2026A010-FCSA_AGUA FRIA_13 MAY 2026.PDF

Maricopa County — Formal (2026-06-10)

Extracted text (via pymupdf) 21075 characters

AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
FOR THE
AGUA FRIA TRILBY MCMICKEN DAM FLOOD RISK MANAGEMENT STUDY

THIS AGREEMENT is entered into this ___ day of June, 2026, by and between
the Department of the Army (hereinafter the “Government”), represented by the District
Commander for the Los Angeles District (hereinafter the “District Commander”) and the
Flood Control District of Maricopa County (hereinafter the “Non-Federal Sponsor”),
represented by the Agency Chief Engineer and General Manager.

WITNESSETH, THAT:

WHEREAS, Flood Control Act of 1938 (Gila River & Tributaries), and the House
Resolution 2425 (HR2425), 17 May 1994 authorizes study of the watershed upstream
from the McMicken Dam to the Agua Fria River. The McMicken Dam is approximately
46,200 feet (8.75 miles/14,082 m) long, 35 feet (11 m) high. The study would also
include review and potential alternatives to increase the level of Flood Risk
Management provided by the McMicken Dam;

WHEREAS, Section 105(a) of the Water Resources Development Act (WRDA) of
1986, as amended (33 U.S.C. 2215(a)), specifies the cost-sharing requirements; and

WHEREAS, the Government and the Non-Federal Sponsor have the full authority
and capability to perform in accordance with the terms of this Agreement.

WHEREAS, the Government and the Non-Federal Sponsor had previously
entered into a Feasibility Cost Share Agreement (Previous Agreement) under this
authority dated 29 September 2004 and are now desirous to dissolve that Previous
Agreement and move forward with the terms of this Agreement.

NOW, THEREFORE, the parties agree as follows:

ARTICLE I - DEFINITIONS

A. The term “Study” means the activities and tasks required to identify and
evaluate alternatives and the preparation of a decision document that, as appropriate,
recommends a coordinated and implementable solution for Flood Risk Management at
Maricopa County, Arizona.

B. The term “study costs” means all costs incurred by the Government and Non-
Federal Sponsor after the effective date of this Agreement that are directly related to
performance of the Study and cost shared in accordance with the terms of this Agreement.
The term includes the Government’s costs for preparing the PMP; for plan formulation
and evaluation, including costs for economic, engineering, real estate, and
environmental analyses; for preparation of a floodplain management plan if undertaken
as part of the Study; for preparing and processing the decision document; for supervision
and administration; for Agency Technical Review and other review processes required by
the Government; and for response to any required Independent External Peer Review;
and the Non-Federal Sponsor’s creditable costs for in-kind contributions, if any. The
term does not include any costs for dispute resolution; participation by the Government
and Non-Federal Sponsor in the Study Coordination Team to discuss significant issues
and actions; audits; an Independent External Peer Review panel, if required; a Federal
interest determination under Section 905(b) of WRDA 1986, as amended (33 U.S.C.
2282(b)), if applicable, or negotiating this Agreement.

C. The term “PMP” means the project management plan, and any modifications
thereto, developed in consultation with the Non-Federal Sponsor, that specifies the scope,
cost, and schedule for Study activities and tasks, including the Non-Federal Sponsor’s in-
kind contributions, and that guides the performance of the Study.

D. The term “in-kind contributions” means those planning activities (including
data collection and other services) that are integral to the Study and would otherwise
have been undertaken by the Government for the Study and that are identified in the
PMP and performed or provided by the Non-Federal Sponsor after the effective date of
this Agreement and in accordance with the PMP.

E. The term “maximum study cost” means $3,000,000, unless the Government
has approved a higher amount.

F. The term “fiscal year” means one year beginning on October 1st and ending on
September 30th of the following year.

ARTICLE II - OBLIGATIONS OF THE PARTIES

A. In accordance with Federal laws, regulations, and policies, the Government
shall conduct the Study using funds appropriated by the Congress and funds provided
by the Non-Federal Sponsor. In carrying out its obligations under this Agreement, the
Non-Federal Sponsor shall comply with all the requirements of applicable Federal laws
and implementing regulations, including but not limited to, if applicable, Section 601 of
the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d), and Department of
Defense Directive 5500.11 issued pursuant thereto; the Age Discrimination Act of 1975
(42 U.S.C. 6102); and the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and
Army Regulation 600-7 issued pursuant thereto.

B. The Non-Federal Sponsor shall contribute 50 percent of the study costs in
accordance with the provisions of this paragraph and provide required funds in
accordance with Article III.

1. No later than 15 calendar days after the effective date of this
Agreement or completion of the Government’s Federal interest determination under
Section 905(b) of WRDA 1986, as amended (33 U.S.C. 2282(b)), if applicable,
whichever is later, the Non-Federal Sponsor shall provide funds in the amount of
$250,000, for the Government to initiate the Study, including preparation of the PMP. In
the event more funds are needed to develop the PMP, the Government shall provide
the Non-Federal Sponsor with a written estimate of the amount of funds required from
the Non-Federal Sponsor, and no later than 15 calendar days after such notification, the
Non-Federal Sponsor shall provide the full amount of such funds to the Government.

2. As soon as practicable after completion of the PMP, and after
considering the estimated amount of credit for in-kind contributions, if any, that will be
afforded in accordance with paragraph C. of this Article, the Government shall provide
the Non-Federal Sponsor with a written estimate of the amount of funds required from
the Non-Federal Sponsor to meet its share of study costs for the remainder of the initial
fiscal year of the Study. No later than 15 calendar days after such notification, the Non-
Federal Sponsor shall provide the full amount of such funds to the Government in
accordance with Article III.C.

3. No later than August 1st prior to each subsequent fiscal year of the
Study, the Government shall provide the Non-Federal Sponsor with a written estimate of
the amount of funds required from the Non-Federal Sponsor during that fiscal year to
meet its cost share. No later than September 1st prior to that fiscal year, the Non-
Federal Sponsor shall provide the full amount of such required funds to the Government
in accordance with Article III.C.

C. The Government shall include in study costs and credit towards the Non-
Federal Sponsor’s share of such costs, the costs, documented to the satisfaction of the
Government, that the Non-Federal Sponsor incurs in providing or performing in-kind
contributions, including associated supervision and administration. Such costs shall be
subject to audit in accordance with Article VI to determine reasonableness, allocability,
and allowability, and crediting shall be in accordance with the following procedures,
requirements, and limitations:

1. As in-kind contributions are completed and no later than 60 calendar
days after such completion, the Non-Federal Sponsor shall provide the Government
appropriate documentation, including invoices and certification of specific payments to
contractors, suppliers, and the Non-Federal Sponsor’s employees. Failure to provide
such documentation in a timely manner may result in denial of credit. The amount of
credit afforded for in-kind contributions shall not exceed the Non-Federal Sponsor’s
share of study costs less the amount of funds provided pursuant to paragraph B.1. of
this Article.

2. No credit shall be afforded for interest charges, or any adjustment to
reflect changes in price levels between the time the in-kind contributions are completed
and credit is afforded; for the value of in-kind contributions obtained at no cost to the
Non-Federal Sponsor; for any items provided or performed prior to completion of the
PMP; or for costs that exceed the Government’s estimate of the cost for such item if it
had been performed by the Government.

D. To the extent practicable and in accordance with Federal laws, regulations,
and policies, the Government shall afford the Non-Federal Sponsor the opportunity to
review and comment on contract solicitations prior to the Government’s issuance of
such solicitations; proposed contract modifications, including change orders; and
contract claims prior to resolution thereof. Ultimately, the contents of solicitations,
award of contracts, execution of contract modifications, and resolution of contract claims
shall be exclusively within the control of the Government.

E. The Non-Federal Sponsor shall not use Federal program funds to meet any of
its obligations under this Agreement unless the funds are not expressly prohibited from
such use and the Federal agency providing the funds verifies in writing that the funds
are otherwise eligible to be used for the Study. Federal program funds are those funds
provided by a Federal agency, plus any non-Federal contribution required as a
matching share therefore.

F. Except as provided in paragraph C. of this Article, the Non-Federal Sponsor
shall not be entitled to any credit or reimbursement for costs it incurs in performing its
responsibilities under this Agreement.

G. If Independent External Peer Review (IEPR) is required for the Study, the
Government shall conduct such review in accordance with Federal laws, regulations, and
policies. The Government’s costs for an IEPR panel shall not be included in study costs or
the maximum study cost.

H. In addition to the ongoing, regular discussions between the parties regarding
Study delivery, the Government and the Non-Federal Sponsor may establish a Study
Coordination Team to discuss significant issues or actions. The Government’s costs for
participation on the Study Coordination Team shall not be included in study costs, but
shall be included in calculating the maximum study cost. The Non-Federal Sponsor’s
costs for participation on the Study Coordination Team shall not be included in study
costs and shall be paid solely by the Non-Federal Sponsor without reimbursement or
credit by the Government.

ARTICLE III - PROVISION OF NON-FEDERAL COST SHARE

A. As of the effective date of this Agreement, study costs are projected to be
$3,000,000, with the Government’s share of such costs projected to be $1,500,000 and

the Non-Federal Sponsor’s share of such costs projected to be $1,500,000, which
includes creditable in-kind contributions projected to be $0, and the amount of funds
required to meet its cost share projected to be $1,500,000. These amounts are
estimates only that are subject to adjustment by the Government and are not to be
construed as the total financial responsibilities of the Government and the Non-Federal
Sponsor.

B. The Government shall provide the Non-Federal Sponsor with monthly reports
setting forth the estimated study costs and the Government’s and Non-Federal
Sponsor’s estimated shares of such costs; costs incurred by the Government, using
both Federal and Non-Federal Sponsor funds, to date; the amount of funds provided by
the Non-Federal Sponsor to date; the estimated amount of any creditable in-kind
contributions; and the estimated remaining cost of the Study.

C. The Non-Federal Sponsor shall provide to the Government required funds by
delivering a check payable to “FAO, USAED, Los Angeles District, L1,” to the District
Commander, or verifying to the satisfaction of the Government that the Non-Federal
Sponsor has deposited such required funds in an escrow or other account acceptable to
the Government, with interest accruing to the Non-Federal Sponsor, or by providing an
Electronic Funds Transfer of such required funds in accordance with procedures
established by the Government.

D. The Government shall draw from the funds provided by the Non-Federal
Sponsor to cover the non-Federal share of study costs as those costs are incurred. If
the Government determines at any time that additional funds are needed from the Non-
Federal Sponsor to cover the Non-Federal Sponsor’s required share of study costs, the
Government shall provide the Non-Federal Sponsor with written notice of the amount of
additional funds required. Within 60 calendar days of such notice, the Non-Federal
Sponsor shall provide the Government with the full amount of such additional funds.

E. Upon completion of the Study and resolution of all relevant claims and
appeals, the Government shall conduct a final accounting and furnish the Non-Federal
Sponsor with the written results of such final accounting. Should the final accounting
determine that additional funds are required from the Non-Federal Sponsor, the Non-
Federal Sponsor, within 60 calendar days of written notice from the Government, shall
provide the Government with the full amount of such additional funds by delivering a
check payable to “FAO, USAED, Los Angeles District, L1, to the District Commander, or
by providing an Electronic Funds Transfer of such required funds in accordance with
procedures established by the Government. Should the final accounting determine that
the Non-Federal Sponsor has provided funds in excess of its required amount, the
Government shall refund the excess amount, subject to the availability of funds. Such
final accounting does not limit the Non-Federal Sponsor's responsibility to pay its share
of study costs, including contract claims or any other liability that may become known
after the final accounting.

ARTICLE IV - TERMINATION OR SUSPENSION

A. Upon 30 calendar days written notice to the other party, either party may elect
at any time, without penalty, to suspend or terminate future performance of the Study.
Furthermore, unless an extension is approved by the Assistant Secretary of the Army
(Civil Works), the Study may be terminated if a Report of the Chief of Engineers, or, if
applicable, a Report of the Director of Civil Works, is not signed for the Study within 4
years after the effective date of this Agreement or the completion of a Federal interest
determination under Section 905(b) of WRDA 1986, as amended (33 U.S.C. 2282(b)), if
applicable, whichever is later.

B. In the event of termination, the parties shall conclude their activities relating to
the Study. To provide for this eventuality, the Government may reserve a percentage of
available funds as a contingency to pay the costs of termination, including any costs of
resolution of contract claims, and resolution of contract modifications.

C. Any suspension or termination shall not relieve the parties of liability for any
obligation incurred. Any delinquent payment owed by the Non-Federal Sponsor
pursuant to this Agreement shall be charged interest at a rate, to be determined by the
Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate
of the 13 week Treasury bills auctioned immediately prior to the date on which such
payment became delinquent, or auctioned immediately prior to the beginning of each
additional 3 month period if the period of delinquency exceeds 3 months.

ARTICLE V - DISPUTE RESOLUTION

As a condition precedent to a party bringing any suit for breach of this
Agreement, that party must first notify the other party in writing of the nature of the
purported breach and seek in good faith to resolve the dispute through negotiation. If
the parties cannot resolve the dispute through negotiation, they may agree to a mutually
acceptable method of non-binding alternative dispute resolution with a qualified third
party acceptable to the parties. Each party shall pay an equal share of any costs for the
services provided by such a third party as such costs are incurred. The existence of a
dispute shall not excuse the parties from performance pursuant to this Agreement.

ARTICLE VI - MAINTENANCE OF RECORDS AND AUDIT

A. The parties shall develop procedures for the maintenance by the Non-Federal
Sponsor of books, records, documents, or other evidence pertaining to costs and
expenses for a minimum of three years after the final accounting. The Non-Federal
Sponsor shall assure that such materials are reasonably available for examination,
audit, or reproduction by the Government.

B. The Government may conduct, or arrange for the conduct of, audits of the
Study. Government audits shall be conducted in accordance with applicable
Government cost principles and regulations. The Government’s costs of audits for the
Study shall not be included in study costs, but shall be included in calculating the
maximum study cost.

C. To the extent permitted under applicable Federal laws and regulations, the
Government shall allow the Non-Federal Sponsor to inspect books, records,
documents, or other evidence pertaining to costs and expenses maintained by the
Government, or at the Non-Federal Sponsor’s request, provide to the Non-Federal
Sponsor or independent auditors any such information necessary to enable an audit of
the Non-Federal Sponsor’s activities under this Agreement. The Non-Federal Sponsor
shall pay the costs of non-Federal audits without reimbursement or credit by the
Government.

ARTICLE VII - RELATIONSHIP OF PARTIES

In the exercise of their respective rights and obligations under this Agreement,
the Government and the Non-Federal Sponsor each act in an independent capacity,
and neither is to be considered the officer, agent, or employee of the other. Neither
party shall provide, without the consent of the other party, any contractor with a release
that waives or purports to waive any rights a party may have to seek relief or redress
against that contractor.

ARTICLE VIII - NOTICES

A. Any notice, request, demand, or other communication required or permitted to
be given under this Agreement shall be deemed to have been duly given if in writing
and delivered personally or mailed by registered or certified mail, with return receipt, as
follows:

If to the Non-Federal Sponsor:
Chief Engineer and General Manager, Flood Control District of Maricopa
County 2801 W. Durango St.
Phoenix, Arizona 85009

If to the Government:
District Commander
U.S. Army Corps of Engineers, Los Angeles District
Los Angeles, CA 90007

B. A party may change the recipient or address to which such communications
are to be directed by giving written notice to the other party in the manner provided in
this Article.

ARTICLE IX - CONFIDENTIALITY

To the extent permitted by the laws governing each party, the parties agree to
maintain the confidentiality of exchanged information when requested to do so by the
providing party.

ARTICLE X - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES

Nothing in this Agreement is intended, nor may be construed, to create any
rights, confer any benefits, or relieve any liability, of any kind whatsoever in any third
person not a party to this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which
shall become effective upon the date it is signed by the District Commander.

DEPARTMENT OF THE ARMY
Flood Control District of Maricopa County

BY: __________________________

BY: __________________________
Andrew J. Baker

Paul Baughman

Colonel, U.S. Army

Chief Engineer and General Manager
District Commander

DATE: _________________________ DATE: ____________________

FCD 2026A010

Page 9

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State of Arizona

Recommended by:

Paul Baughman, P.E., CFM
Date
Chief Engineer & General Manager

Approved and Accepted:

By:

Chair, Board of Directors Date

Attest:

By:

Clerk of the Board Date

The foregoing Agreement FCD-2026A010 has been reviewed pursuant to Arizona Revised
Statutes § 11-952, as amended, by the undersigned General Counsel, who has determined that it is
in proper form and within the powers and authority granted to the Flood Control District of
Maricopa County under the laws of the State of Arizona

Flood Control District General Counsel Date