Item C08C oun t y of Monr
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BOARD OF COUNTY COMMISSIONERS
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Mayor David Rice, District 4
The Florida Ke s lv ',
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Mayor Pro Tern Sylvia J. Murphy, District 5
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Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
County Commission Meeting
December 13, 2017
Agenda Item Number: C.8
Agenda Item Summary #3643
BULK ITEM: Yes DEPARTMENT: Airports
TIME APPROXIMATE: STAFF CONTACT: Donald DeGraw (305) 809 -5200
none
AGENDA ITEM WORDING: Approval to rescind an Avigation Easement and Property Owner
Noise Insulation Agreement for Gary L. Haisma who recently withdrew from the Key West
International Airport Noise Insulation Program (NIP) Pilot Project and approval for the County
Administrator to execute a Release of Easement to be recorded in Official Records.
ITEM BACKGROUND: Due to Hurricane Irma, the property owner recently withdrew from the
NIP program; therefore, staff is requesting that the avigation easement and NIP property owner
agreement for Gary L. Haisma of 2827 Venetian Drive, Key West, Florida 33040, be rescinded and
the agenda item summary and a copy of the BOCC minutes be recorded in the public records to
cancel the avigation easement previously recorded in the public records for this property.
PREVIOUS RELEVANT BOCC ACTION:
On September 27, 2017, the BOCC approved Avigation Easements and Property Owner Noise
Insulation Agreements for (19) condo units at Key West by the Sea and two (2) Single - Family
Homes.
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
HAISMA Avigation Easement & Homeowner Agr
FINANCIAL IMPACT:
Effective Date: 12/13/2017
Expiration Date:
Total Dollar Value of Contract: Approx. $65.00
Total Cost to County:
Current Yes
Source of Funds: Airport Operating Fund 404
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: no If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Beth Leto
Completed
11/22/2017 3:32 PM
Donald DeGraw
Skipped
11/22/2017 2:10 PM
Pedro Mercado
Completed
11/27/2017 9:40 AM
Budget and Finance
Completed
11/27/2017 9:41 AM
Maria Slavik
Completed
11/27/2017 9:44 AM
Kathy Peters
Completed
11/27/2017 11:33 AM
Board of County Commissioners
Pending
12/13/2017 9:00 AM
Prepared By and Return To:
Heather P. Faubert
NIP Assistant Project Manager
THC, Inc.
3300 Breckenridge Blvd., Suite 200
N_
Duluth, GA 30096 0
AVIGATION EASEMENT
Key West International Airport
Noise Insulation Program
ty �
THIS EASEMENT AGREEMENT is entered into thisc 'g of _ , 20 ` , by
"GARY L. HAISMA ", hereinafter referred to as "the Homeowner," in favor of the MON OIZO E COUNTY
BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as
"BOCC."
RECITALS:
A. The Homeowner is the fee simple titleholder to certain real property ( "the Property') located in
Monroe County, Florida, more particularly described as follows:
LT 79 KW AMENDED PLAT OF RIVIERA SHORES FIRST ADDN P65 -88 OR502 -857 OR679-
8931894 OR987 -1832 OR2277 -2450 OR2676- 1969DIC OR2735- 2139140
also identified as street address: 11 2827 Venetian Drive "
B. The BOCC is the owner and operator of Key West International Airport ( "the Airport ") and desires
to make properties that, through interior noise exposure testing, are determined incompatible as
a result of their exposure to aircraft noise compatible for residential purposes through the
implementation of a Noise Insulation Program ( "NIP ").
C. Under the NIP, the Airport will design and install or pay for the installation of improvements and
modifications to the Homeowner's Property necessary to reduce interior noise levels at least 5
dB and to bring the average interior noise level below 45 dB in accordance with Federal Aviation
Administration policy. Granting of an Avigation Easement ( "Easement ") is a BOCC condition of
participation in the NIP. The Easement will supersede any implied or prescriptive easements
that the BOCC may have obtained under applicable laws.
D. The funding source for said NIP will include funding from the United States Government pursuant
to the Airport and Airway Improvement Act of 1982, and will include funding from the BOCC,
acting in its capacity as the owner and operator of the Airport.
E. The Homeowner desires to participate in the NIP and has entered into a Homeowner Noise
Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the
Homeowner and the Property by providing certain remedial sound attenuation construction on
all eligible residential structures on the property necessary to achieve a reduction in DNL indoor
noise levels of at least 5 dB and bring the average interior noise level below 45 dB in accordance
with Federal Aviation Administration policy.
F. The Homeowner fully understands that the NIP eligibility could change at some future time, but
is currently based on the 2093 Existing Condition Noise Exposure Map accepted by the Federal
Aviation Administration ( "the FAA ") on December 19, 2013.
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G. The NIP will be administered in accordance with the current FAA Order 5100.38, Airport
Improvement Program Handbook.
H. It is the purpose of this Easement Agreement to grant to the BDCC a perpetual avigation
easement, on terms as hereinafter set forth.
NOW THEREFORE, for and in consideration of the improvements to be made to the Subject Property
through the NIP, the receipt and adequacy of which is hereby acknowledged by both parties, and in
consideration and incorporation into this Avigation Easement of the recitals set forth above, the
Homeowner and the BDCC agree as follows:
The Homeowner on behalf of the Homeowner and its heirs, assigns and all successors in interest,
does hereby grant, bargain, sell and convey to the BDCC, its successors and assigns, a
perpetual avigation easement over the property. The use of the Easement shall include the
right to generate and emit noise and to cause other effects as may be associated with the
operation of aircraft over or in the vicinity of the property. This Easement shall apply to all such
aircraft activity at the Airport, present or future, in whateverform or type, during operatlon at, on, to or
from the Airport, and it being the intent of the parties that all such Airport activity shall be deemed
to be included within the purview of this Easement.
2. This Easement shall be perpetual in nature and shall bind and run with the title to the property
and shall run to the benefit of the BDCC or its successor in interest as owner and operator of the
Airport.
The Homeowner on behalf of the Homeowner, its heirs, assigns and successors in interest,
does hereby release the BDCC, and any and all related parties of the BDCC, including but not
limited to BDCC members, officers, managers, agents, servants, employees and lessees, from
any and all claims, demands, damages, debts, liabilities, costs, attorney's fees or causes of action
of every kind or nature for which the Homeowner or its heirs, assigns, or successors currently
have, have in the past possessed, or will in the future possess, as a result of Airport operations
or aircraft activities and noise levels related to or generated by Airport activity, or may hereafter
have as a result of use of this Easement, including but not limited to damage to the above -
mentioned property or contiguous property due to noise, and other effects of the operation of
the Airport or of aircraft landing or taking off at the Airport.
4. This Easement expressly excludes and reserves to the Homeowner and to the Homeowner's
heirs, assigns and successors in interest, claims, demands, damages, debts, liabilities, costs,
attorneys' or expert's fee, or causes of action for physical damage or personal injury caused by
any aircraft or part of any aircraft using the Easement that does identifiable physical damage to
the property or injury to a person on the property by coming into direct physical contact with the
property or the person on the property.
5. Should either party hereto or any of their successors or assigns in interest retain counsel to
enforce any of the provisions herein or protect its interest in any matter arising under this
Agreement, or to recover damages by reason of any alleged breach of any provision of this
Agreement, the prevailing party shall be entitled to all costs, damages and expenses incurred
including, but not limited to, attorney's fees and costs incurred in connection therewith, including
appellate action.
5. No provision of this Agreement is to be interpreted for or against any party because that party or
that party's legal representative drafted such provision. This Agreement shall be interpreted and
construed according to the laws of the State of Florida.
7. No breach of any provision of this Agreement may be waived unless in writing. Waiver of any one
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breach of any provision of this Agreement shall not be deemed to be a waiver of any other
breach of the same or any other provision of this Agreement. This Agreement may be amended
only by written instrument executed by the parties in interest at the time of the modification. In
the event that any one or more covenant, condition or provision contained herein is held invalid,
void or illegal by any court of competent jurisdiction, the same shall be deemed severable from
the remainder of this Agreement and shall in no way affect, impair or invalidate any other provision
hereof so long as the remaining provisions do not materially alter the rights and obligations of the
parties. If such condition, covenant or other provision shall be deemed invalid due to this scope
or breadth, such covenant, condition or other provision shall be deemed valid to the extent of
the scope or breadth permitted by law.
In the event the Airport shall be subdivided into more than one parcel, or the Airport or a portion
thereof becomes subject to operation, management or administration by a party in addition to
or in lieu of the BOCC, then and in that event the parties agree that same shall not terminate or
otherwise affect this Agreement so long as a portion of the Airport continues to operate for
standard airport flight purposes, and that any such successor in interest to the BOCC shalt be
entitled to all of the benefits running to the BOCC hereunder.
The Homeowner agrees that the Homeowner shall bear and be responsible for all costs of
maintaining and operating any sound attenuation materials and equipment installed in the
Property by or on behalf of the BOCC.
This Easement Agreement is executed as of the date first above written.
OWNER:
ture
Printed Name - -
Date
STATE OF
COUNTY OF r`�1 (�z
HOMEOWNER:
Signature
Printed Name
Date
The foregoing instrument was acknowledged before me this --� day of T eOP Y) R I 2g t
J Fes
by G1 G K . tJ o _ 0 Q
Homeowner Name {s}
My Commission Expires:
Nc�ary Public Signature
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JESSICA L STEINBACH
`�`�
MY COMMISSION #FFI oofM
EXPIRE=S May 2T, 2pi7
(40 0153
Flori�aNalary5erviCe -corn
The foregoing instrument was acknowledged before me this --� day of T eOP Y) R I 2g t
J Fes
by G1 G K . tJ o _ 0 Q
Homeowner Name {s}
My Commission Expires:
Nc�ary Public Signature
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C.8.a
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS:
WITNESSES: MAYOR:
Signature
Printed Name
Signature
Printed Name
STATE OF FLORIDA
COUNTY OF MONROE
Signature
Printed Name
Date
The foregoing instrument was acknowledged before me this day of
7
as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate.
My Commission Expires:
Notary Public Signature
20
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C.8.a
Address: 2827 Venetian Dr.
Name(s): Haisma
N
HOMEOWNER 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 "Homeowner').
WITNESSETH:
WHEREAS, the Homeowner 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 Homeowner has elected to participate in the Key West
International Airport's Noise Insulation Program (the "Program ") and, as part of the
Program, the Homeowner 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 Homeowner 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 (tyre "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 Homeowner and the County mutually desire to agree to
the terms upon which the Homeowner 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 Homeowner and the County hereby
agree as follows:
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1 . Grant of Easement Simultaneously with the execution of
this Agreement, the Homeowner 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 Homeowner understands that prescribed Program Improvements will
be consistent with the Program Policy Statements provided to the
Homeowner 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 Homeowner and
County, managed by the Program Manager, and performed by the
Contractor.
4. Impeding Competitive Bid Process. The Homeowner 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 Homeowner 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
Homeowner 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 Homeowner shall not impede construction or
alter construction schedules. In addition, the Homeowner 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 Homeowner or any tenant occupying the
Property impedes construction or alters the construction schedule, the
Homeowner shall be liable to the Contractor and the County for any
damages and all direct and indirect costs related thereto.
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7. Safe Workinq Environment The Homeowner 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 Homeowner 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 Homeowner 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
Homeowner in writing, stating the corrective action(s) and/or condition(s) required to be
completed or performed by the Homeowner prior to the County resuming the Program
process.
c. In the event the Program process is not resumed due to the
Homeowner's failure to complete the corrective action(s) and /or condition(s) required by
the Program Manager, the Homeowner 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 Homeowner 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
Program Improvements, at its sole discretion, at any time during the
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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.Acce tance 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 Homeowner is requested to attend the Substantial Completion
Inspection and provide input to the Construction Manager with respect to
the identified punch -fist items. In addition, the Homeowner is welcome to
attend the Final Inspection. In the event the Homeowner 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 Homeowner and the Program Manager as to
a conformance or performance issue, the Homeowner shall be required
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
Homeowner to submit the written complaint within the time period specified
above shall thereafter foreclose the Homeowners right to file such
complaint.
11. Termination of Agreement The Homeowner 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 Homeowner 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 Homeowner 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 Homeowner 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
work as provided for in Paragraph 9. In addition, the Program Manager will provide the
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Homeowner with copies of the warranty policies for all products used in the construction
of the Program Improvements. The Homeowner understands that the warranty policies
for products used in the construction of the Program Improvements differ among
product manufacturers. The Homeowner understands that it is solely responsible for
pursuing all future product warranty issues directly with each product manufacturer.
b. In the following instances, the Homeowner 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 Homeowner's inquiry is not directly related to either
construction warranties or product warranties (such as window cleaning or product
maintenance) regardless of whether the Homeowner's inquiry arises during the one -
year warranty period from the Contractor or thereafter;
(2) The Homeowner 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 Homeowner 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 Homeowner 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 Homeowner will be
required to sign Exhibit 0 (Deficiency Hold Harmless Agreement) which will
impute all responsibility and liability to the Homeowner for any and all
present Pre - Existing Deficiencies at the Property, whether seen or unseen.
14. Sus ension 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 Homeowner has corrected all
related problems to the satisfaction of the Program Manager. In the event
repairs are not completed in a timely manner, the Homeowner 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 Pro pert . The Homeowner
agrees not to make alterations, or to permit any tenant occupying any
portion of the Property to make alterations to the existing windows, 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
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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 Homeowner 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 Homeowner 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 re- construction noise test to the post-construction
noise test. In an effort to insure consistent noise data collection, the
Homeowner also agrees to preserve the interior layout of furniture, floor
coverings and window treatments from the time of the re- construction
noise test to the post- construction noise test. The Homeowner understands
that the failure to adhere to this requirement may result in corruption of the
noise testing data. Therefore, the Homeowner 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. Coo eration. As reasonably requested, the Homeowner
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 Homeowner 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 Homeowner 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.
24. 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.
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21. Cooperation in Clearing Title Prior to the commencement
of construction of the Program Improvements, the Homeowner 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
Homeowner'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 Homeowner agrees to the following provisions:
a. The Homeowner 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
Homeowner 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 Homeowner will be
required to sign Exhibit E (Ventilation Hold Harmless Agreement) which
imputes all responsibility to the Homeowner for the proper maintenance of
interior moisture and humidity levels.
24. Salva e of Materials & Equipment. If the Homeowner
desires to retain any of the material or equipment removed from the
Property as a result of the Program Improvements, the Homeowner shall
arrange for the salvage of said materials and equipment directly with the
Contractor at the Homeowner'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
Homeowner and the Contractor shall, prior to the commencement of
construction, agree upon and execute a document listing those items to be
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 Homeowner shall become the property of the Contractor.
25. Property Insurance.
the Contractor will provide builder's
Homeowner shall have the option,
During Program construction period,
risk insurance for the Property. The
at the Homeowner's sole cost and
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expense, to maintain a homeowner's insurance policy for the duration of the
construction of the Program Improvements. The Homeowner understands
that, following final completion, the Contractor's builder's risk insurance will
cease and it is advisable for the Homeowner to obtain insurance to cover
any value added to the Property by the Program.
26. Timing and Effects of Construction The Homeowner
understands that there is a chance that construction itself may exceed the
Contractor's original projected construction time period. The Homeowner
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 Homeowner 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. of Propert y . In the event the Homeowner sells,
conveys or otherwise transfers title to the Property before the completion of
all phases of the Program process, the Homeowner 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 Homeowner'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 Homeowner, upon written request by the County, shall pay 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. Homeowner understands that it is
the Homeowner's responsibility to insure such payment is made in order to
"clear' the title to the Property.
31.Authority To Execute On Behalf Of Count . By Resolution
No. 111 -2004 duly motioned and passed at a lawfully announced public
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meeting, the Board of County Commissioners of Monroe County, did, on the
17=" day of March 2004 grant fuIl 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 Homeowner agree that venue will lie in the appropriate court or before the
appropriate administrative body in Monroe County, Florida.
(3) The County and Homeowner 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 Homeowner 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
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. Binding Effect. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Homeowner and
their respective legal representatives, successors, and assigns.
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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 Homeowner action, as may be required by law.
e. Duration of Agree ment. This Agreement shall commence upon the
execution of this Agreement, subsequent to execution by the Homeowner 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 Homeowner 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 Homeowner
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 Homeowner shall be
approved by the County prior to submission.
h. Adjudication of Disputes or Disagreements. The County and
Homeowner 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.
L Nondiscrimination. The County and Homeowner 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. The County and Homeowner 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
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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 Homeowner 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 Homeowner 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 Homeowner
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.
1. Covenant of No Interest. The County and Homeowner 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.
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 Homeowner warrant
that, in respect to itself, it has neither employed nor retained any company or person,
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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 Homeowner
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 Homeowner 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 Homeowner in conjunction with this Agreement; and the
County shall have the right to unilaterally cancel this Agreement upon violation of this
provision by the Homeowner.
p. Non - Waiver of Immunity. Notwithstanding the provisions of Sec.
768.28, Florida Statutes, the participation of the County and Homeowner in this
Agreement and the acquisition of any commercial liability insurance coverage, self -
insurance coverage, or focal 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 entered 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
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 Homeowner agree that neither the
County nor Homeowner or any agent, officer, or employee of each shall have the
authority to inform, counsel, or otherwise indicate that any particular individual or group
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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 Homeowner agrees to execute such documents
as the County may reasonably require in the performance of the obligations and duties
of the County or Homeowner 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 Homeowner and the County have executed
this Agreement as of the day and year first above written.
Sig ature _ f
I Printed Name
6
L
Signature rr JJ
Printed Name
WITNESSES:
Signature
Printed Name
Signature
Printed Name
Nomeowne� Insulation Agreement
HOMEOWNER:
Signature
Printed Name
Date
Page 13 of 21
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Printed Name
I
Date
C.8.a
WITNESSES:
HOMEOWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS:
WITNESSES MAYOR:
Signature
Prnted Name
Signature
Printed Name
Signature
Date
Printed Name
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this day of
by
20
as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate.
Notary Public Signature
My Commission Expires
I
'47
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PROGRAM POLICY STATEMENTS
Exhibit A
fro
Homeowner Noise Insulation Agreement
A. Window Sill Replacement. Due to the thickness of the new aluminum acoustical
double -hung windows, existing sills may need to be replaced as a part of the installation
process. Existing wood sills will be replaced by new wood sills. Existing tile sills will be
replaced by new marble sills.
B. 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 home from water infiltration during a
hurricane.
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LEGAL DESCRIPTION OF PROPERTY
I Ma MI
To
Homeowner Noise Insulation Agreement
LT 79 KW AMENDED PLAT OF RIVIERA SHORES FIRST ADDN P135 -88 OR502 -857
OR679- 8931894 OR987 -1832 OR2277 -2450 OR2676- 1969DIC OR2735- 2139140
Homeowner Noire Insulation Agreement
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]T141T11 :10 111
Exhibit C
To
Homeowner 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
r Replacement Aluminum Acoustical Windows
Replacement Aluminum Acoustical Swinging Prime Door(s)
Replacement Acoustical French Doors (if present)
Replacement Aluminum Acoustical Sliding Glass Patio Door (if present)
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DEFICIENCY HOLD HARMLESS AGREEMENT
Exhibit D
To
Homeowner 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 Homeowner and to which this Exhibit 0 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 Homeowner understands and assumes full responsibility for the
Deficiencies present in the Property, whether visible to the Program Manager or unseen.
3. The Homeowner 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 1 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 Homeowner understands that the Program Manager may
identity 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 Homeowner 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 Homeowner 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 Homeowner agrees to complete
necessary repairs to the Property, to the acceptance of the Program Manager to
minimize any delay or stoppages of work.
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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 Homeowner
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 representatives, successors and assigns.
WITNESSES:
S n Lure
Printed Name
Signature
Printed Name
WITNESSES:
Signature
Printed Name
Signature
Printed Name
Homeowner Noise Insi darion Ags•eenrent
HOMEOWNE
srgn a�ure
Printed Name
e
HOMEOWNER:
Signature
Printed Name
Date
Page 19 of 21
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VENTILATION HOLD HARMLESS AGREEMENT
qU isrU
To
Homeowner 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 Homeowner 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. Depending on existing conditions, the Program Improvements may include
the addition of acoustical windows and doors and/or removal and infilling of "through -
wall" portable air conditioner units and addition of a replacement AC system. These
modifications will result in a greater sealing of the property and the reduction of natural
leakage that may have occurred in the past.
3. The Homeowner understands that the Program Improvements will not
address kitchen and bathroom ventilation and/or excessive interior humidity levels
generated by the Homeowner. The Homeowner understands and assumes full
responsibility for maintenance of interior moisture and humidity levels. The Homeowner
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
Homeowner agrees to assume full responsibility for the maintenance and operation of
the NIP venting modifications after completion of the Program Improvements.
4. 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 Homeowner Noise Insulation Agreement.
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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, personal representatives, successors and assigns.
W1T 55
Si L lure
Printed Name
Signature
Printed Name
WITNESSES:
Signature
Printed Name
Signature
Printed Name
Homeowner Noire Insttlalion Agreement
7 re WNER:
Printed Name
Date — j ___, `
HOMEOWNER:
Signature
Printed Name
Date
Page 21 of 21
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