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AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
FOR THE
CAVE BUTTES DAM, ARIZONA FEASIBILITY STUDY
THIS AGREEMENT is entered into this ___ day of ______________, ____, by and
between the Department of the Army (hereinafter the “Government”), represented by the District
Commander for 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 Manger.
WITNESSETH, THAT:
WHEREAS, the Water Resources Development Act (WRDA) of 2018, Section 1201(1),
authorizes the Secretary to conduct a feasibility study for flood risk management at Cave Buttes
Dam, Arizona ;
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.
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 seepage-related potential failure modes identified at
Cave Buttes Dam at Maricopa County, AZ.
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
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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; 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 Federal study cost” means the $1,500,000 Federal cost limit for
the Study, 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, 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
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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 day 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 Federal agency providing the funds verifies in
writing that the funds are authorized 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 therefor.
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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 Federal
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 Federal 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
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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 3 years after the effective date of this
Agreement.
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
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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 Federal 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
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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
BY: __________________________
Andrew Baker
Colonel, U.S. Army
District Commander
DATE: _________________________
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
Recommended by:
Chief Engineer & General Manager: _______________________________________
Date
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Approved and Accepted by:
Chairman, Board of Directors: __________________________________
Date
Attest by:
Clerk of the Board: ___________________________________________
Date
The foregoing Certification has been reviewed pursuant to A.R.S. Section 11952, 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
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Attachment
A-1
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