05/21/2014 Agreement CPA
AMY HEAVILIH•
,
CLERK OF CIRCUIT COURT & COMPTROLLER
MONROE COUNTY;FLORIDA
•
DATE: June 23, 2014
TO: Roman Gastesi
County Administrator
ATTN: Connie Cyr
FROM: Vitia Fernandez, D. .
At the May 21, 2014, Board of County Commissioner's meeting the Board granted approval and
authorized execution of Item N5 Agreement between North Key Largo Utility Corporation and Monroe
County to provide funding for wastewater and water quality projects.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you have any
questions,please feel free to contact my office.
cc: County Attorney (electronic copy)
Finan e (electronic copy)
File
500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663
3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025
88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146
AGREEMENT BETWEEN
NORTH KEY LARGO UTILITY CORPORATION
AND
MONROE COUNTY
nn sr
THIS AGREEMENT, made and entered into this ry� day of May, 2014, by and
between MONROE COUNTY, Florida ("COUNTY"), a political subdivision of the State of
Florida whose address is 1100 Simonton Street, Key West, Florida 33040, and North Key Largo
Utility Corp., ("NKLUC"), a Florida Not For Profit Corporation, whose principal place of
business is 35 Ocean Reef Drive, Suite 220, Key Largo, FL 33037. COUNTY and NKLUC
collectively shall be known as the parties.
WHEREAS,thepartis are committed to water conservation in the Florida Keys;and
WHEREAS, Monroe County is an Area of Critical State Concern which contains
national marine sanctuaries, state and federal parks, and a marine ecosystem that has been
impacted by, among other things, untreated and secondary treatment of wastewater and water
withdrawals to service the increasing potable water needs of residents and visitors; and
WHEREAS, Chapter 99-395, Laws of Florida, requires that onsite sewage treatment and
disposal systems be compliant with regulations requiring Advanced Wastewater Treatment by
July 1, 2010, which deadline was subsequently extended to 2015; and
WHEREAS, the COUNTY, certain municipalities, special districts, and NKLUC have
undertaken to provide central wastewater treatment and have further undertaken to upgrade their
treatment facilities to meet the Advanced Wastewater Treatment standards; and
WHEREAS, various federal, state, and local funding sources have been identified for
appropriation and use to fund projects throughout the Florida Keys to improve wastewater
treatment and protect both the quantity and quality of available water resources; and
WHEREAS, NKLUC has upgraded its wastewater treatment plant and continues to
make wastewater system improvements including facilities for the disposal of highly treated
wastewater effluent for irrigation purposes, and has managed and developed a reverse osmosis
water treatment and distribution system for irrigation purposes, each of which offsets demand on
limited water resources; and
WHEREAS, the COUNTY intends to use of certain funds as a grant to NKLUC
intended to address water quality issues in the Keys for projects it is undertaking that provide a
public benefit and further the public purpose of water conservation and protection; and
WHEREAS,this Agreement sets forth the terms and conditions for such funding.
NOW THEREFORE, in consideration of the mutual covenants and provisions
contained herein, the parties agree as follows: That the parties hereto, for the consideration
hereinafter set forth,mutually agree as follow:
I. The COUNTY agrees to contribute an amount not to exceed Two Million Six
Hundred Thousand Dollars and No Cents ($2,600,000.00) ("Funds.). NKLUC agrees to perform
the capital improvement projects which, taken together, constitute the scope of work set forth in
Exhibit "A", attached hereto and made apart hereof("Work").
2. The COUNTY will provide reimbursement based on the Payment and Deliverable
Schedule which will be provided to the County prior to NKLUC issuing any notice to proceed
for any capital improvement project in the Work. NKLUC shall provide to COUNTY copies of
all designs and contracts for the Work within 15 days of completion. The COUNTY'S
contribution is subject to adequate documentation to support the actual expenditure of the Funds.
The parties acknowledge that the Work is comprised of a number of projects, some of which are
in the preliminary planning and design phase. As such, NKLUC shall submit to the County
updated, detailed project descriptions and cost estimates prior to commencement on that
component of the Work for the purpose of invoicing. In all such cases the nature of the public
purpose project shall remain unchanged. NKLUC shall provide to COUNTY copies of all
designs and contracts for the Work within 15 days of completion. NKLUC shall use its best
efforts to accomplish the Work for less than the not-to-exceed Fund amount. In no event shall
the COUNTY be liable for any contribution hereunder in excess of the Funds. Each party shall
be responsible for payment of its own attorney fees in the drafting, review, or interpretation of
this Agreement or of any amendments to the Agreement.
3. The COUNTY'S performance and obligation to pay under this contract, is
contingent upon an annual appropriation by the Board of County Commissioners (BOCC).
The County's obligation to reimburse NKLUC under this Agreement shall not begin until
October 1, 2014. If the consideration for this Agreement is subject to multi-year funding
allocations, funding for each applicable fiscal year of this Agreement will be subject to BOCC
appropriation. In the event the COUNTY does not approve funding for any subsequent fiscal
year, this Agreement shall terminate upon expenditure of the current finding, notwithstanding
other provisions in this Agreement to the contrary.
4. NKLUC shall submit monthly financial reports to the COUNTY providing a
detailed accounting of all Work completed and expenditures incurred hereunder throughout
the term of this Agreement. The NKLUC shall report and document the amount of Funds
expended per month and document all expenditures to date within the not-to-exceed Funds
limitation. To the extent the cost of a component of the Work is less than the estimated budget
amount, NKLUC shall be entitled to use such excess Funds for the remaining components of the
Work. -To the extent the total cost of the Work exceeds the Funds, NKLUC shall be responsible
for such excess cost.
5. NKLUC shall submit monthly progress reports detailing the status of the Work
to date for each task. The Work shall be open to periodic review and inspection by either
Party. No Work shall be performed beyond the expiration date unless authorized by
amendment of this Agreement to cover succeeding periods.
6. NKLUC will undertake and complete a competitive bidding process for the
engineering design and construction for components of the Work in accordance with its standard
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purchasing policy, unless otherwise required by law.
7. COUNTY'S responsibility shall be to pay the Funds under this Agreement, in a
timely manner, subject to approval by Project Management and the Clerk of Court. NKLUC
understands and agrees that this Agreement does not create any duty or liability on behalf of the
County to pay any money to, or be obligated to, any third party, whether contractually, in tort, or
on any other legal or equitable basis.
8. NKLUC agrees to be responsible for the fulfillment of all elements of the Work
included in any third party contract to accomplish the Work and agrees to be responsible to the
contractors and subcontractors for the payment of all monies due under any contract(s) and
subcontract(s) to accomplish the Work. It is understood and agreed by NKLUC and COUNTY
that COUNTY shall not be liable to any contractor or subcontractor for any expenses or
liabilities incurred under the contract(s) or subcontract(s) entered into with NKLUC.
9. NKLUC, to the extent permitted by law, assumes any and all risks of personal
injury, bodily injury and property damage attributable to negligent acts of omission of NKLUC
and its officers, employees, servants and agents thereof. NKLUC represents that is will secure
workers' compensation and liability insurance, covering bodily injury and property damage, with
such protection being applicable to NKLUC, its officers and employees acting within the scope
of their employment during the performance under this Agreement as is currently in effect,
coverage types and limits for which have been provided to the County. Any contract awarded by
NKLUC- shall include a provision whereby NKLUC's contractor or subcontractor agrees to
indemnify, pay on behalf of, and hold the COUNTY harmless for all damages arising in
connection with NKLUC's contract/subcontract.
10. The COUNTY and NKLUC further agree that nothing contained herein shall be
construed or interpreted as (1) denying to either party any remedy or defense available to such
party under the laws of the State of Florida; (2) or a waiver of sovereign immunity beyond the
waiver provided in Section 768.28, Florida Statutes.
I I. The parties to this Agreement are independent entities and are not employees or
agents of the other party. Nothing in this Agreement shall be interpreted to establish any
relationship other than that of independent entities, between the COUNTY and NKLUC, their
employees, agents, contractors, subcontractors or assigns, during or after the term of this
Agreement.
12. The parties to this contract shall not assign, delegate or otherwise transfer their
rights and obligations as set forth in this Agreement without the prior written approval of the
other party. Such written approval shall be accomplished with the same legal formality as the
approval of this Agreement. Any attempted assignment in violation of this Agreement shall be
void.
13. Either party may terminate this Agreement at any time for convenience or because
of failure of the other party to perform its obligations under the Agreement; upon prior written
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notice to the other party. Thirty (30) days' notice shall be given for termination for convenience
and five (5) days' notice for termination for cause. Such written notice shall be cause for
immediate stoppage of the Work, excepting necessary work involving emergency or safety
issues. In the event of termination, all funds not expended or contractually committed for
expenditure by either party for authorized work performed through the notice of termination date
shall be returned to the COUNTY within sixty (60) days of termination. Proof of contractual
commitments shall be provided when requested so the parties may verify these commitments. If
termination for cause is instituted, the parties agree to meet within ten (10) days of notice to
terminate for a mediation to discuss the issues, to determine if a cure can be agreed upon, and to
discuss the issues giving rise to the notice of termination. If no agreement can be reached
between the parties, termination for cause shall be instituted.
14. The COUNTY and NKLUC shall allow and permit reasonable access to, and
inspection of, all documents, papers, letters or other materials in its possession or under its
control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the
COUNTY and NKLUC in conjunction with this Agreement; and the COUNTY shall have the
right to unilaterally cancel this Agreement upon violation of this provision by NKLUC.
15. NKLUC shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting principles
consistently applied. Each party to this Agreement or their authorized representatives shall have
reasonable and timely access to such records of each other party to this Agreement for public
records purposes during the term of the Agreement and for four years following the termination
of this Agreement. If an auditor employed by the COUNTY or Clerk determines that monies
paid to NKLUC pursuant to this Agreement were spent for purposes not authorized by this
Agreement, the NKLUC shall repay the monies together with interest calculated pursuant to Sec.
55.03, FS, running from the date the monies were paid to NKLUC.
16. COUNTY and NKLUC agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of competent
jurisdiction that discrimination has occurred, this Agreement automatically terminates without
any further action on the part of any party, effective the date of the court order. COUNTY or
NKLUC agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination, including, but not limited to: 1) Title VI of the Civil
Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or
national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-
1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the
basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-
6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and
Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of
drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the
basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and
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527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and
drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as
amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The
Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time
to time, relating to nondiscrimination on the basis of disability; 10) Any other
nondiscrimination provisions in any Federal or state statutes which may apply to COUNTY
and NKLUC to,or the subject matter of, this Agreement.
17. Any notice required or permitted under this agreement shall be in writing and
hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt
requested, to the following:
FOR COUNTY:
Monroe County Court Administrator and County Attorney
1100 Simonton Street P.O. Box 1026
The Gato Building Key West, FL 33040
Key West, FL 33041-1026
FOR NKLUC:
David Ritz, President and John R. Jenkins, Esq.
North Key Largo Utility Corp. Nabors, Giblin & Nickerson, PA
24 Dockside Lane, #512 1500 Mahan Drive, Suite 200
Key Largo, FL 33037 Tallahassee, FL 32308
18. This Agreement states the entire understanding and agreement between the parties
and supersedes any and all written or oral representations, statements, negotiations, or
agreements previously existing between the parties with respect to the subject matter of this
Agreement.
19. Both Parties recognize that any representations, statements, or negotiations made
by COUNTY staff or persons representing NKLUC do not legally bind the parties in a
contractual relationship unless they have been reduced to writing and signed in the same
formality as this Agreement.
20. This Agreement, and any work performed hereunder, is subject to the laws of the
State of Florida. Nothing in this Agreement will bind any of the parties to perform beyond their
respective authority, nor does the Agreement alter the legal rights and remedies which respective
parties would otherwise have, under law or at equity.
21. In providing all services/goods pursuant to this Agreement, NKLUC shall abide
by all statutes, ordinances, rules and regulations pertaining to, or regulating the provisions of,
such services, including those now in effect and hereinafter adopted. Any violation of said
statutes, ordinances, rules and regulations shall constitute a material breach of this Agreement
and shall entitle the COUNTY to terminate this Agreement, following written notice to NKLU
and a thirty (30) day cure period. NKLUC, and/or its contractors shall possess proper licenses
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and permits to perform work in accordance with the specifications throughout the term of this
Agreement.
22. NKLUC shall not pledge the COUNTY'S credit or make it a guarantor of
payment or surety for any contract, debt, obligation,judgment, lien, or any form of indebtedness.
NKLUC further warrants and represents that it has no obligation or indebtedness that would
impair its ability to fulfill the terms of this Agreement.
23. The parties acknowledge that COUNTY is exempt from payment of Florida State
Sales and Use taxes. NKLUC shall not be exempted by virtue of the COUNTY'S exemption
from paying sales tax to its suppliers for materials used to fulfill its obligations under this
contract, nor is NKLUC authorized to use the COUNTY'S Tax Exemption Number in securing
such materials. NKLUC shall be responsible for any and all taxes, or payments of withholding,
related to services rendered under this Agreement.
24. This Agreement shall be governed by and construed in accordance with the laws
of the State of Florida applicable to agreements made and to be performed entirely in the State.
In the event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the COUNTY and NKLUC agree that venue
will lie in the appropriate court or before the appropriate administrative body in Monroe County,
Florida.
25. The COUNTY and NKLUC agree that, in the event of conflicting interpretations
of the terms or a term of this Agreement by or between any of them the issue shall be submitted
to mediation prior to the institution of any other administrative or legal proceeding. Mediation
proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the
Florida Rules of Civil Procedure and usual and customary procedures required by the circuit
court of Monroe County. The parties agree that mediation, not arbitration,'shall be the method
for resolving conflict(s) of interpretation of the Agreement.
26. COUNTY and NKLUC agree that in the event any cause of action or
administrative proceeding is initiated or defended by any party relative to the enforcement or
interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and court costs. Each party agrees to pay its own court costs, investigative, and out-of-
pocket expenses whether it is the prevailing party or not, through all levels of the court system.
27. If any term, covenant, condition or provision of this Agreement (or the application
thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent
by a court of competent jurisdiction, the remaining teams, covenants, conditions and provisions
of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition
and provision of this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law unless the enforcement of the remaining terms, covenants, conditions and
provisions of this Agreement would prevent the accomplishment of the original intent of this
Agreement. The COUNTY and NKLUC agree to reform the Agreement to replace any stricken
provision with a valid provision that comes as close as possible to the intent of the stricken
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provision.
28. The parties represent that their directors, principles and employees, presently have
no interest and shall acquire no interest, either direct or indirect, which would conflict in any
manner with the performance of services required by this contract, as provided in Sect. 112.311,
et. seq., Florida Statutes. COUNTY agrees that officers and employees of COUNTY recognize
and will be required to comply with the standards of conduct for public officers and employees
as delineated in Section 112.13, Florida Statutes, regarding, but not limited to, solicitation or
acceptance of gifts; doing business with ones agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information.
29. Each party represents and warrants to the other that the execution, delivery and
performance of this Agreement has been duly authorized by all necessary COUNTY and
corporate action, as required by law.
30. The terms, covenants, conditions, and provisions of this Agreement shall bind and
inure to the benefit of COUNTY and NKLUC and their respective legal representatives,
successors, and assigns.
31. County and NKLUC covenant that neither presently has any interest, and shall not
acquire any interest, which would conflict in any manner or degree with its performance under
this Agreement, and that only interest of each is to perform and receive benefits as recited in this
Agreement.
32. No covenant or agreement contained herein shall be deemed to be a covenant or
agreement of any member, officer, agent or employee of Monroe County in his or her individual
capacity, and no member, officer, agent or employee of Monroe County shall be liable
personally on this Agreement or be subject to any personal liability or accountability by reason
of the execution of this Agreement.
33. NKLUC covenants and agrees to indemnify and hold harmless Monroe County
Board of County Commissioners from any and all claims for bodily injury (including death),
personal injury, and property damage (including property owned by Monroe County) and any
other losses, damages, and expenses which arise out of, in connection with, or by reason of
services provided by NKLUC, occasioned by the negligence, errors, or other wrongful act or
omission of NKLUC and its employees. NKLU further agrees to require COUNTY
indemnification provisions in all contracts entered into with contractors and subcontractors for
work performed on the Work.
34. NKLUC shall not assign this agreement except in writing and with the prior
written approval of the Board, which approval shall be subject to such conditions and provisions
as the Board may deem necessary. This agreement shall be incorporated by reference into any
assignment and any assignee shall comply with all of the provisions herein. Unless expressly
provided for therein, such approval shall in no manner or event be deemed to impose any
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•
obligation upon the Board in addition to the total agreed upon reimbursement amount for the
services of the NKLUC.
35. Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are not a part of this
Agreement and will not be used in the interpretation of any provision of this Agreement.
36. This Agreement may be executed in any number of counterparts, each of which
shall be regarded as an original, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing any such
counterpart.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF the COUNTY and NKLUC hereto have executed this
Agreement on the day and date first written above in four (4) counterparts, each of which shall,
without proof or accounting for the other counterparts, be deemed an original contract.
BOARD OF COUNTY
COMMISSIONERS
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_ � Y HEAVILIN, CPA OF MONROE COUNTY, FLORIDA
1/4 - _t LERK OF COURT i
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Date: i '' 2:J ' I`I' , Date: 1o . 2.3 ' I
NKLUC:By: a (
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David Ritz, President J PROVED AS TO ppRM;
NATILEENE W./CIASSTS
Date: ,f�6// Y ASSISTANT COUNTY ATTORNEY
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Address: North Key Largo Utility Corp.
24 Dockside Lane, #512
Key Largo, FL 33037
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EXHIBIT "A"
WORK
10
EXHIBIT A
NORTH KEY LARGO UTILITY CORPORATION
CAPITAL IMPROVEMENTS PROJECT
1. Force main replacement— Fairway Lakes to VWVfP $150,000
Replacing approximately 1,800 It of existing 4-inch cast iron
with 6-inch HDPE pipe. The new pipe will be constructed by
horizontal directional boring.
2. Force main replacement—Cultural Center toWVVTP $100,000
Replacing approximately 400 I.f. of 6-inch cast iron pipe.
The new pipe will be 6-inch HDPE and will either be 400 It
underneath airport runway or approximately 1,300 I.f.
around the airport runway. The new pipe will be constructed
by horizontal directional boring.
3. Harbor Island Drive Bridge sewer lining $ 16,000
This is an existing 8-inch cast iron sewer that is hung from
the bridge. This existing will be lined with PVC and be 100 I.f.
4. Villa Cay manhole rehabilitation $ 31,000
Rehabilitating approximately 43 manholes with replacing
the concrete bench to prevent infiltration and inflow.
5. Engineering design engineering construction services $ 60,000
Engineering design and construction services for project
#1, #2 and#8
6. Five odor control units $ 80,000
Five major pump stations are located near residential
and commercial areas and intersections and receive
a lot of odor complaints. These locations are Island Drive-
-Ocean Reef Drive, Andros Road— Ocean Reef Drive,
Tarpon Lane, Pumpkin Cay Road and Marina Drive.
7. Wastewater sludge thickener $ 200,000
Install sludge thickening membrane along with necessary
pump, piping, valves diffusers in order to thicken the sludge
from 1% to 4% thereby reducing sludge transfer costs.
8. Various sanitary sewers, force main and manhole televising $ 100,000
rehabilitation and replacement
We will identify area with infiltration and inflow, and then televise
those sewer lines to determine rehabilitation and repair methods
for sewers, manholes and pump stations.
9. Pump station telemetry units $ 40,000
Install telemetry units at a number of pump stations in order
to record pump on and off times and high water alarms/alerts.
REVERSE OSMOSIS WATER PROJECTS
10. a. Increase RO irrigation water production by 0.5 MGD. $1,070,875
This will involve installing 18 vessels with 108 membranes
with a filter and high pressure pump.
b. A 12-inch PVC 90-foot deep CLASS V injection well for salt $ 78,000
discharge will be required for project 10 A.
c. Energy recovery unit—install a brackish water pressure $ 113,750
exchanger and booster pump for energy savings.
11. Electrical upgrades $ 214,500
Replace the existing RO treatment motor control center.
The existing equipment is a 1970's model. Maintaining the operation
of the RO treatment system depends on the continued operation
-- of this electrical gear. Also replacing the RO system control panel.
In addition will be replacing the electrical feed conductors from
the electrical building. There are two 4-inch conduits from the electrical
building and the RO building, which is approximately 200 I.f.
12. Replace interior piping $ 50,000
Replace approximately 200 I.f. of 8 and 8-inch PVC pipe
and fittings in the RO plant with 6 and 8-inch fused HDPE
to promote consistent RO water production.
13. Portable generator for Well#7 $ 80,000
A 200 kW portable generator and trailer to run our Well #7,
which is able to produce 1 MGD of irrigation water.
14. Engineering design and construction services $ 128,875
Engineering design and construction services for projects
#7, 10 a. b. c., 11, 12.
15. Permit and permit expeditor $ 27,000
Hire a permit expeditor to obtain Monroe County permits
for project#14. Also the cost of the Monroe County
building permit.
16. Residential irrigation water study $ 60,000
Engineering study to determine feasibility and cost for plant
and distribution expansion to supply the residents with irrigation
water produced by our water plant. This would provide for
cheaper irrigation water for the residents and conserve water
for FKAA.
Total: $2,600,000