1989-0732392L
NO $9n2CL
AN ORDINANCE AUTHORIZING THE EXECUTION OF A CONTRACT BETWEEN THE
CITY OF DENTON AND THE UNITED STATES ARMY CORPS OF ENGINEERS FOR
ACCESS AND SITE ACTIVITIES ON THE HYDROPOWER PROJECT AT LAKE RAY
ROBERTS, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE, AND
PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the United States Corps of Engineers and the City of
siteoa tivitiestoforttheihydropowereeprojectoatdLakeoRaycRobertsd
NOW, THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I That the City Council, hereby approves and
author zes t e Mayor and City Secretary to execute and attest
respectively, the agreement between the City of Denton and the
site
United States Corps of Engineers providing or access snd under
activities for the hydropower project
theattterms and ached her conditions being a part hereof in said agreement which
SECTION II That the City Council authorizes the expenditure
of fun s n t e manner and amount as specified in the Agreement
SECTION III That this ordinance shall become effective
imme ate y upon its passage and approval
1989
PASSED AND APPROVED this the ay of '
RAY S EP ENS, MAYOR
ATTEST
?PROVED " TAR , CI S' ARY
AS TO LEGAL FORM
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
BY
266h
4
CORPS OF ENGINEERS
MEMORANDUM OF AGREEMENT
FOR TECHNICAL SUPPORT BY THE CORPS OF ENGINEERS
AND FOR ESTABLISHING PROCEDURES FOR ACCESS
AND SITE ACTIVITIES BY THE CITY OF DENTON
PURSUANT TO FEDERAL ENERGY REGULATORY LICENSE
FOR FERC PROJECT 3939
THIS AGREEMENT, entered into this 3_1.-t day of J'uc.~e ,
1989, by and between the DEPARTMENT OF THE ARMY, Corps of
Engineers (hereinafter referred to as the "Corps"), acting by and
through the Southwestern Division Commander, and the City of
Denton, Texas (hereinafter referred to as the "COD"), acting by
and through its City Manager,
WITNESSETH, THAT
WHEREAS, the United States is the owner and operator of Ray
Roberts Lake, the associated lands and appurtenant works located
on the Elm Fork of the Trinity River, a navigable waterway of the
United States in Denton County, Texas, and,
WHEREAS, the Corps has constructed a low flow penstock in the
Ray Roberts Lake Outlet Works Structures for use in development
of future hydropower facilities, and
WHEREAS, the COD has entered into a Contractual Agreement
with the United States of America to use a portion of the
Conservation storage space in Ray Roberts Lake In addition, the
COD has a water appropriation permit from the State of Texas to
t 5
impound and use water in the Conservation Storage space of the
reservoir for beneficial purposes, and,
WHEREAS, the Memorandum of Understanding (MOU) between the
Department of the Army and the Federal Energy Regulatory
Commission (FERC) requires that hydropower facilities that will
be an integral part of, or that could affect the structural
integrity or operation of a Corps' project shall be designed and
constructed in consultation with, and subject to review and
approval by the Corps, and,
WHEREAS, the COD applied for and on March 20, 1985 was issued
a Federal Energy Regulatory Commission Major License - Existing
Project (hereinafter referred to as the "FERC License") to
construct, operate and maintain a facility to develop and utilize
the hydroelectric potential of the above mentioned Corps
facilities, and,
WHEREAS, Article 37 of the FERC License requires the COD to
coordinate its plans with the Corps for access to and site
activities on lands and property administered by the Corps so
that the authorized purposes of the existing Ray Roberts Lake are
protected, and,
WHEREAS, Article 39 of the FERC License requires the COD to
enter into and to execute a permanent Operating Agreement for the
project approved by the Corps, prior to initiation of the Project
operation, and,
PAGE 2
a 4
WHEREAS, terms of the Agreement shall not affect or diminish
in any way the obligation of the COD to meet the regulatory
requirements of Section 404 of the Clean Water Act (Title 33
U S C Section 1344)
NOW, THEREFORE, the parties agree as follows
ARTICLE I - DEFINITIONS
For purposes of the Agreement
a The term "Project" shall mean the design, preparation of
plans and specifications, and construction of a hydropower
facility located downstream of the existing earthen embankment
and adjacent to the existing stilling basin at the Ray Roberts
Lake Construction will consist of tying into the existing five
foot diameter low flow conduit and valve box, a powerhouse
structure, powerhouse discharge channel, access roads, and
transmission facilities
b The term "period of construction" shall mean the time from
the award of the first construction contract by COD for the
Project, to the time of acceptance of the work by the Corps and
COD
c The term "low flow bypass system" shall mean the existing
five (5) foot diameter low flow penstock and valve box located at
the existing Ray Roberts Lake Outlet Works Structure constructed
by the Corps
PAGE 3
s 4
ARTICLE II - OBLIGATIONS OF THE PARTIES
a COD shall design and prepare plans and specifications, for
construction of the Project
b COD shall be responsible for inspection during
construction of all Project features to assure conformance with
the plans and specifications
c COD shall provide the Corps access to the construction
site at all times and up-to-date construction schedules,
including any modifications
d The Corps shall review and approve the design, and plans
and specifications prepared by COD prior to initiation of
construction The Corps shall review and approve all
construction modifications to features which could affect the
structural integrity or operation of Ray Roberts Lake prior to
the commencement of work
e The Corps shall have the right, and intends to inspect the
construction of those features which could affect the structural
integrity or operation of Ray Roberts Lake to ensure compliance
with the approved design, and plans and specifications, however,
in no way shall this right relieve the COD of the full
responsibility for inspection and compliance with the approved
plans and specifications
f The Corps retains the authority to stop construction in
cases presenting an imminent danger, in the opinion the Corps, to
PAGE 4
4
the structural integrity, operational adequacy or safety of Ray
Roberts Lake
g COD shall reimburse the Corps all costs for design,
preparation of plans and specifications, and construction of the
low flow bypass system located at the existing Ray Roberts Outlet
Works Structure
h COD shall reimburse the Corps directly for all reasonable
costs associated with Corps' review and approval of the design
and construction, plans and specifications, and the inspection of
construction for the Project
i COD shall prepare, and submit to the Corps for review and
approval, a work area plan which defines the limits of construc-
tion, work areas and storage areas for equipment and supplies
When practical, work areas shall be determined such as to not
obstruct public recreational access to fishing areas during the
period of construction except during construction of access routes
and other activities hazardous to the Public Alteration of
recreational facilities, including provision for temporary parking
and access during construction, will be at the expense of COD
j The Corps shall furnish easements to the COD for construc-
tion and operation of the Project
k COD shall prepare and submit to the Corps for approval a
plan for Care of Water during construction, prior to initiation
of construction
PAGE 5
1 The Corps will cooperate with COD to facilitate
construction of the Project, including routing the releases
through the Outlet Work gates, provided however, that such
cooperation does not interfere with the authorized purposes of
Ray Roberts Lake Flood conditions in the reservoir may require
interruption of construction activities to evacuate flood waters
from the reservoir
m COD shall provide the Corps, at no charge, copies of all
"record drawings" of the Project Such drawings shall be
provided within 90 days after completion of construction of the
Project Upon written request by the Corps, COD shall provide
specific construction data, such as drilling logs or additional
"record drawings" as may exist for the Project, within 30 days of
said request
n COD shall prepare a draft Operating Agreement as provided
by Article 39 of the FERC License within 90 days of the date of
execution of this Agreement, and to work diligently toward the
execution of a final Operating Agreement for the Project The
final Operating Agreement shall be executed before completion of
construction of the Project
ARTICLE III - LANDS AND FACILITIES
a Title to all property interests, structures, and
improvements (Outlet Works Structure and Conduit, Stilling Basin,
Low Flow System, and Embankment) held by the United States shall
PAGE 6
4
y
not be affected by this Agreement
b This Agreement provides consent and authorization to COD
for access to and use of Federal Government land and easements
for the Project as described in the FERC License and shown on
Exhibit A of this Agreement
c COD shall, subject to the FERC License requirements,
possess title to all features and equipment installed by COD and
associated with the construction of the Project, including but
not limited to the following a powerhouse structure and its
appurtenances, all turbines and associated facilities within the
powerhouse structure, a switchyard and interconnection facility
line to the future new Denton Water Plant
d The Corps shall have access to the Project in accordance
with and for the purposes set forth in Article 38 of the FERC
License
e In the event of a transfer of the FERC License, COD shall
transfer all rights acquired from the United States for the
Project, at the time of initial or subsequent executions, to the
United States for re-execution with the new recipient of the FERC
License for the Project In case of a surrender of the FERC
License, not involving a transfer, COD shall also transfer such
agreement to the United States
ARTICLE IV - METHOD OF PAYMENT
a Prior to initiation of work by the Corps, COD shall
PAGE 7
provide funds presently estimated to be $35,000 for the Corps'
review of the plans and specifications prepared by COD for the
Project Prior to the term of construction, COD shall provide
additional funds presently estimated to be $45,000 for the Corps'
inspection of construction of the Project COD shall provide the
requisite amount to the Corps by delivering a check payable to
"FINANCE AND ACCOUNTING OFFICER, FORT WORTH DISTRICT"
b If any time during the Corps' review of the plans and
specifications or inspection of construction of the Project, the
Corps determines that additional funds will be needed from the
COD to meet its costs, the Corps shall so notify the COD, and the
COD, within 60 days from receipt of notice, shall make the
necessary funds available through the funding mechanism specified
in paragraph a above
c Upon completion of the Project, the Corps shall compute
the total costs for its review and inspection of the Project In
the event the COD has provided funds in excess of the Corps costs,
the Corps shall within 90 days of the final accounting return
said excess to the COD
d The COD shall repay to the Corps the amounts listed below,
which consists of the construction and design of the low flow by-
pass system and the Interest During Construction computed through
September 1989 The interest is charged at a rate of nine (9)
percent, as determined by the Secretary of the Treasury The COD
shall repay
PAGE 8
CONSTRUCTION AND DESIGN COST $ 675,239 20
INTEREST DURING CONSTRUCTION 398,011 45
THROUGH SEPTEMBER 1989
TOTAL INVESTMENT COST ALLOCATED
TO HYDROPOWER FROM THE
RAY ROBERTS LAKE PROJECT $ 1,073,250 65
e Prior to the construction of the Project, COD shall repay
the Total Investment Cost Allocated to Hydropower above, payable
to "FINANCE AND ACCOUNTING OFFICER, FORT WORTH DISTRICT" The
actual interest charged during construction shall be determined
at the time the COD repays the total investment cost allocated to
the hydro power and COD shall be given a pro rata reduction in
interest payments for every day prior to September 30, 1989 that
payment is remitted
f In the event that the construction does not begin by the
end of October 1989, additional Interest During Construction will
be charged accordingly
ARTICLE V - DISPUTES
Before any party to this Agreement may bring suit in any
court concerning an issue relating to this Agreement, such party
must first seek in good faith to resolve the issue through
negotiation or other forms of nonbinding alternative dispute
resolution as stated in the FERC License of the Project
ARTICLE VI - LIABILITY
a The COD shall hold and save the Corps free from all
damages arising from the construction, operation and maintenance
PAGE 9
s 4
of the Project, except for damages due to the fault or negligence
of the Corps or its contractors
b For the purposes of fulfilling its obligation under this
Article, COD shall procure and maintain or require the general
contractor to procure and maintain during the term of this
Agreement and any extensions thereof, liability insurance of at
least $500,000 per occurrence for bodily injury and property
damage and an excess liability policy in the amount of at least
$6,000,000 The named insured parties under the policy shall be
COD and the United States of America Each policy or certificate
evidencing the insurance shall contain an endorsement which
provides that the insurance company will notify the Corps and COD
30 days prior to the effective date of any cancellation or
termination of the policy or certificate or any modification of
the policy or certificate which adversely affects the interest of
the United States Government in such insurance The notice shall
be sent by registered mail and shall identify this Agreement, the
name and address of COD, the policy, and the insured Within 30
days of execution of this Agreement or prior to commencement of
construction, which ever occurs first, COD shall furnish the
Corps with acceptable evidence showing that the insurance
coverage described in this Article has been obtained
ARTICLE VII - RELATIONSHIP OF PARTIES
The parties to this Agreement act in an independent capacity
PAGE 10
4 '
in the performance of their respective functions under this
Agreement, and neither party is to be considered the officer,
agent, or employee of the other
ARTICLE VIII - OFFICIALS NOT TO BENEFIT
No member of or delegate to the Congress, or resident
commissioner, shall be admitted to any share or part of this
Agreement, or to any benefit that may arise therefrom
ARTICLE IX - NOTICES
a All notices, requests, demands, and other communications
required or permitted to be given under this Agreement shall be
deemed to have been duly given if in writing and delivered
personally, given by prepaid telegram, or mailed by first-class
(postage-paid), registered, or certified mail, as follows
If to COD
Executive Director of Utilities
City of Denton
215 E McKinney Street
Denton, Texas 76201
If to the Corps
District Engineer
U S Army Corps of Engineers
P 0 Box 17300
Fort Worth, Texas 76102-0300
b A party may change the address to which such communications
are to be directed by giving written notice to the other in the
manner provided in this Article
c Any notice, request, demand, or other communication made
PAGE 11
Y
pursuant to this Article shall be deemed to have been received by
the addressee at such time as it is personally delivered or on
the third business day after it is mailed, as the case may be
ARTICLE X - TERM OF AGREEMENT
This Agreement shall become effective on the day of execution
by the Corps and shall terminate upon the final accounting of all
costs and payment after completion of construction
ARTICLE XI - ASSIGNMENT
The benefits and obligations of the Agreement may be assigned
by either party This Agreement shall be binding upon any
assigns or successors to COD approved by FERC
ARTICLE XII - MODIFICATIONS
The provisions of this Agreement may be modified or added by
written mutual agreement of the parties
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written
UNITED STATES
DEPARTMENT OF THE ARMY
BY
Ro ert ee
Brigadier General, U S A
Division Engineer
CITY OF DENTON
BY
40ya &T--
City Manager
City of Denton, Texas
APPROVED AS TO LEGAL FORM
DEBRA A DRAYOVITCH, CITY ATTORNEY
BY "LZAL/ILLI~
PAGE 12
Exhibit A
Parcel A
A permanent easement for the purpose of creating a
right-of-way to access the Ray Roberts Hydroelectric Project and
its related facilities with right to improve, operate, and
maintain the facilities an right-of-way, located in Tracts 210
and 213 of the Corps of Engineers Trinity River Basin,
Texas-Aubrey Lake real estate plot in Denton County, Texas,
consisting of 1 63 acres, and described in Attachment 1
Parcel B
A temporary easement for the purpose of access to construct
the Ray Roberts Hydroelectric Project and its related facilities,
located in Tracts 210 and 213 of the Corps of Engineers Trinity
River Basin, Texas-Aubrey Lake real estate plot in Denton County,
Texas, consisting of 3 27 acres, and described in Attachment 2
Parcel C
A temporary easement for the purpose of spoil of excess
construction excavation and temporary stockpiling of construction
material, to be located as specified and required by the Corps of
Engineers
PAGE 13
Attachment 1
Y
Ray Roberts Hydroelectric Project
Parcel A
A tract consisting of 1 63 acres, located in Denton County,
Texas, on the property of the United States Army Corps of
Engineers
Beginning at a point on the northern edge of the boundary
which is a distance of 406 23 feet along a line of N 15° 43' 53"
W from the center line of Ray Roberts Dam at STA 93+00 00, the
intersection of the dam center line and the outlet works
Thence, along
the
eastern
boundary in succession
S
17°
06'
10"
E -
13
6
feet
S
71°
33'
54"
W -
12
65
feet
S
17°
48'
09"
E -
716
30
feet
S
2°
41'
39"
W -
85
09
feet
S
16°
38'
20"
E -
90
80
feet
S
31°
25'
46"
E -
21
10
feet
S
17°
49'
55"
E -
150
22
feet
N
65°
10'
14"
W
- 73
82
feet
S
21°
12'
10"
w
- 373
27
feet
Thence, along the southern boundary
N 59° 37' 15" W - 67 23 feet
PAGE 14
4
Attachment 1 (Continued)
Thence, along
the
western
boundary in succession
N
15°
40'
05"
W -
255
49
feet
N
4°
06'
49"
W -
292
75
feet
N
48°
07'
20"
W -
77
90
feet
N
72°
01'
07"
E -
119
85
feet
S
28°
24'
46"
W -
69
35
feet
S
3°
06'
54"
E -
294
44
feet
S
64°
08'
40"
E -
144
46
feet
N
23°
38'
56"
E -
167
03
feet
N
15°
25'
20"
E -
90
25
feet
N
17°
31'
32"
W -
39
85
feet
N
15°
56'
43"
E -
29
12
feet
N
18°
26'
06"
W
- 15
81
feet
N
11°
11'
36"
E
- 86
68
feet
N
17°
54'
12"
W
- 715
65
feet
S
72°
53'
50"
W
- 1
3 6
feet
N
15°
56'
43"
W
- 14
56
feet
Thence, along the northern boundary
N 72° 45' 31" E - 30 36 feet
to the origination point
4
PAGE 15
4
Attachment 2
Ray Roberts Hydroelectric Project
Parcel B
A tract consisting of 3 27 acres, located in Denton County,
Texas, on the property of the United States Army Corps of
Engineers
Beginning at a point on the north edge of the boundary which
is a distance of 626 99 feet along a line of S 17° 53' 03" E from
the center line of Ray Roberts Dam at STA 93+00 00, the inter-
section of the dam center line and the outlet works
Thence, along the eastern boundary
S 17° 53' 03" E - 320 feet
Thence, along the southern boundary
S 72° 06' 57" W - 450 feet
Thence, along the western boundary
N 17° 53' 03" W - 370 feet
Thence, along
N 72° 06'
N 4° 06'
N 48° 07'
N 72° 01'
S 28° 24'
S 3° 06'
N 72° 06'
N 9° 23'
N 72° 06'
S 17° 53'
S 72° 06'
S 21° 53'
N 72° 06'
to the origir
the northern boundary in succession
57" E - 106 27 feet
49" W - 269 38 feet
20" W - 77.90 feet
07" E - 119 85 feet
46" W - 69 35 feet
54" E - 290 83 feet
57" E - 193 26 feet
33" E - 180 00 feet
57" E - 30 00 feet
03" E - 20 00 feet
57" W - 15 00 feet
42" E - 190 72 feet
57" E - 20 00 feet
ation point
PAGE 16