1989-0152392L
NO
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 LEWISVILLE
LAKE, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE, AND
PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the United States Corps of Engineers and the City of
Denton desires to enter into an agreement providing for access
and site activities for the hydropower project at Lewisville
Lake, NOW, THEREFORE
THE COUNCIL OF THE CITY OF DFNTON HEREBY ORDAINS
SECTION I That the City Council, contingent upon the City
Attorney s approval of all contract and easement documents,
hereby approves and authorizes the Mayor and City Secretary to
execute and attest respectively, the agreement between the City
of Denton and the United States Corps of Engineers providing for
access and site activities for the hydropower project at
Lewisville Lake, under the terms and conditions being contained
in said agreement which is attached hereto and made a part hereof
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
PASSED AND APPROVED this the Leday of 1989
4YS EN , M YOR
ATTEST
N S ,CITY =
APPROVED AS TO LEGAL FORM
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
BY~
n
UNITED STATES
DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS,
SOUTHWESTERN DIVISION
LEWISVILLE LAKE
ELM FORK, TRINITY RIVER, TEXAS
MEMORANDUM OF AGREEMENT
FOR SUPPORT BY THE CORPS AND
ESTABLISHING PROCEDURES FOR ACCESS
AND SITE ACTIVITIES BY THE
CITY OF DENTON
PURSUANT TO FEDERAL ENERGY
REGULATORY COMMISSION LICENSE
FOR FERC PROJECT 3940-001
This Memorandum of Agreement, hereinafter referred to as
"Agreement," entered into this day of C~ V , 19&
between the UNITED STATES OF AMERICA, acting through the Department of
the Army, Corps of Engineers, hereinafter referred to as the "Corps" and
the City of Denton, Texas, hereinafter referred to as the "COD "
I WHEREAS,
A The United States is the owner and operator of Lewisville
Dam, 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
B COD served as local co-sponsor for the construction of
Lewisville Dam and Lake, made an initial financial
contribution for the construction, and has made payments
to the Federal Government for the incremental first cost
1YCO42188024 1
of construction of the project Pursuant to the contract
dated December 10, 1953, by and between the United States
of America and the City of Denton, COD has a right to use
a portion of the conservation storage space in the
reservoir In addition, COD has a water appropriation
permit from the State of Texas to impound and use water
in the conservation storage space of the reservoir for
beneficial purposes
C COD applied for and on March 27, 1984 was issued a
Federal Energy Regulatory Commission (FERC) Major License
- Existing Project (License) to construct, operate and
maintain a facility (Project) to develop and utilize the
hydroelectric potential of the above mentioned Corps
facility
D COD will require access to Lewisville Dam and Lake and
certain Corps services during the design and construction
of the Project
E The Corps will incur certain unprogrammed costs
associated with COD's activities that will be paid for by
COD
F Article 37 of the License requires COD to enter into this
Agreement to coordinate its plans with the Corps for
lYC042188024 2
access to and site activities on lands and property
administered by the Corps so that the authorized purposes
of the existing Lewisville Dam and Lake are protected
G The Memorandum of Undertaking (MOU) between the
Department of the Army and 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 of the District
Engineer, and further requires that the project licensee
will reimburse the Corps directly for all reasonable
costs associated with the Corps' review and approval of
design and construction, plans and specifications, and
the inspection of construction for power development at
Corps projects
H Division Commanders have been delegated responsibility
for assuring the adequacy of design, plans, and
construction specifications of licensed non-Federal
hydropower facilities that will be an integral part of or
that could affect the structual integrity or operation of
a Corps project Therefore, approval authority of such
non-Federal hydropower facilities rests with the Division
Commander
lYC042188024 3
I Article 39 of the License requires COD to enter into and
to execute a permanent operating agreement for the
project approved by the Corps COD will immediately
proceed with the preparation of a draft of such an
operating and maintenance plan, which will be executed
under separate agreement prior to initiation of the
Project operation
J Terms of this Agreement do not affect or diminish in any
way the obligation of COD to meet the regulatory
requirements of section 404 of the Clean Water Act (33
U S C 3 1344)
R Terms of this Agreement in no way diminish contract
number DA-41-443-eng-2453 between the Government and the
City of Dallas, which provides in Article I, paragraphs 2
and 3, that the City of Dallas has the right to use the
water supply outlet facilities, and may take the water
supply through closed conduit
L COD has entered into Supplemental Agreement No 1 on
December 14, 1988, with the City of Dallas to amend the
Untreated Water Contract which is dated August 7,
1985 According to the supplement agreement, Dallas
will not exercise its right to transport water in a
pipeline from Lewisville Lake to Elm Fork Water
lYC042188024 4
Treatment Plant, until the year 2005 Dallas will not
object to Denton's installation of a hydroelectric
turbine generator on Dallas' Lewisville Lake outlet
conduit for operation in 1990 Dallas agrees to obtain a
non-consumptive water rights permit for water flows
through the Hydroelectric turbine
NOW THEREFORE, in consideration of the mutual stipulations and
agreements herein set forth to coordinate activities and outline
responsibilities during preliminary engineering, detailed design,
preparation of plans and specifications, and construction of the
Project, it is agreed as follows
II OWNERSHIP AND EASEMENTS
A Title to all property interests, structures, and
improvements held by the United States shall 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 License and
shown on Exhibit B of this Agreement
C COD shall, subject to the License requirements and
1YCO42188024 5
paragraph II E herein, possess title to all features,
equipments, and land whether purchased or 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
take-out structure and gate, a switchyard and
interconnection facility line to the Denton County
Electric Cooperative distribution line
D The Corps shall have access to the Project in accordance
with and for the purposes set forth in Article 38 of the
License
E In the event of a transfer of the License, COD shall
transfer title or agreements of all lands or rights
acquired from the United States for the Project at time
of initial or subsequent executions, to the United States
for re-execution with the new recipient of FERC license
In case of a surrender of the License, not involving a
transfer, COD shall also transfer such title or
agreements to the United States
III CONSTRUCTION
A Construction on any of those features that will be an
lYC042188024 6
integral part of, or that could affect the structural
integrity of Lewisville Dam and Lake shall be performed
according to designs, plans and specifications reviewed
and approved by the Corps Any modifications to
Corps-approved designs, plans and specifications, and
items where there is a continuation of design during
construction, shall be submitted to the Corps for review
and approval prior to commencement of work Prior to
commencement of Project construction, COD and the
construction contractor or contractors shall meet with
the Corps to discuss aspects and requirements of the
Project construction process which could affect
Lewisville Dam and Lake operation and safety
B COD agrees to submit to the Corps for approval a work
area plan which defines the limits of construction, 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 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
C COD shall be responsible for inspection during
1YCO42188024 7
construction of all Project features to assure
conformance with contract plans and specifications, as
approved by the Corps COD shall inspect construction of
those Project features that are an integral part of or
could affect the structural integrity of Lewisville Dam
and Lake to assure compliance with approved plans and
specifications COD shall provide the Corps access to
the construction site at all times and an up-to-date
construction schedule, including any modifications The
Corps shall have the right and intends to inspect the
construction of those features which could affect the
structural integrity or operational adequacy of
Lewisville Dam and Lake, and COD and the FERC Regional
Engineer shall be notified by the Corps of any
unacceptable construction activities or of any
construction inconsistent with approved plans This
right to inspect shall in no way relieve COD of the full
responsibility for inspection and compliance with
contract plans and specifications The Corps retains the
authority to stop construction in cases presenting an
imminent danger in the opinion of the Corps to the
structural integrity, operational adequacy or safety of
Lewisville Dam and Lake
D The Corps will cooperate with COD to facilitate
construction of the Project, including routing the
lYC042188024 8
releases through the outlet work gates, provided,
however, that such cooperation does not interfere with
the authorized purposes of Lewisville Dam and Lake
Flood conditions in the reservoir may require
interruption of construction activities to evacuate flood
waters
E COD agrees
accomplished
accordance
safety rules
precautions,
public
that all on-site construction will be
in a competent, workmanlike manner in
oath existing FERC approved construction
and regulations, including adequate safety
so as not to constitute a hazard to the
F COD agrees to submit to the Corps for its approval a site
restoration plan based upon preconstruction conditions
and to restore the site in accordance with that plan
G COD shall provide the Corps, at no charge, copies of all
"record drawings" of the Project features directly
related to the structural integrity or operational
adequacy of Lewisville Dam and Lake, as determined by the
Corps 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
lYC042188024 9
IV COORDINATION
COD agrees
A To submit to the Corps a detailed schedule with projected
dates for the submission of designs, plans and
specifications of any structures which will be an
integral part of, or which could affect the structural
integrity or operation of, Lewisville Dam and Lake
B To submit to the Corps 10 copies of all designs
(including calculations), plans and specifications, and
any other written material, required by this Agreement,
the License or by the FERC to be reviewed and approved by
the Corps
V OPERATING AGREEMENT
COD agrees to prepare a draft operating agreement as
provided by Article 39 of the 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
VI PAYMFNT OF CORPS COST
A The Corps will review the hydropower project design at
the written request of COD to assure that subject
1YC042188024 10
facilities will not adversely affect the integrity or
operation of existing project structures The scope of
work for the review activities is attached and marked as
Exhibit "A" and forms a part of this agreement as if
incorporated herein
B COD will pay the Corps for all review activities
performed Work which the Corps is expected to perform
is estimated to cost $60,000 Government regulations
state that required funds must be provided in advance of
any work activities Therefore, COD will provide the
Corps an advance payment of $60,000 The Corps will
account for all work performed for requested services
At the termination of this Agreement, the Corps will
return all surplus funds to COD Should the anticipated
services cost in excess of $60,000, the Corps and COD
will negotiate to determine the appropriate amount of
additional funds necessary to complete the requested
work Should COD fail to provide full funding at any
time, the Corps will immediately cease all review
activities until full payment is obtained
C In undertaking review, the Corps shall use diligency in
responding with review comments, approvals, and/or
disapprovals in a timely manner
D COD shall advance additional amounts, upon written
IYCO42188024 11
notification of prospective expenditures that could
overdraw the funds available, for the direct costs, as
defined below, incurred by the Corps associated with the
review of engineering, design, construction and operation
of the Project Such additional amounts shall be paid
within 30 days upon receipt of a request from the Corps
A quarterly accounting of all costs incurred by the Corps
for services performed shall be provided to COD All
payments shall be made to the "Finance and Accounting
Office USAED, Fort Worth", and mailed or otherwise
delivered to the Finance and Accounting Office, Fort
Worth District, U S Army Corps of Engineers, ATTN
CESWF-RM-F, P 0 Box 17300, Fort Worth, Texas,
76102-0300
E Corps charges for the following services in connection
with COD's activities shall be applicable
1 Preparation of technical studies at the request of
COD relating to the Project operation, structural
integrity of Lewisville Dam and Lake, or any other
matter associated with the Project
2 Review of designs, plans and specifications, and
construction contract modifications of Project
features where such review is directly related to
the structural integrity or operation of Lewisville
Dam and Lake
1YC042l8An94
3 Site visits and construction inspections by Corps
personnel at the request of COD or as deemed
necessary by the Corps
4 Provision of copies of reports, drawings, and
similar data requested by COD
5 Consultation other than routine telephone
conversations with COD which involve more than an
incidental amount of Corps personnel time
6 Periodic inspections of the hydropower facility by
the Corps, which will initially be on an annual
basis
7 Repairs or replacement of any facilities damaged by
COD's Project activities
8 Providing visitor protection services, including
installation of warning signs, barriers, etc
"Direct costs" as used herein shall include hourly charges including
overhead and administration for time incurred by Corps personnel
providing the aforementioned services, travel charges incurred for site
visits and meetings in connection with designs and specifications, mail
costs, and copying costs, provided, however, that no charge shall be
lYC042188024 13
assessed for information, services, or relationships that would normally
be provided to the public at no charge
VII LIABILITY
A COD agrees to indemnify and hold harmless the Corps, its
agents, and employees from any loss or damage or
liability on account of personal injury, death, property
damage, or other claims reduced to judgment or as
mutually agreed to by COD and the Corps, so long as and
to the extent that such loss, damage or liability is
caused by the intentional tortious acts or negligent acts
or omissions of COD pursuant to this Agreement, except
for any loss, damage or liability caused by the
intentional tortious acts or negligent acts or omissions
of the Corps Nothing herein shall impose liability upon
COD due to the construction, operation, or maintenance of
Lewisville Dam and Lake by the United States Nothing
herein shall impose any liability upon the United States
due to the construction, operation, or maintenance of the
Project by COD
B For the purpose of fulfilling its obligation under this
paragraph, 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
lYC042188024 14
for bodily injury and property damage and an excess
liability policy in the amount of at least $5,000,000
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 work, whichever occurs first, COD shall
furnish the Corps with acceptable evidence showing that
the insurance coverage described in this clause has been
obtained
VIII OFFICIALS NOT TO BENEFIT
A No member of or delegate to U S Congress shall be
admitted to any share or part of this Agreement or any
benefit that may arise herefrom
B No official of COD shall receive any benefit that may
1YCO42188024 15
arise by reason of the execution of this Agreement other
than as a consumer of electricity produced by the
completed Project
IX TERM OF AGREEMENT
This agreement shall become effective on the day of execution
by the United States and shall terminate upon the final
accounting of all costs and payment after completion of
construction
X ASSIGNMENT
The benefits and obligations of the Agreement may be assigned
by either party This Agreement shall be binding upon any
assigns or successors of the Corps or any assigns or
successors to COD approved by FERC
XI NOTICES
Any notice, demand or request authorized or required by this
Agreement shall be deemed to have been given, on behalf of
COD, when mailed, postage prepaid, or delivered to the
District Engineer, U S Army Corps of Engineers, P 0 Box 17300
Fort Worth, Texas 76102-0300, and on behalf of the United
States, when mailed, postage prepaid, or delivered to the
Executive Director of Utilities, City of Denton, 215 E
McKinney Street, Denton, Texas 76201 or in case of notice to
the FERC Regional Engineer when mailed, 730 Peachtree Street ,
1YCO42188024 16
NE, Room 800, Atlanta, Georgia 30308 The designation of the
XII MODIFICATIONS
Addressee or the address may be changed by notice given in the
same manner as provided in this article for other notices
The provisions of the Agreement may be modified or added by
written mutual agreement of the parties
S
THE
CITY OF DENTON
i
BrihAdier General, U S A
Division Engineer
DATE 19V
Attachments Exh it A
Exhibit B
APPFKW AS M FORM
CITY ATTORNEY,
CITY OF W MN. TEXAS
BY ` -1--C(
Lloyd Harrell
City Manager
City of Denton, Texas
1YCO42188024 17
EXHIBIT A
SCOPE OF WORK
1 Review by the Corp will be directed toward the following concerns
a. General Hydrologic and Hydraulic review including, but not
limited to, rated discharge of turbines, daily operation
conditions, lake level and tailwater fluctuations, surge
pressures and vibration tendencies, powerhouse operation
impacts on flood control procedures, cofferdams, maintaining
low flow requirements during construction, alterations to
existing conduits, and multiple release facilities
Additional guidance is provided in DAEN-CWE-HD latter dated 17
June 1981, subject Small Hydropower Facilities at Corps of
Engineers Projects Combined with Water Quality and/or Flood
Control Release Facilities
b Structural review including, but not limited to, compliance
with Corps of Engineers' structural design criteria,
overturning and sliding stability, uplift, design unit
stresses and live loads, reinforced concrete design, seismic
design (where required), code requirements, and loading
combinations
46
lYC042188026 I
c Geotechnical review including, but not limited to, exploration
and materials testing, cofferdam design, connection to Corps'
structures, driving effects of pile driving, emergency
measures related to cofferdam overtopping/failure, dewatering,
underseepage control and scour protections, cofferdam removal,
excavated slope safety factors, excavation, blasting in
vicinity of Corps' structures, breaching Corps' structures,
material disposal, foundation preparation, treatment, and
construction, backfill operations, instrumentation,
piezometers, and surface settlement and horizontal movement,
and any other dam safety related items
d Environmental impacts which could result from construction or
continued operation of the hydropower addition
3 Items that COD anticipates it will submit for review include, but
are not limited to, the following
a utilization of and modification to the existing conduit
b penstock
c plant layout
d outlet/stilling basin
e control of releases during construction
f conduit routings
g discharge channel
h switchyard
Ab
1 access to project
I project operations and inspection after construction
IVMnAIIA~l
4 Discipline bearing on review activities include, but are not
limited to, the following
a
Stuctural
Engineers
b
Hydraulic
Engineers
c
Civil Engineers
d
Mechamcal
Engineers
e
Electrical
Engineers
f
Hydrology
g
Geology
h.
soils
1YCO42188026 3
Exhibit B
Parcel A
A permanent easement for the purpose of creating a right-of-way to
access the Lewisville Dam Hydroelectric Project and its related facilities
with right to improve, operate, and maintain the facilities and
right-of-way; located in tracts B113, 81179 and 8118 of the Corps of
Engineers Lewisville Dam real estate plot in Denton County Texas,
consisting of 1 32 acres; and described in Attachment 1
Parcel B
A temporary easement for the purpose of access to construct the
Lewisville Dam Hydroelectric Project and its related facilities; located in
tracts 8113, B117, and 8118 of the Corps of Engineers Lewisville Dam real
estate plot in Denton County, Texas, consisting of 2 73 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 mater-al, to be
located as specified and required by the Corps of Engineers
4
Attachment I
Lewisville Dam Hydroelectric Pro ect
Par~cel_A
A tract consisting of 1 32 acres, Located in Denton County, Texas, on
the property of the United States Army Corps of Engireers
Beginning at a point on the northern edge of the boundary which is a
distance of 255.51 feet along a line of S 140 09' 03" E from the centerline
of Lewisville Dam at STA 149+16 00, the intersection of the dam centerline
and the outlet works.
Thence, along the northern boundary in succession
N 750 50' 57" E - 153 SO feet
S 590 09' 03" E - 84.00 feet
Thence, along the eastern boundary in succession
S 140 09' 03" E - 170.00 feet
S 300 50' 57" W - 160 00 feet
Thence, along the southern boundary
S 750 50' 57" W - 69,26 feet
Thence, along the we
N 140 09.) 03" W
N 390 33' 31" W
S 750 50' 57" W
N 140 09' 03" W
S 750 50' 57" W
N 140 09' 03" W
stern boundary in succession
- 276 04 feet
- 22 14 feet
- 48.00 feet
- 25.00 feet
- 40.00 feet
21 49 feet
Thence, along the northern boundary
N 750 50' 57" E 67 00 feet
to the origination point
i
Attachment 2
Lewisville Dam H droelectric Project
Parcel a
A tract consisting of 2 73 acres, located in Denton County, Texas, on
the property of the United States Army Corps of Engienebeoursndary which is a
Beginning at a point on the northern edge o- .h
distance of 247 51 feet along a line of S 140 09 03" E from the centerline
of Lewisville Dam at STA 149+16 009 the intersec_ion of the dam centerline
and the outlet works
Thence, along the northern boundary in succession
N 750 50' 57" E - 145 50 feet
S 590 091 03#1 E - 39.60 feet
N 750 50' 57" E - 300 00 feet
Thence, along the eastern boundary in succession
S 140 09' 031. E - 155 00 feet
S 750 50' 57" W - 220 00 feet
S 140 09' 03" E - 60.00 feet
S 300 50' 17" W - 68 00 feet
S 140 09' 03" E - 59 46 feet
Thence, along the southern boundary
S 750 50' 57" W - 205 42 feet
Thence, along the we
N 140 09' 03" W
S 750 50' 57" W
N 140 09' 03" w
S 750 50' 57" W
N 140 09' 03" W
stern boundary in succession
- 296 04 feet
- 27 00 feet
- 25 00 feet
- 40 00 feet
- 29 49 feet
Thence, along the northern boundary
N 750 50' 57" E - 67 00 feet
to the origination point
O