AGENDA ITEM REPORT
Meeting Date: May 11, 2021 Staff Contact: Carol Lahman, City Attorney Department: Legal
Subject: Approve the Execution of the Forbearance Agreement entered into by The Osage Nation, the City of Enid and the Enid Municipal Authority, and authorize payment in the amount of $1,000,000.00.
Background: To allow the Kaw Lake Water Supply Project to proceed, the City of Enid has been in negotiations with The Osage Nation to find an accommodation for the City project that would not affect The Osage Nation’s or the State of Oklahoma’s interest, rights or position as to natural resources, property, or water. The Forbearance Agreement, if approved, would resolve the issues between the City of Enid and The Osage Nation without either party resorting to lengthy and expensive litigation that would delay the start of the construction of the Kaw Lake pipeline. The negotiations have taken place over the last four years.
If approved, the Enid Municipal Authority will pay $1,000,000.00 to The Nation within 30 days, as part of the consideration for the agreement. The City will also reserve a certain amount of the capacity in the pipeline for the Nation. This does not compromise the ability of the City to carry the full OWRB permit amount of water from Kaw Lake to Enid. The agreement provides that if the Nation, at some point, decides to make use of the capacity, that the Nation will construct and pay for the improvements necessary, and will pay for the cost of maintenance and operation attributable to this use. If at some point, it is determined that the City needs to obtain right of way from the Bureau of Indian Affairs, the payment under this agreement will be considered by the Nation as compensation for the right of way for a period of fifty years with a right of renewal for an additional fifty years.
Attachments: Osage Final Forbearance Agreement Resolution ONCR 21-11 of The Osage Nation Congress Exhibit A - Kaw Lake Project - Principal Features Exhibit B - Kaw Lake Project Service Area Exhibit C - Kaw Lake Project - Arkansas Riverbed Crossings Exhibit D Osage Nation Service Access Points Exhibit E - Osage Forbearance Agreement Forbearance Agreement
This Forbearance Agreement (“Forbearance Agreement” or “Agreement”) is entered into by the Osage Nation (“Nation”) and the City of Enid and the Enid Municipal Authority (collectively, “Enid”), on this __ day of ______, 2021.
RECITALS
WHEREAS, the Nation has contended it is the beneficial owner of the surface estate of the bed and banks of the Arkansas River forming the western and southern boundary of the territory of the Osage Nation (“Riverbed Surface Estate Lands”); and
WHEREAS, the Nation has also asserted claims to, and authority over, water in Osage County in the State of Oklahoma, including water in the Arkansas River along the western and southern boundary of Osage County; and
WHEREAS, Enid and the Nation disagree as to whether the Nation is the beneficial owner of the Riverbed Surface Estate Lands and as to the nature and extent of the Nation’s claims to and over water in Osage County (including water in the Arkansas River); and
WHEREAS, the Enid Municipal Authority holds a permit from the Oklahoma Water Resources Board for the use of up to 20,000 acre-feet per annum from Kaw Lake which is located in Kay County and Osage County and impounds water from the Arkansas River; and
WHEREAS, Enid is in the process of developing a project for the diversion and conveyance of 20,000 acre-feet per annum of water from Kaw Lake for distribution and use by Enid to meet current and future municipal water demand within and surrounding the City of Enid, as described in Section 3 of this Agreement and in Exhibits A and B to this Agreement; and
WHEREAS, Enid has committed significant financial and other resources to development of the above-referenced Kaw Lake project in order
1 to meet the City’s demands for municipal, domestic, commercial, and industrial water; and
WHEREAS, because the Nation’s claims described above remain unresolved, the Nation currently objects to the above-described Kaw Lake project, and the Parties acknowledge the Nation’s claims cannot be resolved in a time frame commensurate with Enid’s need to start construction of the project; and
WHEREAS, the Parties desire to avoid litigation and address their differences with regard to the above-described Kaw Lake project in a manner that will allow Enid to timely complete and implement the project without prejudicing either Party’s respective rights and positions vis-à-vis the Nation’s claims to water and the bed and banks of the Arkansas River.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the Nation and Enid agree as follows:
AGREEMENT
SECTION 1. PURPOSE OF AGREEMENT.
A. IN GENERAL
The purpose of this Forbearance Agreement is to facilitate Enid’s goal to construct, operate, and maintain the Kaw Lake project, as described in Section 3 of this Agreement and in Exhibits A and B to this Agreement, in a way that—
1. meets current and future municipal, domestic, commercial, and industrial water demand within and surrounding the City of Enid;
2. does not interfere with or otherwise limit or affect the Nation’s rights, through the Osage Mineral Council, to, interests in, and/or authority over the Osage Mineral Estate;
2 3. is consistent with the Nation’s goals to protect and conserve water and other natural resources in and around Osage County for the benefit of the Osage people and their future generations;
4. provides immediate and future tangible benefits to the Nation and its citizens;
5. reserves, and does not directly or indirectly prejudice, limit, or otherwise affect any and all claims, rights, interests, or positions of the Nation in and to, or regarding—
(a)water and/or water rights or priorities (including but not limited to surface and ground water in and around Osage County and the Arkansas River), and/or
(b)the Riverbed Surface Estate Lands; and
6. through mutual forbearance and an agreed-to dispute resolution process, provides the Nation and Enid with the opportunity to avoid litigation over the development, construction, and/or operation of the Kaw Lake Project.
B. SCOPE AND EFFECT.
This Forbearance Agreement is between the Osage Nation and Enid only. With respect to any matter or issue addressed or not addressed in this Agreement, this Forbearance Agreement does not apportion or allocate any surface water or groundwater within the State of Oklahoma and does not bind or purport to bind, limit or purport to limit, or otherwise affect or purport to affect in any manner, any rights, claims, authority, or legal positions of any other entity or any person, including but not limited to—
1. the State of Oklahoma, or any agency, officer, or political subdivision of the State of Oklahoma, other than Enid; or
3 2. the United States or any department, agency, or officer of the United States, whether acting as the trustee of the Nation or its citizens or otherwise.
Notwithstanding the foregoing, nothing in this subsection (B) waives the sovereign immunity of any Party to this Agreement.
SECTION 2. DEFINED TERMS.
In this Agreement, and solely for the purposes of this Agreement, the term—
1. “Agreement” or “Forbearance Agreement” means this Agreement, including Exhibits A through E to this Agreement, entered into by and between the Nation and Enid on the date set forth above;
2. “City” or “City of Enid” means the City of Enid, a municipal corporation and political subdivision of the State of Oklahoma;
3. “Enid” means, collectively, the City of Enid and the Enid Municipal Authority;
4. “Enid Municipal Authority” means the Oklahoma public trust by that name, the sole beneficiary of which is the City of Enid;
5. “Enid OWRB Permit” means that certain permit (No. 2014-047) issued by the Oklahoma Water Resources Board to the Enid Municipal Authority on January 20, 2015, for Enid’s use of up to 20,000 acre-feet per annum of water from Kaw Lake;
6. “Kaw Lake Project” or “Project” means the project described in Section 3 including the features identified in Exhibit A and the service area depicted in Exhibit B;
7. “Kaw Lake Project Pipeline” means the single, up to 36-inch pipeline and related appurtenances, equipment and facilities that will be constructed, operated, and maintained by or for Enid to transport water from Kaw Lake to the water treatment plant located within or
4 near the City of Enid pursuant to, and as part of, the Kaw Lake Project;
8. “Kaw Lake Project Service Area” means the area identified in Exhibit B;
9. “Kaw Lake Project Water Supply” means the 20,000 acre-feet per annum and associated yield that Enid is permitted to divert and use from Kaw Lake and the Kaw Lake Project by the Enid OWRB Permit;
10. “Osage Nation” or “Nation” means The Osage Nation, a federally recognized Indian tribe;
11. “Party” means the Nation or Enid, and “Parties” means both of the foregoing;
12. “Riverbed Crossings” means the two locations where the Kaw Lake Project Pipeline crosses the Riverbed Surface Estate Lands, having a width of fifty (50) feet as generally depicted in Exhibit C with final “as built” locations to be provided to the Nation by Enid upon completion of the Project; and
13. “Riverbed Surface Estate Lands” means the surface estate of the bed and, up to the mean highwater mark, banks of that segment of the Arkansas River establishing the western boundary of the Osage Reservation described in the Act of June 5, 1872 (17 Stat. 228), or, depending on the context in which the term is used, a part or portion of such bed and banks of that segment of the Arkansas River.
SECTION 3. KAW LAKE PROJECT.
A. BACKGROUND AND OVERVIEW OF THE PROJECT.
5 Enid has been evaluating its future water needs and feasible sources of supply to meet those needs over the course of the last several decades. In 2009, as part of Enid’s evaluation, Enid prepared a System Water Plan (“2009 Water Plan”). One of Enid’s primary concerns is Enid’s current reliance on non-renewable groundwater as its sole source of supply and the continuing decline of the aquifers and groundwater supply in and around the City of Enid and Garfield and Major Counties. The 2009 Water Plan identified Kaw Lake as one of a number of potential sources of water supply to meet Enid’s current and future needs. In January 2014 Enid issued an update to the 2009 Water Plan which identified Kaw Lake as a feasible source of a renewable surface water supply. By June 2016, Enid determined the Kaw Lake Project was the best and most reliable source of water to meet Enid’s current and future needs. The City proposed for a vote of the people a sales tax to help fund the Kaw Lake Project which was approved by the voters in August 2016. Thereafter, Enid established a timeline for planning, constructing, and completing the Kaw Lake Project. Enid’s current plan is to commence construction of the Kaw Lake Project sometime in the year 2021 and to complete construction and place the Kaw Lake Project in service by the year 2023.
B. DEFINITION AND DESCRIPTION – KAW LAKE PROJECT.
1. Geographic description.
Kaw Lake is located in Kay County and Osage County, Oklahoma, and impounds water from the Arkansas River. The location of the City of Enid is about 70 miles southwest of Kaw Lake in Garfield County, Oklahoma. Once completed and placed in operation, the Kaw Lake Project will divert, pump, and convey raw water from Kaw Lake to a water treatment facility located within or near the City of Enid using approximately 70 miles of pipeline.
2. Delivery and yield.
The Kaw Lake Project Pipeline will be designed for an annual delivery of water to the City of up to (but not to exceed) 20,000 acre-feet at an
6 estimated average rate of 17.8 million gallons per day at a maximum water yield delivery.
3. Purposes of use.
The purpose of the Kaw Lake Water Supply is to provide a secure water supply for the City of Enid and customers served by Enid within the Kaw Lake Project Service Area. The water transported to the City of Enid through the Kaw Lake Project will serve domestic, commercial, industrial, and municipal use.
4. Kaw Lake Project Service Area.
The place of use of the Kaw Lake Project Water Supply will be as provided in this subsection (B)(4) and as depicted in Exhibit B and described in the document titled “City of Enid Service Area Legal Description” and dated April 12, 2021, which is on file with the Secretary of The Osage Nation and with the Office of the Enid City Clerk (the “Kaw Lake Project Service Area”), and Enid shall forbear from using the Kaw Lake Project Water Supply except as provided in this subsection.
a. Enid’s Current Service Area. Up to 100% of the Kaw Lake Project Water Supply may be used within Enid’s current service area as depicted in Exhibit B.
b. Service within Garfield County. Up to 25% of the Kaw Lake Project Water Supply may be used within the part of Garfield County that lies outside Enid’s current service area as depicted in Exhibit B; provided, the percentage of usage in Garfield County outside Enid’s current service area combined with the percentage of usage outside of Garfield County as allowed by subsection (B)(4)(c) of this Section shall be no more than 25%.
7 c. Enid’s projected service area outside Garfield County. Up to 15% of the Kaw Lake Project Water Supply may be used within the part of Enid’s projected service area that lies outside Enid’s current service area and outside of Garfield County as depicted in Exhibit B; provided, the percentage of usage within Garfield County outside Enid’s current service area combined with the percentage of usage allowed by this subsection (B)(4)(c) shall be no more than 25%. d. Limitation on use outside service area. No part of the Kaw Lake Project Water Supply shall be used to supply any location outside of the Kaw Lake Project Service Area, and the City shall forbear from using or delivering water outside of the Kaw Lake Project Service Area, except in accordance with the provisions of subsection (B)(4)(e) of this Section. e. Future requests for Enid to serve outside Kaw Lake Project Service Area.
I. Notice to Nation. In the event Enid receives a request to provide water from the Kaw Lake Project Water Supply to a location outside of the Kaw Lake Project Service Area, and Enid determines it is willing and able to service the request, Enid shall provide written notice of the request to the Nation specifying (1) the entity making such request; (2) the specific location of the proposed use of the requested water; (3) the proposed duration of the proposed use; (4) the quantity of water identified in the request; (5) any other information relating to the request as reasonably requested by the Nation; and (6) a proposed time and place for the meeting and conference between the Nation and Enid required under subsection (B)(4)(e)(II).
II. Process after Notice of Request. Within a reasonable time not to exceed 60 days after notice under subsection (B)(4)(e)(I) has been provided, Enid and the Nation shall meet and confer about the proposed use of such water outside the Kaw Lake Project Service Area. Enid may provide the requested use of water outside Kaw Lake Project Service Area only if the Nation and
8 Enid both agree in writing to an amendment to this Agreement specifying: (1) the name of the entity receiving the water; (2) the specific location of the use of the water; (3) the duration of the use; (4) the quantity of water to be delivered; and (5) any other terms and conditions that Enid and the Nation may agree upon. The decision by either Enid or the Nation to agree or not agree to the amendment is completely discretionary and shall not be subject to review or challenge under the dispute resolution provisions set forth in Exhibit E of this Agreement.
SECTION 4. FORBEARANCE OBLIGATIONS OF THE NATION; LIMITATIONS
This Section sets forth the forbearance obligations of the Nation owed to Enid under this Agreement as well as certain terms, conditions, and limitations regarding those obligations.
A. FORBEARANCE OBLIGATIONS.
Subject to the terms, conditions, limitations, and reservation of rights of this Forbearance Agreement, including the provisions of Sections 6 and 8, and except as provided by the specific terms, conditions, and limitations set forth in subsection (B) of this Section 4, and in exchange for good and valuable consideration, including but not limited to Enid’s forbearance, payment, undertakings, and performance described in Sections 3 and 5, the Nation shall forbear from—
1. initiating, filing or pursuing any legal or administrative action in any state, federal, or tribal forum against Enid or Enid’s contractors for the purpose of enjoining or otherwise preventing, hindering, or delaying the construction or operation of the Kaw Lake Project;
2. initiating, filing or pursuing any administrative action with the Bureau of Indian Affairs, or any other federal agency, to stop, prevent, hinder or delay the construction or operation of the Kaw Lake Project on the grounds that Enid’s use of the Riverbed Crossings for the Kaw Lake Project constitutes a trespass on the Riverbed Surface Estate Lands;
9 3. initiating, filing or pursuing any action in a state, federal or tribal forum seeking to eject or remove Enid or any pipe, equipment or other facilities from the Riverbed Crossings on the ground that the use of those lands constitutes a trespass upon the Riverbed Surface Estate Lands;
4. initiating, filing or pursuing any legal or administrative action in any state, federal, or tribal forum against Enid or its contractors for the purpose of enjoining or otherwise preventing, hindering, or delaying the withdrawal, pumping, conveyance, treatment, and use of water in accordance with the Kaw Lake Project; or
5. initiating, filing or pursuing any legal or administrative action in any state, federal or tribal forum to prevent or enjoin the issuance or administration of the Enid OWRB Permit or Enid’s exercise of its rights under the Enid OWRB Permit in accordance with its terms and the terms of this Agreement.
B. LIMITATIONS ON NATION’S FORBEARANCE OBLIGATIONS.
Notwithstanding any provision in subsection A above, nothing in this Section 4 or any other provision of this Agreement—
1. conveys, transfers, grants, or sells any land or interest in land (including water or water rights or the Riverbed Surface Estate Lands) of or claimed by the Nation to Enid, or any other person or entity;
2. creates a lien upon or against or rights in or otherwise encumbers by prescription, adverse possession, laches, or otherwise, any land or interest in land of or claimed by the Nation, including but not limited to the Riverbed Surface Estate Lands, or on or against any water or water rights of or claimed by the Nation;
3. conveys, transfers, grants, or sells to Enid or any other person or entity an exclusive or non-exclusive right to occupy, use, enter upon, or improve any land, including the Riverbed Surface Estate
10 Lands, or to use or control the use of water, including water in Kaw Lake and/or the Arkansas River to the extent such lands or water are held or claimed by the Nation or are held or may be held by the United States in trust for the Nation;
4. authorizes Enid or any other person or entity to enter upon, occupy, use, or improve any land or water of or claimed by the Nation or held by the United States in trust for the Nation;
5. warrants title to any land or interest in land, including surface water or groundwater, or obligates the Nation to hold harmless, indemnify, or defend Enid or any other person or entity from or against claims of third parties or persons of any kind, including but not limited to claims arising out of Enid’s entry upon or occupation, use, or improvement of the Riverbed Surface Estate Lands;
6. prevents or in any way limits the Nation from (i) taking or asserting the position, before any court of law, the Department of the Interior, or any other agency or tribunal, that the Riverbed Surface Estate Lands or any waters in Kaw Lake or the Arkansas River are beneficially owned in whole or in part by, and held in trust by the United States for the benefit of, the Nation; or (ii) in the event Enid fails to comply with Section 5(C)(1) of this Agreement, requesting the Bureau of Indian Affairs to initiate enforcement proceedings under, or pursuing any other remedy authorized by, the regulations of the Bureau of Indian Affairs currently codified at 25 CFR 169.401 et seq.; provided, notwithstanding the foregoing, nothing in this subsection 4(B)(6) waives the sovereign immunity of the City;
7. limits or otherwise affects the Nation’s beneficial interest in, rights and/or access to, or authority over, by and through the Osage Minerals Council, the Osage Mineral Estate, including without limitation any part of the Osage Mineral Estate underlying the Riverbed Surface Estate Lands, including the Riverbed Crossings;
8. limits, subordinates, or otherwise affects the right of the Nation, acting through the Osage Minerals Council, to protect, regulate, use,
11 lease or otherwise develop any portion of the Osage Mineral Estate, including any part of the Osage Mineral Estate underlying any part of the Riverbed Surface Estate Lands, including the Riverbed Crossings;
9. limits or otherwise affects the trust obligation of the United States with respect to (i) the Osage Mineral Estate, and/or (ii) surface land or interests in surface land and/or water or water rights owned or beneficially owned by the Nation; or limits or otherwise affects the application of federal laws regarding the use or occupation of land or an interest in land held in trust for the Nation, a Citizen of the Nation, or other individual Indian, or in fee for the Nation or such a Citizen or individual subject to federal restrictions against alienation, including the Act of February 5, 1948, at 25 U.S.C. 323, et seq., and its implementing regulations at 25 CFR Part 169;
10. except as expressly provided in Section 6(B)(1)(a), (b), and (c) of this Agreement, expressly or impliedly waives the sovereign immunity of the Nation or the immunity of its officers, officials, or employees;
11. quantifies, limits, transfers, modifies, or in any other way affects any right, title, or interest or right the Nation has or may have to, over or in any water within the State of Oklahoma or elsewhere, including but not limited to any reserved or other federally protected water rights and/or the priority of such rights;
12. subordinates any interests, claims or rights of the Nation in or to any water wherever located (including but not limited to any reserved or other water rights under federal or other applicable law) to, or as against, any interests, claims or rights in or to water held or claimed by Enid or by any other person or entity, including any interests, claims or rights of Enid under the Enid OWRB Permit, or limits or otherwise affects in any manner any priority or priority dates applicable to the Nation’s interests in or rights to any such water; or
12 13. limits, impairs, or otherwise affects any rights, interests, or claims of any Osage Citizen or other individual Indian with respect to any land or any interest in land (including without limitation water and/or water rights) held in trust by the United States for such Citizen or individual Indian or in fee by the Citizen or individual Indian subject to federal restrictions against alienation;
14. limits or prevents in any way the Nation, or the United States on behalf of the Nation, from asserting, pursuing, maintaining, or otherwise exercising any interests, claims, or rights of the Nation referred to in paragraph 12 above and/or in Section 8(A)(1) of this Forbearance Agreement;
15. limits or prevents in any way the Nation from invoking and pursuing its rights under, and/or initiating and pursuing the dispute resolution process provided for in Section 6 of this Forbearance Agreement; or
16. limits or prevents the Nation from carrying out or performing any duties or responsibilities under Federal or tribal law, including but not limited to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5301 et seq., as carried out by the Nation under contracts or compacts with the United States; the National Historic Preservation Act, 54 U.S.C. 300101 et seq.; the Endangered Species Act, 16 U.S.C. 1531 et seq.; and/or the Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 et seq.
SECTION 5. FORBEARANCE AND OTHER OBLIGATIONS OF ENID; LIMITATIONS
Subject to the terms, conditions, limitations and reservation of rights of this Forbearance Agreement, Enid agrees to the following obligations and forbearance—
A. CONSTRUCTION AND OPERATION OF THE KAW LAKE PROJECT.
13 1. Enid shall construct, operate, and maintain the Kaw Lake Project in conformity with this Agreement and shall not expand the Kaw Lake Project beyond its capacity for Enid to divert and consume 20,000 acre-feet per annum of water and/or materially alter the Kaw Lake Project as defined in this Forbearance Agreement without the express written consent of the Nation; and Enid shall forbear from taking actions in contravention of this subsection.
2. Enid shall not request, authorize, allow, accept, and/or implement any amendment to the Enid OWRB Permit that would be inconsistent with the Kaw Lake Project as defined in Section 2(6) described in Section 3 and depicted in Exhibits A and B of this Forbearance Agreement, and shall forbear from requesting, authorizing, allowing, accepting, and/or implementing any such amendment to the Enid OWRB Permit.
3. Commencing on March 31st of the year following the year in which the Kaw Lake Project is placed in service, and on March 31st of every year thereafter during the life of the Project, Enid shall provide the Nation with a report, approved by the Governing Body of the City, regarding Enid’s operations during the previous year demonstrating the Kaw Lake Project was operated in accordance and compliance with the Kaw Lake Project as defined in this Forbearance Agreement.
B. PAYMENT TO THE NATION BY ENID.
Enid shall pay to the Nation the sum of $1,000,000.00 (One Million and 00/100 dollars) in consideration for the Nation’s forbearance as set forth in Section 4(A) and other consideration provided by this Agreement. The payment of such sum shall be made by Enid to the Nation not later than thirty (30) days after the date on which Enid and the Nation have executed this Forbearance Agreement.
C. FUTURE RIGHT-OF-WAY ACQUISITION.
14 In the event, at some time in the future, it is ever decided or determined in a final, legally binding proceeding or process that the Riverbed Surface Estate Lands are held in trust by the United States for the benefit of the Nation, after written notice from the Nation to Enid and an opportunity to confer regarding the finality of such determination—
1. Enid shall forthwith commence preparing and as soon as practicable following such decision or determination submit to the Bureau of Indian Affairs an application for, and take all other steps necessary to obtain, a grant of rights-of-way for the Riverbed Crossings in accordance with the Department’s regulations governing rights-of- way on Indian land, 25 CFR Part 169 (or any successor regulations adopted by the Department of the Interior regarding rights-of-way on Indian lands) as in effect at the time of such decision or determination; and
2. the Nation will give its consent to such grant of right-of-way, provided that—
a. at such time Enid is and has been continuously in compliance with all of the terms and conditions set forth in this Section 5(A) (B), (C) and (D); and
b. all of the terms and conditions in Sections 3 and 5(A), (B), (C), and (D) shall be made conditions to the Nation’s consent to the grant as well to the grant of right-of-way itself, in addition to any requirements or conditions that the Bureau of Indian Affairs may impose; and
c. the forbearance, reservation of capacity, and other consideration to be provided by Enid under this Forbearance Agreement shall be considered compensation for the initial and the renewal term of the grant of right-of-way by the Bureau of Indian Affairs; and
d. the right-of-way shall have an initial term of 50 years and shall be subject to a renewal term of 50 years.
15 3. Enid shall forbear from asserting or claiming, as against the Nation or the United States in its capacity as trustee for the Nation or its Citizens, that Enid has acquired title to or any other rights or interest in the Riverbed Surface Estate Lands based on prescription, adverse possession, laches, or implied easement.
D. RESERVATION OF CAPACITY AND RELATED OBLIGATIONS.
1. Reservation of Capacity.—
a. In General.—Enid shall reserve sufficient capacity in the Kaw Lake Project to deliver to the Nation at the two service access points described in subsection (D)(2)(a) the volume and associated velocity of water described in subsection (D)(1)(b) (“Reserved Capacity”). Reserved Capacity means and relates only to the physical facilities necessary to deliver the volume and velocity of water set forth in subsection D(1)(b).
b. Volume and Velocity.—The volume of water shall not exceed eight (8) million gallons per day with an associated velocity of 6.7 feet per second.
2. Service Access Points, Vaults and Related Infrastructure.
a. Service Access Points Location. Two service access points related to the Reserved Capacity shall be installed on the pipeline, one in the vicinity of the Historic Braden School site and the other in the vicinity of the McCord site, both of which are more fully depicted in Exhibit D (“Nation Service Access Points”). The Nation Service Access Points shall each consist of a 36-inch by 24-inch “T” and a blind flange. The Nation Service Access Points shall not include the construction of a vault(s) or any other associated infrastructure.
16 b. Service Access Points Design and Construction Costs. Enid shall include the Nation Service Access Points in Enid’s design and construction for the Kaw Lake Project and shall bear the cost of such design and construction without right of reimbursement from or by the Nation. c. Design and Construction Costs for Vaults and Infrastructure Associated with Nation Service Access Points. The Nation shall design and construct the vaults associated with the Nation Service Access Points and shall bear all costs of design and construction of the vaults, including any necessary land acquisition. The vaults shall include a backflow preventer, thrust blocks, and meters. The Nation shall provide written notice to Enid not less than two (2) years in advance of commencing construction of the vaults. The Nation shall submit design plans for the vaults for approval by Enid, and Enid shall approve or disapprove the design plans not less than sixty (60) days after the date on which the design plans are delivered to Enid. Enid’s approval of the design plans shall not be unreasonably withheld. Design and construction of all other infrastructure necessary to convey or distribute water to the Nation, or for the Nation’s purposes, from the Nation Service Access Points to and downline from the vaults, shall be at the sole cost of the Nation. The Nation shall be solely responsible for all operation, maintenance and repairs, and costs associated with operation, maintenance and repair, of the vaults and all other infrastructure necessary to convey or distribute water from the Nation Service Access Points to, and downline from, the vaults. The vaults and any associated infrastructure from the Nation Service Access Points to, and downline from, the vaults shall be owned by the Nation and shall not be considered part of the Kaw Lake Project as defined by this Agreement. d. Notice of Intent to Use Reserved Capacity. At least two (2) years in advance of the date the Nation intends to utilize all or some of the Reserved Capacity, the Nation shall provide
17 written notice to Enid (“Reserved Capacity Notice”). The Reserved Capacity Notice shall include a schedule for the timing of the use of the Reserved Capacity (in five (5) year increments) and the specific amount of the Reserved Capacity to be utilized on the schedule provided in the Reserved Capacity Notice. The Nation shall provide Enid a written update to the Reserved Capacity Notice within sixty (60) days of any anticipated change in the schedule and use. e. Capital Construction Costs Associated with Kaw Lake Project Infrastructure. After receipt of the Reserved Capacity Notice, Enid, in coordination with the Nation, shall design, construct, modify and/or upgrade any Kaw Lake Project infrastructure necessary to divert and convey water to the Nation Service Access Point(s) as required to ensure the availability of the Reserved Capacity consistent with the Reserved Capacity Notice. The Nation shall pay to Enid the design and construction costs incurred by Enid pursuant to this subparagraph (e), and as approved by the Nation, which Enid would not otherwise have incurred for the Kaw Lake Project but for the Nation’s Reserved Capacity Notice. The Nation shall pay (i) such approved design costs upon receipt of an invoice from Enid after the costs of final design have been determined, and (ii) such approved construction costs as determined at the time of the award of the construction contract(s) upon receipt of an invoice from Enid prior to the commencement of construction. Upon completion of construction, modification and/or upgrade of the Kaw Lake Project as related to the Reserved Capacity Notice and consistent with the Nation-approved design and construction costs, Enid shall invoice the Nation for any costs above those previously invoiced or provide a refund if construction costs are less than previously invoiced. f. Operation, Maintenance, Repair and Replacement Costs Relating to Reserved Capacity. At the time the Nation commences use of the Reserved Capacity in whole or in part,
18 the Nation shall pay monthly to Enid, as invoiced by Enid, the operational costs incurred by Enid in delivering water within the Reserved Capacity. For purposes of this subparagraph (f), the term “operational costs” means only those additional costs incurred by Enid directly attributable to the utilization of the Reserved Capacity by the Nation. With respect to necessary maintenance, repair or replacement of Kaw Lake Project facilities (e.g. pipeline, pump, or related infrastructure maintenance, repair or replacement) the Nation shall pay a pro rata share of such necessary expenditures based upon the total volume of water that has been delivered to the Nation through the equipment requiring maintenance, repair, or replacement up to the time of the expenditure. In no case shall the Nation pay for the maintenance, repair or replacement of Kaw Lake Project facilities along the Kaw Lake Project Pipeline down line from the southernmost Nation Service Access Point which has been placed into service at the time of the maintenance, repair or replacement. g. Limitations on Reservation of Capacity and Related Obligations.
I. In General.—Enid’s obligation to reserve and make available capacity in the Kaw Lake Project pursuant to the provisions of this Section 5(D) does not impose a duty on Enid to make available to the Nation any portion of the Kaw Lake Project Water Supply.
II. Interpretation.—This Forbearance Agreement does not address the source of any supply of water for use by the Nation in the Reserved Capacity.
III. Force majeure. Enid shall not be in breach of this Forbearance Agreement in the event the Reserved Capacity is rendered unavailable permanently or temporarily due to causes beyond the reasonable control of Enid, including but not limited to acts of God, war,
19 strikes or labor disputes, embargoes, federal or state government orders, extreme weather or any other force majeure event.
IV. No ownership of Kaw Lake Project. Nothing in this Forbearance Agreement creates or otherwise conveys to the Nation an ownership interest in the Kaw Lake Project or any part thereof.
SECTION 6. DISPUTE RESOLUTION; LIMITED WAIVERS OF SOVEREIGN IMMUNITY.
A. DISPUTE RESOLUTION.—
1. In General.—Each and every Dispute between the Nation and Enid shall be addressed and resolved through the Dispute resolution process set forth in Exhibit E.
2. Defined Term.—As used in subsection (A)(1) and any other provision of this Agreement, “Dispute” has the meaning of that term as defined in paragraph 1 of Exhibit E.
B. LIMITED WAIVERS OF SOVEREIGN IMMUNITY.
1. The Nation.—
a. In General.—Subject to the limitations set forth in subparagraph (1)(b) of this subsection (B), the Nation agrees to a limited waiver of its sovereign immunity for the sole, limited, and exclusive purposes of resolving a Dispute pursuant to, and in accordance with the requirements, terms, conditions, and limitations set forth in Exhibit E.
b. Limitations on Waiver.—The limited waiver provided for in this subsection (B) does not and shall not include or allow—
20 I. any action, suit, claim, or demand by Enid against the Nation that is brought or maintained in, or transferred to, a court or other tribunal other than in the appropriate court expressly named in paragraph 4 of Exhibit E;
II. any action, suit, claim, or demand by Enid against the Nation that does not constitute a “Dispute” as that term is defined in paragraph 1of Exhibit E;
III. any award, judgment, or order for damages or monetary relief of any kind against the Nation, except to require the payments specified in Section 5(D)(2)(e) and (f) of this Agreement; or
IV. any action, suit, claim, or demand of any nature or kind brought or made by a person, government, government agency, corporation, or other entity of any kind except Enid.
c. Clarification.—The limited waiver provided for in this paragraph (B)(1) does not waive any immunity or qualified immunity of any agent, employee, or official of the Nation.
d. Law Applicable to Nation’s Limited Waiver.—Notwithstanding any other provision of this Forbearance Agreement (including Section 11), the Parties to this Agreement agree that the provisions of this Section 6(B)(1), including but not limited to the interpretation of such provisions, shall be governed exclusively by federal law, including decisions of the federal courts.
2. The City.—
a. In General.—The City agrees to a limited waiver of its immunity for the sole, limited, and exclusive purposes of resolving a Dispute pursuant to, and in accordance with the
21 requirements, terms, conditions, and limitations set forth in, Exhibit E.
b. Limitation.—The limited waiver provided for in this subsection does not waive any immunity or qualified immunity of any agent, employee, or official of the City.
SECTION 7. TERM.
The term of this Agreement shall be for so long as the Kaw Lake Project provides water to any part of the Kaw Lake Project Service Area.
SECTION 8. RESERVATION OF RIGHTS; EFFECT OF AGREEMENT; NO PRECEDENTIAL EFFECT.
A. RESERVATION OF RIGHTS.
1. The Nation.—The Nation reserves any and all rights, interests, and claims that it has or may have in, over, and to (1) water or the ownership of any water, including water in Osage County or elsewhere in the State of Oklahoma, and water flowing in or stored on the Arkansas River, and (2) the ownership of the Riverbed Surface Estate Lands. Nothing in this Forbearance Agreement prevents or otherwise limits the Nation from asserting, before any court, tribunal, or administrative agency any claim, action, or demand to: (i) establish, quantify, or enforce any rights, interests, or claims in or to any water; (ii) establish and/or enforce the priority or priority date of any such rights, interests, or claims as against the rights, interests or claims of any other person or entity, including Enid, in or to any water; or (iii) make a call or demand for water in furtherance to any such rights, interests, or claims of the Nation.
2. Enid.—Nothing in this Forbearance Agreement—
22 a. constitutes a recognition by Enid of any right, interest or claim of the Nation set forth in Section 8(A)(1); or
b. prevents or otherwise limits Enid from asserting before any court, tribunal, or administrative agency any claim, action or demand to (i) establish, quantify or enforce any rights, interests, or claims in or to water; (ii) establish and/or enforce the priority or priority date of any such rights, interests or claims as against the rights interests or claims of any person or entity, including the Nation, in or to water; or (iii) make a call or demand for water in furtherance to any rights, interests or claims of Enid.
3. Limitation on the Reservations of Rights.—Nothing in this subsection (A) waives the sovereign immunity of the Nation or the City.
B. EFFECT OF AGREEMENT.
Nothing in this Forbearance Agreement—
1. limits, diminishes, impairs, creates, establishes, expands, or otherwise affects any interest, right, or rights the Nation has or may have to, over, or in water in Osage County or the State of Oklahoma, to the Riverbed Surface Estate Lands;, or to water flowing in the Arkansas River; or
2. establishes, grants, apportions, conveys, or transfers any water or water rights to or from any Party; or
3. prevents, or in any way limits, any person or entity from taking or asserting the position before any court of law, the Department of the Interior, or any other agency, tribunal, or forum (not including a proceeding under Section 6 of this Agreement), that the Riverbed Surface Estate Lands or any waters in Kaw Lake or the Arkansas River are not beneficially owned in whole or in part by, and held in trust by the United States for the benefit of, the Nation; provided,
23 notwithstanding the foregoing, nothing in this subsection (B) waives the sovereign immunity of the Nation.
C. NO PRECEDENTIAL EFFECT.
Nothing in this Forbearance Agreement has any precedential or legal effect on, resolves, serves as a basis for the resolution of, or otherwise addresses, any rights, interests, or claims of the Nation or any other person or entity as to (1) water or the ownership of water in Osage County or elsewhere in the State of Oklahoma, including water flowing in or stored on the Arkansas River, or (2) the ownership of the Riverbed Surface Estate Lands.
SECTION 9. ASSIGNMENT.
The rights and obligations of the Nation under this Agreement shall not be transferred or assigned without the written consent of Enid, and the rights and obligations of Enid under this Agreement shall not be transferred or assigned without the written consent of the Nation. Consent may be withheld in the discretion of either the Nation or Enid. Nothing in this Section 9 or any other provision of this Agreement precludes (1) the assignment by the Nation of the Reserved Capacity; or (2) the assignment by Enid of its Kaw Lake Project Water Supply for purposes of providing water service within the Kaw Lake Project Service Area, provided that any such assignment by the City shall include an express written condition prohibiting the assignee from using the water outside the Kaw Lake Project Service Area or in any other manner that is inconsistent with the requirements of Section 3(B)(4).
SECTION 10. SEVERABILITY; DUTY TO DEFEND; NO THIRD-PARTY BENEFICIARIES.
A. SEVERABILITY.—If any provision of this Agreement is determined in a final order no longer subject to further appeal by a court of competent jurisdiction to be void or unenforceable for any reason and, after such a
24 determination by the court, the Parties are unable to agree to modifications necessary to preserve the Agreement consistent with the intent of the Parties, the provision shall not be severable unless, not less than 60 days after such order becomes final and no longer subject to further appeal, the Party benefitting from the provision determined to be void or unenforceable notifies the other in writing that the provision is severable. For purposes of this Section 10—
1. any provision of this Agreement that requires only one Party to perform or initiate an act or action, or to forbear or refrain from performing or initiating an act or action, shall be deemed to benefit only the other Party; and
2. any provision of the Agreement that requires both Parties, or allows either Party, to perform or initiate an act or action, or to forbear or refrain from performing or initiating an act or action, shall be deemed to benefit each of the Parties, so that either Party may notify the other that the provision is severable in accordance with this subsection (A); and
3. notwithstanding subsection (A)(1) and (2), and for purposes of further clarification—
a. all provisions of Sections 6(A) (including all provisions set forth in Exhibit E), 10, and 11 are deemed to benefit each of the Parties, so that either Party may notify the other that the provision is severable in accordance with this subsection (A);
b. all provisions of Sections 6(B)(1)(b) and 8(A)(1) are deemed to benefit only the Nation and all provisions of Section 6(B)(2)(b) and 8(A)(2) are deemed to benefit only the City; and
c. no provision of Section 8(A)(3) of this Agreement or paragraph 5 (but not including 5(c) (2) of Exhibit E shall be severable unless both parties agree the provision is severable.
25 B. DUTY TO DEFEND.—Each Party hereto covenants and warrants to take all acts available to it to fully defend, at each Party’s sole expense, the legal validity and enforceability of this Agreement and each and every term, provision and condition contained herein from any claim or assertion in any action or proceeding claiming the invalidity or unenforceability of this Agreement or any term, provision, and condition contained herein brought or asserted by any person or entity, or by any government or agency of a government, that is not a Party to this Agreement.
C. NO THIRD-PARTY BENEFICIARIES.—This Agreement is made for the express and exclusive benefit of Enid and the Nation and no other person, party, or entity who or which is not a signatory hereto shall have any benefit of, or any right to seek enforcement or recovery under, this Agreement.
SECTION 11. APPLICABLE LAW.
This Agreement shall be governed by federal law. In the absence of federal law, the laws of the State of Oklahoma shall apply.
Section 12. Notices.
Whenever a notice is required to be given in writing and under the terms of this Agreement, such notice shall either be hand-delivered or mailed by certified mail, return receipt requested, and directed to the respective parties at the following addresses:
If to The Osage Nation:
The Osage Nation Principal Chief 627 Grandview Pawhuska, Oklahoma 74056
If to the City of Enid:
26 City Clerk Post Office Box 1768 401 West Owen K. Garriott Enid, Oklahoma 73702
If to the Enid Municipal Authority:
Trust Secretary Post Office Box 1768 401 West Owen K. Garriott Enid, Oklahoma 73702
Notice of changes of addresses may be given as provided under this paragraph and any such notice shall be deemed to have been given on the date delivered.
FOR THE CITY OF ENID:
IN WITNESS WHEREOF, the Mayor and Board of Commissioners of the City of Enid have approved the execution of this Agreement on this 11 day of April, 2021.
Date signed:
______City of Enid, a municipal corporation
George C. Pankonin, Mayor
(SEAL)
27 ATTEST:
Summer Anderson, City Clerk
Approved as to Form and Legality:
Carol Lahman, City Attorney
FOR THE ENID MUNICIPAL AUTHORITY:
IN WITNESS WHEREOF, the Trustees of the Enid Municipal Authority have approved the execution of this Agreement on this 11 day of April, 2021.
Date signed:
______
Enid Municipal Authority, a public trust
George C. Pankonin, Chairman
28 (SEAL)
ATTEST:
Summer Anderson, Trust Secretary
Approved as to Form and Legality:
Carol Lahman, Trust Attorney
29 FOR THE OSAGE NATION:
THE OSAGE NATION, a federally recognized Indian tribe
By: ______Name: Geoffrey Standing Bear Title: Principal Chief
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Km Ommmo293 3 TE 30 H3 «¬11 Kaw Lake «¬11 35 ¤£77 «¬74 ¨¦§ Intake Sal Ark t Fo of the an rk sa s R Ponca City ^` iver ) ¤£60 ¤£60B McCord «¬132 ¤£60 ¤£64 OSAGE GRANT KAY 132 GARFIELD 74 NOBLE er «¬ «¬ iv s R «¬156 177 nsa ¤£ rka «¬45 Intermediate Booster A ¤£64 Pump Station Billings ¨¦§35 Water Treatment Plant Breckenridge ^` E 15 E 45 «¬ E «¬ L N ` B g ^ n Garber 77 u Sooner Lake £ W o ¤ Equalization Terminal O Y L A N K : P e Storage Reservoir m a 15 N «¬ r Enid e ^` 412 s ^`^` 412 U ¤£ £ ¤ M P 1 5 : 9 Emergency Terminal 1 : 4 Chestnut D 0 2 Storage Reservoir 0 81 L E 2 / Water Main ¤£ KAY 3 GRANT E L 2 / I 4 : B ALFALFA d F e OSAGE v 64 a O R S ¤£ 35 e t N A a ¨¦§ D 177 d G £ 108 x 164 ¤ «¬ m . «¬ s e r GARFIELD NOBLE u t PAWNEE a NOBLE e 132 MAJOR F l «¬ a 74 p i ¬ c « n i r PAYNE P 77 86 _ ¤£ «¬ G PAYNE C r o KINGFISHER f BLAINE LOGAN 1 p a LINCOLN M 3 2 . 4 0 . 0 2 0 2 \ s p a M \ S I G \ 3 ^` e County Line Infrastructure Element s a EXHIBIT A h P - S Railroad Pipeline Alignment W L K d i n E - Lakes 2.5 Mile Pipeline Corridor 0 0 8 8 7 0 PRINCIPAL FEATURES 8 Rivers 1 \ 8 1 Kaw Lake Project 0 2 \ : L : h t a P t 0 5 10 n City of Enid e m u c Miles o ± D ¤£412 ¤£64 Kildare Webb City Alva Medford Deer Creek Blackwell 11 «¬ Shidler Kaw City Cherokee KAY 38 64 «¬ Jefferson ¤£ GRANT COUNTY Ponca City Avard Burbank COUNTY Lamont Lambert ¤£60 Tonkawa Pond Creek WOODS Dacoma Jet Nash COUNTY ALFALFA OSAGE 281 COUNTY ¤£ COUNTY Waynoka Carmen Fairfax Hillsdale Hunter Marland Kremlin Helena «¬18 Goltry Billings «¬15 Aline Ralston 45 GARFIELD «¬ «¬20 Carrier COUNTY Red Rock North Enid Garber Cleo Springs Enid Meno Lahoma PAWNEE Skedee Ringwood ¤£412 CURRENT SERVICE AREA COUNTY Fairmont NOBLE Pawnee COUNTY Covington Drummond Morrison g 35 Perry n u Waukomis ¨¦§ o Y MAJOR Fairview L Douglas 177 K ¤£ : COUNTY Maramec e Ames m a Glencoe N 86 r «¬ e s PAYNE U M COUNTY P 4 1 : 3 KAW LAKE PROJECT SERVICE AREA 2 : Marshall 4 Orlando 0 2 Longdale 81 0 ¤£ 2 / Stillwater Yale 3 Okeene 2 Hennessey / 58 51 4 «¬ ¬ : « d KAY e GRANT v a S ALFALFA 74 Mulhall e t Canton «¬ OSAGE a D d x ¤£77 m Ripley . s DEWEY BLAINE KINGFISHER LOGAN e i r a COUNTY COUNTY COUNTY COUNTY d Cushing n NOBLE u Dover PeGrkAiRnFsIELD o Loyal PAWNEE B Hitchcock MAJOR a Coyle e Crescent r Langston A e Oakwood c i v r e S _ Agra PAYNE G Cimarron City 33 C «¬ r Guthrie BLAINE o KINGFISHER Tryon f Cedar Valley LOGAN 5 Kingfisher p a Watonga Meridian LINCOLN M 3 2 . 4 0 . 0 2 0 2 \ s p a M \ S I G \ 3 e s a EXHIBIT B h P - Current Service Area Boundary County Line S W L K d i Kaw Lake Project Service Area Boundary City Boundary n E - 0 0 8 Highways Township/Range Line KAW LAKE PROJECT 8 7 0 8 1 \ SERVICE AREA 8 1 0 2 \ : Kaw Lake Project L : h t a P 0 5 10 t n e m City of Enid u c Miles o ± D )^_ Intake Kaw Lake Arkansas River (! Silverdale Road Riverbed Crossing g n u o Y L K : e m a N r e s U M P 8 2 : 6 1 : 4 0 2 0 2 / 3 KAY 2 / GRANT 4 : d e ALFALFA v a OSAGE S Fountain Road e t a D d x Riverbed Crossing m . s g n i GARFIELD NOBLE s s PAWNEE o r MAJOR C d (! e b r e v i R _ PAYNE G C r o f BLAINE KINGFISHER LOGAN 4 p a LINCOLN M 3 2 . 4 0 . 0 2 0 2 \ s p a M \ S I G \ 3 e s C a EXHIBIT h P Pipeline Alignment - S W L K d i (!Riverbed Crossings n E - 0 0 8 ARKANSAS RIVERBED 8 7 ^_Intake Site 0 8 1 \ CROSSINGS 8 1 0 2 \ : Kaw Lake Project L : h t a P t 0 0.5 1 n City of Enid e m u c Miles o ± D Kildare Uncas Webb City Kaw City Kaw Lake Ponca City ^` !P Burbank McCord y a W O (! A : e m OSAGE COUNTY a (! N r e Nation Service s U Access Point M P 0 Nation Service 5 : 2 1 : Access Point 2 1 1 2 0 2 / 2 / 4 : d e v a S e t KAY a KAY COUNTY GRANT D d iver x as R ALFALFA m ns OSAGE . rka s A t n i NOBLE COUNTY o P s s e c c er A iv e GARFIELD NOBLE c R i PAWNEE v r ! s MAJOR e ( Marland sa (!S n o a C k r e A g a s O _ PAYNE G C BLAINE r o KINGFISHER f LOGAN 2 p a LINCOLN M 3 2 . 4 0 . 0 2 0 2 \ s p a M \ S I G \ County Line Pipeline Alignment 3 e s a EXHIBIT D h P - Lakes ^` Intake Site S W L K d i n Rivers (! Nation Service Access Points E - 0 0 8 !P 8 7 0 Streams USGS Gage OSAGE NATION SERVICE 8 1 \ 8 1 0 2 ACCESS POINTS \ : L Highways : h t a P t 0 2.5 5 City of Enid n e m u c Miles o ± D EXHIBIT E TO FORBEARANCE AGREEMENT The provisions of this Exhibit E describe, represent and shall be the sole and exclusive process for resolving any Dispute (as that term is defined in paragraph 1). 1. DEFINITION OF “DISPUTE”; AGREEMENT OF CONFIDENTIALITY. (a)Definition of Dispute.— (A)In General.—Subject to the limitations in paragraph 1(a)(B), wherever used in this Exhibit E and the Forbearance Agreement the term “Dispute” means any dispute, controversy, disagreement, claim, or cause of action of any kind between the Nation and Enid arising out of, or for a breach of, one or more of the express terms or provisions of the Forbearance Agreement. (B)Limitations.—The term “Dispute” does not mean or include— (I) any claim or cause of action that sounds in tort, whether alleging intentional act or omission, negligent act or omission, strict liability or otherwise; or (II) any dispute, controversy, disagreement, or action over or relating to any of the rights, interests, claims, or demands reserved by the Nation or Enid under, or described or referred to in, Section 8 of the Forbearance Agreement; or (III) any action, suit, claim, or demand that is otherwise not authorized by the Parties’ respective limited waivers of sovereign immunity set forth in Section 6(B) of the Forbearance Agreement. (b)Confidentiality.—To the fullest extent permissible under applicable law, unless otherwise agreed to in writing signed by the Parties, the Parties shall not disclose or make public any written and oral communications, documents or other writings made, shared, or 1 exchanged in the course of negotiations under paragraph 2 or mediation meetings or discussions under paragraph 3. All such communications, documents or other writings shall remain completely confidential unless the Parties agree otherwise in writing. Provided, however, any final resolution of the Dispute agreed to by both Parties through negotiation or mediation pursuant to those paragraphs may be made public by either Party. 2. RESOLUTION BY NEGOTIATION AND CONSENSUS. Except as provided in paragraph 4(a)(B), in the event of a Dispute, the Nation and Enid agree that they shall first endeavor to resolve the Dispute by negotiating in an attempt to reach consensus. The Nation and Enid shall each designate one or more representatives who shall attempt to resolve the matter through discussions and negotiations, which the Parties hereby agree must include not less than one in-person meeting of such representatives. As used in this Exhibit E, "consensus" means the agreement of all such designated representatives. The process described in this paragraph 2 shall be initiated either by the Nation giving written notice of a Dispute to Enid or by Enid giving written notice of a Dispute to the Nation. The written notice shall include a detailed description of the facts and circumstances giving rise to the Dispute, each factual and legal issue involved in the Dispute, each provision of the Forbearance Agreement that the Party providing notice contends the other Party has violated, and the acts or omissions of such other Party that allegedly violate such provision or provisions. 3. RESOLUTION BY NON-BINDING MEDIATION. (a)In General.—Except as provided in paragraph 4(a)(B), if within a reasonable time, which, unless otherwise agreed by the Parties to the Dispute in a writing signed after a notice has been given under paragraph 2, shall not be less than 60 days after such notice has been given, a consensus is not reached by the process described in paragraph 2 of this Exhibit E, upon the written request of either party to the Dispute, the Nation and Enid shall jointly choose a mediator to convene and conduct a mediation session to seek consensus on the issue. If the Parties are unable to agree on a 2 mediator, the Nation shall choose one mediator and Enid shall choose one mediator. The costs of the mediation, including the fees of the mediator(s), shall be borne equally by the Parties. The Parties may also agree to invite such other experts or consultants as may be needed to reach resolution of the matter. Within 20 days after the mediator or mediators have been selected, the Parties shall exchange between themselves and provide to the mediator(s) a statement of their respective positions on the Dispute as described in the written notice served pursuant to paragraph 2 of this Exhibit E, which shall also be provided to the mediator(s). (b)Resolution by Written Agreement.—If through mediation the Parties succeed in resolving the Dispute, a written draft of the Parties’ agreement shall be signed by both Parties. In the event the Nation and the City reach an impasse in the mediation, the mediator(s) shall prepare and submit to the Parties a written proposal to resolve the Dispute. If both Parties accept the proposal as written by the mediator(s) or modified by the Parties, the mediator(s) shall assist the Parties in providing for implementation of the agreement. If either Party does not accept the proposal, neither the proposal nor a Party’s acceptance or rejection of the proposal shall be made public or be admissible in evidence in any subsequent proceeding. 4.BINDING DISPUTE RESOLUTION. (a)Threshold Requirement.— (A)In General.—Except as provided in paragraph 4(a)(B) of this paragraph 4, only in the event that the Parties have been unable to resolve a Dispute after following all requirements of paragraphs 2 and 3 may a Party seek to resolve a Dispute under this paragraph 4. No action to resolve a Dispute may be filed in a court or submitted for arbitration under this paragraph 4 until after the Parties have attempted, without success, to resolve the Dispute pursuant to the provisions of paragraphs 2 and 3 and the Party serves notice of the Party’s intent to resolve the dispute through binding dispute resolution under this paragraph 4. 3 (B) Exception.—If a Party believes in good faith that actions or threatened actions of the other Party giving rise or relating to the Dispute are occurring or imminent and that, as a result, the time required for compliance with paragraph 4(a)(A) will cause irreparable harm, the Party may initiate an action under paragraph 4(c) and request provisional relief against such other Party without compliance with paragraph 4(a)(A). Such other Party may request the court or arbitrators to dismiss or stay the proceedings pending compliance with paragraph 4(a)(A) on the ground that the action was not commenced in good faith and/or that compliance with paragraph 4(a)(A) will not cause irreparable harm during the time required for compliance with paragraph 4(a)(A). After a decision either granting or denying provisional relief, the Parties agree that they shall forthwith comply with paragraphs 2 and 3 of this Exhibit E. The Parties further agree to waive any right to a bond or other security as a condition to any temporary, preliminary, or other provisional relief that the court or arbitrators may order. (b) Selection of Binding Dispute Resolution Process by Agreement.— Subject to the requirements of paragraph 4(a), at any time after the effective date of the Forbearance Agreement, the Nation and Enid may agree in writing to resolve a Dispute by filing an action in the United States District Court for the Western or Northern Districts of Oklahoma, Osage Tribal Court, or in any district court of the State of Oklahoma, provided that the written agreement shall designate the federal, tribal, or state court. Alternatively, the Nation and the State may agree in writing to resolve the Dispute through binding arbitration under paragraph 4(d). The Parties may, but are under no obligation to, meet and confer on whether an agreement on a dispute resolution process under this paragraph 4(b) is possible. (c)Dispute Resolution Absent Agreement.— (A) FEDERAL COURT.— Absent an agreement under paragraph 4(b), 4 and except as provided in paragraph 4(c)(B), any action to resolve a Dispute shall be filed in the United States District Court for the Western District of Oklahoma or the United States District Court for the Northern District of Oklahoma. (B) Good Faith Belief of No Jurisdiction.—If the Party that would otherwise file an action under paragraph 4(c)(A) believes in good faith that neither federal court has jurisdiction over the Dispute, that Party may serve on the other Party a notice stating that the Party has a good faith belief that the federal courts do not have jurisdiction over the Dispute and that the Party intends to initiate binding arbitration under paragraph 4(d). The notice shall set forth all of the content specified by paragraph 4(d)(C). (C) Objection to Arbitration.—If the Party receiving notice under 4(c)(B) believes in good faith that one or both of the federal courts identified in paragraph 4(c)(A) have jurisdiction over the Dispute, then not later than 30 days after receiving the notice under paragraph 4(c)(B) that Party may file an action in either such court identified in paragraph 4(c)(A), and except as provided in paragraph 4(c)(D), the Dispute shall be decided by the federal court. If the Party receiving the notice under paragraph 4(c)(B) fails to file an action in federal court within the 30-day period provided for in this paragraph 4(c)(C), the Dispute shall be decided by binding arbitration under paragraph 4(d); provided, however, that failure to file such an action in federal court does not waive any other bases for objecting to arbitration that may be available to that Party. (D) Lack of Federal Jurisdiction.—If the federal court in an action filed pursuant to a provision of this paragraph 4 determines in a final order that it lacks jurisdiction over the Dispute, the Dispute shall be resolved exclusively by way of binding arbitration under paragraph (4)(d) unless the Parties otherwise agree in writing. 5 (d) Binding Arbitration.— (A) In General.—A Dispute may be resolved under this paragraph 4(d) only as permitted by paragraphs (a), (b), and (c) of this paragraph 4. (B) Commercial Rules.—Any and all Disputes under this paragraph 4(d) shall be fully, finally, and exclusively resolved and settled by binding arbitration administered by the American Arbitration Association, or its successor, under, and in accordance with, the Association’s Commercial Arbitration Rules, as amended and effective as of October 1, 2013 (the “Rules”). In the event a provision of the Rules conflicts with a provision of the Forbearance Agreement, the provision of the Forbearance Agreement shall in all cases control over any and all conflicting provision or provisions of the Rules. Notwithstanding Section 11 of the Forbearance Agreement, the Parties agree that the arbitration shall be governed by the Federal Arbitration Act (9 U.S.C. §§1-16 as amended). (C) Content of Notice.—A notice of intent to initiate arbitration under this paragraph 4(d) shall include a detailed description of the facts and circumstances giving rise to the Dispute, each factual and legal issue involved in the Dispute, each provision of the Forbearance Agreement that the Party serving the notice contends are at issue in the Dispute, and the acts or omissions that gave rise to the Dispute. (D) Arbitrators.—The number of arbitrators shall be three, unless, after notice is given under paragraph 4(d)(C), the Nation and Enid agree in writing to having a single arbitrator. The Nation shall choose one arbitrator, Enid shall choose one arbitrator, and, absent a written agreement between the Parties naming a third arbitrator, those two arbitrators shall choose the third arbitrator. A reasoned award containing the basis, findings and 6 conclusions shall be entered only by a majority of the arbitrators. (E) Location.—The arbitration proceedings shall be held in the State of Oklahoma at a location agreed upon in writing by the parties to the Dispute after consultation with the arbitrators. If the Parties to the Dispute are unable to reach agreement on the location of arbitration, then the arbitrators shall determine the location of arbitration in Oklahoma. (F) JUDICIAL PROCEEDINGS RELATING TO ARBITRATION.— (I) Venue by Agreement.—The Parties to a Dispute may agree in a writing signed after the effective date of the Forbearance Agreement that any request, application, motion or other action described in paragraph 4(d)(F)(III), (IV)., or (V) may be filed in the United States District Court for the Western District of Oklahoma, the United States District Court for the Northern District of Oklahoma, Osage Tribal Court, or any State district court in Oklahoma in which venue is proper, provided that the writing shall designate the agreed-to court. There is no duty under this paragraph for the Nation or the City to negotiate or otherwise attempt to reach an agreement on venue. (II) Venue Absent Agreement.—In the absence of an agreement on venue described in paragraph 4(d)(F)I., a Party to a Dispute may file a request, application, motion, or other action described in paragraph 4(d)(F)(III), (IV), or (V) in any court of competent jurisdiction as provided in Okla. Stat. tit. 12 § 1852. (III) Request to Confirm or Enforce Award.— A Party to a Dispute may file a request, application, motion or other action in the appropriate court to confirm and enter judgment on an award of the arbitrators but only if the other Party to the 7 Dispute fails or refuses to comply with the award within a reasonable time not to exceed 90 days after the award is made or within the time otherwise provided in the award, or any period of time provided by applicable law. (IV) Vacating or Modifying Award.—Either Party to a Dispute may request the appropriate court to vacate or modify the award in accordance with applicable law. If neither Party seeks vacatur or modification of the award within 90 days of the date of the award, the Parties agree to be bound by it. (V) Action to Compel Arbitration.—A Party may bring an action in the appropriate court for an order to compel the other Party to participate in arbitration in the event the other Party fails or refuses to arbitrate a Dispute. 5.LIMITATIONS ON AWARDS AND REMEDIES.— (a)In General.—The Nation and Enid stipulate and agree that the only relief against either Party that may be sought from, or granted or awarded by, a court or arbitration in connection with any Dispute arising under the Forbearance Agreement shall be and is expressly limited to— (A)specific performance of any express obligation of the Party in the Agreement, including the obligation of the City to make the payment of the sum of money specified in Section 5(B) and the obligation(s) of the Nation to make payments to reimburse costs incurred by the City in accordance with Section 5(D)(2)(e) and (f) of the Agreement (but not including any form of damages or other monetary relief against a Party); (B) injunctive or other appropriate equitable relief (including temporary injunctive relief or a temporary restraining order) enforcing a Party’s obligations or agreements to perform an action or to forbear from taking an action as set forth in an 8 express provision of the Agreement; and (C) declaratory relief. (b) Reserved Rights.—The Nation and Enid further agree that the Dispute resolution process shall not apply to any disagreement, controversy, or dispute over the issues, rights, interests, claims, demands, or actions described in Section 8 of the Forbearance Agreement, including the scope or meaning of the reservation of rights under that Section, or to any other disagreement, controversy, dispute, claim, or cause of action that is not a “Dispute” as defined in paragraph 1 of this Exhibit E. Any such disagreement, controversy, or dispute over the issues, rights, interests, claims, demands, or actions described in Section 8 of the Agreement or that do not constitute a “Dispute” are beyond the scope of this Dispute resolution process and the Forbearance Agreement itself. (c) Arbitrators’ Authority.—The arbitrators shall have no authority to determine or decide— (A)the extent or scope of a Party’s waiver of sovereign immunity; (B) whether a provision of the Forbearance Agreement is void and/or unenforceable; or (C) any issues, rights, interests, claims, demands, or actions not defined as a Dispute under paragraph 1(a). 9