2025-05-12 - PC 1387 -APPLICANT-SIGNED-AGREEMENT.PDF

NON-EXCLUSIVE FRANCHISE FOR Liberty Utilities (Litchfield Park Water & Sewer) Corp.
Section 1
— Grant of Franchise
1.1
The County of Maricopa, Arizona (“County”) hereby grants to Liberty Utilities
(Litchfield Park Water & Sewer) Corp., a public service corporation organized under the laws of the
State of Arizona and authorized to conduct business
in the State of Arizona (herein called
“Franchisee”), its successors and assigns, this public utility franchise (hereinafter “Franchise”) for
the purpose of constructing, operating and maintaining a Water & Wastewater system and related
appurtenances along, under and across public streets, alleys, and highways, and other rights of way,
except federal and state highways, under the terms and conditions set forth herein and as the Board
of Supervisors may provide, not inconsistent with the laws of the State of Arizona, within the
unincorporated areas of Maricopa County, Arizona as described in the Application (hereinafter
“Franchise Area”) and attached hereto as Exhibit A. These public Rights-of-Way include, but are not
limited to, public streets, roads, alleys, ways bridges, and highways, except federal and state
highways
within
the
unincorporated areas
of Maricopa
County (“Public
Rights-of-Way”).
Franchisee’s water system
includes water
lines,
together with
all necessary or desirable
appurtenances, “Franchisee Facilities”).
Section 2
— Term
2.1
The Effective Date of this Franchise shall be
_‘ 4rc4 iq, -Dc5
. This Franchise shall
continue and remain in full force and effect for a period of twenty-five (25) years from the Effective
Date,
unless terminated earlier by written agreement of the parties, or pursuant to Sections 13 or 14
herein.
Section 3— County Rights
3.1
The rights of County in and to the use of public rights-of-way shall be forever paramount
and superior to Franchisee’s rights under the Franchise.
3.2
The County reserves the right to impose future restrictions and limitations upon the
exercise of the rights granted herein as it deems best for public safety and welfare. Franchisee
is further required to comply with all lawful applicable ordinances of Maricopa County regulating
conduct or work within the Public Rights-of-Way, as such ordinances are now enacted or may
be amended or adopted from time to time.
Section 4— Construction
4.1
Franchisee, its agents, employees, or contractors, shall perform all construction under this
Franchise in accordance with established industry standards and in the manner prescribed by
County and subject to the supervision of County, in strict compliance with all laws, ordinances,
rules, and regulations of federal, state, and local governments.
4.2
Before beginning any construction for installation of Franchisee’s Facilities, Franchisee
shall submit a plan of proposed construction to the Maricopa County Engineer and shall not
commence.
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any construction until the plan of construction is approved by the County Engineer or her/his
designee.
4.3
No construction, reconstruction, repair, or relocation under this Franchise shall be
commenced until written permits have been obtained from proper County officials. In any permit
so issued, such officials may impose such conditions and regulations as a condition of the granting
of the same as are necessary for the purpose of protecting any structures, highways, streets, or
rights of way and for the proper restoration of such structures, highways, streets, or rights of way,
for the protection of the public and the continuity of pedestrian and vehicular traffic.
4.4
If Franchisee has received the required maintenance and emergency permits from County,
Franchisee shall have the right to undertake without delay such emergency activities necessary
to provide for and maintain the reliability and safety of its Facilities. If such action is required,
Franchisee shall advise County of the work performed to maintain its system and apply for a permit
within 24 hours of commencing such emergency activities.
4.5
County shall, have the right to inspect the construction, operation, and maintenance of
Franchisee’s Facilities to ensure the proper performance of the terms of the Franchise granted
herein.
4.6
Upon reasonable notice by County of the proposed paving of a Public Right-of-Way,
Franchisee shall review the County’s proposed paving plan and, if warranted in the Franchisee’s
judgment, extend, or replace, at its sole cost, its Facilities to reasonably avoid the need to
subsequently cut the paved Public Right-of-Way. Any action to extend or replace by Franchisee,
its agents, employees, or contractors shall be performed in a manner and time not to interfere or
delay County’s project. Any delay or interference causing additional construction costs or fees to
County’s project, shall be the liability of Franchisee and shall be reimbursed by Franchisee within
30 days of receipt of invoice from County.
4.7
Construction of Franchisee’s Facilities relating to traffic control, backfilling, compaction,
and paving, as well as the location or relocation of Franchisee’s Facilities pursuant to this
Franchise Agreement shall be subject to regulation by the applicable provisions included within
required right-of-way permits, County ordinances state statutes in place at the time of installation,
or as amended. If a provision of an applicable County ordinance is inconsistent with Title 40 of
the Code of Federal Regulations or any other applicable federal or Arizona state law, rule, order,
or regulation, then Title 40 of the Code of Federal Regulations or the other applicable federal, or
Arizona state law, rule, order, or regulation shall govern. Pursuant to A.R.S. § 40-360.30, and any
other applicable law, Franchisee shall maintain installation records of the location of all its
Facilities in the Public Rights-of-Way. Franchisee’s Facilities are defined as critical infrastructure
by the federal government and as such, Records of the location or design of electrical facilities
are proprietary to Franchisee and County shall not release nor make available any records to any
outside party without the express, written permission of Franchisee.
4.8
Franchisee shall not install, construct, maintain, modify, or use its Facilities in a manner
that damages or interferes with any existing facilities of another utility located in the Public Rights
of- Way.
4.9
Franchisee shall provide prior written notice or actual notice to the owners or residents of
adjoining property of any activity of Franchisee which may temporarily interfere with access to or
use of said adjoining property. If an emergency precludes the provision of prior notice, Franchisee
shall use its best efforts to provide timely actual notice to the owners or residents of the
adjoining property.
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4.10
During construction or excavation in the Public Rights-of-Way, Franchisee shall provide
proper drainage so that the Public Rights-of-Way shall be free from standing surface water and
properly and adequately drained so as not to cause flood or erosion damage to the facilities of the
County or surrounding property.
4.11
Upon request, Franchisee shall provide the County with its known proposed capital plan
and reasonably foreseeable future corridor plans for all improvements in the County’s planning
area.
4.12
If County undertakes, either directly or through a contractor, a construction project adjacent
to Franchisee’s facilities operated pursuant to this Franchise, the County may notify Franchisee
of such construction project. If notified, Franchisee shall take steps Franchisee determines to be
reasonably necessary to maintain the safety of Franchisee’s Facilities throughout the construction
project. Any steps taken by Franchisee under this subsection shall be at Franchisee’s sole cost
and shall not interfere or delay with County’s construction project or with other authorized users
of the area. County shall not be responsible for any damage to Franchisee’s Facilities that may
result from County’s construction project, except for damages caused
by County’s gross
negligence or willful misconduct.
Section 5— Restoration of Public Rights-of-Way, public place, or other public facility
5.1
If, in exercising all rights granted under this Franchise, Franchisee, its agents, employees
or contractors, damages, alters, disturbs, or destroys the surface and/or subsurface of any (i)
Public
Right-of-Way,
(ii) adjoining
public
property,
(iii) public facility and/or
(iv)
public
improvements located in Public Right-of Way or adjoining public property, the same shall be
promptly repaired, reconstructed, replaced, or restored by Franchisee, at its sole expense
to
County’s satisfaction. Nothing in this Franchise shall be construed as constituting a contractual
obligation on the part of Franchisee that assumes jurisdiction over, or an obligation to maintain,
within any County Right-of-Way such public road, public property, or public improvement.
5.2
In the construction, maintenance, repair and operation of its facilities, Franchisee shall not
alter the direction, surface, grade, or alignment of Public Rights-of-Way. Franchisee shall use all
necessary care to avoid doing or permitting to be done any damage, disturbance, alteration, or
modification to the facilities of the County. If Franchisee shall do or permit to be done any damage,
disturbance, alteration or modification, Franchisee, at its own expense, to the satisfaction of the
County, shall restore the surface or subsurface of the public road or public property or repair or
replace the public improvement as required by construction standards in effect at that time (or
consistent with all County rules, regulations, and ordinances then in effect.) The restoration shall
be initiated promptly and completed expeditiously in recognition of the duty of Franchisee to give
the restoration, repair or replacement of Public Rights-of-Way or county facilities priority over
proceeding with non-emergency activities of Franchisee.
5.3
Franchisee shall use all necessary care to avoid any damage to, or disturbance of, the
landscaping or vegetation in the Public Rights-of-Way. If Franchisee -does or permit to be done,
any such damage or disturbance, Franchisee, at its sole expense, shall restore such landscaping
or vegetation within the rights-of-way to the condition, or as close to such condition, as existed prior
to the damage or disturbance.
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5.4
County shall not and does not by reason of the Franchise assume any liability of the
Franchisee for any purpose or reason whatsoever.
Section 6 — Fees
6.1
Franchisee shall pay all applicable Permit and Inspection fees in effect at the time of the granting
of this Franchise, or as subsequently adopted by the Maricopa County Board of Supervisors.
Section 7
— Relocation of Facilities
7.1
The County has prior right to use the Public Rights-of-Way and County property, including
the surface areas, for all County governmental function projects. Franchisee shall, upon written
request by the County, relocate, without expense to the County, any of Franchisee’s Facilities.
7.2
During the term of the Franchise, if County or any qualified authority having jurisdiction in
the Franchise Area alters, repairs, improves or changes the grade of any public street, alley
highway or right of way, then and in such event, Franchisee, at its own expense, shall, promptly
make such changes in the location, structure or alignment of its Facilities’ liens and related
appurtenances as the County Engineer or the County Engineer’s designee may deem necessary
as a matter of public safety.
7.3
If Franchisee’s facilities conflict or interfere with County use, expanded use, improvement
or abandonment
of a
Public
Right-of-Way,
Franchisee’s facilities
shall
be
relocated,
at
Franchisee’s expense, in accordance with County standards, rules and regulations.
7.4
In the event Franchise shall fail to make changes or corrections as required herein within
one hundred and twenty (120) days after receiving written notice from County of needed changes
or corrections, County shall have the right, but not the obligation, to make, or cause such changes
or corrections to be made at the expense of Franchisee Any expenses incurred for such changes,
corrections or repairs shall be due and payable within thirty days of written demand by County to
Franchisee, Franchisee shall immediately make changes or correction when notified by County
that such corrections or changes are necessary due to an emergency situation.
7.5
County will not exercise its right to require Franchisee’s facilities to be relocated in an
unreasonable or arbitrary manner, or to avoid its obligations under this Franchise.
7.6
All underground abandoned facilities shall continue to remain the property of the
Franchisee, unless the Franchisee specifically acknowledges otherwise to the County Engineer,
and such is accepted by the County. Franchisee shall remove, at Franchisee’s sole cost,
abandoned facilities at the request of County.
7.6.1 Prior to removal of any abandoned facilities, Franchisee must notify County of its
intent to remove abandoned facilities and offer possession of said facilities to County.
7.6.2 Franchisee must identify the location of any known abandoned facilities as they
exist through Blue Staking/AZ81 1.
7.7
County shall not be liable to Franchisee for any costs of relocation, replacement, repair, or
abandonment of Franchisee’s facilities in public Rights-of-Way or lost revenues, sustained by
Franchisee because of damage, modification, or alteration to or destruction of its facilities in the
public Rights-or-Way except in the case of willful or grossly negligent misconduct.
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Section 8
— Indemnification
8.1
County shall not be liable or responsible for any accident or damage resulting from or arising
out of the exercise of any rights granted under this Franchise which are attributed or related to
any act or omission of Franchisee, its agents, employees, or anyone acting under its direction,
control or on its behalf. Franchise shall indemnify, defend and hold harmless Maricopa County,
its officers, departments, employees and agents from and against any and all liability of any nature
whatsoever, and to be responsible for any loss, costs, damages,
suits,
actions,
legal
or
administrative proceedings, claims, demands or any other expenses or damages of any kind or
nature, which may be imposed on the County due to anything related to this Franchise by
Franchisee; provided that such claims, expenses and/or losses are not the result of any willful or
grossly negligent acts of County.
Section 9
— Assignment
9.1
Franchisee shall not assign or transfer any interest without the prior written consent of
County. County shall not unreasonably withhold its consent to a proposed transfer.
Section 10— Franchise; Non-Exclusive; Use
10.1
This Franchise is non-exclusive, and nothing contained herein shall be construed to prevent
County from granting any right, including similar rights or privileges, to any other authorized entity
or exercising any regulatory power which it now has, or which may hereafter be authorized or
permitted by the laws of the State of Arizona.
10.2
All rights hereby granted shall be exercised so as not to interfere or conflict with any
easement, either public or private, of whatsoever nature, which has been acquired in or to the
proper use of said Public Rights-of-Way, or any portion thereof.
Section 11
— Failure to Enforce Franchise
11.1
Franchisee shall not be excused from complying with any of the terms and conditions of
the Franchise by any failure of County, upon any one or more occasions, to insist upon the
Franchisee’s performance or to seek Franchisee’s compliance with any one or more of such
terms or conditions.
Section 12— Notices
12.1
Any notice required or permitted to be given hereunder shall be in writing, unless otherwise
expressly permitted or required, and shall be deemed effective either (i) upon hand delivery to the
person then holding the office shown on the attention line of the address below, or if such office
is vacant or no longer exists, to a person holding a comparable office, or (ii) on the third business
day following its deposit with the United States Postal Service, first class and certified mail, return
receipt requested, postage prepaid, addressed as follows:
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To the County:
MCDOT
ATTN: Utilities Branch Manager
2901 W. Durango St.
Phoenix, AZ 85009
To:
Liberty Utilities (Water & Sewer) Corp.
Attn: Aaron Newell
14920 W Camelback Rd
Litchfield Park, AZ 85340
With a copy to:
Liberty Utilities (Beardsley Water) Corp.
Attn: Regina Wise
14920W Camelback Rd, AZ 85340
Litchfield Park, AZ 85340
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Section 13
— Public Notice
13.1
This Franchise is subject to the provisions of A.R.S. § 40-283 and shall be void upon the
petitioning of the Board of Supervisors, by more than fifty percent of the qualified electors of the
county, to deny the Franchise.
Section 14— Severability
14.1
If any section, paragraph, clause, phrase, term or covenant or any portion of any section,
paragraph, clause, phrase, term or covenant of this Franchise is determined illegal, invalid or
unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory
agency having jurisdiction thereof, such determination shall have no effect on the remaining
portion of such section, paragraph, clause, phrase, term or covenant or the remaining sections,
paragraphs, clauses, phrases, terms or covenants of the Franchise or the validity of this
Franchise as a whole, all of which shall remain in full force and effect for the term of the
Franchise.
Section 15
— Forfeiture
15.1
If Franchisee fails to comply with any of the provisions of this Franchise or defaults in any
of its obligations hereunder, except for causes beyond the reasonable control of Franchisee; and
shall fail within sixty (60) days after written notice from County to commence, and within a
reasonable time and not longer than one hundred and twenty (120) days, complete the correction
of such default or noncompliance, County shall have the right to revoke this Franchise and all
rights of Franchisee hereunder In the event Franchisee makes a general assignment or general
arrangement for the benefit of creditors; or a trustee or receive is appointed to take possession of
substantially all of Franchisee’s Facilities within the Franchise Area or of Franchisee’s interest in
this Franchise, where possession is not restored to Franchisee within thirty (30) days; or
Franchisee’s Facilities within the Franchise Area are subject to an attachment, execution or other
seizure of substantially all of the Franchisee’s Facilities within the Franchise Area or this
Franchise, where such seizure is not discharged within thirty (30) days, County may declare this
Franchise, and any expansion hereto, forfeited and terminated.
15.2
Nothing herein contained shall limit or restrict any other legal rights that County may
possess arising from such violations.
Section 16— Revocation of Franchise
16.1
The Franchise may, after due notice and hearing, be revoked by County for any of the
following reasons:
16.1.1 False or misleading statements in or material omissions from the application for
and the hearing on the granting of the Franchise.
16.1 .2 Any transfer or assignment of the Franchise or control thereof without County’s
written consent
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16.1.3 Failure to comply with any of the material terms and conditions of the Franchise.
16.2
Upon termination, revocation or forfeiture of this Franchise, Franchisee forfeits all rights
granted herein. Within ninety days after the date of termination, revocation or forfeiture,
Franchisee shall apply for and obtain a Right-of-Way permit from Maricopa County to continue
operation of Franchisee’s Facilities. Franchisee shall not be permitted to expand its area of
operation until the terminated, revoked or forfeited Franchise is either renewed, reinstated, or
replaced.
Section 17— Books and Records
17.1
Franchisee shall maintain books and records that identify all of Franchisee’s underground
facilities by type and location within the Franchise Area and shall make such books available to
County upon County’s request, without cost to the County.
Section 18 -- No forced labor
18.1
Grantee warrants and certifies that it does not currently, and agrees for the duration of the
contract that it will not, use:
1.
The forced labor of ethnic Uyghurs in the People’s Republic of China.
2.
Any goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
3.
Any contractors, subcontractors or suppliers that use the forced labor or any
goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
If Franchisee becomes aware during the term of the Agreement that the Franchisee is not
in compliance with this paragraph, the Franchisee shall notify the County within five
business days after becoming aware of the noncompliance. Failure of Franchisee to provide
a written certification that the Franchisee has remedied the noncompliance within one
hundred eighty (180) days after notifying the public entity of its noncompliance, this
Agreement shall terminate unless the Term of this Agreement shall end prior to said one
hundred eighty (180) day period.
Section 19
— Cancelation
19.1
This Franchise Agreement is subject to cancelation pursuant to A.R.S. § 38-511.
[END OF CONTRACT
— Signature Page Follows}
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
Liberty Utilities (Litchfield Park Water & Sewer) Corp.
APPROVED AND ACCEPTED BY:
By:
Name: Moses Thompson
Title: President (AZ/TX)
WITNESS:
By:
-“ 4, c-.1-—_---—
Name:
Matc- tk4,
Title: Mar1
STATE OF ARIZONA
)
)
COUNTY OF MARICOPA
)
On this
_____day
of
,20 ?-
, before me, the undersigned, personally
appeared Mss Thorsri,-
,of ch1
,
and
such
authorized
representative(s) acknowledged that this document was eecuted on behalf of the corporation for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission Will Expire: Ju&i.. 9co
(
LML6U P- ‘i-r-4aLoi_)
VsIn,aPCOvarrubias I
Notary Public
My Comm Expires 0626
Commission No.632108
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MARICOPA COUNTY
Recommended by:
Jesse Gutierrez, P.E.
Date
Transportation Director
Approved and Accepted by:
Chairman
Date
Maricopa County Board of Supervisors
Attest by:
Clerk of the Board
Date
Approval As To Form:
Deputy County Attorney
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5/8/2025
5/9/2025