09/27/2017 Agreementpp c7IR counr °
(jUUycu'04':Oy Kevin Madok CPA
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O
. Clerk of the Circuit Court & Comptroller — Monroe County, Florida
~R OE co °�
DATE: November 13, 2017
TO: Betli Leto, Airports
Business Manager
FROM: Paiuela G. Hanco
SUBJECT: September 27tli BOCC Meeting
Attaclied are electronic copies oi* Item C8, Property Owner Noise Insulation Agreements
for (19) condo units at Key West by the Sea and (2) Single - gamily Homes for the Key West
International Airport Noise Insulation Progl �vu "Pilot" Construction project, for your liandling.
I will return the two unexecuted documents to you through courier (Bri(Iget & Raymond
Halpin and John M. & Rita M. Kuliar).
Once the Avigation Easements have been recorded, I will c -mail you an electronic copy.
Sliould you have any questions, please feel Tree to contact me at ext. 3130. Tliank you.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY
500 Whitehead Street 3117.Overseas Highway 88820 Overseas Highway
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070
305- 294 -4641 305 - 289 -6027 305- 852 -7145
PK/ROTH BUILDING
50 High Point Road
Plantation Key, Florida 33070
305- 852 -7145
Address: Key West by the Sea
Unit No.: B211
Name(s): Fasano
PROPERTY OWNER NOISE INSULATION AGREEMENT
KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY
THIS NOISE INSULATION AGREEMENT (this "Agreement ") is made and
effective the date last below written by and between MONROE COUNTY, a municipal
corporation organized and existing under the laws of the State of Florida (the "County "),
and the undersigned (the "Property Owner ").
WITNESSETH:
WHEREAS, the Property Owner is the sole record owner in fee simple of
certain real property located in the City of Key West, County of Monroe, State of Florida,
and more particularly described on Exhibit B attached hereto (the "Property "); and
WHEREAS, the County is the owner and operator of the Key West
International Airport (the "Airport"), situated in the City of Key West, County of Monroe,
State of Florida, and in close proximity to the Property; and
WHEREAS, the County desires to obtain and preserve for the use and
benefit of the public a right of free and unobstructed flight for aircraft landing upon,
taking off from, or maneuvering about the Airport; and
WHEREAS, the Property Owner has elected to participate in the Key West
International Airport's Noise Insulation Program (the "Program ") and, as part of the
Program, the Property Owner has elected to obtain acoustical treatments and
improvements to the Property as more particularly described on Exhibit C attached
hereto (the "Program Improvements "); said Program Improvements to be paid for by the
County at no cost to the Property Owner and in exchange for the granting to the County
of an avigation easement over, across and through the Property; and
WHEREAS, the County will enter into a construction contract with a
general contractor (the "Contractor ") to provide the installation of the Program
Improvements; and
WHEREAS, the Program is managed by the consultant team consisting of
a team manager and assistant manager, architect, mechanical / electrical engineer,
acoustician and construction manager selected by the County (the "Program Manager ");
and
WHEREAS, the Property Owner and the County mutually desire to agree
to the terms upon which the Property Owner will participate in the Program and receive
the Program Improvements upon the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the terms, covenants and
conditions set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Property Owner and the County
hereby agree as follows:
Property Owner Noise Insulation Agreement Page 1 of 25
1. Grant of Easement Simultaneously with the execution of
this Agreement, the Property Owner executed and delivered to the County
an avigation easement (the "Easement ") which Easement has been
recorded in the public records of Monroe County, Florida. The Easement
remains in full force and effect and is hereby ratified in all respects.
2. Program Policy Statements Consistent with the Program
and /or Federal Aviation Administration Airport Improvement Program
policies and procedures, the Program Manager has developed a series of
Program Policy Statements outlining construction and eligibility restrictions.
The Property Owner understands that prescribed Program Improvements
will be consistent with the Program Policy Statements provided to the
Property Owner by the Program Manager. A copy of the Program Policy
Statements is attached hereto as Exhibit A .
3. Payment of Program Improvements The County agrees to
pay for the Program Improvements described in Exhibit C attached hereto.
The Program Improvements will be approved by the Property Owner and
County, managed by the Program Manager, and performed by the
Contractor.
4. Impeding Competitive Bid Process The Property Owner
shall not impede or interfere with the Contractor's ability to select between
approved product manufacturers and subcontractors in the preparation of
bid submittals. To insure a competitive bid environment, the Property
Owner is prohibited from having any discussion or communication with the
Contractor in relation to the Program, the contractor's bid, or this Agreement
until after award of the construction contract by the County. Failure of the
Property Owner to comply with this provision shall, at the option of the
County in its sole discretion, result in disqualification from the Program and
cancellation of this Agreement.
5. Construction Contract The County will award the contract
for the Program Improvements consistent with Federal and County
competitive bidding policies and procedures. The contract will require the
Contractor to complete the Program Improvements within a time period
defined by the Program Manager.
6. Impeding Construction Once construction of the Program
Improvements begins, the Property Owner shall not impede construction or
alter construction schedules. In addition, the Property Owner shall prevent
any and all tenants that may occupy the Property during the construction of
the Program Improvements from impeding construction or altering
construction schedules. In the event the Property Owner or any tenant
occupying the Property impedes construction or alters the construction
schedule, the Property Owner shall be liable to the Contractor and the
County for any damages and all direct and indirect costs related thereto.
Property Owner Noise Insulation Agreement Page 2 of 25
7. Safe Working Environment The Property Owner shall be
responsible for providing a safe working environment for the Program
Manager, Contractor, subcontractors, suppliers, and City, County, State and
federal inspectors.
a. Throughout all phases of design and construction of the Program
Improvements, the Property Owner shall be responsible for:
(1) Providing a working environment that is free from potential
health risks, biohazard conditions, hazardous chemicals, obstacles, weapons of any
kind and /or explosives;
(2) Refraining from verbal abuse or profanity;
(3) Refraining from aggressive physical contact; and
(4) Insuring that all pets are completely.secured and contained.
b. In the event the Property Owner fails to meet any of the foregoing
conditions, the Program process may, at the County's discretion, be temporarily
suspended at any time. In such event, the Program Manager shall notify the Property
Owner in writing, stating the corrective action(s) and /or condition(s) required to be
completed or performed by the Property Owner prior to the County resuming the
Program process.
c. In the event the Program process is not resumed due to the
Property Owner's failure to complete the corrective action(s) and /or condition(s)
required by the Program Manager, the Property Owner shall be liable to the County
and /or Contractor for any and all damages and all direct and indirect costs related
thereto.
d. If the Program process is resumed, the Property Owner shall be
liable to the County and /or Contractor for any and all damages and all direct and indirect
costs related to or caused by the temporary suspension of the Program process.
8. Construction Delays During the construction period, the
Contractor may experience unforeseen complications relating to the
installation of the Program Improvements. The construction contract shall
provide that delays related to these unforeseen complications are beyond
the control of the Contractor and shall be excused so that the time for
completion may reasonably be extended. Construction schedules may also
be revised if there is a delay in awarding of the contract or if the Program
Improvements have to be re -bid in the event of lack of bidding contractors
and /or failure of the lowest responsive, responsible bidder to execute the
contract, provide a payment and performance bond or show proof of
required insurance.
9. Changes to Scope of Work The Program Manager
reserves the right to make changes to the plans and specifications and the
Property Owner Noise Insulation Agreement Page 3 of 25
Program Improvements, at its sole discretion, at any time during the
Program process, provided such changes do not reduce the scope or
quality of the Program Improvements described in Exhibit C and such
changes are necessitated by the discovery of hidden conditions not readily
detectable during normal property inspection procedures.
10. Acceptance of Work Upon completion of the Program
Improvements, the Program Manager shall inspect or cause the inspection
of the Program Improvements to determine if they were completed pursuant
to the terms of the contract. The Program Manager retains sole discretion
and authority on program conformance and performance issues as they
relate to the Contractor, subcontractors, suppliers and acoustic designs.
The Property Owner is requested to attend the Substantial Completion
Inspection and provide input to the Construction Manager with respect to
the identified punch -list items. In addition, the Property Owner is welcome to
attend the Final Inspection. In the event the Property Owner elects to not
attend the Substantial Completion and Final Inspections, they release and
surrender their ability to provide input to the Construction Manager with
respect to the acceptance of the Program Improvements. In the event there
is a disagreement between the Property Owner and the Program Manager
as to a conformance or performance issue, the Property Owner shall be
required to submit the discrepancy in writing to Monroe County
(representative to be defined before the NIP construction process) within 7
days of the inspection giving rise to the discrepancy. Monroe County shall
then make a determination as to the acceptability of the
conformance /performance issue and any remedial action that may need to
be taken. Monroe County shall be the final arbiter of any
conformance /performance /issues. Failure by the Property Owner to submit
the written complaint within the time period specified above shall thereafter
foreclose the Property Owners right to file such complaint.
11. Termination of Agreement The Property Owner
understands that the signing of this Agreement initiates both the BID and
CONSTRUCTION PHASES of the Program Improvements to be performed
in accordance with the Program. Therefore, if the Property Owner attempts
to terminate this Agreement or otherwise impedes the progress of the
performance of the Program Improvements after the award of the
construction contract, the Property Owner will be liable to the County for any
and all damages and all direct and indirect costs caused thereby.
12. Warranties The County does not represent or warrant the
level of noise reduction that the Property Owner will experience within the
Property as a result of the Program Improvements performed as part of the
Program.
a. The County agrees that its contract with the Contractor will include
standard one (1) year warranties from the Contractor for all materials and workmanship.
Such one -year warranty period shall commence as of the time of the acceptance of the
Property Owner Noise Insulation Agreement Page 4 of 25
work as provided for in Paragraph 9. In addition, the Program Manager will provide the
Property Owner with copies of the warranty policies for all products used in the
construction of the Program Improvements. The Property Owner understands that the
warranty policies for products used in the construction of the Program Improvements
differ among product manufacturers. The Property Owner understands that it is solely
responsible for pursuing all future product warranty issues directly with each product
manufacturer.
b. In the following instances, the Property Owner shall be solely
responsible for, and agrees to contact the Contractor or product manufacturer directly to
coordinate any required warranty service and agrees to look solely to the general
contractor or the product manufacturer for fulfillment of all warranties and for resolution
of all product or construction warranty issue(s):
(1) The Property Owner's inquiry is not directly related to either
construction warranties or product warranties (such as window cleaning or product
maintenance) regardless of whether the Property Owner's inquiry arises during the one -
year warranty period from the Contractor or thereafter;
(2) The Property Owner believes that warranty service is
required with respect to construction warranty issues, and the one -year warranty period
from the general contractor has expired;
(3) The Property Owner believes that service is required with
respect to product warranty issues, the advertised warranty period for the product has
not expired, and the manufacturer is currently conducting its business; and
(4) The Property Owner believes that service is required with
respect to product warranty issues, and the advertised warranty period for the product
has expired.
13. Pre - Existing Deficiencies The Property Owner will be
required to sign Exhibit D (Deficiency Hold Harmless Agreement) which will
impute all responsibility and liability to the Property Owner for any and all
present Pre - Existing Deficiencies at the Property, whether seen or unseen.
14. Suspension of Program Process The Program process
may be temporarily suspended at any time during the design and /or
construction phases upon the discovery of Deficiencies due to their potential
impact on the Program Improvements and product warranties. The
Program process will not resume until the Property Owner has corrected all
related problems to the satisfaction of the Program Manager. In the event
repairs are not completed in a timely manner, the Property Owner will be
liable to the County for any and all damages and all direct and indirect costs
due to delay and /or stoppages of the work.
15. Limitation on Alterations to the Propert y The Property
Owner agrees not to make alterations, or to permit any tenant occupying
any portion of the Property to make alterations to the existing windows,
Property Owner Noise Insulation Agreement Page 5 of 25
doors and /or walls from the time of the Design process until the construction
of the Program Improvements have been completed. Exceptions to this rule
must be pre- approved in writing by the Program Manager. Failure to adhere
to this requirement may, at the option of the Program Manager in its sole
discretion, result in an immediate suspension of the construction of the
Program Improvements on the Property. The Property Owner will be liable
to the County for all direct and indirect costs associated with unapproved
alterations and damages related thereto.
16. Pre & Post Construction Noise Testing Process Pre &
post construction noise testing is a very important Program process that is
designed to measure and determine the actual achieved noise level
reduction level at treated properties. If selected by the Program Manager for
pre & post construction noise testing, the Property Owner agrees to provide
access to their property for testing and agrees to not to make alterations to
the interior of their property (with the exception of repairs of Deficiencies)
from the time of the pre- construction noise test to the post- construction
noise test. In an effort to insure consistent noise data collection, the
Property Owner also agrees to preserve the interior layout of furniture, floor
coverings and window treatments from the time of the pre- construction
noise test to the post- construction noise test. The Property Owner
understands that the failure to adhere to this requirement may result in
corruption of the noise testing data. Therefore, the Property Owner
understands they may be liable to the County for any direct and indirect
noise testing costs in the event these requirements are not met.
17. Cooperation As reasonably requested, the Property
Owner shall cooperate with the Contractor, the Program Manager and
Monroe County in the performance of all phases of the Program
Improvements including, but not limited to, the removal and reinstallation of
rugs, wall hangings and furniture as necessary.
18. Utilities The Property Owner shall permit the Contractor to
use, at no cost to the Contractor or the County, existing utilities such as
light, heat, power and water necessary to carry out the Program
Improvements.
19. Access At scheduled times and /or upon not less than
twenty -four (24) hours advance notice, the Property Owner agrees to
provide to the Program Manager, Contractor, subcontractors, suppliers,
City, County, State and federal inspectors and consultants access to the
Property to perform all phases of the Program Improvements, including
property survey, design survey, hazardous material inspection, pre /post
noise testing, pre -bid visit, construction and final inspection phases. The
Property Owner agrees to relocate from their condominium for a one 1
calendar month period to facilitate a "floor by floor" construction process.
The Property Owner agrees not to re -enter their property for any reason
Property Owner Noise Insulation Agreement Page 6 of25
during the established construction period due to safety concerns and the
potential to negatively impact the Contractor.
20. Title Examination The Program Manager has obtained or
will obtain, at its sole cost and expense, an "Abstract of Title" to ensure that
the Property title is free from liens and /or title defects.
21. Cooperation in Clearing Title Prior to the commencement
of construction of the Program Improvements, the Property Owner shall
cooperate with the County in order to (i) correct any title defects affecting
the Property which are disclosed by the "Abstract of Title" and in the sole
determination of the County may serve to invalidate the Easement, and (ii)
secure the written consent of any and all mortgage holders to the Property
Owner's conveyance of the Easement to the County if the County
determines that it is necessary or desirable to do so (collectively, the "Title
Matters "). If, prior to the commencement of construction of the Program
Improvements, the County, in its sole discretion, determines that the Title
Matters affecting the Property may invalidate the Easement, this Agreement
shall be null and void, and the Easement shall be terminated.
22. Federal Assurance As required by the Federal Aviation
Administration, the Property Owner agrees to the following provisions:
a. The Property Owner shall subject the construction work on the
project to such inspection and approval during the construction of the Program
Improvements and after completion of the Program Improvements as may reasonably
be requested by the Program Manager and /or Monroe County.
b. After final completion of the Program Improvements, the Property
Owner shall assume the responsibility for maintenance and operation of the items
installed, purchased or constructed under this Agreement. Neither the Federal Aviation
Administration nor the County bears any responsibility for maintenance and operation of
these items.
23. Reduction of Fresh Air Infiltration The Property Owner will
be required to sign Exhibit E (Ventilation Hold Harmless Agreement) which
imputes all responsibility to the Property Owner for the proper maintenance
of interior moisture and humidity levels.
24. Salvage of Materials & Equipment If the Property Owner
desires to retain any of the material or equipment removed from the
Property as a result of the Program Improvements, the Property Owner shall
arrange for the salvage of said materials and equipment directly with the
Contractor at the Property Owner's sole risk and expense. The County
assumes no responsibility for the condition of the material, equipment or
surrounding surfaces as a result of the owner - requested salvage. The
Property Owner and the Contractor shall, prior to the commencement of
construction, agree upon and execute a document listing those items to be
Property Owner Noise Insulation Agreement Page 7 of 25
salvaged. In the absence of such a written agreement, all items shall
become the property of the Contractor. Materials and equipment not listed
for salvage by the Property Owner shall become the property of the
Contractor.
25. Property Insurance During Program construction period,
the Contractor will provide builder's risk insurance for the Property. The
Property Owner shall have the option, at the Property Owner's sole cost and
expense, to maintain a homeowner's insurance policy for the duration of the
construction of the Program Improvements. The Property Owner
understands that, following final completion, the Contractor's builder's risk
insurance will cease and it is advisable for the Property Owner to obtain
insurance to cover any value added to the Property by the Program.
26. Timing and Effects of Construction The Property Owner
understands that there is a chance that construction itself may exceed the
Contractor's original projected construction time period. The Property Owner
also understands that the construction may involve substantial
inconvenience and could generate significant quantities of dust and debris
rendering portions of the Property uninhabitable for extended periods of
time.
27. Labor and Material Release The Property Owner releases
and forever discharges any and all claims, suits and actions against the
Program Manager; the County and its officers, employees,. agents,
consultants; and contractors and suppliers with respect to issues relating to
the conformance of labor, materials and acoustic designs utilized in the
Program Improvements. Nothing in this paragraph shall limit the warranties
for materials and workmanship contained' in the contract with the general
contractor.
28. Sale of Property In the event the Property Owner sells,
conveys or otherwise transfers title to the Property before the completion of
all phases of the Program process, the Property Owner hereby agrees to
provide the buyer with a copy of this Agreement prior to the closing on the
sale, conveyance or other transfer, and to transfer all of the Property
Owner's responsibilities and obligations under this Agreement to the buyer
as a condition of the purchase, conveyance or other transfer of the Property.
29. Waiver No waiver of, acquiescence in, or consent to any
breach of any term, covenant or condition hereof shall be construed as, or
constitute, a waiver of, acquiescence in, or consent to any other, further or
succeeding breach of the same or any other term, covenant or condition
hereof.
30. Release of Easement In the event that this Agreement is
cancelled or the County determines that the Easement should be released
of record, the Property Owner, upon written request by the County, shall pay
Property Owner Noise Insulation Agreement Page 8 of 25
to the County the sum of One Hundred Dollars ($100.00) to cover the costs
of the preparation and recording of the Release of Easement document in
the public records of Monroe County, Florida. Property Owner understands
that it is the Property Owner's responsibility to insure such payment is made
in order to "clear" the title to the Property.
31. Authority to Execute On Behalf Of County By Resolution
No. 111 -2004 duly motioned and passed at a lawfully announced public
meeting, the Board of County Commissioners of Monroe County, did, on the
17th day of March 2004 grant full authority for the County Administrator to
execute this Agreement on behalf of the County without further action by the
Board of County Commissioners.
32. Attachments . Attachments to this Agreement include the
following, which are incorporated into this Agreement by reference.
a.
Exhibit A:
Program Policy Statements.
b.
Exhibit B:
Legal Description of Property
c.
Exhibit C:
Program Improvements.
d.
Exhibit D:
Deficiency Hold Harmless Agreement
e.
Exhibit E:
Ventilation Hold Harmless Agreement
33. General Conditions.
a. Governing Law, Venue, Interpretation. Costs. and Fees.
(1) This Agreement shall be governed by and construed in
accordance with the Laws of the State of Florida applicable to contracts made and to be
performed entirely in the State.
(2) In the event that any cause of action or administrative
proceeding is instituted for the enforcement or interpretation of this Agreement, the
County and Property Owner agree that venue will lie in the appropriate court or before
the appropriate administrative body in Monroe County, Florida.
(3) The County and Property Owner 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.
(4) The County and Property Owner 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 attorneys' fees, court costs, investigative, and out -of- pocket
expenses, as an award against the non - prevailing party. Mediation proceedings
Property Owner Noise Insulation Agreement Page 9 of 25
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.
b. Bindinq Effect. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Property Owner
and their respective legal representatives, successors, and assigns.
c. Severability. 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
terms, 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.
d. Authority Each party represents and warrants to the other that the
execution, delivery and performance of this Agreement have been duly authorized by all
necessary County and Property Owner action, as may be required by law.
e. Duration of Agreement This Agreement shall commence upon the
execution of this Agreement, subsequent to execution by the Property Owner and by
the County and shall remain in effect for a period reasonably required to effect the
Program Improvements (the "Term "), except as may be sooner terminated in
accordance with the provisions of this Agreement.
f. Acceptance of Gifts. Grants, Assistance Funds. or Bequests The
County and Property Owner agree that each shall be, and is, empowered to accept for
the benefit of any or all of them, gifts, grants, assistance funds, or bequests to be used
for the purposes of this Agreement.
g. Claims for Federal or State Aid. The County and Property Owner
agree that each shall be, and is, empowered to apply for, seek, and obtain federal and
state funds to further the purpose of this Agreement; provided that all applications,
requests, grant proposals, and funding solicitations by the Property' Owner shall be
approved by the County prior to submission.
h. Adjudication of Disputes or Disagreements. The County and
Property Owner agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties.
If the issue or issues are still not resolved to the satisfaction of the parties, then any
party shall have the right to seek such relief or remedy as may be provided by this
Agreement or by Florida law.
i. Nondiscrimination. The County and Property Owner 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
Property Owner Noise Insulation Agreement Page 10 of 25
occurred, this Agreement automatically terminates without any further action on the part
of any party, effective the date of the court order. The County and Property Owner
agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: (1) Title
VI of the Civil Rights Act of 1964 (P.L. 88 -352) which prohibits discrimination on the
basis of race, color or national origin; (2) Section 504 of the Rehabilitation Act of 1973,
as amended (20 U.S.C. s. 794), which prohibits discrimination on the basis of handicap;
(3) The Age Discrimination Act of 1975, as amended (42 U.S.C. ss. 6101 - 6107), which
prohibits discrimination on the basis of age; (4) The Drug Abuse Office And Treatment
Act of 1972 (P.L. 92 -255), as amended, relating to nondiscrimination on the basis of
drug abuse; (5) The Comprehensive Alcohol Abuse And Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (P.L. 91 -616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health
Service Act of 1912, ss. 523 and 527, (42 U.S.C. 290 dd -3 and 290 ee -3), as amended,
relating to confidentiality of alcohol and drug abuse patient records; (7) The Americans
With Disabilities Act of 1990 (42 U.S.C. s. 1201 Note), as may be amended from time to
time, relating to nondiscrimination on the basis of disability; (8) The Florida Civil Rights
Act of 1992, (Chapter 760, Florida Statutes, and Section 509.092, Florida Statutes), as
may be amended from time to time, relating to nondiscrimination; (9) The Monroe
County Human Rights Ordinance (Chapter 13, Article VI, Sections 13 -101 through 13-
130), as may be amended from time to time, relating to nondiscrimination; and (10) any
other nondiscrimination provisions in any federal or state statutes or local ordinances
which may apply to the parties to, or the subject matter of, this Agreement.
j. Cooperation In the event any administrative or legal proceeding is
instituted against either party relating to the formation, execution, performance, or
breach of this Agreement, the County and Property Owner agree to participate, to the
extent required by the other party, in all proceedings, hearings, processes, meetings,
and other activities related to the substance of this Agreement or provision of the
services under this Agreement. The County and Property Owner specifically agree that
no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement or any Attachment or Addendum to this Agreement.
k. Books. Records, and Documents. The County and Property Owner
shall maintain 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 audit purposes during the term of the Agreement and for four years
following the termination of this Agreement.
I. Covenant of No Interest. The County and Property Owner
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.
Property Owner Noise Insulation Agreement Page 11 of 25
m. Code of Ethics The County agrees that the officers and
employees of the County recognize and will be required to comply with the standards of
conduct relating to public officers and employees as delineated in Section 112.313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing
business with one's agency; unauthorized compensation; misuse of public position,
conflicting employment or contractual relationship; and disclosure or use of certain
information.
n. No Solicitation /Payment. The County and Property Owner warrant
that, in respect to itself, it has neither employed nor retained any company or person,
other than a bona fide employee working solely for it, to solicit or secure this Agreement
and that it has not paid or agreed to pay any person, company, corporation, individual,
or firm, other than a bona fide employee working solely for it, any fee, commission,
percentage, gift, or other consideration contingent upon or resulting from the award or
making of this Agreement. For the breach or violation of this provision, the Property
Owner agrees that the County shall have the right to terminate this Agreement without
liability and, at its discretion, to offset from monies owed, or otherwise recover, the full
amount of such fee, commission, percentage, gift, or consideration.
o. Public Access. The County and Property Owner shall allow and
permit reasonable access to, and inspection of, all documents, papers, letters, or other
materials subject to the provisions of Chapter 119, Florida Statutes, and made or
received by the County and Property Owner in conjunction with this Agreement; and the
County shall have the right to unilaterally cancel this Agreement upon violation of this
provision by the Property Owner.
p. Non - Waiver of Immunity. Notwithstanding the provisions of Sec.
768.28, Florida Statutes, the participation of the County and Property Owner in this
Agreement and the acquisition of any commercial liability insurance coverage, self -
insurance coverage, or local government liability insurance pool coverage shall not be
deemed a waiver of immunity by the County to the extent of liability coverage, nor shall
any contract. e nte red into by the County be required to contain any provision for waiver.
q. Privileges and Immunities All of the privileges and immunities from
liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability,
workers' compensation, and other benefits which apply to the activity of officers, agents,
volunteers, or employees of the County, when performing their respective functions
under this Agreement within the territorial limits of the County shall apply to the same
degree and extent to the performance of such functions and duties of such officers,
agents, volunteers, or employees outside the territorial limits of the County.
r. Legal Obligations and Responsibilities; Non - Delegation of
Constitutional or Statutory Duties. This Agreement is not intended to, nor. shall it be
construed as, relieving any participating entity from any obligation or responsibility
imposed upon the entity by law except to the extent of actual and timely performance
thereof by any other participating entity, in which case the performance may be offered
in satisfaction of the obligation or responsibility. Further, this Agreement is not intended
to, nor shall it be construed as, authorizing the delegation of the constitutional or
Property Owner Noise Insulation Agreement Page 12 of 25
statutory duties of the County, except to the extent permitted by the Florida constitution,
state statutes, case law, and, specifically, the provisions of Chapters 125 and 163,
Florida Statutes.
s. Non - Reliance by Non - Parties. No person or entity shall be entitled
to rely upon the terms, or any of them, of this Agreement to enforce or attempt to
enforce any third -party claim or entitlement to or benefit of any service or program
contemplated hereunder, and the County and Property Owner agree that neither the
County nor Property Owner or any agent, officer, or employee of each shall have the
authority to inform, counsel, or otherwise indicate that any particular individual or group
of individuals, entity or entities, have entitlements or benefits under this Agreement
separate and apart, inferior to, or superior to the community in general or for the
purposes contemplated in this Agreement.
t. Attestations. The Property Owner agrees to execute such
documents as the County may reasonably require in the performance of the obligations
and duties of the County or Property Owner under this Agreement.
u. No Personal Liability 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.
v. Execution in Counterparts 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.
w. Section Headings 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.
IN WITNESS WHEREOF, the Property Owner and the County have executed this
Agreement as of the day and year first above written.
WITNES
PROPE
f OWNER:
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Property Owner Noise Insulation Agreement Page 13 of 25
WITNESS E PROPERTY OWN
Signatur —�
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Prin ed Name
Printed Name
a
Date
Printed Name
WITNESSES:
Signature
PROPERTY OWNER:
Signature
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Printed Name
Signature
Date rU T OR, E CCu�
Printed Name n _ (F= to
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS:
WITNESSES:
Signature
Printed Name
Signature
Printed Name
STATE OF FLORIDA
COUNTY OF MONROE
Geor
The foregoing instrument was acknowledged before me this day of , 20
by
as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate.
Notary Public Sionatura
MAYOR: Date, S0S4
X. 60��
Signature
My Commission Expires:
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Property Owner Noise Insulation Agreement Page 14 of 25
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Property Owner Noise Insulation Agreement Page 14 of 25
PROGRAM POLICY STATEMENTS
Exhibit A
To
Property Owner Noise Insulation Agreement
A. Air Conditioning: General Restrictions While providing a new ductless "mini -
split" AC system to your condominium as a part of the Noise Insulation Program
modifications, the following limitations and restrictions will apply to all condominiums:
1. All condensing units will be installed on the balcony
2. All refrigerant lines (running from the balcony condensing unit) will be installed
consistent with KWBTS Board policy rules, maintaining a maximum height of 48
inches.
3. All condensate lines will be installed on the building exterior consistent with KWBTS
Board policy rules to ensure the highest level of consistency and building
architectural aesthetics.
4. All interior AC lines (refrigerant, condensate, electrical) and Energy Recovery
Ventilator (ERV) ducts will be housed in new vertical wall and corner pilasters which
will be constructed to match the quality of existing walls. The number and locations
of the new vertical wall and corner pilasters will differ depending , on your unique
condominium floor plan and number of bedrooms. The NIP executive architect will
review this information with you at your NIP Design Review Meeting.
5. Only electrical service panels that are determined by the Program Manager to be
deficient will be replaced by the Program as a part of the Noise Insulation Program
modifications.
B. Window Sill Replacement Due to the presence of asbestos, the NIP will provide a
new custom wood surround and sill instead of the existing gypsum board surround. Due
to this revised plan, existing custom sills (marble, granite, wood) will not be replaced.
This revision will be an improvement, while decreasing constriction costs and improving
time efficiencies.
C. Custom Crown Molding and Baseboards Restrictions
The new asbestos abatement requirements will restrict the ability to remove existing
custom trim and baseboard prior to construction (as originally assumed), which will not
allow sufficient time for the. awarded general contractor to secure custom matched
replacement trim. Therefore, existing crown moldings, wall trim, and base, the
contractor will, instead, cut the existing wood trim flush to the face of the new pilaster or
thru wall ac- infill. At new pilaster locations and, if the thru wall ac infill abuts the existing
baseboards, the contractor will install a standard (314" x 5=112') painted wood trim to
abut the existing trim, rather than attempting to match the existing custom trim profiles
and materials. After the completion of the NIP construction, the property owner will
Exhibit A - Property Owner Noise Insulation Agreement Page 15 of 25
have the option to replace the installed trim with other custom trim to match the existing
materials and profiles.
D. Door Threshold Heights Due to stringent ' Florida hurricane impact and water
infiltration building codes, all new aluminum acoustical prime entry swinging doors and
sliding glass patio doors will have thresholds that are considerably higher (from the
floor) than existing door thresholds. These higher door thresholds are designed to
provide optimum protection to the interior of a condominium from water infiltration during
a hurricane.
E. Summary of Asbestos Testing & Findings
As required by state and federal requirements, THC conducted asbestos testing on a
random sample of KWBTS condominiums in Buildings A, B and C. The tests results
showed a presence of asbestos containing materials (ACM) in several areas to include
stucco, window & door caulking, gypsum board compound, and ceiling texture. Given
these findings, the proposed NIP scope of work will be directly impacted in several
areas to include:
- window removal and acoustic window installation,
- door removal and acoustic door installation,
- removal of portable "through- wall" AC units and the infilling of openings,
- ceiling cuts required for installation of the ductless AC,
- wall cuts required for the installation of the ductless AC,
- construction of vertical wall pilasters required for installation of the ductless
AC system & ERV ducts,
- construction of closet soffit for installation of the ERV.
F. Asbestos Abatement: Construction Requirements
The presence of ACM in the KWBTS buildings will result in several new asbestos
abatement requirements for the NIP to include:
- Construction of ACM containment barriers in all areas (walls, ceilings, closets,
windows /doors), approximately 4 feet from all walls and areas impacted by
the NIP modifications.
- Abatement and bagging of ACM (resulting from demolition process) by
certified asbestos abatement staff.
- Air sampling of containment areas and clearance of all areas by certified
asbestos abatement staff to allow access to containment areas by traditional
(non- abatement) workers.
- THC will be required to provide executive oversight of all ACM abatement
processes in all condominiums throughout the NIP construction process to
ensure proper compliance with federal and state abatement guidelines.
Exhibit A - Property Owner Noise Insulation Agreement Page 16 of 25
- The presence of ACM will have a significant impact on the NIP construction
process, lengthening the construction period and increasing the sequencing
and coordination requirements of contractor crews.
Given the cost to provide required asbestos abatement procedures, the FAA
will require THC to develop a design and construction plan that minimizes the
disturbance of ACM to ensure the minimization of construction costs,
duration, and liability to the contractor and KWBTS property owners. This plan
will result in new property owner requirements and design restrictions which
are outlined below.
G. Asbestos Abatement: Property Owner Requirements
The presence of ACM in the KWBTS buildings will result in several new property owner
requirements to include:
- Given these new safety and construction crew sequencing challenges, NIP
construction will be accomplished using a "total building floor" method, where
a total floor area (Buildings A & B) or half -floor area (Building C) will be closed
and vacated for an estimated one (1) calendar -month period Due to federal
bidding regulations, the final NIP construction schedule for Building B will not
be developed until Monroe County awards the construction contract to the
lowest, responsible bidding general contractor.
- To accommodate this construction schedule, property owners will be required
to vacate their condominium for a one (1) month period to allow for the
efficient completion of the NIP construction. This will provide an array of
advantages that will provide the potential for construction efficiencies to
include:
o streamlined asbestos abatement procedures
o maximized level of construction safety and property owner protection
o minimized level of disturbance & disruption to all property owners
o simplification of building walkway egress issues during abatement
o high flexibility for the sequencing of construction and crews
o potential for extended working hours
o simplification of construction inspections
- Prior to the start of NIP construction, property owners will be required to
remove all window and door treatments, wall hangings, and custom built -ins
(including but not limited to furniture, cabinets, and shelving) that conflict with
the construction of the required wall & corner vertical pilasters. In addition,
property owners will be required to move their furniture within the designated
areas as outlined in their final design documents to allow for the construction
of required asbestos abatement containment corridors.
Exhibit A - Property Owner Noise Insulation Agreement Page 17 of 25
- In the event a condominium has excessive furniture and furnishings, the
property owners will be required to remove all excessive furniture and
furnishings prior to NIP construction to provide sufficient space for required
asbestos abatement containment areas.
H. KWBTS BOARD Authority of Design Decisions The KWBTS Board will have the
Authority to make several of the Program design decisions to include:
1. Acoustical Window and Door Material
2. Acoustical Window and Door Color and Hardware Finishes
3. Acoustical Window and Door Operational Styles
4. Interior Ductless "Mini- Split" AC System Installation Requirements
5. Interior Ductless "Mini- Split" AC System Interior Soffit Design and Placement
6. In- Filled Kitchen Prime Door Policy Treatment
Exhibit A - Property Owner Noise Insulation Agreement Page 18 of 25
LEGAL DESCRIPTION OF PROPERTY
Exhibit B
To
Property Owner Noise Insulation Agreement
UNIT 211 -13 GULFSTREAM TOWER OF KEY WEST BY THE SEA A CONDO OR638-
606 OR730 -70 OR773 -894 OR1185 -1389 OR1400- 1786/12 OR1636- 213/15P/R
Exhibit B - Property Owner Noise Insulation Agreement Page 19 of 25
PROGRAM IMPROVEMENTS
Exhibit C
To
Property Owner Noise Insulation Agreement
This Exhibit C represents the Program Improvement package for an eligible home that
includes the Program Improvements developed by the Program Manager to reduce the
interior environment of a property by a minimum of five (5) decibels.
A typical Program Improvement package may include:
• Architectural Drawings
• Replacement Aluminum Acoustical Windows
• Replacement Aluminum Acoustical Swinging Prime Door(s)
• Replacement Aluminum Acoustical Sliding Glass Patio Door(s)
• Ductless Mini -Split Air Conditioning System Modifications and Wall Pilasters
• Energy Recovery Ventilator (ERV) unit
• Electrical panel modifications (only if required)
Exhibit C - Property Owner Noise Insulation Agreement Page 20 of 25
DEFICIENCY HOLD HARMLESS AGREEMENT
Exhibit D
To
Property Owner Noise Insulation Agreement
1. In partial consideration of the compensation to be paid on behalf of the
County and the Program for the Program Improvements to be made to the Property
described in the Agreement of even date herewith (the "Agreement ") between the County
and Property Owner and to which this Exhibit D is attached, the undersigned, for and on
behalf of the undersigned and the heirs, personal representatives, successors, and
assigns of the undersigned, forever releases, remises, discharges, indemnifies and
covenants not to sue, institute claims against, or institute any proceedings against, the
County, or any of its agents, officers, employees, consultants and /or contractors
concerning any and all claims, demands, damages, actions or causes of action of
whatsoever kind and nature on account of bodily injuries or death, damage to the property,
and the consequences thereof, and any of the foregoing which may accrue to the
undersigned or their respective heirs, personal representatives, successors and assigns in
connection with any and all Pre - Existing Deficiencies (the "Deficiencies ") against said
County or any of its officers, agents, employees, consultants and /or contractors to be
legally liable.
2. The Property Owner understands and assumes full responsibility for the
Deficiencies present in the Property, whether visible to the Program Manager or unseen.
3. The Property Owner understands that the Deficiencies include any
deficiencies present in the Property at the time of execution of this Agreement which could
include, but not be limited to, code violations, structural damage, water / moisture
damage, hazardous materials, infestation and /or any issue that would negatively impact
the installation and performance of the Program Improvements.
4. If visible, the Property Owner understands that the Program Manager may
identify and document Deficiencies at any time throughout the Program process
(including design, bid and construction processes). If identified and documented, the
Program Manager will classify the observed Deficiencies as either "Minor' or "Severe ".
5. The Property Owner assumes full responsibility for the worsening of any
documented Minor Deficiencies.
6. In the rare event "Severe" Deficiencies are identified during the design
process, the Property Owner agrees to complete necessary repairs to the Property, to
the acceptance of the Program Manager, as a precondition to the commencement of
construction of the Program Improvements. In the rare event that "Severe" Deficiencies
are uncovered during the construction period, the Property Owner agrees to complete
Exhibit D - Property Owner Noise Insulation Agreement Page 21 of 25
necessary repairs to the Property, to the acceptance of the Program Manager to
minimize any delay or stoppages of work.
7. The undersigned acknowledge and agree that all of the release and hold
harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit D apply to
property damage, injuries, deaths, or damages arising from the Deficiencies and /or all
negative impacts that later result after the addition of the Program Improvements. The
provisions of this Exhibit D shall survive the termination or expiration of the Property
Owner Noise Insulation Agreement.
8. The undersigned hereby agree that the terms and provisions of this Exhibit
D shall be binding upon, and inure to the benefit of the undersigned and their respective
heirs, personal represgntatives, successors and assigns.
WITN
Name
PROPERTY OWNER:
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WITNESSES:
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Date
Exhibit D - Property Owner Noise Insulation Agreement Page 22 of 25
VENTILATION HOLD HARMLESS AGREEMENT
Exhibit E
To
Property Owner Noise Insulation Agreement
1. In partial consideration of the compensation to be paid on behalf of the
County and the Program for the Program Improvements to be made to the Property
described in the Agreement of even date herewith (the "Agreement ") between the County
and Property Owner and to which this Exhibit E is attached, the undersigned, for and on
behalf of the undersigned and the heirs, personal representatives, successors, and
assigns of the undersigned, forever releases, remises, discharges, indemnifies and
covenants not to sue, institute claims against, or institute any proceedings against, the
County, or any of its agents, officers, employees, consultants and /or contractors
concerning any and all claims, demands, damages, actions or causes of action of
whatsoever kind and nature on account of bodily injuries or death, damage to the
property and the consequences thereof, and any of the foregoing which may accrue to
the undersigned or their respective heirs, personal representatives, successors and
assigns in connection with any and all Ventilation Deficiencies (the "Deficiencies ") against
said County or any of its officers, agents, employees, consultants and /or contractors to be
legally liable.
2. The Program Improvements may include the addition of acoustical
windows and doors, removal and infilling of "through -wall' portable air conditioner units
and the addition of a replacement ductless "mini- split" air conditioning system. Because
these modifications will result in a tighter interior environment due to the elimination of
all passive inside / outside air leakage that was naturally occurring in all openings, the
Program will also include the addition of a energy recovery ventilation (ERV) unit which
will provide an adequate exchange of inside / outside air to the condominium as
required by building code.
3. Given the tightened interior environment of the treated condominium, the
Property Owner agrees to assume full responsibility for the proper operation of the new
Program ductless AC system and energy recovery ventilation (ERV) unit to avoid the
potential for mold and moisture problems, especially during periods when the
condominium is closed and uninhabited.
4. Due to FAA eligibility limitations, the Program will not be providing
bathroom exhaust fan treatments. Since bathroom tubs and /or showers are a source of
moisture generation in the interior environment of a condominium, the Property Owner
agrees to assume full responsibility for ensuring that all bathrooms have an operable
bathroom exhaust fan capable 'of properly exhausting bathroom moisture to the exterior
of the building. It should also be noted that the original KWBTS condominiums were
constructed with a small wall vent that was designed to allow the passive exhaust of
Exhibit E - Property Owner Noise Insulation Agreement Page 23 of 25
bathroom moisture in a central building exhaust shaft. During the Program design
survey process it was discovered the KWBTS buildings lack a solid central building
exhaust shaft. Due to this existing condition, these original wall vents (if still present)
have the potential to provide a pathway for unwanted air, smoke and /or gases into the
condominium interior. The Property Owner agrees to assume full responsibility for the
sealing of original wall vents in all bathrooms and for any and all negative impacts that
may result if left untreated.
5. It is clearly a building code violation to duct laundry dryer exhaust to the
KWBTS central exhaust shaft. In the event a Property Owner has incorrectly ducted
their laundry dryer vent to the KWBTS central building exhaust shafts, they agree to
correct this deficiency by properly exhausting their laundry dryer exhaust in an
alternative method that meets current building code, at their cost before the initiation of
the Program construction process. Furthermore, the Property Owner agrees to assume
any and all liability related to the improper ducting of their laundry dryer exhaust.
5. The Property Owner understands that the Program Improvements will not
address kitchen and bathroom ventilation and /or excessive interior humidity levels
generated by the Property Owner within the interior of the condominium. The Property
Owner understands and assumes full responsibility for maintenance of interior moisture
and humidity levels. The Property Owner agrees to assume full responsibility for any
occurrence, reoccurrence or worsening of moisture problems and /or interior humidity
levels in the Property. In addition, the Property Owner agrees to assume full
responsibility for the maintenance and operation of the NIP venting modifications after
completion of the Program Improvements.
7. The undersigned acknowledge and agree that all of the release, hold
harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit E apply to
injuries, deaths, or damages sustained in connection with or as a result of any and all
interior ventilation deficiencies arising after the addition of the Program Improvements
including, but not limited to, high humidity, mold, mildew, - and /or lack of proper exhaust
ventilation. The provisions of this Exhibit E shall survive the termination or expiration of
the Property Owner Noise Insulation Agreement.
8. The undersigned hereby agree that the terms and provisions of this
Exhibit E shall be binding upon, and inure to the benefit of the undersigned and their
respective heirs, penal representatives, successors and assigns.
WITNESS PROPERTY OWNER:
Signatur
Signat re
Printe& Name
/7 Printed Name
Signatur
1 i Date
Printed Name
r
Exhibit E - Property Owner Noise Insulation Agreement Page 24 of 25
I
WITNESS PR PERTY OWN R:
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WITNESSES:
Signature
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Signature
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Exhibit E - Property Owner Noise Insulation Agreement
Page 25 of 25