2026A008 - MOA -BINGMODIFIED_V5.DOCX
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MEMORANDUM OF AGREEMENT
FCD 2026A008
between the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, ARIZONA
and the
INSTITUTE FOR WATER RESOURCES
HYDROLOGIC ENGINEERING CENTER
US ARMY CORPS OF ENGINEERS
for the
MODIFICATION TO CEIWR-HEC SOFTWARE
Approved by the
BOARD OF DIRECTORS of the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
Agenda Item ___________________
Date
DO NOT REMOVE
THIS COVER IS PART OF THE OFFICIAL DOCUMENT
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MEMORANDUM OF AGREEMENT
BETWEEN
THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, ARIZONA AND
AND
THE INSTITUTE FOR WATER RESOURCES,
HYDROLOGIC ENGINEERING CENTER
U.S. ARMY CORPS OF ENGINEERS
ARTICLE I - PURPOSE AND AUTHORITY
This Memorandum of Agreement (hereafter the "MOA") is entered into by and between
the Flood Control District of Maricopa County (hereafter the “District”), a political subdivision
of the State of Arizona, acting by and through its Board of Directors, and the Institute for Water
Resources of the U.S. Army Corps of Engineers (hereafter the "IWR"), hereafter collectively
referred to as "the Parties." The purpose of this MOA is to establish a mutual framework
governing the respective responsibilities of the Parties for the provision of IWR support,
hydrologic and hydraulic modeling, training, and software development services and any goods
related thereto.
The IWR enters into the MOA under authority of 31 U.S.C. § 6505 (the
Intergovernmental Cooperation Act). The District is authorized by Arizona Revised Statutes
(A.R.S.) Sections 48-3603 and 48-3624, as revised, to enter into the MOA.
ARTICLE II - SCOPE
Products and services which the IWR may provide under the MOA include enhanced
hydrologic modeling software for use by the District in the management of flood control projects
and in the provision of flood control engineering services, as well as related products or services
the Parties may agree upon in the future. Enhancements to IWR software that the District may
request include testing, documentation, software support, software training, software updates and
betterments. New capabilities added to IWR software under the MOA may be used by
hydrologic, hydraulic, and river mechanics modelers within the District, the USACE, and by
modelers from other federal, state, and local agencies around the nation.
Nothing in the MOA shall be construed to require the District to use the services of the
IWR or to require the IWR to provide any products or services to the District, except as may be
set forth in individual Support Agreements (hereafter "SAs or SA").
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ARTICLE III - INTERAGENCY COMMUNICATIONS
To provide for consistent and effective communication between the IWR and the District,
each Party shall appoint a Principal Representative to serve as its central point of contact on
matters relating to the MOA. Additional representatives may also be appointed to serve as points
of contact in the performance of SAs. The IWR designates Josh Willis as its Principal Technical
Representative and Alden Grande as its Administrative and Financial Representative. The
District designates Bing Zhao as its Principal Technical Representative and Sharon Rogers as its
Authorized Contract Specialist point of contact.
Any notices given pursuant to the terms of the MOA shall be in writing and delivered by
Certified Mail, Return Receipt Requested. The effective date of such notices shall be the date of
receipt as evidenced by the Return Receipt. All notices shall be addressed to the parties identified
below:
Flood Control District of Maricopa County USACE Hydrologic Engineering Center
Attn: Bing Zhao
Attn: Josh Willis
Principal Technical Rep.
Principal Technical Rep.
Telephone No. 602-506-3293
Telephone No. 530-564-2553
Address:
Address:
2801 W. Durango St.
609 Second Street
Phoenix, AZ 85009
Davis, CA 95615
Attn: Sharon Rogers
Attn: Alden Grande
Authorized Contract Officer
Administrative/Financial Representative
Telephone No. 602-506-6764 Telephone No. 530-302-3683
Address:
Address:
2801 W. Durango St.
609 Second Street
Phoenix, AZ 85009
Davis, CA 95616
ARTICLE IV - SUPPORT AGREEMENTS
In response to requests from the District for IWR assistance under the MOA, the IWR
and District shall execute individual Support Agreements (SAs) using Engineer Form 4914-R
(U.S. Army Corps of Engineers Interagency Support Agreement), or similar document
containing the same information as Department of Defense Form 1144. SAs must include:
□
A detailed statement of the project’s scope of work;
□
A master project schedule and identification of deliverables;
□
Verification of sufficient funding to complete the project, including the District’s
fund citation and the expiration date of cited funds, if any;
□
Identification of Project Managers;
□
Specification of types of contracts to be used by IWR, if known;
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□
Procedures for amending or modifying the SA;
□
Types and frequencies of reports;
□
All other particulars necessary to clearly describe the obligations of each party to
successfully complete performance of the SA.
Products or services shall be provided by the IWR under the MOA only after an SA
meeting the requirements set forth above is signed by an authorized representative of each party.
In case of conflict between the MOA and an SA, the terms of the MOA shall control.
ARTICLE V - RESPONSIBILITIES OF THE PARTIES
A.
Responsibilities of the IWR
1. The IWR shall provide the District with products or services in accordance with the
terms of the respective SA executed by the Parties, and consistent with the purpose, terms, and
conditions of the MOA.
2. The IWR shall ensure that only authorized IWR representatives sign SAs.
3. The IWR may provide products or services in fulfillment of its obligations under an
SA using either its in-house resources or by contract executed with an outside vendor. The IWR
shall inform the District of each contract the IWR may enter into in fulfillment of the IWR’s
performance of each SA.
4. The IWR shall provide detailed periodic progress, financial and other reports to the
District, as specified in each SA. Financial reports shall detail funds received, obligated, and
expended, and shall include forecasts of upcoming obligations and expenditures.
B.
Responsibilities of the District
1. The District shall certify in writing, prior to the execution of each SA entered into
under the MOA, that the SA complies with the requirements of OMB Circular A-97 (which
details rules and regulations governing the provision of specialized or technical services by
federal agencies to state governments).
2. The District shall pay all costs associated with the IWR's provision of products or
services under the MOA and shall certify, at the time of signature of a SA, the availability of
funds necessary to accomplish that SA.
3. The District shall ensure that only authorized District contracting officers sign SAs.
4. The District shall develop draft SAs to include scope of work statements.
5. The District shall obtain for the IWR all necessary real estate interests and access to
all work sites and support facilities, and shall obtain any permits and undertake any coordination
necessary to allow the IWR to perform its responsibilities under each SA.
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ARTICLE VI - FUNDING
The District shall pay all costs associated with the IWR's provision of products or
services under the MOA. Funds for the services to be provided by the IWR shall be deposited to
an escrow account at an approved Depository Bank. Funds shall be transferred from the escrow
account and deposited with the US Treasury prior to incurrence of any obligation by the IWR
The IWR shall request transfer(s) of funds from the escrow account to the US Treasury in
time to ensure that sufficient funding is available within the US Treasury to meet obligations as
they are incurred by the IWR in its provision of services to the District. Established Federal
Government accounting procedures shall be used.
If the IWR forecasts its actual costs under an SA will exceed the balance of funds
available in the escrow account, it shall promptly notify the District of the additional funds
necessary to complete the IWR’s work under that SA. The District shall either transfer the
additional funds to the US Treasury, or require that the scope of work be limited to that which
can be paid for by the then-available funds, or direct termination of the IWR’s work under that
SA.
Within 90 days of completing the work under an SA, the IWR shall conduct an
accounting to determine the actual costs of the work performed thereunder. Within 30 days of
delivery of this accounting to the District, the IWR shall return to the District any funds
advanced in excess of the actual costs specified in the accounting, or the District shall provide
any additional funds necessary to cover the actual costs specified in the accounting. Such an
accounting shall in no way limit the District’s duty in accordance with Article X to pay any
additional costs, such as contract claims or other liabilities, which may become known after the
final accounting.
The total amount to be expended under this MOA shall not exceed seven hundred
thousand dollars and zero cents ($700,000) over a period of seven (7) years.
ARTICLE VII - APPLICABLE LAWS
The MOA and all documents and actions promulgated pursuant to it shall be governed by
the applicable statutes, regulations, directives, and procedures of the United States.
ARTICLE VIII - CONTRACT CLAIMS AND DISPUTES
All claims and disputes by contractors arising under or relating to contracts awarded by
the IWR in performance of an SA under the MOA shall be resolved in accordance with Federal
law and the terms of the individual contract. The Corps of Engineers retains dispute resolution
authority for such claims. Any contracting officer's final decision may be appealed by the
contractor pursuant to the Contract Disputes Act of 1978 (41 U.S.C. §§ 7101-7109 ). The Armed
Services Board of Contract Appeals (ASBCA) is designated as the appropriate board of contract
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appeals. In lieu of appealing to the ASBCA the contractor may bring an action directly to the
United States Court of Federal Claims.
The Sacramento District of the Corps of Engineers shall handle any contract litigation
that may arise in performance of an SA, in coordination with the Department of Justice, as
appropriate. The IWR shall notify the District of any such litigation and afford the District an
opportunity to review and comment on the proceedings and any settlement negotiations.
ARTICLE IX - DISPUTE RESOLUTION
The Parties agree to use their best efforts to resolve any dispute that may arise between
them through consultation and communication, or through another mutually acceptable form of
non-binding alternative dispute resolution. In the event such measures fail to resolve the dispute,
the Parties shall elevate the issue through their respective chains of command and, if needed,
refer the matter to the respective agency executive of each Party for resolution.
ARTICLE X — RESPONSIBILITY FOR COSTS
If liability of any kind is imposed on the United States relating to the IWR's provision of
products or services under the MOA, the IWR will accept accountability for its actions, but the
District shall remain responsible as the program proponent for providing such funds as may be
necessary to discharge the liability, and all related costs. This obligation extends to all funds
legally available to discharge such liability, including funds that may be made legally available
through transfer, reprogramming or other means. Should the District have insufficient funds
legally available, including funds made available through transfer, reprogramming or other
means, it shall bear a continuing responsibility to seek additional funds until the remaining
liability is fully paid.
Notwithstanding the above, the MOA imposes no liability on the District for claims
payable by the IWR under the Federal Tort Claims Act; provided further that nothing in the
MOA is intended or may be construed to create any rights or remedies for any third party and no
third party is intended to be a beneficiary of the MOA.
ARTICLE XI - PUBLIC INFORMATION
Justification and explanation of the District’s programs before other agencies,
departments, and offices shall be the responsibility of the District. Upon request the IWR may
assist the District with justifications or explanations of the IWR’s work conducted under the
MOA, including announcements and responses to inquiries about contract awards, but the
District shall retain primary responsibility for dissemination of all public information. The
Parties shall use best efforts to give one another sufficient advance notice of any proposed public
statement regarding work contemplated, underway, or completed pursuant to performance of
each SA under the MOA.
ARTICLE XII - MISCELLANEOUS
Commented [RW1]: Suggest mentioning what office is
the ultimate decider if things go wrong. Something like the
standard: In the event such measures fail to resolve the
dispute, the Parties shall elevate the issue through their
respective chains of command and, if needed, refer the
matter to the respective executive agency of each Party for
resolution.
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A.
Other Relationships or Obligations
This MOA shall not affect any pre-existing or independent relationships or obligations
between the District and the IWR.
B.
Survival
The provisions of the MOA which may require performance after the expiration or
termination of the MOA shall remain in force until performance is complete.
C.
Severability
If any provision of the MOA is determined to be invalid or unenforceable, the remaining
provisions shall remain in force and unaffected to the fullest extent permitted by law.
ARTICLE XIII - AMENDMENT, MODIFICATION AND TERMINATION
The MOA may be modified or amended only in writing and by mutual agreement of the
Parties. Either party may terminate the MOA for any reason, including cancellation pursuant to
the provisions of Arizona Revised Statutes Section 38-511, by providing written notice to the
other party. Such a termination shall become effective upon the sixtieth calendar day following
the date of such notice, unless a later date is set forth. In the event of termination, the District
shall remain responsible for all costs incurred by the IWR under the MOA and for the costs of
closing out or transferring any on-going contracts.
ARTICLE XIV - EFFECTIVE DATE
This MOA shall become effective when signed by both the District and the IWR and
shall remain in force for a period of seven consecutive (7) years after the effective date, unless
terminated earlier in accordance with the terms of Article XIII.
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Flood Control District of Maricopa County
Recommended By:
Accepted and Approved:
Paul Baughman, P.E., CFM
Date
Kate Brophy McGee
Date
Chief Engineer and General Manager Chair, Board of Directors
Attest:
Juanita Garza
Date
Clerk of the Board
LEGAL REVIEW
Approved as to form and within the powers
and authority granted under the laws of the
State of Arizona to the Flood Control
District of Maricopa County.
Flood Control District General Counsel
Date
Institute for Water Resources, Hydrologic Engineering Center,
U.S. Army Corps of Engineers
_________________________________
_________________________________
Lea Adams, Director
Date
Hydrologic Engineering Center
Institute for Water Resources
US Army Corps of Engineers
609 Second Street, Davis, CA 95616