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1988-1142392L 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 DENTON 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 funds in the manner and amount as specified in the Agreement SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of , 1988 n~ RAY ST P S, M YOR ATTEST h-FER J A TERS, CITY SECRETARY APPROVED AS TO LEGAL FORM DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY BY w %'~iJ 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 Agreeme~n/t,, hereinafter referred to as "Agreement," entered into this . day of 1988 between the UNITED STATES OF AMERICA, acting through th 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 1 contribution for the construction, and has made payments to the Federal Government for the incremental first cost lYC042188024 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 1 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 propertv 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 N Commander A 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 § 1344) 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 L affected by this Agreement B This Agreement provides consent and authorization to COD for access to and use of Federal Government land and lYC042188024 4 easements for the Project as described in the License and shown on Exhibit B of this Agreement i C COD shall, subject to the License requirements and 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 Protect, 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 lYC042188024 5 III CONSTRUCTION A Construction on any of those features that will be an 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 Pro3ect construction process which could affect Lewisville Dam and Lake operation and safety B COD agrees to submit to the Corps for approval 1 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 i routes and other activities hazardous to the public 1 Alteration of recreational facilities, including provision for temporary parking and access during construction, will be at the expense of COD IYC042188024 6 C COD shall be responsible for inspection during 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 saiety of i Lewisville Dam and Lake lYC042188024 D 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 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 vith 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 A after completion of construction of the Project Upon lYC042188024 8 written request by the Corps, COD shall provide specific construction data, such as drilling logs or additional "record drawings" as may exist for the Protect, within 30 days of said request 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 AGREBfENT COD agrees to prepare a draft operating agreement as prop ided 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 Protect The final operating agreement shall be executed before completion of construction lYC042188024 9 VI PAYMENT OF CORPS COST A The Corps will review the hydropower project design at the written request of COD to assure that subiect 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 IYCO42188024 10 C In undertaking review, the Corps shall use diligenc) in responding with re). ew comments, approvals, and/or disapprovals in a timely manner D COD shall advance additional amounts, upon written 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-FN-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 11 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 IYCO42188024 11 2 Review of designs, plans and specifications, and construction cont°ac.t modifications of Project features where such review is directly related to the structural integrity or operation of Lewisville Dam and Lake 3 Site visits and construction inspections by Corps personnel at the request of COD or as deemed necessary by the Corps 4 Provision of copes 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 hvdropower facility bN the Corps, which will initially be on an annual basis 7 Repairs or replacement of any facilities damaged by COD's Project activities t 8 Providing visitor protection services, including installation of warning signs, barriers, etc 1YCO42188024 12 "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 assessed for information, services, or relationships that would normally be provided to the public at no charge \II 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 ti herein shall impose anv liability upon the United States due to the construction, operation, or maintenance of the Project by COD 1YC042188024 13 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 anv 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 $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 1YC042188024 14 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 arise by reason of the execution of this Agreement other than as a consumer of electricity produced by the completed Pro3ect 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 pavment 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 anv assigns or successors of the Corps or qnv assigns or successors to COD approved by FERC ti 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 lYC042188024 15 District Engineer, U S Army Corps of Engineers, P 0 Box 17300 Fort Worth, Texas '6102-0300, and on behalf of the United States, when mailed, postage prepaid, or delivered to the Executive Director of Utilities, City of Denton, 21S F McKinney Street, Denton, Texas 76201 or in case of notice to the FERC Regional Engineer when mailed, 730 Peachtree Street , NE, Room 800, Atlanta, Georgia 30308 The designation of the Addressee or the address may be changed by notice given in the same manner as provided in this article for other notices XII MODIFICATIONS The provisions of the Agreement may be modified or added by written mutual agreement of the parties UNITED STATES DEPARTMENT OF THE ARMY By Robert Lee Brigadier General, U S A Division Engineer Attachments Exhibit A Exhibit B ti CITY OF DENTON 7 ~Mdyd arre 1 City Manager Citv of Denton, Texas 1YC042188024 16 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 with Corps of overturning and stresses and live design (where n combinations A including, but not limited to, compliance Engineers' structural design criteria, sliding stability, uplift, design unit loads, reinforced concrete design, seismic squired), code requirements, and loading IYCO42188026 1 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 i f conduit routings discharge channel h switchyard 1 access to project j project operations and inspection after construction IYC042188026 2 4 Discipline bearing on review activities include, but are not limited to, the following a Stuctural Engineers b Hydraulic Engineers C Civil Engineers d Mechanical Engineers e Electrical Engineers f Hydrology g Geology h Soils lYC042188026 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, 8117, and 8118 of tF~ Corps of Engineers Lewisville Dam real estate plot in Denton Count 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 facili a es, located in tracts B113, 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 Attachment 1 Lewisville Dam Hydroelectric Project Parcel A A tract consisting of 1 32 acres, located in Denton County, Texas, on the property of the United States Army Corps of Engir-ers 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 50 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 western boundary in succession N 140 09' 03" W - 276 04 feet N 390 33' 31" W - 22 14 feet S 750 50' 57" W - 48 00 feet N 140 09' 03" W - 25 00 feet S 750 50' 57" W - 40 00 feet N 140 09' 03" W - 21 49 feet 11 Thence, along the northern boundary N 75q 50' 57" E 67 00 feet A to the origination point Attachment 2 Lewisville Dam Hydroelectric Project Parcel B A tract consisting of 2 73 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 o `he boundary which is a distance of 247 51 feet along a line of S 140 09 03" E from the centerline of Lewisville Dam at STA 149+16 00, 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 09' 03" E - 39 60 feet N 750 50' 57" E - 300 00 feet Thence, along the eastern boundary in succession S 140 09' 03" E - 155 00 feet S 750 50' 57" W - 220 00 feet S 140 09' 03" E - 60 00 feet S 300 50' 57" 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 western boundary in succession N 140 09' 03" W - 296 04 feet S 750 50' 57" W - 27 00 feet N 140 09' 03" W - 25 00 feet S 750 50' 57" W - 40 00 feet N 140 09' 03" W - 29 49 feet Thence, along the northern boundary N 750 50' 57" E - 67 00 feet to the origination point l i i E i I i 1 I ~