and 2.3.
2.5 The Parties desire to use in this Amendment No. 1 the terms
defined on Pages 1 through 6 of the Supplemental Lease in the
same context as defined and used therein, except those terms
which are amended to read as follows:
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"Related Facilities" - Those facilities to be
constructed or installed at Four Corners and ultimately to be
owned by one or more Lessees which will serve in connection
with the operation and maintenance of any or all of Units 4
and 5 and the existing three units of the Initial Four Corners
Plant;
"Amended Original Plant Site" - The plant site for
the existing three units of the Initial Four Corners Plant,
the area and location of which are shown and described on the
plat attached hereto as amended Exhibit 1 hereof, this Amended
Original Plant Site being a revision (and a diminution) of the
so called "plant site area" leased to Arizona under the
Original Lease and shown on Exhibit A and Supplemental
Exhibits thereto of the Original lease;
"New Plant Site" - The plant site for Units 4 and 5
and the switchyard facilities therefor, the area and location
of which are shown and described on the plat attached hereto
as Amended Exhibit 2 hereof. The New Plant Site includes a
portion of the so-called "plant site area" leased to Arizona
under the Original Lease, as well as additional contiguous
lands (the portion heretofore leased to Arizona as part of the
area designated as the "plant site area" under the Original
Lease being deleted from said "plant site area" pursuant to
this Supplement Lease);
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"Pumping Plant Site" - The site for facilities to
divert and pump water from the San Juan River, including
diversion works, water intake works, pumping station, water
lines and facilities related thereto, the area and location of
which are shown described on the plat attached hereto as
Amended Exhibit 3 hereof, this Pumping Plant Site being the
same as the area designated as the "pumping plant site" leased
to Arizona under the Original Lease and shown on Exhibit b and
Supplemental Exhibits thereto of the Original Lease;
"Dam Site" - The site of the dam and other facilities
and appurtenances constructed by Arizona as Lessee under the
Original Lease, the area and location of which are shown and
described on the plat attached hereto as Amended Exhibit 4
hereof, this Dam Site being the same as the area designated as
the "dam site" leased to Arizona under the Original Lease and
shown on Exhibit C and Supplemental Exhibits thereto of the
Original Lease;
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"Common and Related Facilities Area" - The area, in
addition to, an exclusive of, the Amended Original Plant Site,
New Plant Site, Pumping Plant site, Dam Site and Ash Disposal
Area, on which are or will be located certain of the Common
Facilities and certain of the Related Facilities, which is
shown and described on the plat attached hereto as Amended
Exhibit 5 hereof;
"Ash Disposal Area" - The area for the disposal of
ash and refuse products resulting from the operation of the
Enlarged Four Corners Generating Station, together with access
there from the Amended Original Plant Site and the New Plant
Site, which area is shown and described on the plat attached
hereto as Amended Exhibits 6 and 6A hereof. This area includes
the area designated as the "ash disposal area" under the
Original Lease and shown on Exhibit D thereof and Supplemental
Exhibits thereto, together with an additional area contiguous
thereto;
"Storage Lake" - The lake formed by the water
impounded behind the dam located on the Dam Site, the contour
line showing the maximum level of which lake is shown on
Amended Exhibit 8 hereof;
3. AGREEMENT:
The Parties agree as follows:
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4. EFFECTIVE DATE:
This Amendment No. 1 shall become effective upon the date of the last
to occur of the following: (i) the approval of the Secretary of the
Interior or his authorized delegate of this Amendment No. 1; (ii) the
approval of the Secretary of the Interior or his authorized delegate
of Amendment No. 4 and Supplement to the Mining Lease dated July 26,
1957, or (iii) execution by the Secretary of the Interior or his
authorized delegate of amendments to the ss. 323 Grant and the Arizona
ss. 323 Grant, conforming said Grants to this Amendment No. 1. 5.
5. LEASING PROVISIONS:
Sections 2, 3, and 4 of the Supplemental Lease are hereby amended to
read as follows:
"2. LEASED LANDS UNDER NEW LEASE: The Tribe, for and in
consideration of the payment by the Lessees of the rentals
specified and the performance by the Lessees of the covenants
hereinafter recited, does hereby for the term hereinafter set
out, and for the purpose of constructing, reconstructing,
using, operating, maintaining, relocating and removing the
Four Corners Project, lease unto the Lessees under the new
Lease the real property hereinafter described:
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(a) The Tribe hereby leases the New Plant Site to the
Lessees as tenants in common, with Arizona having an
undivided 15% interest therein, El Paso having an
undivided 7% interest therein, New Mexico having an
undivided 13% interest therein. Salt River Project
having an undivided 10% interest therein, Edison
having an undivided 48% interest therein, and Tucson
having an undivided 7% interest therein.
(b) The Tribe hereby leases the Pumping Plant Site, the
Dam Site, the Common and Related Facilities Areas and
the Ash Disposal Area to the Lessees as tenants in
common, with Arizona having an undivided 10.86%
interest therein, El Paso having an undivided 5.07%
interest therein, New Mexico having an undivided
9.42% interest therein, Salt River Project having an
undivided 7.24% interest therein, Edison having an
undivided 34.76% interest therein, and Tucson having
an undivided 5.07% interest therein. Pending the
outcome of technical studies and/or operating
experience, it is possible that additional common and
related facilities area and ash disposal area will be
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required either contiguous to or in the general areas
of the Common and Related Facilities Area and Ash
Disposal Area. In the event that such additional
areas are required, subject to procuring the approval
of the Tribe and the Secretary at that time, the
appropriate exhibits will be amended to show the
additional areas. Payments to the Tribe for such
additional areas shall include an initial payment of
$200 per acre, plus payments at the rate of $10.00
per acre per year. Such payments shall be in addition
to the lease rental payments hereinafter provided in
Section 11.
(c) Insofar as some portions or components of the
Common Facilities or Related Facilities are located
on the Amended Original Plant Site, the Tribe hereby
leases the Amended Original Plant Site to the Lessees
as tenants in common, with Lessees having the same
respective interests set forth above in Section 2(b),
to the extent and only to the extent that the Lessees
shall have reasonable access to such portions or
components of the Common Facilities and Related
Facilities and shall have the right to construct,
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use, operate, maintain, relocate, replace and remove
the same in connection with the construction,
reconstruction, use, operation, maintenance,
relocation and removal of the Four Corners Project,
provided that Lessees, in exercising the rights
hereby leased, shall not interfere with or impair the
use by Arizona of the Amended Original Plant Site for
the purpose for which said plant site is held by
Arizona under the Amended Original Lease.
A plat showing, among other things, all of said Leased Lands,
and also indicating the portions thereof heretofore leased to
Arizona under the Original Lease, is attached hereto as
Amended Exhibit 7 hereof.
3. AMENDMENTS TO ORIGINAL LEASE: The Original Lease is hereby
amended and supplemented, in addition to other amendments and
supplements as herein provided, so that the Amended Original
Lease shall provide as follows:
(a) The Amended Original Plant Site hereunder (Amended
Exhibit 1 hereof) is substituted for the plant site
thereunder (Exhibit A thereof and Supplemental
Exhibits thereto);
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(b) The Tribe hereby leases to Arizona, as Lessee under
the Amended Original Lease, an undivided 27.58%
interest in the lands within the Ash Disposal Area
(Amended Exhibits 6 and 6A hereof) not included
within the Ash Disposal Area leased to Arizona under
the Original Lease (Exhibit D thereof and
Supplemental Exhibits thereto); and the Ash Disposal
Area under this Supplemental Lease, as hereby
amended, is substituted for the ash disposal area
under the Original Lease;
(c) Insofar as some portions or components of the Common
Facilities or Related Facilities, or facilities of
Arizona, are located on the New Plant Site, the
Tribe hereby leases the New Plant Site to Arizona,
to the extent and only to the extent that Arizona
shall have reasonable access to such portions or
components of the Common Facilities and Related
Facilities, and facilities of Arizona, and shall
have the right to construct, reconstruct, use,
operate, maintain, relocate, replace and remove the
same in connection with the construction,
reconstruction, use, operation, maintenance,
relocation and removal of the Initial Four Corners
Plant, provided that Arizona, in exercising the
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rights hereby leased, shall not interfere with or
impair the use by Lessees of the New Plant Site for
the purpose for which said plant site is held by
Lessees under the New Lease;
(d) The Common and Related Facilities Area hereunder
(Amended Exhibit 5 hereof) is substituted as to that
portion of the plant site thereunder (Exhibit A
thereof and Supplemental Exhibits thereto) included
within said Common and Related Facilities Area;
(e) Plant access road hereunder (Amended Exhibits 10 and
10A hereof) is substituted for the plant access road
thereunder (Exhibit I, Sheets 1 and 2 thereof and
Supplemental Exhibits thereto);
(f) Access road and water pipeline hereunder (Amended
Exhibit 9 hereof) is substituted for the access road
and water pipeline thereunder (Exhibit H, Sheets 1
and 2 thereof and supplemental Exhibits thereto);
(g) Sections 6, 16 and 19 of the Original Lease are
hereby amended to conform with Sections 11(e), 21 and
25, respectively, of the Supplemental Lease, as
amended herein.
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(h) Sections 6A, 6B, 11(f), 51 and 52 of the Supplemental
Lease, as added by this Amendment No. 1, are hereby
added as Sections 7A, 7B, 6, 34 and 35, respectively,
of the Original Lease.
(i) The leasehold rights leased to Arizona under Section
2(b) hereof, as a Lessee under the New Lease, shall
be separate and independent from, and shall not merge
with, the leasehold rights leased to Arizona under
the Amended Original Lease;
(j) The leasehold rights leased to Lessees under Section
2(b) hereof shall be equal in time and priority with
the leasehold rights leased to Arizona under the
Amended Original Lease;
(k) The leasehold rights leased to Lessees under Section
2(c) hereof shall be equal in time and priority with
the leasehold rights in the Amended Original Plant
Site leased to Arizona under the Amended Original
Lease;
(l) The leasehold rights leased to Arizona under Section
3(c) hereof shall be equal in time and priority with
the leasehold rights in the New Plant Site leased to
Lessees under the New Lease;
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4. LEASE OR RELATED RIGHTS:The Tribe hereby leases to Lessees under thenew
-----------------------
Lease and to Arizona under the Amended Original Lease the auxiliary and
related rights hereinafter set out (herein sometimes for convenience
referred to as "Related Rights") as tenants in common, with the Lessees
having the same respective interests therein under the New Lease set
forth above in Section 2(b), and with Arizona being a tenant in common
and having an undivided 27.58% interest in the Related Rights as lessee
under the Amended Original Lease (in addition to its undivided 10.86%
interest therein under the New Lease, as herein provided); and the
Related Rights leased to Lessees under the New Lease and the related
rights leased to Arizona under the Original Lease and retained by
Arizona under the Amended Original Lease and shall be equal in time and
priority. The Related Rights herein leased are rights to occupancy and
possession of the real property hereinafter described and do not apply
to or affect any Common Facilities heretofore constructed by Arizona on
such real property pursuant to the Original Lease, or any Related
Facilities hereafter constructed by Lessees on said real property
pursuant to the New Lease and the Amended Original Lease.
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(a) The right to occupy and use Reservation Lands in order to
construct, reconstruct, install, operate, maintain, relocate
and remove (i) diversion works, including dams, wells,
pipelines, facilities and structures for diverting water,
on the stream bed of the San Juan River within the Reservation
Lands, in addition to diversion works in the Pumping Plant
Site, in order to maintain diversion works in the Pumping
Plant Site, in order to maintain diversions of water to the
pumps installed on the Pumping Plant Site, in event of change
in the location of the stream bed of the San Juan River; (ii)
electric power and communication lines and facilities and
access roads to the said new diversion works from other
facilities of the Lessees; and (iii) pipelines, conduits and
other structures and facilities which will conduct water from
the San Juan River or from other sources to the Storage Lake.
(b) the right to construct,reconstruct,install, operate, maintain,
relocate and remove water lines across the Reservation
Lands (in addition to those from the Pumping Plant Site) for
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the purpose of transporting water for operation of the
Enlarged Four Corners Generating Station, and the right of
access thereto.
(c) The right to construct, reconstruct, install, operate,
maintain, relocate and remove a power line and a communication
line from the Dam Site to the Pumping Plant Site. The location
of said power line and communication line is within is within
the real property shown and described on Amended Exhibit 13
hereof.
(d) The right to construct, reconstruct, install, improve,
operate, maintain, relocate and remove a water pipeline and
access road from the Storage Lake to the Pumping Plant Site.
The locations of said pipeline and access road are within the
real property shown and described on Amended Exhibit 9 hereof.
(e) The right to construct, reconstruct, improve, maintain, and
relocate an access road extending from San Juan River bridge
to the Amended Original Plant Site. The location of said
access road is within the real property shown and described on
Amended Exhibits 10 and 10A hereof.
(f) The right to conduct, reconstruct, install, improve, operate,
maintain, relocate and remove an access road, water pipelines
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andpower and communication lines extending from the Common and
Related Facilities Area to the Utah Mining Leased Lands. The
location of said access road, water pipelines and power and
communication lines is within the real property shown and
described on Amended Exhibit 11 hereof.
(g) The right to construct, reconstruct, install, operate,
maintain, relocate and remove water pipelines extending from
the Common and Related Facilities Area to the Storage Lake to
the Utah Mining Leased Lands. The location of said water
pipelines is within the real property shown and described on
Amended Exhibit 12 hereof.
(h) The right to store water in the Storage Lake behind the dam
located on the Dam Site; to flood and utilize Reservation
Lands to the extent that will be required to store the water
in the Storage Lake which can be contained behind the Dam, up
to a maxim elevation of 5327.5 feet, with a maximum Storage
Lake area of approximately 1288 acres (including the portions
of the Storage Lake included in the Common and Related
Facilities Area
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and the Dam Site), the Storage Lake at such maximum level to
have substantially the contour line shown on Amended Exhibit 8
hereof; to use and draw down the water from, and to fill,
refill and empty the Storage Lake; to fluctuate the level of
the Storage Lake and the Storage Lake surface area; to take
water from the Storage Lake into the Enlarged Four Corners
Generating Station and to discharge water back into the
Storage Lake at a higher temperature; to use the Storage Lake
in any way required for operation of the Enlarged Four Corners
Generating Station; to clean the Storage Lake surface; to take
any action that Lessees may deem necessary for limiting or
preventing undue seepage and for controlling, curtailing and
removing debris, weed, vegetable, marine, insect and animal
growths; to have access to all of the Storage Lake area for
all of such previously described purposes; and to construct
and maintain dikes and embankments to prevent flooding of
roads and to make full use of the area described as Parcel B
(all as shown on Amended Exhibit 8). Insofar as the Dam and
Storage Lake will affect Reservation Lands subject to existing
rights-of-way, to the extent the Tribe has the right to do so,
the Tribe hereby leases to the Lessees the right to construct
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and maintain said Dam and Storage Lake and confers upon the
Lessees whatever rights the Tribe may have with respect to
construction and maintenance of a Dam and Storage Lake
affecting Reservation Lands subject to such rights-of-way.
(i) The right to dispose of waste water on the Reservation Lands
by permitting waste water from the Enlarged Four Corners
Generating Station to flow from the Ash Disposal Area into and
along the Chaco wash; the right to construct, reconstruct,
install, operate, maintain, relocate and remove pipelines,
sluice works and other facilities for transporting of ashes,
refuse products and waste water, and roads, from the Common
and Related Facilities Area to the Ash Disposal Area. In
addition to the Related Rights leased under this Section 4(i),
the lease of the Ash Disposal Area to the Lessees shall
include the right for the following uses, among others: the
right to dispose of and dump thereon ashes, refuse products
and waste water from the Enlarged Four Corners Generating
Station; the right to
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construct, reconstruct, install, operate, maintain, replace
and remove roads, pipelines, sluice works, dikes, dams,
canals, and other works and facilities for the storage and
disposal of ashes, refuse products and waste water. Lessees
will install such dikes, settling basins, or other facilities
as are reasonably necessary to retain said ashes in the Ash
Disposal Area. Appropriate and standard tests for determining
the presence of contaminants in the waste water will be
conducted by Lessees under the New Lease and Arizona under the
Amended Original Lease, and reasonable steps will be taken by
them to reduce such contaminants to an acceptable minimum.
(j) The locations and routes of the facilities referred to in
Section 4(a) and (b), and of any ash, refuse product and waste
water disposal facilities located outside of the Ash Disposal
Area, and referred to in Section 4(i), shall be first
submitted to and approved by the Tribe and the Secretary, and
the Tribe agrees that it will not withhold its consent to any
reasonable locations and routes. In the event additional or
extended diversion works are constructed or installed in the
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stream bed of the San Juan River within the Reservation Lands,
other than on the Pumping Plant site, or facilities are
constructed within the Chaco wash, a plat or plats showing the
location thereof shall promptly be filled with the Secretary
and with the Tribe.
(k) All access roads outside the Leased Lands will be subject to
being used by members of the tribe or its permittees in a
normal manner not preventing the Lessees from making normal
use of the roads; provided, however, that the Lessees are not
obligated hereby to maintain such roads, except for
maintenance made necessary by the use by the Lessees of such
roads. In the event an access road shall be incorporated into
the improved road system for the State of New Mexico or the
Reservation Road System of the Bureau of Indian Affairs, so as
to become open for public use, the Lessees will surrender
their right-of-way and easement for such road. For heavy
haulage during periods of construction, reconstruction, use,
operation, maintenance, relocation and removal of Enlarged
Four Corners Generating Station, in cases where use of the
access roads hereinabove described is not practicable, the
Lessees shall have the right to reasonable access across the
Reservation Lands to the Leased Lands."
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6. CONSENT TO GRANT OF RIGHTS-OF-WAY BY SECRETARY:
Section 5 of the Supplemental Lease is hereby amended by adding the
following Subsection (d):
"(d) The Tribe hereby gives its consent to the amendment by the
Secretary of any Exhibit to the ss. 323 Grant and the Arizona
ss. 323 Grant required in order to conform said Exhibits with
the Amended Exhibits to this Supplemental Lease covering both
the New Lease and the Amended Original Lease." 7. RELOCATION
PROCEDURES:
A new Section 6A is hereby added to the Supplemental Lease to read as
follows:
"6A. RELOCATION OF NAVAJOS:
(a) Lessees shall comply with all existing and future rules
and regulations, ordinances, and laws of the Tribe
relating to relocation of individual Navajos and just
compensation to individual Navajo permittees for
impairment of their use areas as a result of Lessees'
operations hereunder, including, but not limited to, the
loss of or damage to traditional or customary grazing
areas or area grazed under permit; the removal,
relocation and/or replacement of people, buildings,
hogans, and other structures; damages to livestock and
crops; and other losses. In connection with the
foregoing, Lessees shall pay such compensation as may be
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determined according to rules, regulations, ordinances,
and laws of the Tribe and, in addition, shall (if
required by such rules, regulations, ordinances, and
laws) pay or reimburse the administrative costs involved
in determining, awarding, and implementing such
compensation.
(b) Before commencing any activities on any portion of the
leased premises, Lessees shall pay to Tribe all of the
compensation required under this Section 6A for all
individual Navajos entitled to compensation under this
Section 6A. Lessees shall then be deemed to have
discharged its obligations to pay compensation to
individual Navajos under this Section 6A. The individual
Navajos entitled to compensation under this Section 6A
may, at their option, either (a) immediately relocate
and receive from the Tribe the funds to which they are
entitled under this Section 6A or (b) remain on the
leased premises until they are given notice to relocate
by Lessees, at which time they shall be removed from the
leased premises, and upon completion of such removal
they shall receive from the Tribe the funds to which
they are entitled under this Section 6A. Notwithstanding
anything to the contrary herein, the Tribe shall not be
required to pay any compensation to individual Navajos
from funds other than those provided by Lessees under
this Section 6A."
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8. FUTURE RIGHTS-OF-WAY:
A new Section 6B is hereby added to the Supplemental Lease to read as
follows:
"6B. COMPENSATION FOR FUTURE RIGHTS-OF-WAY:
If during the remaining term of this Supplemental Lease any
Lessee on behalf of itself or a joint venture project in which
it is a participant applies to the Tribe for a permit or grant
of right-of-way or easement to construct and operate an
electric transmission line over or across Reservation Lands,
if the Lessor in its sole discretion determines such
right-of-way or easement should be granted, and if during the
twelve-month period preceding the date of the application
Lessees' fuel supplier has paid royalties to the Tribe on not
less than six (6) million tons of coal sold to be Lessees, the
amount of the initial and annually adjusted payment for said
permit or grant of right-of-way or easement shall be
determined in accordance with the formulas established as
follows:
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(a) For each such right-of-way or easement, Lessee shall
pay the Secretary for the use and benefit of the
Tribe a one-time payment computed on the basis of the
following formula:
Ra1 = (R1) X (Ic1) WHEREIN:
(Ib1)
R1 = The adjusted one-time payment for
such right-of-way or easement.
Ic1 = The final quarterly index of the Index
of Implicit Price Deflators for Gross National
Product (as presently published in Table
7.1-7.2 of the National Income and Product
Tables, in publication by the United States
Department of Commerce entitled Survey of
Current Business, hereinafter referred to as
"IPD") last published immediately preceding
the date of the grant of the right-of-way or
easement is effective, provided that in no
event shall 1cl be less than the value of Ib1.
Ib1 = The final quarterly index of IPD last
published before the Effective Date.
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(b) In addition to the payments set forth in (a) hereof,
as consideration for each such right-of-way or
easement, Lessee shall pay the Secretary for the use
and benefit of the Tribe an annually adjusted payment
of $10 per acre. The payment shall be calculated on
the basis of the following formula:
Ra2 = (Ic1) X $10 WHEREIN:
(Ib2)
Ra2 = The adjusted annual payment for each acre.
Ic2 = The final quarterly index of IPD
last published preceding the date
each annual payment is due, provided
that in no event shall Ic2 less than
the value of Ib2.
Ib2 = The final quarterly index of IPD
last published before the Effective
Date.
The foregoing formula shall not apply to renewals of or to
rights-of-way or easements for which application was submitted
to the Lessor before the effective date of Amendment No.1, nor
to any rights-of-way or easements for which application is
made by an entity, or joint venture project which will wholly
own the transmission lines for which the application is made,
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and in which the Lessor, its political subdivisions, or its
enterprises have an ownership interest.
9. RENTAL FOR ADDITIONAL LAND:
Section 11 of the Supplemental Lease is hereby amended by adding the
following Subsection (f):
"(f) Pursuant to Section (b), 725.68 acres of additional land have
been leased to Lessees by this Amendment No. 1, as additions to
the Common and Related Facilities Area and the Ash Disposal Area,
all as reflected on Amended Exhibits 5 and 6A, respectively. Said
additions shall result in the following additional rental payments
to the Tribe:
(i) With respect to the addition to the Common and Related
Facilities Area, an initial one-time payment of $35,206,
payable by the Lessees on the Effective Date, said payment to
be made as provided in Section 11(d) hereof.
(ii) With respect to the addition to the Ash Disposal Area,
an initial, one-time payment of $109,930, payable by Arizona
on the Effective Date.
(iii)With respect to the addition to Common and Related facilities
Area,a monthly rental of $146.70 effective for the first full
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month subsequent to the Effective Date and each month
thereafter through December 31, 1985 to be paid by Lessees
within thirty (30) days after the Effective Date, said
payment to be made as provided in Section 11(d) hereof.
(iv) With respect to the addition to the Ash Disposal Area, a
monthly rental of $458.05 effective for the first full month
subsequent to the Effective Date and each month thereafter
through December 31, 1985 to be paid by Arizona within thirty
(30) days after the Effective Date.
(v) With respect to the addition to the Common and Related
Facilities Area, an annual rental of $1,760.30 for the twelve
(12) month period ending December 31, 1985, to be paid by the
Lessees on or before January 1, 1985, said payment to be made
as provided in Section 11(d) hereof.
(vi) With respect to the addition to the Ash Disposal Area,
an annual rental of $5,496.50 for the twelve (12) month
period ending December 31, 1985, to be paid by Arizona on or
before January 1.
- 27 -
(vii) Annual payments thereafter with respect to (v) and (vi)
above shall be payable in advance on or before January 1 of
each year and shall be calculated on the basis of the
following formula:
Ra3 = (Ic3) X $1760.30, and 45,496.50,
respectively, (Ib3) WHEREIN:
Ra3 = The adjusted annual payment for
such additional leased land.
Ic3 = The final quarterly index of IPD
last published preceding the date
each annual payment is due, provided
that in no event shall Ic3 be less
than the value of Ib3.
Ib3 = The final quarterly index of IPD last published
before the Effective Date."
The Tribe hereby waives its right to receive consideration and damages
for the conforming amendments to the Arizona ss. 323 Grant and to the
ss. 323 Grant, as provided in 25 C.F.R. ss.ss. 169.12 and 169.13.
10. LEASE RENTALS:
Section 11(e) of the Supplemental Leases is hereby amended to read as
follows:
"(e) The lease rentals for the New Lease and the Amended Original
Lease are to be in lieu of all taxes, assessments, levies, exactions or
charges of any kind made or imposed by the Tribe, and the Tribe
covenants that it will not tax or assess, in any manner whatever,
directly or indirectly, the ss. 323 Grant, the Arizona ss. 323 Grant,
the New Lease, the Amended Original Lease, or the property of the
Lessees located on the Leased Lands or located on Reservation Lands
pursuant to the Related Rights leased in the New Lease or Amended
- 28 -
Original Lease, or Lessee's activities under the New Lease or Arizona's
activities under the Amended Original Lease, or their ownership,
construction, operation or removal of the Four Corners Project by
Lessees, pursuant to the New Lease, or the Initial Four Corners Plant
by Arizona under the Amended Original Lease, or the power generated
thereon or the transmission, sale, or disposal of such power, their
income, or otherwise, or the sale or delivery of fuel to the Lessees by
the suppliers of their fuel, or the severance or extraction thereof by
such suppliers (other than royalties provided in their leases from the
Tribe) or the diversion or use of water; provided, however, that after
July 6, 2001, the foregoing covenants shall lapse. By agreeing to the
amended Section 11(e), the Tribe does not intend to ratify or otherwise
reaffirm the provisions of Section 11(e) as amended, nor otherwise give
any validity, effectiveness or scope to said provisions which they
would not have as originally written. In addition, this amended Section
11(e) shall not prejudice or constitute a waiver of the right of the
Tribe to contest the validity, applicability or enforceability of
Section 11(e) as amended. Likewise, by agreeing to the amended Section
11(e), the Lessees do not intend to repudiate, invalidate or diminish
the effectiveness, enforceability or scope of Section 11(e) as amended,
except as specifically provided herein."
- 29 -
11. WATER RIGHTS:
Section 21 of the Supplemental Lease is hereby amended by adding the
following sentence at the end of said Section:
"In the event the rights of the Tribe to take water from the
San Juan River are quantified judicially or otherwise in a
manner that impairs or adversely affects the ability of
Lessees or of Arizona under said Permit 2838 to remove a
supply of water from the San Juan River in sufficient
quantities to meet the requirements of the Enlarged Four
Corners Generating Station and the mining operations of Utah
Mining, the Tribe hereby agrees not to interrupt or cause the
interruption of said water supply and to sell to the Lessees
an annual amount of water equal to the amount by which Permit
2838 is so impaired or adversely affected. The annual payment
shall be calculated on the basis of $50 (in 1985 dollars) per
acre foot per year adjusted annually on January 1 of the year
following the Effective Date of Amendment No. 1 and each
January 1 thereafter on the basis of the following formula:
R1 = R(1+i)
Where: R1 = the adjusted rate per acre-foot per
year for the current year;
R = the adjusted rate per acre-foot per
year for the previous year; and
i = the 10-year constant maturity
United States Treasury interest
rate for the year preceding the
year the adjustment is made.
- 30 -
Nothing in this Supplemental Lease shall be construed or used
as an admission against the interest of either the Tribe or
Lessees in connection with any pending or future litigation or
adjudication involving water rights in the basin of the
Colorado River, the San Juan River or their tributaries."
12. LABOR POLICY:
Section 25 of the Supplemental Lease is hereby amended to read as
follows:
"25. LABOR POLICY - PREFERENTIAL EMPLOYMENT OF INDIANS:
Lessee shall provide preference in employment to Indians
living within or near the Reservation in connection with
construction and operation of the facilities contemplated in
this Supplemental Lease, all in accordance with the terms and
provisions of the Letter Agreement relating to said employment
which is attached hereto as Exhibit 15, as said Exhibit 15 may
be amended from time to time in accordance with its terms."
13. NAVAJO SCHOLARSHIPS:
A new Section 51 is hereby added to the Supplemental Lease to read as
follows:
- 31 -
"51. NAVAJO SCHOLARSHIPS: Lessees shall contribute to a foundation
to be established jointly by the Lessees and to the Tribe for
a term of ten years of not less than TWENTY-FIVE THOUSAND
DOLLARS ($25,000) annually, the first payment of which shall
be made within thirty (30) days after the Effective Date, for
the sole and exclusive purpose of providing scholarship aid to
Navajo recipients. Said foundation shall be jointly
administered by the Tribe's and Lessees' representatives. For
the initial five years, 80% of such contributions shall be
invested to generate future funds for scholarships and 20% may
be used for direct scholarship aid to Navajo recipients. For
the second five year period the joint administrators shall
determine how the contributed funds are to be used. Such
scholarships shall be awarded to recipients and used at
colleges and universities as the joint administrators shall
determine. Annual payments shall be calculated on the basis of
the following formula:
AASP = (Ic4) X $25,000 WHEREIN:
-----
(Ib4)
AASP = The adjusted annual scholarship payment.
Ic4 = The final quarterly index of IPD
last published preceding the date
each annual payment is due, provided
that in no event shall Ic4 be less
than the value of Ib4.
Ib4 = The final quarterly index of IPD las published
before the Effective Date."
- 32 -
14. SUPPLEMENTAL LEASE AND AMENDED ORIGINAL LEASE TO
REMAIN IN EFFECT:
Except as specifically amended herein, the Supplemental Lease and the
Amended Original Lease shall remain in full force and effect in
accordance with their terms.
IN WITNESS WHEREOF, the Parties havecaused this Amendment No. 1 to be
signed in their behalf by their duly authorized officers as of this _____ day of
__________, 1985.
THE NAVAJO TRIBE OF INDIANS
By: ______________________________________
/S/ Peterson Zah, Chairman
Navajo Tribal Chairman
ARIZONA PUBLIC SERVICE COMPANY
By: ______________________________________
/S/
Title: President
ATTEST:
/S/ Suzanne W. D
Secretary Associate
- 33 -
EL PASO ELECTRIC COMPANY
By: ______________________________________
/S/
Title: Assistant Vice President
ATTEST:
/S/ Theta S. Fields
Secretary
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /S/ J. L. Wilkins
-----------------------------------
Title: Senior Vice President, Power Supply
ATTEST:
/S/ D. E. Peckham
Secretary
SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT
By: ______________________________________
/S/
Title: Vice President
ATTEST:
- -------------------------
/S/ Don E. Smith
Asst. Secretary
- 34 -
SOUTHERN CALIFORNIA EDISON COMPANY
By: ______________________________________
Title: Vice President
ATTEST:
- -------------------------
Secretary
TUCSON ELECTRIC POWER COMPANY
By: ______________________________________
/S/
Title: Senior Vice President
ATTEST:
- -------------------------
/S/ Jean E. Kettlewell
Secretary
APPROVED this 25 day of April , 1985.
UNITED STATES DEPARTMENT OF THE
INTERIOR
By: /S/ Wilson Barber
---------------------------------
Secretary by
Navajo Area Director,
Mr. Wilson Barber, Pursuant
to the Commissioner's
Redelegation Order 10
BIAM, Section 3.1.
- 35 -
STATE OF ARIZONA )
) SS
COUNTY OF APACHE )
The foregoing instrument was acknowledged before me this 25 day of
April, 1985, by PETERSON ZAH, Chairman of the Navajo Tribal Council of the
Navajo Tribe of Indians, on behalf of the Navajo Tribe of Indians.
/S/ Linda A Scott
------------------------------------------
Notary Public
My Commission Expires:
/S/ My Commission Expires Feb. 14, 1988
STATE OF ARIZONA )
) SS
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this 18 day of
March, 1985, by /S/ _________________________, President of ARIZONA PUBLIC
SERVICE COMPANY, a corporation, on behalf of said corporation.
/S/
---------------------------------------
Notary Public
My Commission Expires:
Nov. 13, 1986
- 36 -
STATE OF TEXAS )
) SS
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before me this 20th day of
March , 1985, by /S/ Joseph E. Wasiak , Asst. Vice President
of EL PASO ELECTRIC COMPANY, a corporation, on behalf of said corporation.
/S/ Cecilia R. Jyea
--------------------------------
Notary Public
My Commission Expires:
/S/ 7-3-85
STATE OF NEW MEXICO )
) SS
COUNTY OF BERNALILLO )
The foregoing instrument was acknowledged before me this 20th day of
March 1985, by J. L. Wilkins, Senior Vice President, Power Supply of PUBLIC
SERVICE COMPANY OF NEW MEXICO, on behalf of said corporation.
/S/ Sherry Leeson
---------------------------------
Notary Public
My Commission Expires:
July 1, 1988
- 37 -
STATE OF CALIFORNIA )
) SS
COUNTY OF LOS ANGELES )
The foregoing instrument was acknowledged before me this 21st day of
March, 1985, by /S/ ____________________, Vice President, of SOUTHERN CALIFORNIA
EDISON COMPANY, a corporation, on behalf of said corporation.
/S/ Ven
-------------------------------
Notary Public
My Commission Expires:
Aug. 19, 1987
STATE OF ARIZONA )
) SS
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this 19th day of
March, 1985, by Marcel J. Boulais & Don E. Smith, Vice President & Asst.
Secretary of SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, a
political subdivision of the State of Arizona, on behalf of said SALT RIVER
PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT.
/S/ Ken Lynn M. Franszczak
------------------------------
Notary Public
My Commission Expires:
Feb. 7, 1987
- 38 -
STATE OF ARIZONA )
) SS
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me this 19th day of
March , 1985, H. A. Heim, Senior Vice President of TUCSON ELECTRIC POWER
COMPANY, a corporation, on behalf of said corporation.
/S/ Katharine Snell
---------------------------------
Notary Public
My Commission Expires:
November 4, 1986
- 39 -
EXHIBIT NOS. 1 - 13 are maps describing Four Corners Generating Station Plant
site and related area adjacent to the plant.
- 40 -
EXHIBIT NO. 15
March 8, 1985
The Honorable Peterson Zah
Chairman
The Navajo Nation
Window Rock, AZ 86513
Dear Chairman Zah:
Since 1962, when the Four Corners Generating Station became
operational, Arizona Public Service Company ("APS") has been dedicated to the
employment of Indians within the plant. We have made a concerted and consistent
effort to adhere to and advance the concept of "Indian Preference," which can be
demonstrated by the following statistics:
1977 1984
--------- --------
Total Number of Indian Employees 312 (49%) 696 (65.7%)
In addition, APS has made a significant contribution to the upward
mobility of qualified Indians in numerous classifications, as evidenced by the
following information:
1977 1984
--------- --------
Maintenance Mechanics 11 (41%) 66 (52%)
Journeyman Classification 20 (19%) 108 (45%)
Auxiliary Operators 25 (61%) 50 (91%)
Control Operators 6 (35%) 15 (63%)
First Line Supervisors 3 (10%) 32 (36%)
APS is committed to the continued pursuit of preferential employment of
Indians at the Four Corners Generating Station pursuant to the provisions of
this Lette Agreement, subject to any limitations contained in applicable
provisions of the Labor Agreement in effect between APS and the I.B.E.W. Local
Union No. 387. Qualifications for employment and promotion shall be determined
by APS. In all instances, qualifications for positions will be job-related and
nondiscriminatory, and will be reviewed on an ongoing basis to ensure validity
and relevance of such qualifications. A list of the current positions is
attached as Appendix A.
In support of this commitment, APS proposes the following program to
enhance the employment status of Indians:
- 41 -
The Honorable Peterson Zah
March 8, 1985
Page 2
1. Employment Preference
A. Subject to meeting its established minimum qualifications, APS
shall give preference in hiring and promotion to Indians whose
qualifications are equal to or better than those of non-Indian
Candidates.
B. When hiring temporary student employees, preference will be
given to Indians, where qualified.
2. Training
Training Programs shall be designed and implemented where cost
effective to enable the Four Corners Generating Station to meet its
manpower requirements. With respect to training courses which may be
implemented at the Four Corners Generating Station in the future,
preferential selection will be extended to Indian candidates.
A. Training courses APS has conducted at the Four Corners
Generating Station in the past, including the following:
Auxiliary Operator Power Plant Fundamentals
Basic Mechanics Safety Training
Control Operator Supervisory Skills
Lubeman Management Training
Mobile Equipment Training Water Analyst
Welder
B. With respect to training programs, APS will encourage its
Indian employees to take advantage of such opportunities to
enhance their upward mobility potential.
3. Promotions, Transfers and Work Force Reduction
A. Performance Review: Preference shall be given to Indian
employees with respect to reductions in force for performance
review positions subject to job requirements, employee
qualifications, and past work history. Should a transfer be
desired by performance review employees and required by APS,
preference shall be given to the best qualified Indian
employee as provided in Paragraph 1 hereof, depending on the
position into which the transfer is sought.
B. Bargaining Unit: With respect to bargaining unit positions
involved in promotions, transfers, reductions in force and
- 43 -
The Honorable Peterson Zah
March 8, 1985
Page 3
recalls, seniority establishing by the Labor Agreement will be
the deciding factor where qualifications and physical fitness
are substantially equal. However, if not in conflict with such
Labor Agreement, such seniority shall first be applied to the
Indian applicants or candidates. If after APS has met its
preference obligations and no Indians are available, then
seniority may be applied among the non-Indian applicants or
candidates.
4. Grievance Procedure:
A. Bargaining unit employees will utilize the Grievance Procedure
agreed to between APS and I.B.E.W. Local Union No. 387.
B. Performance review employees will utilize the established APS
Equity Procedure to resolve grievances.
C. APS shall make a good faith effort to negotiate with the
I.B.E.W. to include a provision in the Labor Agreement
requiring the inclusion of Navajo employees in the grievance
procedure.
5. Hiring Notification, Recruiting and Advertising
A. When it is necessary for APS to hire outside applicants to
fill job openings, APS shall utilize Navajo personnel in its
recruitment process and shall provide notification to the
Navajo Nation and other agencies as indicated below. Such
notifications shall state that preference will be given to
qualified American Indians as provided in Paragraph 1 hereof,
depending on the position being filled:
(i) Director of the Office of Navajo Labor Relations
("ONLR") in Window Rock, Arizona,
(ii) BIA Employment Assistance Offices in Window Rock and
Farmington,
(iii) Farmington Inter-Tribal Organization,
(iv) Denver National Indian Employment Resource Center, and
- 44 -
The Honorable Peterson Zah
March 8, 1985
Page 4
B. When advertising is required for an outside hire, the
following newspapers will be utilized in addition to others as
appropriate:
(i) Navajo Times, Window Rock, Arizona
(ii) Gallup Independent, Gallup, New Mexico
(iii) Farmington Daily Times, Farmington, New Mexico
(iv) Lake Powell Chronicle, Page, Arizona.
C. APS will recruit Indian candidates at Northern Arizona
University, University of Arizona, Arizona State University,
University of New Mexico, and New Mexico State University, in
addition to other educational institutions as appropriate.
6. Reporting
The Four Corners Power Plant will report manpower and furnish a
statistical breakdown by race of all new hires, promotions and
transfers, on a quarterly basis to the ONLR.
7. Contractor/Hiring Preference
A. Contractors will be required to agree that Indian preference
will apply to employment at the Four Corners Generating
Station. Contractors will be instructed to notify the Union
Hall that Indians, where qualified and available, are to be
dispatched before non-Indians.
B. Contractors and APS shall not be responsible for dispatching
of personnel by the Union Hall, but only for the proper
notification of the Union Hall. Problems, if any, in
dispatching, shall be addressed by the Navajo Nation to the
Union Hall, rather than to contractors or APS. The parties
shall use their best efforts to insure that job completion,
productivity and/or costs will not be impacted by dispatching
problems.
C. Contractors will be instructed by APS to notify the ONLR as
soon as practical (and to provide copies of such notice to
APS) of anticipated manpower requirements and qualifications
needed before placing a call to the Union Hall.
- 45 -
The Honorable Peterson Zah
March 8, 1985
Page 5
D. Contractors will be required to report manpower monthly to
ONLR (and provide copies of such reports to APS), indicating
numbers of Indians and non-Indians personnel by job
classification.
8. Contractor/Vendor Preference
APS shall give contracting preference to members of the Navajo Nation
and Navajo firms, certified by the Commerce Department of the Navajo
Nation, in all contract work to be performed on leased lands including
but not limited to construction contracts, procurement and personal
service contracts, provided that the requisite experience and
competence to perform such contractual work and procure material and
equipment of comparable quality and price in accordance with standard
practices in the electric utility industry can be demonstrated. Subject
to the foregoing, where two or more bids are received by APS for a
given item of contractual work and where one of such bids is submitted
by a member of the Navajo Nation or a certified Navajo Firm, such
contract shall be awarded to such member of the Navajo Nation or Navajo
firm, if their bids are equal to or less in price than the bids of
non-members or uncertified firms and their qualifications are equal to
or better than those of such non-members and firms. More specifically:
A. APS shall extend preference to Indian contractors/vendors and
where they are qualified and/or supply a quality product and
are evaluated equal to or better than non-Indian
contractor/vendor, the Indian contractor/vendor will be
selected.
B. All contractors/vendors must be qualified by APS before
being placed on an approved bidders list. Qualification
includes commercial and financial viability as well as product
and/or service quality.
C. Potential contractors/vendors should be directed to call
the Four Corners Power Plant for an appointment to apply for
consideration as a qualified bidder. Appointments are normally
scheduled Tuesday, Wednesday, and/or Thursday 8:30 a.m.
- 46 -
The Honorable Peterson Zah
March 8, 1985
Page 6
through 3:00 p.m. The following is a general list of products
and services utilized at Four Corners:
Products: Services:
Boiler equipment Mobile demineralizer
Turbine and auxiliary equip. Landscaping
Safety items Weed control
Sanitary supplies Temporary personnel
Paper products Truck scale maintenance
Personal consumable items Survey and monitoring
Office supplies Contract labor
Furniture Sandblasting
Auto parts Non-destructive testing
Chemicals Painting
Fuels Scrubber coating
Fire equipment Exterminating
Hardware Office equipment repair
Bottle water Coal belt repair
Consulting work
Fence repair/installation
Janitorial service
Ash haul
Asphalting
Tire repair
Vacuum service
Elevator-crane inspection
D. Goods and services shall be purchased on the basis of
competitive bidding where practical. Invitations to bid will
be issued to individuals and firms on the approved bidders
list.
9. Community Programs
APS will actively support community programs as they relate to the Four
Corners Generating Station and Career Days/educational programs
sponsored by schools located on the Navajo Reservation. These programs
will be supported with printed materials, speakers, and audiovisual
material as appropriate.
- 47 -
The Honorable Peterson Zah
March 8, 1985
Page 7
10. Navajo Preference
In the event the Navajo Nation secures a judgement upholding APS' right
to grant "Navajo" as distinguished from "Indian" preference in
employment, APS agrees thereafter to grant Navajo preference in
employment in accordance with this Letter Agreement.
11. Resolution of Disputes Between Parties
In the event of a claimed breached of this Letter Agreement or a
dispute between the parties arising out of this Letter Agreement, at
the request of either the Chairman of the Navajo Nation or the
President of APS, each of the parties shall submit to a compulsory
minitrial for the resolution of any such claim or dispute.
The purpose of the minitrial is to inform management representatives
for the parties of the theories, strengths and weaknesses of the
parties' respective positions so that the parties may amicably resolve
the claim or dispute at issue.
A. Business representatives of each of the parties empowered to
decide the issues shall attend the minitrial to be conducted
for one business day within 60 days after written notice of
the claim or dispute is delivered to the other party at a
mutually convenient location. In addition, an individual
mutually selected by counsel for the parties will attend as a
"neutral advisor."
B. The fees and expenses of the neutral advisor shall be borne
equally by the parties. Each of the parties shall otherwise
pay its own costs.
C. The neutral advisor shall be provided with copies of this
Letter Agreement. Neither of the parties nor anyone on its
behalf shall unilaterally approach, contact or communicate
with the neutral advisor after his or her selection.
D. Shortly after appointment of the neutral advisor, each of
the parties shall in good faith attempt to agree to produce
documents requested by the other party in as expeditious a
manner as possible. The production of documents shall be
subject to the successful negotiation by the parties of an
acceptable arrangement regarding the protection of proprietary
or other confidential information. In the event that after the
minitrial the parties submit their dispute to litigation as
provided in Subsection I below, the parties shall in good
faith attempt to agree to the entry of an appropriate
protective order with respect to the documents produced.
- 48 -
The Honorable Peterson Zah
March 8, 1985
Page 8
The neutral advisor will be required to be a party of any
confidentiality agreement or protective order.
E. Shortly after appointment of the neutral advisor, mutually
agreed upon source material will be jointly sent to the
neutral advisor to assist him/her in familiarizing him/herself
with the basic issues of the case. Seven days before the
minitrial is to be held, the parties shall exchange all
exhibits they plan to use at the minitrial. Shortly before the
scheduled minitrial, if the neutral advisor so suggests and if
the parties agree, the neutral advisor may confer jointly with
counsel for the parties to resolve any outstanding procedural
questions. If the neutral advisor wishes to consult with the
parties' technical experts on substantive issues prior or
after the meeting, he/she may outline the general areas of
inquiry and, on agreement by the parties, the neutral advisor
may submit written questions to the parties' technical
experts.
F. Within three (3) days before the minitrial is to be held, the
parties shall exchange and submit to the neutral advisor
introductory statements which are not to be longer than ten
8-1/2" x 11" double-spaced pages.
G. The presentations at the minitrial shall be informal, the time
for which presentations will be equally divided between the
parties. Rules of evidence will not apply. While permitted to
ask clarifying questions, the neutral advisor shall not
preside like a judge or arbitrator, nor have the power to
limit the scope or substance of the Parties' presentations.
The presentations will not be transcribed or recorded, but
either of the parties may take notes of the proceedings.
H. At the conclusion of the presentations and to the extent
reasonable, the parties will make their business
representatives available for discussions. If the parties are
unable to resolve the disputes themselves based upon a good
faith evaluation of the presentations, to assist the parties
in further discussions, the neutral advisor will render
his/her comments orally on the issues. Thereafter, the
business representatives of the parties shall meet and be
available for discussions at least once.
I. In the event that upon conclusion of the minitrial the parties
are unable to amicably resolve their disputes, each party
shall be free to litigate such disputes in the courts of the
United States. Litigation shall be limited to the issues
considered at the minitrialan shall be conducted to the extent
possible on the same terms as the minitrial. The parties agree
to waive any applicable statute of limitations for three years
following the minitrial defense with respect to subsequent
litigation of these disputes between the parties.
- 49 -
The Honorable Peterson Zah
March 8, 1985
Page 9
J. The advisory comments of the neutral advisor will be
inadmissible for all purposes in this or any other dispute
involving the parties.
12. Term
The program outlined herein will be in effect for a period of not less
than four years. At any time following the anniversary of the fourth
year, the terms of this Letter Agreement may be reopened by either
Party, and upon reaching any new agreements, this Letter Agreement
shall be amended without amending the Four Corners Plant Site Leases.
If you approve our program as outlined herein, please indicate by
signing in the space provided below and by returning this Letter Agreement to
the undersigned.
Sincerely,
/S/ O. Mark De Michele
---------------------------
OMD:TEP/fp
Approved this _____ day of __________, 1985.
/S/ Peterson Zah, Chairman
The Navajo Nation
- 50 -
APPENDIX A
*Accounting Clerk *Industrial Nurse
*Accounting Specialist *Insp./Planner Mtc.
*Analyst Admin. Inst. Repairman Journeyman
*Analyst Contract 4-C *Instructor - Ops., Mtc.
Appren. Electrician Insulator Refractoryman
Appren. Instr. Repairman *Inventory Control Analyst
Appren. Mach. *Inventory Control Specialist
*Auditor Janitor
Auto Mechanic *Labor Relations Analyst
Aux. Oper. Scrubber 4-5 Laborer
*Betterment Specialist Lubeman
Building Equipmentman Machinist Journeyman
*Chemical Analyst *Manager 4-C Adm. Services
*Chemical Engineer *Manager 4-C Emp. Relations
*Computer Technician *Manager 4-C Engineering
*Cost Analyst *Manager 4-C Power Plant
*Data Entry Operator *Material Analyst
*Designer *Materials Foreman
*Electrical Engineer Mech. Pwr. Plt. Mtc.
Electrician Journeyman *Mechanical Engineer
*Employee Relations Analyst Oper. Aux.
*Eng. Elec. Test Sr. 4-C Oper. Aux. Scrubber
*Eng. Mech. Bettermt. Oper. Aux. Trn.
*Eng. Mech. Test Oper. Baghouse
*Eng. Mtc. Oper. Control
*Environmental Technician Oper. Control Trn.
*Facilities Foreman Oper Scrubber 4-C
*Facilities Supervisor Painter
*Food Service Coordinator *Personnel Clerk
*Foreman Mtc. 4-C *Placement Specialist
*Foreman Mtc. 4-C Overhaul *Placement Supervisor
Foreman Mtc. 4-C SO2 *Planner Scheduler
*Foreman Shift 4-C 1-2-3 *Planning Expeditor
*Foreman Shift 4-C 4-5 *Receptionist
*Foreman Shift 4-C Scrubber *Record Clerk
Fuel Handler *Safety Analyst
Fuel Handler Trn. *Secretary
Fuel Specialist *Security Supervisor
Helper Pwer. Plt. Mtc. *Shift Supv. 4-C 1-2-3
*Industrial Engineer *Shift Supv. 4-C 4-5
A-1
APPENDIX A
*Shift Supv. Scrubber 4-C 4-5 *Supv. 4-C Mech. 1-2-3
*Spec. Chemical Con. 4-C *Supv. 4-C Oper. 1-2-3
Storekeeper *Supv. 4-C Oper. 4-5
*Summer Employee *Supv. 4-C Overhaul Mtc.
*Supply Expeditor *Supv. 4-C Planning 1-2-3
*Supt. 4-C Elec. inst. Mtc. *Supv. 4-C Planning 4-5
*Supt. 4-C Mech. Mtc. *Supv. 4-C Planning SO2
*Supt. 4-C Mtc. *Supv. 4-C Scrubber 1-2-3
*Supt. 4-C Oper. *Supv. 4-C Scrubber 4-5
*Supt. 4-C Planning *Tech Computer Lead 4-C
*Supv. 4-C Accounting *Training Supervisor
*Supv. 4-C Betterment Eng. Truck Driver
*Supv. 4-C Betterment Eng. Utility Equipment Operator
*Supv. 4-C Chem. Measure *Utility Foreman
*Supv. 4-C Materials Warehouseman
*Supv. 4-C Mtc. E-I 1-2-3 *Water Analyst
*Supv. 4-C Mtc. E-I 4-5 Welder Chrome Mold
*Supv. 4-C Mtc. E-I SO2 Welder Combination
*Supv. 4-C Mtc. Mech 4-5 *Word Processing Operator
*Supv. 4-C Mtc. Mech SO2
- --------------------
*Performance review employee
A-2