ARMY CORP -EM UPDATES-COOPERATION AGREEMENT MARICOPA COUNTY_8 APRIL 2021.DOCX

COOPERATION AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
and
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for
REHABILITATION OF A FEDERAL FLOOD CONTROL WORK
FCD AGENDA _________________________________________
THIS AGREEMENT, entered into this ______ day of ________________, 2021, by and between THE
DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government") represented by the
District Engineer, Los Angeles District, U.S. Army Corps of Engineers, and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, (hereinafter referred to as the "Public
Sponsor"), represented by THE CHAIRMAN OF ITS BOARD OF DIRECTORS.
WITNESSETH THAT:
WHEREAS, the Government constructed a flood control project (hereinafter referred to as the
project) authorized by the Flood Control Act of 1965 Public Law 89-298, and governed by the Agreement
dated July 21, 1977, and entitled Agreement Between the United States of America and Flood Control
District of Maricopa County for Local Cooperation at Phoenix, Arizona and Vicinity (Including New
River) Flood Control Project, Gila River Basin, Arizona, and which remains in full effect;
WHEREAS, pursuant to 33 U.S.C. 701n, the Government is authorized to assist in the repair or
restoration of flood control improvements threatened or destroyed by floods;
WHEREAS, via written correspondence, the Public Sponsor has requested that the Government
repair or restore the project, which was damaged by recent flooding or coastal storms, in accordance
with 33 U.S.C. 701n and established policies of the U.S. Army Corps of Engineers; and,
WHEREAS, Public Sponsor hereby represents that it has the authority and legal capability to
furnish the non -Federal cooperation hereinafter set forth and is willing to participate in the rehabilitation
effort of the authorized project in accordance with the terms of this Agreement;
NOW, THEREFORE, the Government and the Public Sponsor agree as follows:
ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS
For purposes of this agreement:
A. The term "Rehabilitation Effort" shall mean the Contractor is to provide all labor, material,
equipment, manufactured articles, tools, transportation, supplies, supervision, and management
necessary to perform all work to furnish and deliver all items or perform all services set forth to complete
rehabilitation repairs to the Agua Fria River Channel, Cave Creek Arm Channel, New River Channel, New
River Dam Outlet Channel, and Skunk Creek Channel in Maricopa County, Arizona as generally
described in the basic contract, the DD1155, the terms and conditions set forth in the Request for
Proposal, the Contractor’s proposal, and as negotiated per the Maricopa Emergency Repairs Project
dated October 2019 and approved by the Division Engineer on 8 October 2019.
B. The term "Rehabilitation Effort costs" shall mean all costs incurred by the Public Sponsor and
the Government, in accordance with the terms of this Agreement, directly related to implementation of
the Rehabilitation Effort. The term shall include, but is not necessarily be limited to: actual construction
costs, including supervision and inspection costs; costs of contract dispute settlements or awards; and
the cost of investigations to identify the existence of hazardous substances as identified in Article
XII.A. The term shall not include any costs for operation and maintenance; any costs to correct
deferred or deficient maintenance; any costs for betterments; any costs for Public Sponsor -preferred
alternatives; or the costs of l ands, easements, rights-of-way, relocations, or suitable borrow and dredged
or excavated material disposal areas required for the Rehabilitation Effort.
C. The term "betterment" shall mean the design and construction of a feature accomplished on
behalf of, or at the request of, the Public Sponsor in accordance with standards that exceed the
standards that the Government would otherwise apply for accomplishing the Rehabilitation Effort.

ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND PUBLIC SPONSOR
A. The Government, subject to receiving funds appropriated by the Congress of the United States,
and using those funds and funds provided by the Public Sponsor shall expeditiously implement the
Rehabilitation Effort, applying those procedures usually followed or applied in Government
construction of Federal projects, pursuant to Federal laws, regulations, and policies. The Public
Sponsor shall be afforded the opportunity to review and comment on solicitations for all future
contracts, including relevant plans and specifications, prior to the issuance of such solicitations. The
Contracting Officer will, in good faith, consider the comments of the Public Sponsor, but award of
contracts, modifications or change orders, and performance of all work on the Rehabilitation Effort
(whether the work is performed under contract or by Government personnel), shall be exclusively within
the control of the Contracting Officer.
B. As further specified in Article III, the Public Sponsor shall provide all lands, easements, and
rights-of-way, including suitable borrow and dredged or excavated material disposal areas, and perform
all relocations determined by the Government to be necessary for construction, operation, and
maintenance of the project and the Rehabilitation Effort.
C. As further specified in Article IV, the Public Sponsor shall contribute, in cash, in-kind services, or
a combination thereof, a contribution toward construction of the Rehabilitation Effort in an amount equal
to $100,000 towards the total Rehabilitation Effort costs and betterment costs at the request of the
Public Sponsor.
D. The Public Sponsor shall not use Federal funds to meet its share of total Rehabilitation Effort
costs under this Agreement unless the Federal granting agency verifies in writing that the expenditure of
such funds is authorized by statute.
E. The Public Sponsor shall hold and save the Government free from all damages arising from the
construction, operation, and maintenance of the Rehabilitation Effort and any authorized project-related
betterments, except for damages due to the fault or negligence of the Government or the Government's
contractors.
F. The Public Sponsor agrees to continue to participate in and comply with the policies
and procedures of the U.S. Army Corps of Engineers Rehabilitation Program, and of Title 33, Code of
Federal Regulations, Part 208.10 (33 CFR 208.10).
G. The Public Sponsor may request the Government to accomplish betterments. The Public
Sponsor shall be solely responsible for any increase in costs resulting from the betterments and all
such increased costs will be paid in advance by the Public Sponsor in accordance with Article IV.
ARTICLE III - LANDS, RELOCATIONS, AND PUBLIC LAW 91 -646
A. The Government shall provide the Public Sponsor with a description of the anticipated real
estate requirements and relocations for the Rehabilitation Effort. Thereafter, the Public Sponsor shall
furnish all lands, easements, and rights-of-way, including suitable borrow and dredged or
excavated material disposal areas, and perform any relocations, as may be determined by the
Government in that description, or in any subsequent description, to be necessary for the
construction, operation, and maintenance of the Rehabilitation Effort and the authorized project. The
necessary lands, easements, and rights-of-way may be provided incrementally for each construction
contract. All lands, easements, and rights-of-way determined by the Government to be necessary
for work to be performed under a construction contract must be furnished prior to the advertisement
of that construction contract.
B. The Public Sponsor shall comply with the applicable provisions of the Uniform
Relocation Assistance and Real Property Acquisitions Policy Act of 1970, Public Law 91 -646, as
amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987
(Public Law 100 -17), and the Uniform Regulations contained in 49 CFR Part 24, in acquiring lands,
easements, and rights of way, required for construction, operation, and maintenance of the
Rehabilitation Effort, including those necessary for relocations, borrow materials, and dredged or
excavated material disposal, and shall inform all affected persons of applicable benefits, policies, and
procedures in connection with said Act.

ARTICLE IV - METHOD OF PAYMENT
A. The Public Sponsor shall provide, during the period of construction, cash payments, in-
kind services, or a combination thereof, required to meet the Public Sponsor's obligations under
Article II of the Agreement. Rehabilitation Effort costs are currently estimated to be $2,455,228
and the Public Sponsor's share (cash and services in kind) of total Rehabilitation Effort costs is
currently estimated to be $0. In order to meet Public Sponsor's cash payment requirements, the
Public Sponsor must provide a cash contribution estimated to be $100,000, which includes
Rehabilitation Effort costs and betterment costs of $100,000 at the request of Public Sponsor. The
dollar amounts set forth in this paragraph are based upon the Government's best estimates that
reflect projections of costs, price level changes, and anticipated inflation. Such cost estimates are
subject to adjustments based upon costs actually incurred, and are not to be construed as the total
financial responsibilities of the Government and the Public Sponsor.
B. The required cash contribution shall be provided as follows: At least ten calendar days prior to
the award of the first construction contract, the Government shall notify the Public Sponsor of the
Public Sponsor's estimated share of the total Rehabilitation Effort costs including the Public Sponsor's
estimated share of the costs attributable to the Rehabilitation Effort incurred prior to the initiation of
construction. Within five calendar days thereafter, the Public Sponsor shall provide the Government
the full amount of the required contribution by delivering a check payable to "FAO, USAED Los
Angeles" to the Contracting Officer representing the Government. The Government shall draw on the
funds provided by the Public Sponsor such sums as the Government deems necessary to cover
contractual and in-house fiscal obligations attributable to the Rehabilitation Effort as they are
incurred, as well as Rehabilitation Effort costs incurred by the Government. In the event that total
Rehabilitation Effort costs are expected to exceed the estimate given at the outset of construction,
the Government shall immediately notify the Public Sponsor of the additional contribution the Public
Sponsor will be required to make to meet the Public Sponsor's share of the revised estimate. Within
ten calendar days thereafter, the Public Sponsor shall provide the Government the full amount of the
additional required contribution.
C. During the period of construction, the Government will provide periodic financial reports on
the status of the total Rehabilitation Effort costs and status of contributions made by the Public
Sponsor. Upon completion of the Rehabilitation Effort and resolution of all relevant contract claims
and appeals, the Government shall compute the total Rehabilitation Effort costs and tender to the
Public Sponsor a final accounting of the Public Sponsor's share of Rehabilitation Effort costs.
1. In the event the total contribution by the Public Sponsor is less than the Public
Sponsor's required share of total Rehabilitation Effort costs, the Public Sponsor shall, no later than
90 calendar days after receipt of written notice, make a cash payment to the Government of
whatever sum is required to meet the Public Sponsor's required share of the total Rehabilitation
Effort costs.
2. In the event total contribution by the Public Sponsor is more than the Public Sponsor's
required share of total Rehabilitation Effort costs, the Government shall, no later than 90 calendar
days after the final accounting is complete, subject to the availability of funds, return the excess to the
Public Sponsor; however, the Public Sponsor shall not be entitled to any refund for in-kind services.
In the event the existing funds are not available to repay the Public Sponsor for excess
contributions provided, the Government shall seek such appropriations as are necessary to repay
the Public Sponsor for excess contributions provided.
ARTICLE V - CREDITING OF IN-KIND SERVICES
The Government has approved a credit for In-Kind Services, compatible with the
Rehabilitation Effort, in the estimated amount of $0 for implementation of such services by the
Public Sponsor. The affording of such credit shall be subject to an onsite inspection by the
Government to verify that the work was accomplished in a satisfactory manner and is suitable for
inclusion in the Rehabilitation Effort. The actual amount of such credit shall be subject to an
audit conducted to determine reasonableness, allocability, and allowability of costs. The Government
shall apply the credit amount toward any additional cash contribution required under this Agreement.
The Public Sponsor shall not receive credit for any amount in excess of such additional cash
contribution, nor shall the Public Sponsor be entitled to any reimbursement for any excess credit
amount.

ARTICLE VI - OPERATION AND MAINTENANCE
A. After the Contracting Officer has determined that construction of the Rehabilitation Effort
is complete and provided the Public Sponsor with written notice of such determination, the Public
Sponsor shall continue to operate and maintain the completed Rehabilitation Effort as part of the
project, at no cost to the Government, in accordance with specific directions prescribed by the
Government in Title 33, Code of Federal Regulations, Part 208.10, Engineer Regulation 500 -1-1,
and any subsequent amendments thereto.
B. The Public Sponsor hereby gives the Government a right to enter, at reasonable times and in
a reasonable manner, upon land that the Public Sponsor owns or controls for access to the project for
the purposes of inspection, and, if necessary, for the purpose of completing, operating, and maintaining
the Project. If an inspection shows the Public Sponsor for any reason is failing to fulfill the Public
Sponsor's obligations under this Agreement without receiving prior written approval from the
Government, the Government will send a written notice to the Public Sponsor. If, after 30 calendar
days from receipt of such notice, the Public Sponsor continues to fail to perform, then the Government
shall have the right to enter, at reasonable times and in a reasonable manner, upon lands the Public
Sponsor owns or controls for access to the authorized project for the purposes of completing,
operating, and maintaining the project. No action by the Government shall operate to relieve the
Public Sponsor of responsibility to meet the Public Sponsor obligations as set forth in this Agreement,
or to preclude the Government from pursuing any other remedy at law or equity to assure faithful
performance pursuant to this Agreement.
ARTICLE VII - FEDERAL AND STATE LAWS
In the exercise of the Public Sponsor's rights and obligations hereunder, the Public Sponsor
agrees to comply with all applicable Federal and state laws and regulations.
ARTICLE VIII - RELATIONSHIP OF PARTIES
The Government and the Public Sponsor act in an independent capacity in the performance of
their respective functions under this Agreement, and neither party is to be considered the officer,
agent, nor employee of the other.
ARTICLE IX - 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 X - COVENANT AGAINST CONTINGENT FEES
The Public Sponsor warrants that no person or selling agency has been employed or retained
to solicit or secure this Agreement upon agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established
commercial or selling agencies maintained by the Public Sponsor for the purpose of securing
business. For breach or violation of this warranty, the Government shall have the right to annul this
Agreement without liability, or, in the Government's discretion, to add to the Agreement or
consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or
contingent fee.
ARTICLE XI - TERMINATION OR SUSPENSION
If at any time the Public Sponsor fails to carry out its obligations under this Agreement, the
District Engineer shall terminate or suspend work on the Rehabilitation Effort, unless the District
Engineer determines that continuation of work on the Rehabilitation Effort is in the interest of the United
States or is necessary in order to satisfy agreements with any other non -Federal interests in
connection with this Rehabilitation Effort. However, deferral of future performance under this
agreement shall not affect existing obligations or relieve the parties of liability for any obligation
previously incurred. In the event that either party elects to terminate this Agreement pursuant to this
Article, both parties shall conclude their activities relating to the Rehabilitation Effort and proceed to a
final accounting in accordance with Article IV of this Agreement. In the event that either party elects
to defer future performance under this Agreement pursuant to this Article, such deferral shall remain
in effect until such time as either the Government or Public Sponsor elects to proceed with further
construction or terminates this Agreement.

This Agreement is subject to cancelation pursuant to A.R.S. § 38-511.
ARTICLE XII - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the Contracting Officer, the
Public Sponsor shall perform, or cause to be performed, such investigations for hazardous
substances as are determined necessary by the Government or the Public Sponsor to identify the
existence and extent of any hazardous substances regulated under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) 42 U.S.C. Sections, 96 01-
9675, on lands necessary to Rehabilitation Effort construction, operation, and maintenance. All
actual costs incurred by the Public Sponsor that are properly allowable and allocable to
performance of any such investigations for hazardous substances shall be included in Rehabilitation
Effort costs and cost shared as a construction cost.
B. In the event it is discovered through an investigation for hazardous substances or other
means that any lands, easements, rights-of-way, or disposal areas to be acquired or provided
for the Rehabilitation Effort contain any hazardous substances regulated under CERCLA, the Public
Sponsor and the Government shall provide prompt notice to each other, and the Public Sponsor shall
not proceed with the acquisition of lands, easements, rights-of-way, or disposal areas until mutually
agreed.
C. The Government and the Public Sponsor shall determine whether to initiate construction of
the Rehabilitation Effort, or, if already in construction, to continue with construction of the
Rehabilitation Effort, or to terminate construction of the Rehabilitation Effort for the convenience of the
Government in any case where hazardous substances regulated under CERCLA are found to
exist on any lands necessary for the Rehabilitation Effort and the authorized Project. Should the
Government and the Public Sponsor determine to proceed or continue with the construction after
considering any liability that may arise under CERCLA, the Public Sponsor shall be responsible, as
between the Government and the Public Sponsor, for any and all necessary clean up and response
costs, to include the costs of any studies and investigations necessary to determine an appropriate
response to the contamination. Such costs shall not be considered a part of the total Rehabilitation
Effort costs as defined in this Agreement. In the event the Public Sponsor fails to provide any funds
necessary to pay for cleanup and response costs or to otherwise discharge the Public Sponsor's
responsibilities under this paragraph upon direction by the Government, the Government may either
terminate or suspend work on the Rehabilitation Effort, or proceed with further work as provided in
Article X of this Agreement.
D. The Public Sponsor and Government shall consult with each other to assure that responsible
parties bear any necessary clean up and response costs as defined in CERCLA. Any decision made
pursuant to paragraph C of this Article shall not relieve any party from any liability that may arise
under CERCLA.
E. As between the Government and the Public Sponsor, the Public Sponsor shall be considered
the operator of the project (which the Rehabilitation Effort is repairing and restoring) for purposes of
CERCLA liability. To the maximum extent practicable, the Public Sponsor shall operate and
maintain the authorized project in a manner that will not cause liability to arise under CERCLA.
ARTICLE XIII - 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 prepaid), registered, or
certified mail, as follows:
If to the Public Sponsor: If to the Government:
Director District Engineer
2801 W. Durango Street 915 Wilshire Boulevard
Phoenix, AZ 85009 Los Angeles, CA 90017-3489
B. A party may change the address to which such communications are to be directed by
giving written notice to the other party in the manner provided in this Article.

C. Any notice, request, demand, or other communication made pursuant to this Article shall
be deemed to have been received by the addressee at such time as it is either personally delivered,
or, seven calendar days after it is mailed, as the case may be.
IN WITNESS HEREOF, This Agreement shall become effective as of the date it has been
executed by all parties.
THE DEPARTMENT OF THE ARMY
x
BY: __________________________
Julie A. Balten
Colonel, U.S. Army
Commander and District Engineer
DATE:

CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee of a
member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing o r attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a member of Congress in
connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with
its instructions.
(3) The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when
this transaction was made or entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by section 1352, Title 31, U.S. Code. Any person
who fails to file the required certification shall be subject to a civil penalty of not less than $10,000
and not more than $100,000 for each such failure.
DATED this day of , 2021
______________________________
Erik Arntz
Flood Control District
Maintenance Division Manager

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Municipal Corporation
Recommended by:
Michael A. Fulton, Director Date
Approved and Accepted:
By:
Chairman, Board of Directors Date
Attest:
By:
Clerk of the Board Date
Deputy County Attorney Date