HomeMy WebLinkAbout2024-083AGREEMENT BETWEEN
INDIAN RIVER COUNTY, FLORIDA
AND
SAMUEL F. GAGLIANO
FOR
SAM'S HOBBY BARN
FOR THE CONSTRUCTION OF OFF-SITE UTILITIES
THIS AGREEMENT ("Agreement") by and between INDIAN RIVER COUNTY, a political
subdivision of the State of Florida, the address of which is 180127th Street, Vero Beach, Florida
32960 (hereinafter the "COUNTY") and SAMUEL F. GAGLIANO, as Trustee of the Samuel F.
Gagliano Trust dated the 17th day of March, 2021, whose mailing address is 242 Oak Hammock
Circle, Vero Beach, FL 32962 (hereinafter the "DEVELOPER") is effective upon execution by the two
parties ("Effective Date")
WHEREAS, the DEVELOPER, in conjunction with the construction of improvements at Sam's
Hobby Barn, is constructing sewer force main facilities to the subject property located at 980 Old
Dixie Highway SW, whose legal description is attached as Exhibit "A" (the "Subject Property"); and
WHEREAS, pursuant to Section 918.05, the Code of Indian River County (the "Code"), the
COUNTY, requires the DEVELOPER to provide the utility improvements to connect to the regional
water main and force main. The COUNTY, pursuant to Section 201.11, of the Code, agrees to
reimburse the DEVELOPER, as provided herein, for the cost of oversizing off-site utilities,
NOW, THEREFORE, for and in consideration of the mutual promises set forth herein and other
good and valuable consideration, the COUNTY and DEVELOPER agree as follows:
1. Off -Site Utilities:
The DEVELOPER shall construct the necessary off-site utilities described herein as directed by
the Indian River County Utilities Department ("IRCDUS"). The COUNTY shall reimburse the
DEVELOPER for installing off-site utilities as outlined below:
The COUNTY shall reimburse the DEVELOPER for oversizing the installation of a sewer force
main from 4 -inch diameter to 8 -inch diameter along the east side of Old Dixie Highway SW from
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the termination of the existing 8 -inch diameter sewer force main to the south property line of
the Subject Property, a distance of approximately 240 linear feet.
2. Reimbursement:
The COUNTY shall reimburse the DEVELOPER pursuant to the provisions of Section 201.11, of
the Code, for funds advanced by DEVELOPER to oversize the off-site sewerforce main. COUNTY
shall reimburse DEVELOPER in accordance with Exhibit "B" for oversizing and extending the off-
site sewer force main. The actual reimbursement amounts shall be based on Exhibit "B" but in
no event shall the County cost share exceed $6,730.80.
Within 30 calendar days of acceptance of the bill of sale for the sewer main and submittal of
the necessary maintenance security, COUNTY shall reimburse DEVELOPER its share of the cost
of the sewer main, as set forth in Exhibit "B".
3. Amendment:
This Agreement may be modified only by a written instrument executed by all parties to the
Agreement.
4. Assignability:
Either party may assign this Agreement so long as the assignment bears acknowledgment of the
assignee and the other party. However, the rights granted herein shall run with the land and
are not the personal property of the DEVELOPER. Therefore, while the DEVELOPER has the
right under this Agreement to freely transfer the rights and obligations granted by this
Agreement, the DEVELOPER, nor any assignee, shall have the right to transfer these rights to
another property unless this Agreement is amended in writing.
5. Authority:
Each party hereto represents and warrants to the other that the execution of this Agreement
and any other documents required or necessary to be executed pursuant to the provisions
hereof are valid, binding obligations and are enforceable in accordance with their terms.
6. Captions:
Captions, if included, in this Agreement are included for convenience only and are not to be
considered in any construction or interpretation of this Agreement or any of its provisions.
7. Construction Plans, Technical Specifications and Contract Documents:
The DEVELOPER agrees to complete a final set of construction drawings and make submission
for a Utilities Construction Permit (UCP) to IRCDUS, to Indian River County Public Works for a
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Right -of -Way permit (ROW), which includes, but is not limited to meeting all security
requirements of section 312.11 of the Code, to the Florida Department of Environmental
Protection (FDEP) for a general permit, and for all other necessary permits. The DEVELOPER
shall not commence construction until all permits are approved and obtained.
8. Definition:
All pronouns shall be deemed to refer to the masculine, feminine, or neuter, singular or plural,
as the identity of the party or parties may require.
9. DEVELOPER'S Obligations:
The design, preparation of contract documents, permitting, and construction of the sewer main
shall be the DEVELOPER's responsibility and expense until such time the necessary testing,
acceptance of the FDEP Certification of Completion, and acceptance of the sewer main
dedication to IRCDUS per IRCDUS's Water & Wastewater Utility Standards, May 2019 or latest
edition, has been completed and a 1 -year warranty is in place.
10. Entire Agreement:
This Agreement embodies the entire agreement between the parties relative to the subject
matter hereof, and there are no oral or written agreements between the parties, nor any
representations made by either party relative to the subject matter hereof, which are not
expressly set forth herein.
11. Governing Law & Jurisdiction:
This Agreement shall be governed by the laws of the State of Florida and the laws of the United
States pertaining to transactions in such state, and all actions arising out of this Agreement
shall be brought in Indian River County, Florida, or, in the event of federal jurisdiction, the
United States District Court for the Southern District of Florida. All of the parties to this
Agreement have participated freely in the negotiation and preparation hereof. Accordingly, this
Agreement shall not be more strictly construed against any one of the parties hereto.
12. Insurance and Indemnification:
The DEVELOPER shall ensure that, at least ten (10) days prior to the commencement of any
work, the selected contractor and any subcontractor provides to the COUNTY a certificate of
commercial general liability insurance with a reputable insurance company subject to approval
by the COUNTY's risk manager in an amount not less than $3,000,000 combined single limit for
bodily injury and property damage in accordance with the COUNTY'S Administrative Policy
Manual. The DEVELOPER shall ensure that, at least ten (10) business days prior to the
commencement of any work the selected contractor and any subcontractor provides to the
COUNTY a certificate of business auto liability insurance with a reputable insurance company
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subject to approval by the COUNTY'S risk manager in an amount not less than $3,000,000 per
occurrence combined single limit for bodily injury and property damage in accordance with the
COUNTY'S Administrative Policy Manual. The commercial general liability and auto liability
insurance policies shall name Indian River County, a political subdivision of the State of Florida,
as an additional insured. In addition, the DEVELOPER shall ensure that, at least ten (10)
business days prior to the commencement of any work the selected contractor and any
subcontractor provides to the COUNTY a certificate of statutory workers' compensation
insurance and employers' liability with a limit of $100,000 for each accident, $500,000 disease
(policy limit) and $100,000 disease (each employee) in accordance with the COUNTY'S
Administrative Policy Manual. The DEVELOPER shall provide to the COUNTY at least thirty (30)
days' written notice by registered mail, return receipt requested, addressed to the COUNTY'S
risk manager, prior to cancellation or modification of any required insurance.
The DEVELOPER hereby releases and holds harmless the COUNTY, and the COUNTY'S officers,
employees and agents (collectively the "Indemnitees"), and each of them from and against any
loss, costs, damages, claims, third party claims, expenses (including attorneys' fees) or liabilities
(collectively referred to as "Liabilities") by reason of any injury to or death of any person or
destruction or loss of any property arising out of, resulting from, be occasioned by, or in
connection with the performance or nonperformance of any work contemplated by this
Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any
act, default, negligence, or omission of any representative, agent, client, and/or employee of
DEVELOPER, and DEVELOPER shall indemnify the COUNTY against any such claims and any
judgments that may be entered in connection therewith, including attorney fees.
DEVELOPER shall indemnify the COUNTY against any claim for damage that any utility, whether
publicly or privately owned, may sustain or receive in connection with any work contemplated
by this agreement. DEVELOPER shall not make any claim of any kind or character whatsoever
against the COUNTY for damages that it may suffer by reason of the installation, construction,
reconstruction, operation, and/or maintenance of any public improvement, or utility, whether
presently in place or which may in the future be constructed or installed, including but not
limited to, any water and/or sanitary sewer mains and/or storm sewer facilities, and whether
such damage is due to flooding, infiltration, backflow, and/or seepage caused from the failure
of any installation, natural causes, or from any other cause of whatsoever kind or nature. It is
the intention of this indemnification agreement on the part of DEVELOPER, and a condition of
this Agreement, that it shall be full and total indemnity against any kind or character of claim
whatsoever that may be asserted against the COUNTY. DEVELOPER hereby agrees to defend
any and all suits, claims, and causes of action brought against the COUNTY arising out of or in
connection with any work contemplated by this agreement, and DEVELOPER agrees to pay any
judgment or judgments, including attorney fees, that may be rendered against the COUNTY or
against the COUNTY'S officers, employees or agents in connection therewith.
12a. Indemnification Savings Clause:
In the event any of the foregoing indemnification clauses under Section 12 is found to be
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unenforceable, it is understood the DEVELOPER shall instead indemnify and hold harmless the
COUNTY, its officers, employees and agents, from liabilities, damages, losses and costs,
including, but not limited to, reasonable attorney's fees, to the extent caused by the
negligence, recklessness, or intentional wrongful misconduct of the DEVELOPER and persons
employed or utilized by the DEVELOPER in the performance of this Agreement.
13. Maintenance Security:
The DEVELOPER agrees to convey all right, title and interest in the aforementioned utility
improvements to Indian River County, Florida, and provide security as set forth herein, subject
to the COUNTY'S approval, for a period of one (1) year after the COUNTY'S acceptance of the
improvements, plus an additional three (3) months, for an aggregate of fifteen (15) months.
The maintenance security may only be in one of the following forms: (a) cash, whereupon the
COUNTY and the Developer shall enter into the COUNTY'S standard Cash Escrow Deposit
Agreement; (b) Letter of Credit, in the County's standard form, drawn and payable by a
financial institution located within Florida; or (c) surety bond issued by a surety company
licensed to do business in the State of Florida and having an A.M. Best rating of no less than A -
VI. The value of the maintenance security shall be twenty-five percent (25%) of the total
construction value of the utility improvements as certified bythe Developer's licensed engineer
and approved in writing by the County.
14. Multiple Counterparts:
This Agreement may be executed in a number of identical counterparts which, taken together,
shall constitute collectively one (1) Agreement; but in making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart executed by the
party to be charged.
15. Permits:
The DEVELOPER shall be responsible for obtaining all construction and operating permits
required for the construction, delivery, use and monitoring of the water distributed to and
wastewater collected from the Subject Property. If, through no fault of the parties involved, any
federal, state or local government or agency (excluding the COUNTY) fails to issue necessary
permits, or fails to grant necessary approvals, or requires a material change in the system, then
to the extent necessary and if possible, the parties agree to negotiate an amendment to the
Agreement to reflect the change in condition. If the COUNTY determines that it is impossible or
impracticable to perform under the terms of this Agreement because of the above, then
COUNTY shall have the right to terminate this Agreement, and the parties shall have no further
obligations to each other.
The DEVELOPER shall comply with reasonable requests by the COUNTY concerning on-site
operations and maintenance prior to County acceptance including but not limited to all FDEP
regulations relating to bacteriological and hydrostatic testing, cross connection control,
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monitoring, color -coding of water and wastewater equipment. DEVELOPER shall meet all
necessary IRCDUS construction requirements, including the posting of the required security.
16. Recording of Agreement:
This Agreement, and any assignment, may be recorded in the official records of Indian River
County by the COUNTY. If recorded, the DEVELOPER shall pay for all recording costs.
17. Severability / Invalid Provision:
If any provision of the Agreement is held to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by such illegal, invalid, or unenforceable provision or by its severance
from this Agreement.
18. Term:
The term of this Agreement is five (5) years. Unless otherwise agreed to by the parties in
writing, this Agreement shall not be renewed automatically for successive terms.
Notwithstanding the foregoing, this Agreement shall be coterminous with FDEP Permit for
construction and with the County's Utility Construction Permit, whichever provides a shorter
time period, but shall be not more than five (5) years from the date of issuance. The County
may terminate this Agreement early in its sole discretion if it determines that the development
project intended to be served by the improvements is suspended or discontinued.
19. Time of Essence:
Time is of the essence of this Agreement; however, if the final date of any period which is set
out in any provision of this Agreement falls on a Saturday, Sunday or legal holiday under the
laws of the State of Florida, then, in such event, the time of such period shall be extended to
the next business day which is not a Saturday, Sunday or legal holiday.
20. Release:
DEVELOPER, on behalf of itself and its successors, and assigns, hereby releases, acquits, and
forever discharges COUNTY and its respective present and former elected officials, employees,
agents, representatives, and insurers, from all claims, causes of action, demands, debts,
liabilities, and obligations, of every name and nature, known or unknown, asserted or
unasserted, accrued or unaccrued, both at law or in equity, from the beginning of time to the
Effective Date.
Page 6
IN WITNESS WHEREOF, the COUNTY and the DEVELOPER have accepted, made, and executed
this Agreement as follows:
ATTEST: Ryan L. Butler, Clerk of the Circuit
Court and Comptroller
Deputy Clerk
Approved:
John A. Titkanich, Jr.
County Administrator
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BOARD OF COUNTY COMMISSIONERS ...
INDIAN RIVER COUNTY, FLORIDA
By:
Susali Adams, Chairman
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BCC Approved Date: April 9, 2024
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Approved as to form and legal suffi iency:
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K. Keith Jackman
Assistant County Attorney
IN WITNESS WHEREOF, the COUNTY and the DEVELOPER have accepted, made, and
executed this Agreement as follows:
Signed, sealed and delivered
in the presence of:
Signature: Nkxwhn —
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Signature:
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STATE OF FLORIDA
COUNTY OF INDAIN RIVER
DEVELOPER:
SAMUEL F. GAGLIANO, as Trustee
of the Samuel F. Gagliano Trust
dated the 17th day of March, 2021
By:.
Samuel F. Gagliano, Trustee
The foregoing instrument was acknowledged before me, by means of Vp"hysical
presence or ❑ online notarization, this _S_ day of rch, 2024 by Samuel F. Gagliano, as
Trustee of the Samuel F. Gagliano Trust dated the 17th day of March, 2021, who is [personally
known or ❑ produced identification in the form of
NOTARIAL SEAL:
µIANDAGAGNON
MY COMMISSION # HH 184891
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NOTARY PUBLIC
Printed Name: 18dil�
Commission No.: _*)A-
Commission expiration:
Page 8
EXHIBIT "A"
Legal Description
Page 9
Exhibit "A"
THAT PART OF THE NORTH 12 ACRES OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4, LYING
WEST OF THE FLORIDA EAST COAST RAILWAY AND EAST OF OLD DIXIE HIGHWAY, SECTION
30, TOWNSHIP 33 SOUTH, RANGE 40 EAST, INDIAN RIVER COUNTY, FLORIDA, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF THE NORTHWEST 1/4, SECTION 30, THENCE RUN
ALONG THE NORTH LINE OF SAID NORTHWEST 1/4, RUN NORTH 89 DEGREES 45 MINUTES 03
SECONDS EAST, A DISTANCE OF 616.34 FEET TO THE WEST RIGHT OF WAY LINE OF THE
FLORIDA EAST COAST RAILROAD, A 100 FOOT RIGHT OF WAY AND A POINT ON A CURVE
CONCAVE TO THE NORTHEAST, THE RADIUS OF WHICH BEARS NORTH 79 MINUTES, 15
SECONDS 49 SECONDS EAST, A DISTANCE OF 5779.58 FEET; THENCE RUN SOUTHERLY ALONG
THE ARC OF SAID CURVE AND WEST RIGHT OF WAY LINE THROUGH A CENTRAL ANGLE OF 00
DEGREES 24 MINUTES 48 SECONDS, AN ARC DISTANCE OF 41.70 FEET TO THE SOUTH RIGHT OF
WAY LINE OF OSLO ROAD PER O.R. BOOK 122, AT PAGE 378 OF THE PUBLIC RECORDS OF
INDIAN RIVER COUNTY, FLORIDA, THENCE CONTINUE ALONG SAID CURVE AND WEST RIGHT
OF WAY LINE THROUGH A CENTRAL ANGLE OF 03 DEGREES 34 MINUTES 35 SECONDS, AN ARC
OF 360.76 FEET TO POINT OF BEGINNING, THENCE CONTINUE SOUTHERLY ALONG SAID WEST
RIGHT OF WAY LINE THROUGH A CENTRAL ANGLE OF 02 DEGREES 47 MINUTES 22 SECONDS,
AN ARC DISTANCE OF 281.38 FEET, THENCE LEAVING SAID WEST RIGHT OF WAY LINE, RUN
SOUTH 89 DEGREES 42 MINUTES 39 SECONDS WEST, A DISTANCE OF 249.76 FEET TO HE EAST
RIGHT OF WAY LINE OF OLD DIXIE HIGHWAY, A VARIABLE WIDTH RIGHT OF WAY, AS IT NOW
EXISTS; THENCE RUN NORTH 16 DEGREES 26 MINUTES 17 SECONDS WEST ALONG SAID EAST
RIGHT OF WAY LINE, A DISTANCE OF 217.35 FEET; THENCE RUN NORTH 11 DEGREES 46
MINUTES 06 SECONDS WEST, A DISTANCE OF 20.15 FEET; THENCE LEAVING SAID EAST RIGHT
OF WAY LINE, RUN NORTH 79 DEGREES 38 MINUTES 38 SECONDS EAST, A DISTANCE OF 241.18
FEET TO THE POINT OF BEGINNING.
ALSO BEING DESCRIBED AS:
THE NORTH 12 ACRES OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4, LYING WEST OF THE
FLORIDA EAST COAST RAILWAY AND EAST OF OLD DIXIE HIGHWAY, SECTION 30, TOWNSHIP
33 SOUTH, RANGE 40 EAST, INDIAN RIVER COUNTY, FLORIDA; LESS AND EXCEPT LAND
CONVEYED FOR RIGHT OF WAY TO INDIAN RIVER COUNTY IN O.R. BOOK 980, PAGE 1042; AND
LESS AND EXCEPT LAND CONVEYED FOR RIGHT OF WAY TO INDIAN RIVER COUNTY IN DEED
RECORDED IN O.R. BOOK 2944, PAGE 138; AND LESS AND EXCEPT PORTION OF LAND
CONVEYED TO HANLEX OSLO, LLC IN DEED RECORDED IN O.R. BOOK 2947, PAGE 1881.
SUBJECT TO EASEMENTS CONTAINED IN DECLARATION OF COVENANT FOR PUBLIC -CROSS
ACCESS AND UTILITIES EASEMENT AND RECIPROCAL EASEMENT WITH COVENANTS AND
RESTRICTIONS RECORDED IN O.R. BOOK 2947, PAGE 1869.
Less and Except the Following
LEGAL DESCRIPTION:
A PORTION OF THE NORTH 12 ACRES OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4, LYING WEST OF THE
FLORIDA EAST COAST RAILWAY AND EAST OF OLD DIXIE HIGHWAY, SECTION 30, TOWNSHIP 33 SOUTH,
RANGE 40 EAST, INDIAN RIVER COUNTY, FLORIDA. MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHWEST CORNER OF SAID NORTHWEST 1/4, SECTION 30; THENCE N89°45'03"E
ALONG THE NORTH LINE OF SAID NORTHWEST 1/4, A DISTANCE OF 616.34 FEET TO THE WEST RIGHT OF
WAY LINE OF THE FLORIDA EAST COAST RAILROAD, (A 100 FOOT RIGHT OF WAY) ALSO BEING A POINT ON A
NON -TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIAL BEARING OF N79°15'49"E, A
RADIUS OF 5779.58 FEET AND A CENTRAL ANGLE OF 00°24'48"; THENCE SOUTHERLY ALONG SAID CURVE
AND WEST RIGHT OF WAY LINE AN ARC DISTANCE OF 41.70 FEET TO THE SOUTH RIGHT OF WAY LINE OF
OSLO ROAD PER OFFICIAL RECORDS BOOK 122, PAGE 378 OF THE PUBLIC RECORDS OF INDIAN RIVER
COUNTY, FLORIDA; THENCE CONTINUE SOUTHERLY ALONG SAID CURVE AND WEST RIGHT OF WAY LINE
THROUGH A CENTRAL ANGLE OF 06°21'57" FOR AN ARC DISTANCE OF 642.14 FEET; THENCE S89°4239'W A
DISTANCE OF 243.57 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED PARCEL; THENCE
CONTINUE S89042'39'W A DISTANCE OF 6.19 FEET TO THE EAST RIGHT OF WAY LINE OF OLD DIXIE HIGHWAY,
A VARIABLE WIDTH RIGHT OF WAY, AS IT NOW EXISTS; THENCE N16°26'17"W ALONG SAID EAST RIGHT OF
WAY LINE A DISTANCE OF 217.35 FEET; THENCE N11°46'06"W CONTINUING ALONG SAID EAST RIGHT OF WAY
LINE A DISTANCE OF 20.15 FEET; THENCE DEPARTING SAID RIGHT OF WAY LINE, N79°38'38"E A DISTANCE OF
8.56 FEET TO A POINT ON A NON -TANGENT CURVE CONCAVE TO THE WEST HAVING A RADIUS OF 10,030.00
FEET, A CENTRAL ANGLE OF OF 01.06'11", A CHORD BEARING OF S15°33'56"E, AND A CHORD DISTANCE OF
193.11 FEET; THENCE SOUTHERLY PARALLEL WITH AND 30.00 FEET EAST OF THE SURVEY BASELINE AS
SHOWN ON THE PLAT OF THE REVISED MAINTENANCE MAP OF A PORTION OF OLD DIXIE HIGHWAY
RECORDED IN PLAT BOOK 13, PAGE 45 OF THE PUBLIC RECORDS OF INDIAN RIVER COUNTY, FLORIDA, ALONG
SAID CURVE FOR AN ARC DISTANCE OF 193.11 FEET TO AN NON -TANGENT POINT OF INTERSECTION; THENCE
S14049'58"E CONTINUING PARALLEL AND 30.00 FEET EAST OF SAID SURVEY BASELINE FOR A DISTANCE OF
45.18 FEET TO THE POINT OF BEGINNING. CONTAINING 2016 SQUARE FEET OR 0.05 ACRES, MORE OR
LESS.
EXHIBIT "B"
Construction Cost Share
Page 10
Exhibit "B"
Pam' M BV
ENGINEERING, INC.
MOIA BOWLES VILLA ,bSOCIATES
www.mb"ng.com CA 03728
Project: Sam's Hobby Barn
Description: Opinion of Probable Cost (SS Force Main Cost Differential)
Date: March 22, 2021
Date: Jan. 5, 2024 (Revised)
Project #: 20-0169
4" SANITARY SEWER MAIN EXTENSION
ITEM QUANTI71'1 I NI"I I NIT PRICE
TOTAL
1 4" PVC DR 18 SANITARY SEWER FORCE MAIN 239.6 11 S 12.00
$ 2,875.20
2 4" GATE VALVE 1 ti 1,680.00
$ 1,680.00
Subtotal
$ 4,555.20
8" S.kNI 1"AR1 SEWER MAIN EXTENSION
ITEM I QUANTITY UNIT UNIT PRICE
TOTAL
1 8" PVC DR18 SANITARY SEWER FORCE MAIN 1 239.6 LF $ 35.00 1 $
8,386.00
2 8" GATE VALVE 1 EA $ 2,900.00 1 $
2,900.00
Subtotal S
11286.00
Total Cost Differntial to upsize to 8" PVC1 $ 6,730.801
Total Cost to be shared by Countyl S 6,730.801