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Item C12County of Monroe {f `° " rel BOARD OF COUNTY COMMISSIONERS n Mayor David Rice, District 4 The FlOnda Keys y m �� 11 Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting September 19, 2018 Agenda Item Number: C.12 Agenda Item Summary #4663 BULK ITEM: Yes DEPARTMENT: Airports TIME APPROXIMATE: STAFF CONTACT: T.J Henderson (305) 289-6302 none AGENDA ITEM WORDING: Approval of Avigation Easements and Property Owner Noise Insulation Agreements for thirty-two (32) participating units at Key West by the Sea for the Key West International Airport Noise Insulation Program (NIP) Building B, Floors 3-6 Construction Project. All project cost to be funded with pending FAA Grant (90%) and Passenger Facility Charge #17 (10%). ITEM BACKGROUND: This agenda item is for the approval of Avigation Easements and Property Owner Noise Insulation Agreements for thirty two (32) condo units at Key West by the Sea, as shown in the attached list, for the Key West International Airport Noise Insulation Program (NIP) Construction at Key West by the Sea (KWBTS) Building B, Floors 3-6. Under NIP the Airport will pay for the design and installation of improvements and modifications to reduce interior noise levels generated by exterior aircraft operations for neighboring residents whose homes qualify for the FAA Noise Insulation Program. Qualification is based on the FAA approved 14 CFR Part 150 Noise Compatibility Program and associated Noise Exposure Map and related federal requirements. The Avigation Easements are a BOCC condition of participation in the NIP and all property owners who desire to participate in NIP also enter into the Property Owner agreement. All project costs are contingent upon receipt of a FAA Grant (90%) and Passenger Facility Charge 417 (10%). One bid was received at the bid opening held May 9, 2018, and staff is recommending approval of the sole bidder, DEC Contracting Group, Inc. to proceed with the Building B, Floors 3-6 Project. PREVIOUS RELEVANT BOCC ACTION: On February 21, 2018, the BOCC granted approval to advertise for bids and the bid opening held May 9, 2018. September 19, 2018 Agenda concurrent requests: 1. Rates FAA Grant 12-003 7-05 7-2018 2. Award of bid/contract to sole bidder DEC Contracting Group, Inc. 3. PSO #4 with THC for construction management and administration. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval. DOCUMENTATION: NIP Bldg B FL 3-6 Unit List AV EASEMENTS 13301-13311 AV EASEMENTS 13403-13411 AV EASEMENTS 13501-13511 AV EASEMENTS 13602-13610 POA 13301-13311 POA 13403-13411 POA 13501-13511 POA 13602-13610 FINANCIAL IMPACT: Effective Date: Expiration Date: Total Dollar Value of Contract: 0.00 Total Cost to County: Current Year Portion: Budgeted: n/a Source of Funds: n/a CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: n/a Grant: County Match: Insurance Required: Additional Details: REVIEWED BY: If yes, amount: Beth Leto Completed 08/29/2018 2:55 PM T.J Henderson Completed 08/29/2018 5:23 PM Pedro Mercado Completed 08/29/2018 5:25 PM Budget and Finance Completed 08/30/2018 9:19 AM Maria Slavik Completed 08/30/2018 2:20 PM Kathy Peters Completed 08/31/2018 12:30 PM Board of County Commissioners Pending 09/19/2018 9:00 AM C.12.a Key West International Airport Noise Insulation Program (NIP) Building B Floors 3-6 - BOCC 9/19/2018 Key West By the Sea Avigation Easements and Property Owner Noise Insulation Agreements OWNER UNIT # 1 Stacey Harvey B301 2 G. Phillip Morris & Susan Morris B302 3 Kayla R. Tollen B303 4 Marlene Lucille Durazo B304 5 Daniel & Kimberly A. Mercuri B305 6 Matthew R. Carlson & Derek L. Shuck B306 7 Anne Marie Young B308 8 Joan Weber Rolf B311 9 Gary L. Williams, Jr. & Barbara Dale Williams B403 10 Peter H. & Ellen D. Batty B404 11 Richard G. & Marsha E. Godsey B406 12 James C. Herl B407 13 Donald P. Cooke B408 14 Louis D. & Mariann Trombetta B409 15 Gregory E. & Barbara A. McShea B410 16 Karen A. Douma B411 17 Robert A. Stubblefield, Sr. B501 18 Adrian & Diane Hardej B502 19 Shirley Ann C. Lynn Flenner B503 20 Shirley Ann C. Lynn Flenner B504 21 Madeline Hilton B507 22 Albert R. Romano B508 23 Seyhan Senler & Oya S. Boscacci B509 24 Benny & Dina Ciccarelli B510 25 Willian L. O'Day, Jr. & Elisa R. O'Day B511 26 Albert R. Romano B602 27 Dennis R. & Rosemary P. Hopps B603 28 Stephen J. Michael B604 29 Nellie S. Booth & Sally Sanford B605 30 Madeline Hilton B608 31 Donald P. Cooke, Donald P. Cooke, Jr., Christian Cooke & Elizabeth A. D'Urso (Cooke) B609 32 R. Brian Corbett & Nancy Corbett B610 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 1 � 7-TT •• Noise•Program THIS EASEMENT AGREEMENT is entered into this a6'41'day of MAJ 2018, by "STACEY HARVEY", hereinafter referred to as "the Property Owner," in favor of thz MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, - - ... referred to as "BOCC." A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 301-8, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit 01" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #6301) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B301) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. No provision of this Agreement is to be interpreted for or against any party because that party or that parry'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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6301) Page 3 of 4 This Easement Agreement is executed as of the date first above written. Signature Date STATE OF COUNTY OF Signature Printed Name Date The foregoing instrument was acknowledged before me this day of 20 by LAarveA.A- Property Owner Name(s) pA..IA My Commission Expires: Notary Public Signature ELIZ.ABE H BICK W Notary P1 IState of ' ►Ay Commission Expir MONROE COUNTY BOARD OF COUNTY em a 24, 201E I �q ........ �`, rF of o, Signature Printed Name Date Printed Name FLORIDASTATE OF The foregoing instrument was acknowledged before me this by day of , 20 as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #B301) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this��day of 2018, by "G. PHILIP MORRIS & SUSAN MORRIS", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Condominium Unit 302-13, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B302" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #6302) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B302) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13302) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: sigqAtuyd Printed Name ,Q �V Date STATE OF _ny15u I v g n rp, COUNTY OF n1r_rnjp,orner-� PR PERTY OWNER: g S nature c,.SAv Printed Name �L Date The foregoing instrument was acknowledged before me this 2 1 day of o-j , 20 by 6. �i �,�`1'` (�)orrr`� ncd (Ytorr�`S Y Property Owner Name(s) COMMONWEALTH OF PENNSY NOTARIALSEAL My Commission Expires: rittany Juhas, Notary Publ Notary Public re FConshBohocken Boro, Montgomery # "• • 0 ME 111013919111111! • WITNESSES: Signature Signature Printed Name Printed Name Signature Date Printed Name STATE OF FLORIDA COUNTY OF MONROE 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 Signature My Commission Expires: // Key West International Airport NIP — Avigation Easement (Unit #13302) Page 4 of 4 A County ,2021 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this �day of ".CQo IS 2018, by "KAYLA R. TOLLEN", hereinafter referred to as "the Property O ner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: As to an easement interest Apartment Unit known as No. 303-B, GulfStream Tower in KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium, recorded in Official Records Book 589, Page 370, at seq., of the Public Records of Monroe County, Florida, and exhibits thereof, and all amendments thereto, and the Condominium Plans as recorded in Graphics Book #1, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B303" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the Key West International Airport NIP — Avigation Easement (Unit #B303) Page 1 of 4 NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B303) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #8303) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PR PERTY OWNER: K arure ---- --- Printed N me Date STATEOF COUNTY OF , PROPERTY OWNER: Signature Printed Name Date The foregoing instrument was acknowledged before me this day of _ , 20 by N Property Owner Name(s) My Gorr WITNESSES: MAYOR: Signature Signature Printed Name Printed Name Signature Expires: I Date Printed Name COUN � STATE OF FLORIDA '" PEURO . MBRCAUO COUNTY OF MONROE DOW 15TA,J I 01 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. My Commission Expires: Notary Public Signature Key West International Airport NIP -- Avigation Easement (Unit #8303) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this db day of MAY , 2018, by "MARLENE LUCILLE DURAZO", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 304-13, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B304" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #8304) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC members, officers, managers, agents, servants, employees and lessees, from any and all claims, demands, damages, debts, liabilities, costs, attorneys fees or causes of action of every kind or nature for which the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6304) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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, attorneys fees and costs incurred in connection therewith, including appellate action. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B304) Page 3 of 4 This Easement Agreement is executed as of the date first above written. Signature i, C i- Printed Name ffite STATE OF- /A COUNTYOF RMPO Signature ND The foregoing instrument was acknowledged before me this day of , 20 by L•uC 1 J Property Owner Name(s) Fmy _ -�. ,mom„�,.� I )(�C( $�NBt , t�i3BP -A (Xc My Commission Expi:19�Notary "'u%Ri�, Stag of Florida Notary Public Signature Gor�rn ssecr:# FF 1975P orm,expires ,bra, 19, 201 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name MAYOR: Signature Printed Name STATE OF FLORIDA ERCAt� .M COUNTY OF MONROE ~ANT 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 Signature My Commission Expires: Key West International Airport NIP — Avigation Easement (Unit #6304) Page 4 of 4 Li =011 Heather P. Faubert NNI, As6istarif—rrsj6ct 41;�nagdr THC, Inc. 710 Dacula Rd.. Suite 4A #315 Dacula, GA 30019 THIS EASEMENT AGREEMENT is entered into this day of . 00�-",'S , 2018, by "DANIEL & KIMBERLY A. MERCURI , hereinafter referred to 'the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." JIM "AS TO AN EASEMENT INTEREST" Condominium Unit 305-13, GULFSTREAM TOWER OF THE KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroa. County, Florida. S. 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"). IIIIIIIIIIIIZIMM1111111 =5- Key West International Airport NIP — Avigation Easement (Unit #13305) Page I of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6305) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13305) Page 3 of 4 Printed Name Date A IMAW PROPERTY OWNER: Signature Printed Name Date 5-t The foregoing instrument was acknowledged before me this —1 day of 20 by A-tJ I EL- -4— Property Owner Name(s) JEFFREY S.-SER10 My Commission Expires: f�tofirj`PMlic Sigrdture 'Jill WITNESSES: MAYOFS Signature Printed Name Printed Name The foregoing instrument was acknowledged before me this day of 20_ by Notary Public Signature IF, I! !!I! IIIIII 11311iff 11 �1=1=11 Miliff" M3= Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this _ day of q , 2018, by "MATTHEW R. CARLSON & DEREK L. SHUCK", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: As To An Easement Interest Unit No. 306-B, Gulfstream Tower Of KEY WEST BY THE SEA, a Condominium, Together With An Undivided Interest In The Common Elements, According To The Declaration Of Condominium Thereof, Recorded In Official Records Book 589 At Page 370 Of The Public Records Of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B306" 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 Property Owner'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. Key West International Airport NIP — Avigation Easement (Unit #6306) Page 1 of 4 E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6306) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP w- Avigation Easement (Unit #B306) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: P ERTYn R: Signature SkLna4re Printed Name Printed Name h%A 1 , 2.0 Date STATE OF I C y COUNTY OF i4 _® Z- Dat MAR C E JEN N Notary PW*r `Jf The foregoing instrument was acknowledged before me this / day of 20 by r'1 D r) l —U �. Property Owner Name(s) My Commission Expires: Signature MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature MAYOR: Printed Name Date Printed Name STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this by day of 20® as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #13306) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this I day of 4L , 2018, by "ANNE MARIE YOUNG", hereinafter referred to as "the Property O ner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Condominium Unit 308-B GULFSTREAM of TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B308" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #6308) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13308) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13308) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature Printed Name Date STATE OF T I Oi 16 a COUNTY OF "D-lr tl—P—, P PERTY OWNER: ignature P* f1l -e-1 go 6-4 Printed Name s17 Date The foregoing instrument was acknowledged before me this day of �C�C,1 20M by Owner Name(s) ) ILJ1�U My Commission Expires: r1tLq 2 Zt Sianature MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: r r Jessical.Steinbach ,p My Commission GG 105667 Expires 05/21/2021 WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE MAYOR: Signature Printed Name Date The foregoing instrument was acknowledged before me this by E day of 20 as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #13308) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of, 2018, by "JOAN WEBER ROLF", hereinafter referred tows "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property') located in Monroe County, Florida, more particularly described as follows: "As To An Easement Interest" Condominium Unit 311-13 GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B311" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #6311) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #8311) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6311) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PRO"PE OWNE Si�o�ur� PrintedvNNrn `\ Date STATE OF y l COUNTY OF PROPERTY OWNER: Signature Printed Name Date The foregoing instrument was acknowledged before me this day of , 20 by Property Owner Name(s) My Commission r: arro Public State of Florida Jessica L Steinbach y h. 4My Commission GG 105W7 .a .OF,., f K [X(NfES a? 111021 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE Signature Printed Name The foregoing instrument was acknowledged before me this day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature 20 Key West International Airport NIP — Avigation Easement (Unit #13311) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of 2018, by "GARY L. WILLIAMS, JR. & BARBARA DALE WILLIAMS", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 403-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B403" 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 Property Owner'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. Key West International Airport NIP — Avigation Easement (Unit #13403) Page 1 of 4 E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13403) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13403) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature Printed Name Date _ �;;RTY OWNER: Printed Name STATE OF its GOOF The foregoing instrument was acknowledged before me this day of l 20 by i Property Owner Name(s) �Q x OTAR Ka, My Commission Expires. (� ® G I; p Notary Pu`bne4ignature MY COMMI SION Q �EXPIRjg : Z MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: ALTH OF WITNESSES: MAYOR: Signature Signature Printed Name Printed Name Signature Date Printed Name lui N STATE OF FLORIDA MERCADO ASSI COUNTY OF MONROE _ Date The foregoing instrument was acknowledged before me this day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature 5� Key West International Airport NIP — Avigation Easement (Unit #6403) Page 4 of 4 Prepared By and Retum To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of ma(a , 2018, by "PETER H. BATTY & ELLEN D. BATTY", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Unit No. 404-B, Gulfstream Tower of the KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: 112601 S. Roosevelt Blvd., Unit B404" 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 Property Owner'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 NI P 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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #6404) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6404) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13404) Page 3 of 4 This Easement Agreement is executed as of the date first above written. STATE OF Dor- ICIct COUNTY OF _ ()Q �-eJ The foregoing instrument was acknowledged before me this day of I OL 20jz by PeAfCr Cj E � 1-e() Property • IJkLIi�. / 1 i fill Public Signature MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE Signature Printed Name 9 LEE The foregoing instrument was acknowledged before me this day of 20i by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #B404) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this - day of , 2018, by "RICHARD G. & MARSHA E. GODSEY", hereinafter referred to A "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: AS TO AN EASEMENT INTEREST: Condominium Unit 406B, Gulfstream Tower, a Condominium of KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370 and amendments thereto recorded in Official Records Book 598, Page 574 and 575, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B406" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the Key West International Airport NIP — Avigation Easement (Unit #B406) Page 1 of 4 NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13406) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #8406) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature Printed Name Date STATE OF COUNTY OF IIIJti� �" Printed Name Date �1 V P ,a, ADAM J BESfrM Notary Puft • State of Flalda • •,,+' Commission # FF 976290 My Comm. Expires Jul 17, 2020 �• un°Fu `t '� Bonded through National Notary Assn. The foregoing instrument was acknowledged before me this by m Property Owner day of Al NZ 20 17 My Commission Expires: Notary Public Signature------ MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE MAYOR: Signature Printed Name Date The foregoing instrument was acknowledged before me this day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature U 20® Key West International Airport NIP — Avigation Easement (Unit #13406) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this I it day of M a , 2018, by "JAMES C. HERL", hereinafter referred to as "the Property Ow r," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Condominium Unit No. 407-B, GULFSTREAM TOWER OF THE KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B407" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #13407) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13407) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6407) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPER OWNER• Signature ��5 C Neel Printed Name �I Date PROPERTY OWNER: Signature Printed Name Date STATE OF �(_O COUNTY OF 0 The foregoing instrument was acknowledged before me this fF 4� j _ Notary Public, State of Ohl by , . 1, 2 Property Owner Name(s) Recorded in Erie County j i My Commission Expires: Notary Public Signature • - • • • - 1 • • 11 • • WITNESSES: Signature Signature Printed Name Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this by . ,. _W as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit 6407) Page 4 of 4 Dacula, GA 30019 %Ak 1% r �! 171, *T7 RoolvidtW, le� it THIS EASEMENT AGREEMENT is entered into this" day of "I V P"k\— --I 2018, by "DONALD P. COOKE", hereinafter referred to as "the Property Owner," Fn &vor oi the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, -r to • •r r •; •04 • a_ ! a- of r-a - r • ! as �1 • i a •• '." #! a :r• *i:. '^•- � ,.�. �'t ' + a'.a .r• � ".ram i � '- r a :-ra 1 '_r- •"'_ l..a ;�r :i�a r^•- ;..i i� '- • a C. Under the NIP, the Airport will design and install or pay for the installation of improvements and modifications to the Property Owners Property necessary to reduce interior noise levels at least 5 d13 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 conditionof participation underwill supersede any implied or prescriptive easements that the BOCC may have obtained applicable AirportKey West Intemational g: F ag PROPERTY OWNER: i im � I Ill I �� I I ligr: I p�1111;�lllyl�gli'� I I , A 1: 1 Signature Printed Name Date Date Amber McCrory STATE OF Notalry Public - State of Florida Commission #FF 987933 COUNTYOF My Commission Expirps May 20 2020 The foregoing instrument was acknowledged before me th1s30 dayof Ai -, 4 11 20 1Z M MM Signature Printed Name Signature Printed Name Printed Name Date111 STATE OF FLORIDA COUNTY OF MONROE OOUNTY 7- 18 The foregoing instrument was acknowledged before me this _ day of . 21 by My Commission Expires: Notary Public Signature Key West International Aftport NIP — AvIgal Easement (Unit 06M) Page 4 014 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of a 42 A'I 1 , 2018, by "LOUIS D. & MARIANN TROMBETTA", hereinafter refeifed to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: As to an Easement Interest Condominium Unit 409-B, Gulfstream Towers, in KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B409" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #13409) Pagel of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B409) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B409) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature inted Name G� Date STATE OF COUNTY OF PROPERTY OWNER: f / l,tutt.�nMJ Signature M>4RIA1\1N TRaMg�TTA Printed Name �-� 17I20I& Date r The foregoing instrument was acknowledged before me this # day of 20ff by d M e' Prop rt O N Notary Public Signature e y caner ame(s) PAnUCIATOBIN My Commission Expires: Notary Public, State ofNew York No. 01TO6075429 CarMaM�euiMt Vihim-q Jtme 10. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE MAYOR: Signature Printed Name Date x ROE COU A EYPEM ASSISTANT ATTORNEY()Date c.� t 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. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #13409) Page 4 of 4 Prepared By and Retum To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program 64 THIS EASEMENT AGREEMENT is entered into this _ day of , Al? I L 2018, by "GREGORY E. & BARBARA A. MCSHEA", hereinafter referr to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Unit No. 410-B of GULFSTREAM TOWER OF KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to The Declaration of Condominium recorded in O.R Book 589, Page 370, and all exhibits and amendments thereof, Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B410" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #8410) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13410) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #8410) Page 3 of 4 This Easement Agreement is executed as of the date first above written. " !_ 1 v O12Paf ba r� A rnrneu rv- ® d rnmeu rvame Date Date MICHAEL C. POPOWSKI STATE OF 6I&(,4 Hof K Notary Public, State of New York f�rle.r disr.Reg. # 01 P06370300 COUNTY OF Qualified in Oneida County My Commission Expires Jan 29, 20 The foregoing instrument was acknowledged before me this Vfday of y nr� l , 20J_L by _ice rca �� E . McSke-- o,,,J A. M c S ta. Property Owner Name(s) My Commission Expires: S r;, n G z O a Notary P blic Signature MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: Signature Signature Printed Name Printed Name Signature Date Printed Name STATE OF FLORIDA �® COUNTY OF MONROE AS' DOW 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. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #8410) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this l "'day of iI J , 2018, by "KAREN A. DOUMA", hereinafter referred to as "the Property Owner, In favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 411-B, Gulfstream Tower of The KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B411" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #8411) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6411) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13411) Page 3 of 4 This Easement Agreement is executed as of the date first above written. -• • Signature Pnnted Name Date STATE OF M COUNTY OF The foregoing instrument was acknowledged before me this 1ST- day of by !lar(fJ'l 4)0& ry?'A, Notary ublic Signature Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE My Commission Expires: i Signature Printed Name irm 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. My Commission Expires: NotaryPublic Signature Key West International Airport NIP — Avigation Easement (Unit 11) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of , F t , 2018, by "ROBERT A. STUBBLEFIELD, SR.", hereinafter referFed to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 501-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B501" 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 Property Owner'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. Key West International Airport NIP — Avigation Easement (Unit #8501) Page 1 of 4 E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Olkner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, its successors and assigns, a perpetual avigation easemenf 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13501) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6501) Page 3 of 4 This Easement Agreement is executed as of the date first above written. Date STATE OF -:E IC7r t , C� COUNTY OF `1i1 ERTY OWNER: f" u Date LPOI Notary Public State of Florida Jessica L Steinbach My commission GG 105667 .4e.eyp Expires OW 12021 The foregoing instrument was acknowledged before me this day of ®� , 20 Property Owner Name(s) 4NtaePu1b&1icSign­ature My Commission Expires: 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: Signature Printed Name Signature Printed Name Signature Date Printed Name STATE OF FLORIDA COUNTY OF MONROE AS Date The foregoing instrument was acknowledged before me this day of by 1 MEROADO as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature 20 Key West International Airport NIP - Avigation Easement (Unit #8501) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of 2018, by "ADRIAN & DIANE HARDER, hereinafter referred to as "t Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Unit No. 502-13, of GULFSTREAM TOWER OF KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: 112601 S. Roosevelt Blvd., Unit B502" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #8502) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13502) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13502) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTYOWNER: MIR Printed Name i/ PROPERTY OWNER: Sign cure 1 S l ov) e, arca�� Printed Name Date STATE OF COUNTY OF The foregoing instrument was jacknowledged before me this day of 20 by roperty Owner Name(s) NTILAL T. VAQSOLA Notary Public, State Of New Yor My Commission Expires: No. 01-VA4912079 Notary Pu lic Signature Qualified in Suffolk County r_t mmissicn ExPirc's February & L MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name COUNTY OF MONROE Signature Printed Name Date The foregoing instrument was acknowledged before me this by day of , 20_ as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #6502) Page 4 of 4 'Z=Z- Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this ? day of A0V^1 , 2018, by "SHIRLEY ANN C. LYNN FLENNER", hereinafter refe ed t1 as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property') located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Condominium Unit 503-13, GULFSTREAM TOWER OF THE KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B503" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #6503) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13503) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13503) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature Printed Name Date STATE OF I( ' COUNTY OF MOD C PROPERTY OWNER: Signature Printed Nale -ze Date The foregoing instrument was acknowledged before me this 22, day of L® , 20Aa by �) t�� �I°111f r Property Owner Name(s) Public Signature My Commission Expires: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: Signature Signature Printed Name Printed Name Signature Date Printed Name STATE OF FLORIDA COUNTY OF MONROE 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. My Commission Expires: Notary Public Signature Key West International Airport NIP - Avigation Easement (Unit #6503) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this ` day of m < I 2018, by "SHIRLEY ANN LYNN FLENNER", hereinafter referred to a 'the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 504-13, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B504" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #13504) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13504) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6504) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature Printed Name Date STATE OF -± IDFLICJq COUNTY OF M [2 ", PR PERTY OWNER: Signature G��) -r Printed Name Date The foregoing instrument was acknowledged before me this day of lam- r l ` , 20 i Property Owner Name(s) tQ Jessica L Steinbach 1t My Commission GG 105667 Expires05/21/2021 My Commission i . 1 1 Public MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name MAYOR: Signature Printed Name Date I STATE OF FLORIDA J. MEIRCADO COUNTY OF MONROE ASSIST Date The foregoing instrument was acknowledged before me this by day of , 20. as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #8504) Page 4 of 4 Drenared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd.. Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Ivey West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of H i j 2018, by "MADELINE HILTON", hereinafter referred to as "the Property er," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 507-13, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B507" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #6507) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest. does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B507) Page 2 of 4 Ecscment expressly excludes and reserves to the Progertv Owner and to the Property Owner'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 iniury caused by any aircraft or part of any aircraft usina 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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6507) Page 3 of 4 This Easement Agreement is executed as of the date first above written. 1 P OPERTY NER: PROPERTY OWNER: I signature signature V JU..\✓ w/ I Printed Name --- I ` I 1is 1 Date I STATE OF l i COUNTY OF Printed Name Date s The foregoing instrument was acknowledged before me this day of t� . o by f� CL, i Property Owner Names) My Commiss' = NotdiNPIPul6lic Signature wA: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: signature I Signature I Printed Name Printed Name Signature Printed Name I STATE OF FLORIDA I COUNTY OF MONROE , 20 f i c MARCI L ROSE MY COMMISSION 9 FF 955705 EXPIRES: May 28, 2020 Bonded Thru Notary Pubric Underwriters The foregoing instrument was acknowledged before me this day of , 20 I by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Kev West International Airport NIP — Avigation Easement (Unit #B507) Page 4 of Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this &gdLy of , 2018, by "ALBERT R. ROMANO", hereinafter referred to as "the Property ner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, body politic and corporate, hereinafter referred to as "BOCC." 71 RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Condominium Unit 508-B, GULFSTREAM TOWER KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: 112601 S. Roosevelt Blvd., Unit B508" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #B508) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6508) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13508) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROP N PROPERTY OWNER: 11 Signatur Coe Signature Printed Narr� Printed Name Date Date STATE OF �T (�iY COUNTY OF h The foregoing instrument was acknowledged before me this day of 20La r. by _ _ C Property Owner Name(s) ��. Notary Public State of Fbrlda ON Jessica L Steinbach My Commission GG 105667 My Commissionlir nJ Expires 05/21/2021 N tary Public Signature Q r MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE LTA Signature Printed Name 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. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #8508) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this � day of Agri I 2018, by "SEYHAN SENLER & OYA S. BOSCACCI", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit: Unit No. 509-13, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Record Book 589, Page 370, et al and amendment recorded in Official Record Book 598, Page 574 and 575 of the Public Records of Monroe County, Florida, and as further amended. also identified as street address: "2601 S. Roosevelt Blvd., Unit B509" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #6509) Page 1 of Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program i THIS EASEMENT AGREEMENT is entered into this day of , 2018, by "SEYHAN SENLER & OYA S. BOSCACCI", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit: Unit No. 509-13, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Record Book 589, Page 370, et al and amendment recorded in Official Record Book 598, Page 574 and 575 of the Public Records of Monroe County, Florida, and as further amended. also identified as street address: "2601 S. Roosevelt Blvd., Unit B509" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound Key West International Airport NIP — Avigation Easement (Unit #6509) PageXof Co 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13509) Page ,of 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6509) Page:; A � This Easement Agreement is executed as of the date first above written. The foreaoin0instrument was by Augus16.M1 WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE Signature Printed Name Date before me this ll'day of, 20 My Commission Expkas: Kel 11 I 11 MAYOR: Signature Printed Name 1 —7 The foregoing Instrument was acknowledged before me this day of .20 by as Mayor of the donroe County Board of County Commissioners, a body politic and corporate. My Commission Expires; Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #SW9) Page,5�N 6 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signat p,,, S Printed Nbme Uri 1 -6 4� , 2,01 Date STATE OF ynd 16 10, COUNTY OF PROPERTY OWNER: Signature Printed Name Date The foregoing instrument was acknowledged before me this 7'0'day of A a, , 1 20 IS d Property Owner Name(s) 0Vj e° My Commission Expires: C) (1 Q Notary Public Signature 1 O Z ve O MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Signature Printed Name Printed Name Signature Date Printed Name STATE OF FLORIDA AS' COUNTY OF MONROE Date The foregoing instrument was acknowledged before me this day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature VA ,20 Key West International Airport NIP — Avigation Easement (Unit #6509) Page Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of 1 , 2018, by "BENNY & DINA CICCARELLI", hereinafter referred to as "the Aroperty Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit No. 510-13, Gulfstream Tower, KEY WEST BY THE SEA, a Condominium, according to the Declaration of Condominium recorded in Official Records Book 589, Page 370, and Exhibits thereof, and the Condominium Plans as recorded in Graphics Book #1, both of the Public Records of Monroe County, Florida, together with the undivided interest in common property declared in said Declaration of Condominium to be an appurtenance to the above described Apartment Unit. also identified as street address: "2601 S. Roosevelt Blvd., Unit B510" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the Key West International Airport NIP — Avigation Easement (Unit #6510) Page 1 of 4 NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13510) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13510) Page 3 of 4 This Easement Agreement is executed as of the date first above written. ® �- Y� CrILC Printed me —( /;�/' )` Date STATE OF 641CHIm-N P OPERTY OWNER: Signature Printed Name Date COUNTY OF w NF— The foregoin instru nt was acknowledged before me this day of ►' 1 q: 1 20 �1 by -e. oIoe1 C1000tretll me(s) JASON LOUIS CHRISTOPOULOS Notary Public - State of Michigan r V V//r County of Wayne fuI ommission Expires: /D f d 12&l Notary Pub gn ure ycommission xpi es 18, 2019 Acting in the County of MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE Signature Printed Name E 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. M Notary Public Signature Key West International Airport NIP— Avigation Easement (Unit 6510) Page 4 of 4 Preuare I By and Return To: Heather -3. Faubert NIP Ass stant Project Manager THC, In( . 710 Dac,lla Rd., Suite 4A #315 Dacula, A 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this I day of 2018, b;8 "WILLIAM L. O"DAY, JR. & ELISA R. O'DAY", hereinafter refeYrred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMM I,' a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The 'roperty Owner is the fee simple titleholder to certain real property ("the Property") local �d in Monroe County, Florida, more particularly described as follows: Condom nium Unit 511-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condom inium thereof recorded in Official Record Book 589, Page 370, as amended from time to t me, of the Public Records of Monroe County, Florida. also identified as street address: 112601 S. Roosevelt Blvd., Unit B511" B. The 3OCC is the owner and operator of Key West International Airport ("the Airport") and desil is to make properties that, through interior noise exposure testing, are determined incor ipatible as a result of their exposure to aircraft noise compatible for residential purp )ses through the implementation of a Noise Insulation Program ("NIP"). C. Undt r the NIP, the Airport will design and install or pay for the installation of imprt vements and modifications to the Property Owner's Property necessary to reduce inter )r noise levels at least 5 dB and to bring the average interior noise level below 45 dB it accordance with Federal Aviation Administration policy. Granting of an Avigation Easement ("Easement") is a BOCC condition of participation in the NIP. The Easement will s ipersede any implied or prescriptive easements that the BOCC may have obtained un�de applicable laws. D. The unding source for said NIP will include funding from the United States Government purs rant 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 property Owner desires to participate in the NIP and has entered into a Property Own :r Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP i gill benefit the Property Owner and the Property by providing certain remedial sound atter cation construction on all eligible residential structures on the property necessary Key West In ;mational Airport NIP — Avigation Easement (Unit #6511) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #6511) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13511) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: "1111 03 L G v 0, Printo Name Date Date d STATE OF ' , COUNTY OF IVEUJ CASTZ �����1�1llrriii K. The foregoing instrument was acknowledged before me this f day of - �' o � by M I d rn i 0 r ,1Y`. rr a EXPt ;N Property Owner Name(s) •ust 25, 20 cn• 20 1g• �i*' • • 4Y PUd My Commission Expires: � F�� ^ • • •� �F4 ���� Notary Public Signature ///DFL����\\\ MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: Signature _ Signature Printed Name Printed Name Signature Date Printed Name NAO STATE OF FLORIDA �MER0700 COUNTY OF MONROE pASSISTA 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. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #6511) Page 4 of 4 0 Prepared By and Return To: Heather P. Faubert 602 NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this/If Wday of 2018, by "ALBERT R. ROMANO", hereinafter referred to as "the P op rty caner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 602-13, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B602" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unk #13602) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B602) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13602) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROP 0 KY, 4 OWPA R: PROPERTY OWNER: Printhd Name Date STATE OF IIIIIIIIIIII %JIRIILVW COUNTYOF , . Signature Printed Name Date The foregoing instrument was acknowledged before me this 4 day of _�lU ('1�� 20$ byry Property Owner Name(s) Zvi" Notary Public State of Florida Jessica L Steinbach �, tf My commission GG 10%67 My Commission xpiT n<►" Expires OS/2�12021 Signature MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: Signature M- Signature Date Printed Name STATE OF FLORIDA COUNTY OF MONROE _ ' 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. y Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit B602) Page 4 of 4 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this 8 day of , 2018, by "DENNIS R. & ROSEMARY P. HOPPS", hereinafter referfed to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 603-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B603" 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 Property Owner's Property necessary to reduce interior noise levels at least 5 d6 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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary Key West International Airport NIP — Avigation Easement (Unit #13603) Page 1 of 4 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13603) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13603) Page 3 of 4 This Easement Agreement is executed as of the date first above written. 7 7 ERTY OWNER: Signalare—' D e n ri I h //y ,:z Printe ame f , 'A is) tie KIPPLIL- My Date STATE OF COUNTY OF a2L� 1 :2 :is] :2 4 :4 •-k K 4 :;1 Sig 6atbre — go-sCmar-(l Printed Name K2,&4,,J IL, 0 18 Date / The foregoing instrument was acknowledged before me this Iday of 20-LIS by NotavubficSignature Owner g004* Notary Public State of MyCommission Exires: Jessica L Steinbach y Commission GG 1 Epires 05/21/2021 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE 711TA7010 Signature Printed Name Date The foregoing instrument was acknowledged before me this day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature M PH Key West International Airport NIP — Avigation Easement (Unit #13603) Page 4 of 4 Preuared By and Return To: Heather P. Faubert NIP Assistant Project Manager THQ Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this Z- day of _142 y , 2018, by "STEPHEN J. MICHAEL", hereinafter referred to as "the Property bwner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Unit No. 604-13, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, of the Public Records of Monroe County, Florida, and exhibits thereof and amendments thereto; and the Condominium Plans as recorded in Graphics Book #1, of the Public Records of Monroe County, Florida, together with an undivided interest in the common property declared in said Declaration of Condominium to be an appurtenance to the above described unit. also identified as street address: "2601 S. Roosevelt Blvd., Unit B604" 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 Property Owner'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. Key West International Airport NIP — Avigation Easement (Unit #13604) Page 1 of E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B604) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B604) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: PR (OPER.. 0 ER: TY Signature Signature JAl e-i A-e'6, Printed Name Printed Name Date STATE OF -�S7 �0 V- COUNTY OF �Vi®® - ir The foregoing instrument was acknowledged before me this L2-day of b Property Owner Name(s) Public Signature , My Commission Expires: 1 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAYOR: Signature Signature Printed Name Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this _ day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. Notary Public Signature My Commission Expires: Key West International Airport NIP - Avigation Easement (Unit #13604) Page 4 of 4 1 Packet Pg. 498 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this I U day of 2018, by "NELLIE S. BOOTH & SALLY SANFORD", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Condominium Unit 605-13, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B605" 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 Property Owner'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 Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the Key West International Airport NIP — Avigation Easement (Unit #13605) Page 1 of 4 NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B605) Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13605) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNE PROPERTY OWNER: -:41,9 �nk At'ejl-co -1. re S gnature S. BOZ�. Printed Name Printed Name 1 Date STATE OF COUNTY OF The foregoing instrument was acknowledged before me this A day of `. , 20 0 b `1 5 6*JW N Property Owner Name(s) Commonwealth of P7ennvana -Notary I TraceyA, GPublicMy Commission E osMontgoty No is Signature y commission expires February 25.2 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONROE MAYOR: Signature Printed Name The foregoing instrument was acknowledged before me this day of by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature 20_ Key West International Airport NIP — Avigation Easement (Unit #6605) Page 4 of 4 Pre ared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd.. Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this15+ 3 day of 2018, by "MADELINE HILTON", hereinafter referred to as "the PropedJ Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: "AS TO AN EASEMENT INTEREST" Unit 608-13, Gulfstream Tower of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 598, at Page 370 et al. and amendment recorded in Official Records Book 598, at Page 574 of the Public Records of Monroe County, Florida, and as amended in Official Records Book 613, at Page 37 of the said Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B608" 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 Property Owner'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. Key West International Airport NIP — Avigation Easement (Unit #6608) Page 1 of 4 E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the propertv 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: 1. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #B608) Page 2 of 4 This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. Key West International Airport NIP — Avigation Easement (Unit #13608) Page 3 of 4 This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: Signature_ Printed Name t1.3It1� Date STATE OF O(t , COUNTY OF PROPERTY OWNER: Signature Printed Name Date The foregoing instrument was acknowledged before me this day of 201-1 m Property Owner Name(s) i Aae- Notary Public ignature MARCI L ROSE Commission E " MY COMMISSION i FF 955705 MY xP `H, EXPIRES: May 28, 2020 Bonded Thru Notary PuMi Underwriters MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name Signature Printed Name STATE OF FLORIDA COUNTY OF MONRO MAYOR: Signature Printed Name The foregoing instrument was acknowledged before me this day of , by as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature °.ev west International Airport NIP — Avigation Easement (Unit #8608) Page 4 of 4 I THC, Inc. _VAA_ •� Dacula, GA 30019 ! #• I r#. � a i�i� ♦ •r # ♦!# i C. Under the NIP, the Airport will design and install or pay for the installation of improvements andmodifications!the Property to reduce underinterior 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 # ♦ laws. i • ! # # R # R - Key West International Airport NIP — Avigation Easement (Unit #609) Page 1 of Si ature, Printe Name 1. 1=191;14• 10110NI111 STk ( "k, K" Amber McCrory — Notary Public - State of Florida COUNTY OF Commission #FF 987933 My Commission Expires May 20, 2020 The foregoing instrument was acknowledged before me this t�Aav of A V, 20 Property Owner Name(s) My Commission Expires: Signature Printed Name Printed Name Signature Printed Name Date ONROE ORNEY �R STATE OF FLORIDA P�EID) J h4gWA00--' C COUNTY OF MONROE ate .. &614TY 15-a�te My Commission Expires: Notary Public Signature Key West Intemational Airport NIP — Avigation Easement (Unit #13609) HS Easelment Agreement is executed as of �Ihe date,�',st above wr'tten, M I- I - L III I PROPERTY OWNER: V-' V-,\. cc--, C-'3 STATE ATE OF ("OUNTY OF PROPERTY OWNER: Signature Date The foregoing instrument was acknowledged before me this day oil 20 by ID) Propedy Owner Name(s) ANA D CORSINO 10TARY P�JBLIC-S-TATEE- OF NEW YORK 'res' My GOMM15sion -Expi No� -oil-06256767 �61)hd oignature Quakfied nNevvYwkCounty MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: VVI'T' I NESSES: -'rd Nan Signature STATE OF FLOR0A COUNTY OF MONROE IMNEE fl—v;nzed —Name Em The fmre"going instrument was acknowledged bef(,,,)re me this —_ day Of 20 E as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate, hAy Commission ExIoAres, Nota,y i"ubk Signature West In'temational Airpoil NIP -- A'v,gpT*1r, Easemient (Unit #B609 r Packet Pg. iTi This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: PROPERTY OWNER: Signature Printed Name Uiit—e The foregoing instrument was acknowledged before me this _2—day of -W(G a MONROE COUNTY BOARD WITNESSES: Signature 'P�r—ntej-Wa—me Printed Name STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this _-__ day of 20 WA as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. My Commission Expires: Notary Public Signature Key West International Airport NIP — Avigation Easement (Unit #B609) Page =0 �ignature N:Nc, V-X ��rinted Name 1111��11�111111r 11��1111; rMT-In i; Date I I STATEOF rL COUNTY OF Q WITNESSES: UP= [0 =17, I Signature OTrTfe—d RYTHAWN10 =01 T 1;j ;10y;14 ft 10 =17, I DONNA NORCROSS Notary Public, State of Now V ft 6277157 7 87""ed in Suftlk,:`*—,. methia dayof �77'i FT -EXphwj_2 w I I - -0 111111 11 , lurclm 11 Signature Printed Name 1:1 go M 1`111] 7,7 Nofary-Public Signature - - - --- My Commission Expires: E I M, Key West International Airport NIP - Avigation Easement (Unit #8609) Page rof—I Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 710 Dacula Rd., Suite 4A #315 Dacula, GA 30019 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this I day of , 2018, by "R. BRIAN CORBETT & NANCY CORBETT", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: Unit No. 610-B, Gulfstream Tower of KEY WEST BY THE SEA, a Condominium according to the Declaration of Condominium thereof, recorded in Official Record Book 589, Page 370, together with all appurtenances thereto, including an undivided interest in the common elements of said Condominium and any amendments as amended from time to time all of the Public Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B610" 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 Property Owner'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. Key West International Airport NIP — Avigation Easement (Unit #B610) Page 1 of 4 E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner 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 Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 2013. 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 BOCC 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 Property Owner and the BOCC agree as follows: The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, 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 whatever form or type, during operation 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 BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC 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 Property Owner 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. o Key West International Airport NIP — Avigation Easement (Unit #13610) 7 Page 2 of 4 4. This Easement expressly excludes and reserves to the Property Owner and to the Property Owner'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. 6. 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 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. 8. 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 shall be entitled to all of the benefits running to the BOCC hereunder. 9. The Property Owner agrees that the Property Owner 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. 116-- �0. Key West International Airport NIP — Avigation Easement (Unit #B610) Page 3 of 4 This Easement Agreement is executed as of the date first above written. C Printed Name t Date 15 Pitt J ( r 4E OF P PERTY OWNER: Signature Printed Name l Date 6AHiC?�''OF The foregoing instrument was acknowledged before me this day of , 20 aw roperty �'`!• N ary Public Signar 2 Name(s) My Commission Expires: 1= // I '7 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: Signature Printed Name MAYOR: Signature Printed Name Signature Date Printed Name STATE OF FLORIDA PEDRO . MERCADO ASSISTANT U COUNTY OF MONROE 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 Signature My Commission Expires: Key West International Airport NIP — Avigation Easement (Unit #6610) Page 4 of 4 Address: Key West by the Sea Unit No.: B301 Name(s): Harvey INZW:Ail 10 0 1 0 ••- jj . 1 -• 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"). ITNESSETH: 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B301) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B301) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page 4 of 29 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. 10. 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 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. 11.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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B301) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Reauirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Propeny Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any Dotential im edance to the NIP construction rocess. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page 7 of 29 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 re -construction noise test to the ost-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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B301) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B301) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38.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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page I of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B301) Page 12 of 29 (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 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 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 Aareement. 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. Adiudication 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 Property Owner Noise Insulation Agreement (KWBTS B301) Page 13 of 29 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 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 1314, Article Vill 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. Property Owner Noise Insulation Agreement (KWBTS B301) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Properly Owner Noise Insulation Agreement (KWBTS B301) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B301) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B301) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. Q Signature Printed Name ( r a Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK 0 Signature Printed Name Date Signature Printed Name Date 1O 141" ■- i,M,", Property Owner Noise Insulation Agreement (KWBTS B301) Page 18 of 29 in 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 ill Re lacement- 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 Moldina 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 ao-infill. At new pilaster locations and, if the thru wall ac infill abuts the existing baseboards, the contractor will install a standard (314" x 5-1/2'9 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 (KWBTS B301) Page 19 of 29 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 & Findinas 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 RCM 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 (KWBTS B301) Page 20 of 29 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: PropeLtj Owner Re uiements 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. Fxhibit A - Property Owner Noise Insulation Agreement (KWBTS B301) Page 21 of 29 - 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 (KWBTS B301) Page 22 of 29 • T ! ' to] ' In Condominium Unit 301-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B301) Page 23 of 29 Exhibit NoiseTo Homeowner i 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) Exhibit C - Property Owner Noise Insulation Agreement (B301) Page 24 of 29 14 ,4 _91*IT4NOYA 1.9Lel4 bl /_l:7l'i g 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 Exhibit D - Property Owner Noise Insulation Agreement (B301) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: Signature Printed Name Sture c Printed Name ITN Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature Printed Name Date PROPERTY OWNER: Signature Printed Name Date Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (B301) Page 26 of 29 kv 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 (B301) Page 27 of 29 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. B. 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. PROPER OWNER: Signature Printed Name —1 Date Exhibit E - Property Owner Noise Insulation Agreement (B301) Page 28 of 29 Signature Printed Name Signature Printed Name Signature Printed Name Signature Printed Name Exhibit E - Property Owner Noise Insulation Agreement (B301) Page 29 of 29 Address: Key West by the Sea Unit No.: B302 Name(s): Morris 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B302) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area", (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B302) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page 4 of 29 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. 10. 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 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. 11.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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B302) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be re ured to complete, all desi nated Pre -Work items utilizin their own funds and er the re ured deadlines as established_by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be_resgonsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any gotential im edance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page 7 of 29 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 re -construction noise test to thepost-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 thepost-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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email andlor letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email andlor letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B302) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Imoact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existinq Crown Molding_ During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B302) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B302) Page 12 of 29 (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 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 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. Authorily. 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 Property Owner Noise Insulation Agreement (KWBTS B302) Page 13 of 29 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 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 1314, Article Vlll 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. Property Owner Noise Insulation Agreement (KWBTS B302) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B302) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B302) Page 16 of 29 r. Leaal 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 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. Property Owner Noise Insulation Agreement (KWBTS B302) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. Signature M1G11� .% G C fIL Printed Name Signature _kiCc tkel Cz plc Printed Name (Seal) Attest: KEVIN MADOK, CLERK Deputy Clerk Um • Signatur Printed Name Date • -11- 23- /S Sii ature Printed Name -13_l Date MAYOR / CHAIRMAN: Signature MM Property Owner Noise Insulation Agreement (KWBTS B302) Page 18 of 29 • • •• W A. Air Conditionina: 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 r wn Moldin 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 5-9/2') 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 (KWBTS B302) Page 19 of 29 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 Testina & 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 (KWBTS B302) Page 20 of 29 - 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: Pro a Owner Rg ueements 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 (KWBTS B302) Page 21 of 29 - 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 (KWBTS B302) Page 22 of 29 * - • I "AS TO AN EASEMENT INTEREST" Condominium Unit 302-13, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B302) Page 23 of 29 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B302) Page 24 of 29 , �W m 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B302) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. 4 V11L4 C ! Signature Made ( C cz-fa-pm- Printed Name WITN Signature r Signature M i (:4e I c 6Z-f apA.,-, Printed Name WITNESSES: Signature Printed Name Signature PROPERTY OWNER: Signature G. Ali iv MOtitiis Printed Name V-.2 Date PR0 fRTY OWNER: Siefhature ZXPAL�d- �.S'vsAN Mom �s Printed Name V-.z 3 -/<9 Date PROPERTY OWNER: Signature Printed Name Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B302) Page 26 of 29 W 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 (KWBTS B302) Page 27 of 29 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, personal representatives, successors and assigns. Fiiiinted fame Signature --VW lamlei C Cz caP Printed Name PROP OWN R: lAt4oMfZ91V Signa re �/ . k1tlp A/l®A2/S Printed Name V-2 3-/� Date Exhibit E - Property OWner Noise Insulation Agreement (KWBTS B302) Page 28 of 29 WITNESSES: ',�tiI- Y-2 A UNIX! FIRM Oii?hea �fe --- A I MAI _0 Signature 44 Frnnted-Name PROPERTY OWNER: Si nature Stls,4� Molvzl-s Printed Name MM M� WITNESSES: PROPERTY OWNEV Signature a Printed Name I E= M Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B302) Page 29 of29 Address: Key West by the Sea Unit No.: B303 Name(s): Tollen 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 Property Owner Noise Insulation Agreement (KWBTS B303) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B303) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B303) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B303) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B303) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B303) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16.City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B303) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B303) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property € caner Noise Insulation Agreement (KitiBTS B303) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property !Owner Noise Insulation Agreement (KWBTS B303) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property Owner Norse Insulation Agreement (KWBTS B303) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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. 42. 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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B303) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B303) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B303) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B303) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B303) Page 16 of 29 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 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 Liabilitv. 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. Property Owner Noise Insulation Agreement (KWBTS B303) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WIT,ES• Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK Deputy Clerk PROPERTY OWNER: Signat a -- Printed Name i Date PROPERTY OWNER: Signature I _p Printed Na e Date MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B303) Page 18 of 29 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 comer 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 5-1/2') 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 (KWBTS B303) Page 19 of 29 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 (KWBTS B303) Page 20 of 29 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 (KWBTS B303) Page 21 of 29 - 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 (KWBTS B303) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement As to an easement interest Apartment Unit known as No. 303-B, GulfStream Tower in KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium, recorded in Official Records Book 589, Page 370, at seq., of the Public Records of Monroe County, Florida, and exhibits thereof, and all amendments thereto, and the Condominium Plans as recorded in Graphics Book #1, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B303) Page 23 of 29 PROGRAM IMPROVEMENTS 'L117[tal 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B303) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B303) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. Signature Printed Name t Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name P OPERTY OWNER: Si nature Printed Name ` Date PROPERTY OWNER: Signature Printed Name Date PROPERTY Signature Printed Name OTM Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B303) Page 26 of 29 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 (KWBTS B303) Page 27 of 29 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, personal representatives, successors and assigns. I Si aturk Printed Name PROPERTY OWNER: Signature Printed Name Date Exhibit E - Propero, Owner Noise Insulation Agreement (KWBTS B303) Page 28 of 29 WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: \,�� Signature Name Date I WITNESSES: PROPERTY OWNER: Signature \v( Signature Printed Name Printed Name Signature Date Printed Name Exhibit E -Property Owner Noise Insulation Agreement (KWBTS B303) Page 29 of 29 Address: Key West by the Sea Unit No.: B304 Name(s): Durazo 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"). WITNESS ETH: 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 Property Owner Noise Insulation Agreement (KWBTS B304) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B304) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area'; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B304) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (K"TS B304) Page 4 oj29 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. 10. Changes to Scoae 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 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. 11.Acceotance 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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B304) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (K"TS B304) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to com fete all desi Hated Pre -Work items utilizing their own funds and per the re ured deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16.City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Propeq Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (K"TS B304) Page 7 of 29 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 thepost-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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email andlor letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email andlor letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B304) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B304) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31I. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B304) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38.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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B304) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B304) Page 12 of 29 (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 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 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 Beguests. 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 Property Owner Noise Insulation Agreement (KWBTS B304) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B304) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B304) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (K"TS B304) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B304) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. W TNESSES: Sign to Printed Name I re� c Printed Name WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk N PEbRO DW 1c. Property Owner Noise Insulation Agreement (KWBTS B304) PROPERTYOWNER: Signat ,.. . ..' Printaile Vane Date :1Z07:j�i i�'(•j��1:IT I Signature Printed Name Date MAYOR / CHAIRMAN: ignature Date Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A kn 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 comer 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 5-1/2') 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 (KWBTS B304) Page 19 of29 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 Testina & Findinas 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 Re uirements 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 (K"TS B304) Page 20 of 29 - 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 & comer 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 (KWBTS B304) Page 21 of29 - 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 (KWBTS B304) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 304-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B304) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B304) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B304) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. SES: ,illy Printed Name WITNESSES: Signature Printed Name Signature �%ROPERTY OWNER: s ignature- MAPJ.Iv1l 11 • �'', Printed Date PROPERTY OWNER: Signature Printed Name Date Printed Name WITNESSES: Signature Printed Name Signature Printed Name PRO . Signature Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B304) Page 26 of 29 VENTILATION HOLD HARMLESS AGREEMENT Exhibit E r<Ir. 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 (KWBTS B304) Page 27 of 29 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, personal representatives, successors and assigns. IROPERLOWNER ._ ....MAR �r -=4M4t_' Lofr r�! Printed Name Signature sL ` /y` SPj1 Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B304) Page 28 of 29 Signature Signature Printed Name Printed Name Signature Date Printed Name Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B304) Page 29 of 29 Address: Key West by the Sea Unit No.: B305 Name(s): Mercuri 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 Property Owner Norse Insulation Agreement (KWBTS B305) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B305) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B305) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B305) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B305) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B305) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any 12otential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B305) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property (honer Noise Insulation Agreement (KWBTS B305) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.lmpact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B305) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34.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 Property Owner Noise Insulation Agreement (KWBTS B305) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39.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 Property (hvner Noise Insulation Agreement (KWBTS B305) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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 1.7tn 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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B305) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B305) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B305) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B305) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B305) Page 16 of 29 r. Legal Obligations and Responsibilities: Non -Delectation 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 �y 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. Property Owner Noise Insulation Agreement (KWBTS B305) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: MrM,71' 47' 1 (Seal) Attest: KEVIN MADOK, CLERK By: DeDUtV Clerk Property Owner Noise Insulation Agreement (KWB7S B305) PROPERTY OWNER: Signature Printed Name zy Mvkl�- A= Sianature I Page 18of 29 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 5-1I2') 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 Chvner Noise Insulation Agreement (KWBTS B305) Page 19 of 29 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 (KWBTS B305) Page 20 of 29 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: a 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 (KWBTS B305) Page 21 of 29 - In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings rp for 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 (KWBTS B305) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B ir Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Condominium Unit 305-B, GULFSTREAM TOWER OF THE KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B305) Page 23 of 29 PROGRAM IMPROVEMENTS 1 1,11T.U0. kcZ 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B305) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B305) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complet�; necessary repairs to the Property, to the acceptance of the Program Manager ti-t 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 EKhibit Q apply t4 property damage, injuries, deaths, or damages arising from the Deficiencies and/or al^ negative impacts that later result after the addition of the Program Improvements. Th(;� provisions of this Exhibft Q shall survive the termination or expiration of the Property • Noise Insulation Agreement. 8. The undersigned hereby agree that the terms and provisions of this Exhib Q shall be binding upon, and inure to the benefit of the undersigned and their respective Feirs, personal representatives, successors and as§igns. WITNESSES: a A� WITNESSES: Sign�jruwv Date Date 60= Signature 6—ate Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWB7S B305) Page 26 of29 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 (KWBTS B305) Page 27 of 29 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. .0 IsTM ly,"U'rier Lnuvr5lanus anu E155LIT105 I'Lli rV5PUF151V111 Malulleflaff- 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 I 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, personal representatives, successoo and assigns. WITNESSES: MFMAFV� Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B305) Page 28 of29 wz� Signature Printed Name Signature Printed Name PROPERTY OWNER: m Signature . ` V, rL® Printed Name `\moo\� Date W.IA01ti:4 Signature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B305) Page 29 0, f 29 Address: Key West by the Sea Unit No.: B306 Name(s): Carlson & Shuck 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 Property Owner Noise Insulation Agreement (KWBTS B306) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Imoedina 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B306) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area'; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area'; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B306) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B306) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Ins:dalion Agreement (KWBTS B306) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B306) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Reauirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post Construction Noise Testina 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 Page 7 of 29 Property Owner Noise Insulation Agreement (KWBTS B306) 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B306) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.lmi)act of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27.Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B306) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31.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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreentent (KWBTS B306) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38.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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B306) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B306) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B306) Page 13 of 29 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 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 1314, Article Vlll 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. Property Owner Noise Insulation Agreement (KWBTS B306) Page 14 of '29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B306) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner- Noise Insulation Agreement (KWBTS B306) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B306) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: a Signature r p,Cl. Printed Name j� r Sign tuts _..__. Printed Name WITNESSES: Signature Printed Name r 1, Sign ure Printed Name PROPERTY OWNER: Signature c-114 _L'-- Ln4-.-\-)e Printed Name `i Date PROPERTY OWNER: Signature e r L- 5 )-),Jr—y— Printed Name Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK M Deputy Clerk Property Owner Noise Insulation Agreement (KWBTS B306) MAYOR / CHAIRMAN: Date re Page 18 of 29 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 5-1/2') 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 (KWBTS B306) Page 19 of 29 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 (KWBTS B306) Page 20 of-29 - 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: a 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 (KWBTS B306) Page 21 of 29 - In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings rp for 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 (KWBTS B306) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement As To An Easement Interest Unit No. 306-B, Gulfstream Tower Of KEY WEST BY THE SEA, a Condominium, Together With An Undivided Interest In The Common Elements, According To The Declaration Of Condominium Thereof, Recorded In Official Records Book 589 At Page 370 Of The Public Records Of Monroe County, Florida. Exhibit B - Propertv Owner Noise Insulation Agreement (KWBTS B306) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B306) Page 24 of 29 DEFICIENCY HOLD HARMLESS AGREEMENT AWTI-Wil 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B306) Page 25 of 29 are uncovered during the construction period, the Property Owner_ agrees to complete 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 representatives, successors and assigns. WL..ES .M Signature Printed Name �•- � V f Si ure �1 irl' Printed Name W NESSES: Sign ure' -- P r Prin ed Name (AIAI�w gnature Vt L Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature h lam' Printed Name �—i Date PROPERTY O : i S"ate"- °t4 a5L)L Printed Name MprWi Date PROPERTY OWNER: Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B306) Page 26 of 29 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 E.rhibil E - Propertv Owner Noise Insulation Agreement (KWBTS B306) Page 27 of 29 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, personal representatives, successors and assigns. WIT SS� 2 PRGKRTY OWNER: Signature /;� �_ Signature Printed N e t Printed Name X ture to ,'1 w_ Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B306) Page 28 of 29 WITNESSES: Signature Printed Name Signature p C fy Printed Name PROPERTY OWNER: S&mfure D)bae,f-L-4 Printed Name Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit E - Property Owner- Noise Insulation Agreement (KWBTS B306) Page 29 of 29 Address: Key West by the Sea Unit No.: B308 Name(s): Young 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B308) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B308) Page 3 of 29 7. 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. 8. Safe Workinq 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page 4 of 29 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. 10. 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 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. 11.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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B308) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizinq their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B308) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B308) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B308) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B308) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B308) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B308) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B308) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B308) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: P PERTY OWNER: ig ture C 7610 n ( IaDe Signa re Printed Name , f Printed Name Signature / I! Date Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Deputy Clerk Signature Date Property Owner Noise Insulation Agreement (KWBTS B308) Page 18 of 29 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 5-1/2') 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 64vner Noise Insulation Agreement (KWBTS B308) Page 19 of 29 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 (KWBTS B308) Page 20 of 29 - 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 ® 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 (KWBTS B308) Page 21 of 29 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 (KWBTS B308) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Condominium Unit 308-B GULFSTREAM of TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B308) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B308) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B308) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. Name /I Signature Printed Name P O ERTY OWNER: V—*k—pto�— Signat ure 446e, Printed Name SI A Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name WITNESSES: Signature Printed Name Signature Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B308) Page 26 of 29 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 (KWBTS B308) Page 27 of 29 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, personal representatives, successors and assigns. Printed Name // d W A � \ SZcuback tre ladaemw Printed Name PERTY OWNER: ( �'�16 , gnature n V'U Printed ame �11214 Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B308) Page 28 of 29 WITNESSES: Printed Name Exhibit E - Property CN ner Noise Insulation Agreement (KWBTS B308) Page 29 of 29 Address: Key West by the Sea Unit No.: B311 Name(s): Rolf 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 Property Owner Noise Insulation Agreement (KWBTS B311) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B311) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B311) Page 3 of 29 7. 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. 8. Safe Workinq 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B311) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B311) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. Pre-Existinq 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B311) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B311) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B311) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding_ During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B311) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B311) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B311) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B311) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B311) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B311) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B311) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B311) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B311) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. 7WITN S: ,.�� PROPERTYOWNER: lure Signatu( M n �\N Printed Name. Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk N OE A P J.MEROADO Property Owner Noise Insulation Agreement (KWBTS B311) Date Signature Printed Name Date ►� _ ! rr. IIZI►•fAj'kj Signature I9MM_ Page 18 of 29 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 5-1/2') 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 (KWBTS B311) Page 19 of 29 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 (KWBTS B311) Page 20 of 29 - 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: ® streamlined asbestos abatement procedures o maximized level of construction safety and property owner protection ® minimized level of disturbance & disruption to all property owners o simplification of building walkway egress issues during abatement a 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 (KWBTS B311) Page 21 of 29 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 (KWBTS B311) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "As To An Easement Interest" Condominium Unit 311-B GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B311) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B311) Page 2.1 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B311) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 thisExhibit 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 representatives, successors and assigns. PROPERTY OWNER: Signature Printed Name 1,c� l DateIt G . !' Signature Name Printed Name Signature Date Printed Name WITNESSES: Signature Signature Printed Name Printed Name Signature Date Printed Name • Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B311) Page 26 of 29 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 (KWBTS B311) Page 27 of 29 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, personal representatives, successors and assigns. Printed Name ' .:,.. La_7a 4� Sign F �N rn A P h q "rJqVANTamb__1%J — b� � ' 'Ja�02_ PROPERTY OWN Signature Printed Name 4 Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B311) Page 28 of 29 F Printed Name PROPERTY OWNER: Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B311) Page 29 of 29 Address: Key West by the Sea Unit No.: B403 Name(s): Williams 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 Property Owner Noise Insulation Agreement (KWBTS B403) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B403) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B403) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B403) Page 4 of 29 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. 10. 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 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. 11.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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B403) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B403) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B403) Page 7 of 29 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. 20.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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B403) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B403) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34.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 Property Owner Noise Insulation Agreement (KWBTS B403) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B403) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. General Conditions. a. Governinq 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. Property Owner Noise Insulation Agreement (KWBTS B403) Page 12 or29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B403) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B403) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Properly Owner Noise Insulation Agreement (KWBTS B403) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B403) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B403) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. I�__ 1R' • I WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: signature ® ""— Printed Na a `- Date PROPERTY OWNER: Signature Printed Name Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK M MAYOR / CHAIRMAN: Deputy Clerk -._.� Signature to sT AYfORNEYgaia /oz f Propey Ovner snsulation Agreement (KWBTS P40 Page 18 of 29 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 5-1/2') 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 (KWBTS B403) Page 19 of 29 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 (KWBTS B403) Page 20 of 29 - 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 (KWBTS B403) Page 21 of 29 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 (KWBTS B403) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Condominium Unit 403-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B403) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B403) Page 24 of 29 DEFICIENCY HOLD HARMLESS AGREEMENT Exhibit D firc 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B403) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. -NE SES. r MA Si ature �Oroo".. A - Printed Name PROPERTY OWNER: Signature - t ( -Acy L. W L.I,tR S J Printed Name L (c — t'3 Date WITNESSES: PROPERTY OWNER: Signature Printed Name Date PROPERTY OWNER: Signature Printed Name Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B403) Page 26 of 29 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 (KWBTS B403) Page 27 of 29 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, personal representatives, successors and assigns. NESSES .+ Si nature 44 .. �. P44 ed Name A 2 ��t PROPERTY OWNER: Printed Name -r lei Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B403) Page 28 of 29 WITNESSES: PROPERTY OWNER: Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B403) Page 29 of 29 Address: Key West by the Sea Unit No.: B404 Name(s): Batty 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 Properti• Owner A`oise Insulation Agreenreni (K I BTS &404) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property OwnerNoise Insulation Agreement (k FF BTS B404) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Propertv Oxwer .Voise hisulation .4greement (1 II M B404) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Aroise Insulation Agreement (KI BTS B404) Page 4 o f 29 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. 10. Chanaes 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 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. 11. 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. 12. 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 Properh, Owner Noise Insulation Agreement (K[I BTS B404) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KT BTS B404) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process., In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KJ BTS B404) Page 7 of 29 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. 20. 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. 21. 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 cant' out the Program Improvements. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KHBTS B404) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Propern, Owner Voise InsulationAgreement Igreement (K [6BTS B404) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. Cooperation in Clearinq 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. 32. 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. 33. 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. 34. 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 Propern, Owner .Voice Insulation Agreement (hrl BTS B404) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38.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. 39. 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 Property Owner Voise InsulationAgreement agreement (KT BTS B404) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Propern, Owner Voise Insulation Agreement (KTIBTS B404) Page 12 of 29 (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 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 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 Propertv Owner Noise Insulation Agreement (KH BT.S B404) Page 13 of 29 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 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 1314, Article VIII 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. Property, Owner Voise Insulation .Agreement (KTdBTS B404) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner ;Voise Insulation Agreement (1; [t BTS B404) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (1C [t BTS B404) Page 16 of 29 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 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. Propern, Owner Noise Insulation .Agreennent (1: rr BTS B404) Page 17 o f 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. ESSES: PROPERTY OWNER: TNESSES: Signature Printed Name Sign ure Print Name �5 I -Z q hm 7, Date I r a4av-29& Si ature Printed Kame 1'2-ti Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Deputy Clerk ignature ASSWAW • M Date - r � Property Owner :Worse Insulation .4gi•eeauesrt (Kil BT.S B404) Page 18 of 29 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 comer pilasters which will be constructed to match the quality of existing walls. The number and locations of the new vertical wall and comer 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 5-1/2') 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 - Properh, Owner Noise Insulation Agreement (r[ II'M B404) Page 19 of 29 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. E.ddbit .4 - Property Owner .Voice Insulation Agreement (K II'M B404) Page 20 of 29 - 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 .4 - Propertv Owner Noise Insulation .4greenlent (1C 6t BTS B404) Page 21 of 29 In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings odor 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 Wndow 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 .4 - Propertv Owner Noise Insulation Agreement (1KCtBT.S B404) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Unit No. 404-B, Gulfstream Tower of the KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner V oise Insulation Agreement (KII M B404) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner ,Voise Insulation Agreement (K[[BTS B404) Page 24 of 29 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 conceming 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 Exhibit D - Property Owner .Voise Insulation Agreement (hf FBTS B404) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. THE Printed e Si nature c— r{� Panted Name WITNESSES: Signature Printed Name Signature Printed Name 5L,a l 8 Date PROPERTY OWNER: PROPERTY OWNER: Signature Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KIIBTS B404) Page 26 of 29 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 (KI BTS B404) Page 27 of 29 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, personal representatives, successors and assigns. PROPERTY OWNER: Si ture Printed Name Date Name Property OwnerAloise Insulation: Page 28 of r TNESSES: PROPERTY OWNER: 6c lQ IQ Le Signature U I Lm� Printed Name SLIA3 Date WITNESSES: Signature Printed Name Signature Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KTVBTS B404) Page 29 of 29 Address: Key West by the Sea Unit No.: B406 Name(s): Godsey 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 Property Owner Noise Insulation Agreement (KWBTS B406) Page / of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B406) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B406) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (K"TS B406) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B406) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B406) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16.City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B406) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B406) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B406) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B406) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38.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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B406) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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. 42. 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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B406) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B406) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (K"TS B406) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B406) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B406) Page 16 of 29 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 �y 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. Property Owner Noise Insulation Agreement (KWBTS B406) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Si ure Pri Atied am Signature "ry 1 Printed Name WITNESSES: Printed Name Date PROPERTY OWNER: Signature Printed Name I Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk Property Owner Noise Insulation Agreement (KWBTS B406) MAYOR / CHAIRMAN: ature Date Page 18 of 29 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 5-1/2') 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 (KWBTS B406) Page 19 of 29 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 (KWBTS B406) Page 20 of 29 - 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 (KWBTS B406) Page 21 of 29 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 (KWBTS B406) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement AS TO AN EASEMENT INTEREST: Condominium Unit 406B, Gulfstream Tower, a Condominium of KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370 and amendments thereto recorded in Official Records Book 598, Page 574 and 575, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B406) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B406) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B406) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESS Signature PROPERTY OWNER: Printed Name ."Aq Date R: V �-- I I -- Printed Name Date PROPERTY OWNER: Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B406) Page 26 of 29 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 (KWBTS B406) Page 27 of 29 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, personal representatives, successors and assigns. 12-1a: r Print Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B406) Page 28 of 29 WITNESSES: Signat re Printed Name PROPERTY OWNER: Signature fj Printed Name Date WITNESSES: PROPERTY OWNER: Si urea Signature Printed Name Printed Name Signature Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B406) Page 29 of 29 Address: Key West by the Sea Unit No.: B407 Name(s): Herl 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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B407) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B407) Page 3 of 29 7. 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. 8. Safe Workinq 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B407) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B407) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre-Existinq Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding_ During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B407) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. Cooperation in Clearinq 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B407) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B407) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B407) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B407) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B407) Page 16 of 29 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 �y 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. Property Owner Noise Insulation Agreement (KWBTS B407) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNE ES: 0 Signature 14 Printed Name Signa ure Printed Name Signature Printed Name Signature Printed Name PROPERTY OWNER: Ave-94� Si ature Printed Name S1(/!8 Date Signature Printed Name T • - • • _ • - • • • • (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk MAYOR / CHAIRMAN: Signature Property Owner Noise Insulation Agreement (KWBTS B407) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A 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 5-1/2') 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 (KWBTS B407) Page 19 of 29 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 (KWBTS B407) Page 20 of 29 - 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 a potential for extended working hours ® 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 (KWBTS B407) Page 21 of 29 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 (KWBTS B407) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Condominium Unit No. 407-13, GULFSTREAM TOWER OF THE KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B407) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B407) Page 24 of 29 DEFICIENCY HOLD HARMLESS AGREEMENT Exhibit D W 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B407) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. signaiare Printed Kame M Signat e Printed Name WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROP RTY O N R: SignIlre Printed Name SON Date PROPERTY OWNER: Signature Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B407) Page 26 of 29 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 (KWBTS B407) Page 27 of 29 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, personal representatives, successors and assigns. WITNESS Signature Printed Signat e Printe Name PRO P TY M-1�'-7 Sign re James C Printed Name 51 l I t$ Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B407) Page 28 of 29 WITNESSES: Signature Signature Printed Name Printed Name Signature Printed Name IT Signature Signature Printed Name Printed Name Signature Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B407) Page 29 of 29 1 w w :w a M + w THIS NOISE INSULATION AGREEMENT "Agreement") madeand 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"). 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 • t andin closeproximity totheProperty; WHEREAS, County desiresto 'Obtaini preserve for improvementsbenefit 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 ►the Property its •r particularly described on { :R 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, theCounty•a construction general contractor"Contractor") to provide t of Program Improvements; and a team -manager and assistant manager, architect, mechanical / electrical engineer, WHEREAS, the Program is managed by the consultant team consisting of •• # ♦ � #! # # ♦ • ! ! !mot NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and 0=*wner Noise Insulation Agreement (KWBTS B408) Page I of29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B408) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B408) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B408) Page 4 of 29 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. 10. 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 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. 11. 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 specked above shall thereafter foreclose the Property Owners right to file such complaint. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B408) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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 Owners 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B408) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction rocess. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B408) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B408) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Imgact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existinq, Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B408) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B408) Page 10 of 29 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 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. 35. 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. 36. Timina 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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B408) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B408) Page 12 of 29 (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 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 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 Kid. 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 Dis utes 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 Property Owner Noise Insulation Agreement (KWBTS B408) Page 13 of 29 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 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B408) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B408) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. p. Non -Waiver of Immunily. 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 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. Property Owner Noise Insulation Agreement (KWBTS B408) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B408) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Signature cx(- Printed Name S Printed Name WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK 0 Deputy Clerk *I;j JADE= Signature C) CD Printed Name ey - Date I ;J ZT01 ;J• Signature Printed Name Date MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B408) Page 18 of 29 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 comer pilasters which will be constructed to match the quality of existing walls. The number and locations of the new vertical wall and comer 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 Moldina 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 (3/4" x 5-1/2' 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 (KWBTS B408) Page 19 of 29 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, windowsldoors), 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 XWBTS B408) Page 20 of 29 - 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 (KWBTS B408) Page 21 of 29 - In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings rior to NIP construction to provide sufficient space for required asbestos abatement containment areas. H. KWBTS BOARD Authority of Desion 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 (KWBTS B408) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 408-B, Gulfstream Tower of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Records Book 589, at Page 370, and amendments thereof recorded in Official Records Book 598, at Pages 574/575; Official Records Book 613, at Page 37; Official Records Book 641, at Pages 258/259; Official Records Book 645, at Pages 193/194; Official Records Book 702, at Pages 558/559; Official Records Book 710, at Page 22; Official Records Book 809, at Page 1940; Official Records Book 809, at Page 1941; and Official Records Book 810, at Page 996, all of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B408) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B408) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B408) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESS Signature Printed Name Signature fVX a. Printed Name WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature Printed Name Date PROPERTY OWNER: Signature Printed Name Date • - • Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B408) Page 26 of 29 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 (KWBTS B408) Page 27 of 29 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, personal representatives, successors and assigns. r' PROPERTY OWNED* Signature Printed Name Signatu t y - n 0 V, i Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B408) Page 28 of 29 WITNESSES: Signature Printed Name Signature Printed Name 1 Signature Printed Name Signature Printed Name Signature Printed Name Date Signature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B408) Page 29 of 29 Address: Key West by the Sea Unit No.: B409 Name(s): Trombetta 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 Property Owner Noise Insulation Agreement (KWBTS B409) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. frnpeding 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property a mer Noise Insulation Agreement (KfVBTS B409) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B409) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B409) Page 4 of 29 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. 10. 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 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. 11.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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B409) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property GhA,ner Noise Insulation Agreement (KWBTS B409) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KIVBTS B409) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B409) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBT.S B409) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KPVBTS B409) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B409) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B409) Page 12 of 29 (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 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. SeverabilFty. 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 Property Owner Noise Insulation Agreement (KWBTS B409) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B409) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B409) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. p. Non -Waiver of Immunily. 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 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. Properly Owner Noise Insulation Agreement (KWBTS B409) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (K WBTS B409) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above wrfi ten. WITNESSES: Signature n Printed Name 1. Sign e U OT Printed Name ;aRM Printed Xture �rture r' In L)MT4z- y E Printed Name (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk - PROPERTY OWNER: ignature ` nn ed Name Ll d Date • •` Signature Printed Name I !o R Date MAYOR / CHAIRMAN: Signature Property Owner Noise Insulation Agreement (KWBTS B409) Page 18 of 29 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 Moldin 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 5-1/2") 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 (KWBTS B409) Page 19 of 29 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 aapresence 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 (KWBTS B409) Page 20 of 29 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 Reguirements 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 (KWBTS B409) Page 21 of 29 - 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 Insidation Agreement (KWBTS B409) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement As to an Easement Interest Condominium Unit 409-B, Gulfstream Towers, in KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B409) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B409) Page 24 of 29 DEFICIENCY HOLD HARMLESS AGREEMENT Exhibit D 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B409) Page 25 of 29 are uncovered during the construction p necessary repairs to the Property, to minimize any delay or stoppages of work. eriod, the Property Owner agrees to complete the acceptance of the Program Manager to 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 representatives, successors and assigns. WI-NES S: Signature Printed Nam SidKature Printed Name WITNE ES• 616, Sig ature 1i SWCt Printed Na I�y S ature U mTig - f7H-'7- Printed Name WITNESSES: Signature Printed Name Signature Printed Name Printed Name 00 Date PROPERTY OWNER: —fi1 L1-4'-� JjuwdiM Signatur Printed Name L-1 it, 12-o i 8' Date I —I PROPERTY OWNER: Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B409) Page 26 of 29 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 (KWBTS B409) Page 27 of 29 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, personal representatives, successors and assigns. WI NE ES• K Signature Ali Sit,,L4,eA__ Printed Name Signature V� V mT�}Z i�i+Tfl-R Printed Name PROPERTY OWNER: Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B409) Page 28 of 29 All, S Gto Printed Name 0 Printed Name WITNESSES: Signature Printed Name Signature Printed Name Jll _,-13A 22LL 1. , Signature M , Ir' t m I- , _ TN ,c m b efit+ cj Printed Name Date yI 1 I Signature Printed Name Exhibit E - Property Ghvner Noise Insulation Agreement (KWBTS B409) Page 29 of 29 Address: Key West by the Sea Unit No.: B410 Name(s): McShea 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 Property Owner Noise Insulation Agreement (KWBTS B410) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B410) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B410) Page 3 of 29 7. 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. 8. Safe Workina 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B410) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B410) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Reauirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B410) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B410) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B410) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B410) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B410) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38.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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B410) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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. 42. 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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B410) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B410) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B410) Page 14 oj29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B410) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B410) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B410) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: nil u _ ! •. Printed Name I WITNESSES: Signatur Printed Name PROPERTY OWNER: mr-K. � fL 179 �s Date PROPERTY OWNER: S Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK Clerk J. MAYOR / CHAIRMAN: nature Property Owner Noise Insulation Agreement (KWBTS B410) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A To Property Owner Noise Insulation Agreement A. Air Conditionina: 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 comer 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 Moldina 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 5-1/2') 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 (KWBTS B410) Page 19 of 29 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 (KWBTS B410) Page 20 of 29 - 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: Prooertv 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 (KWBTS B410) Page 21 of 29 - 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 Desian 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 (KWBTS B410) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Unit No. 410-B of GULFSTREAM TOWER OF KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to The Declaration of Condominium recorded in O.R Book 589, Page 370, and all exhibits and amendments thereof, Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B410) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C -Property Owner Noise Insulation Agreement (KWBTS B410) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B410) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: Signatu e nn IM Printed Name WITNESSES: Signatur i%i iLlno� �A PeA2 SJ%1(J Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: c� Signature Printed Na e a�- Date PROPERTY OWNER: f Printed Name Date --�� PROPERTY OWNER: Signature Printed Name Date Exhibit D -Property Owner Noise Insulation Agreement (KWBTS B410) Page 26 of 29 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 (KWBTS B410) Page 27 of 29 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, personal representatives, successors and assigns. WITNESSES: ,•tx,.a�. L. Wit..,' Sig�e MZL'Vka A C PoCSowsk-i Printed Name PROPERTY OWNER: Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B410) Page 28 of 29 WITNESSES: Signatu e M,°t,L& I � c 1 U Prinfarl Mama WITNESSES: Signature Printed Name Signature PROPERTY OWNER: r Qrba-r6 A. McStie Printed Name Date PROPERTY OWNER: Signature Printed Name Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B410) Page 29 of 29 Address: Key West by the Sea Unit No.: B411 Name(s): Douma 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 Property Owner Noise Insulation Agreement (KWBTS B411) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B411) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B411) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B411) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B411) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B411) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B411) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B411) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B411) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B411) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B411) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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 17'h 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. 42.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 41. General Conditions. a. Governinq 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. Property Owner Noise Insulation Agreement (KWBTS B411) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS Bd 11) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B411) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B411) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B411) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B411) Page 17 of 29 1A 111IT1ESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: WITNESSES: Signature Printed Name Signature FRE-0 Name (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk IJ ite];J 4 Signature Printed Name or — Date IJ Z101;J 4 Signature Printed Name MAYOR / CHAIRMAN: Signature Date Property Owner- Noise Insulation Agreement (KWB7S B41 1) Page 18 of 29 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 Moldinq 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 5-1/2') 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 (KWBTS B411) Page 19 of 29 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 (KWBTS B411) Page 20 of 29 - 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: ® streamlined asbestos abatement procedures o maximized level of construction safety and property owner protection o minimized level of disturbance & disruption to all property owners ® 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 (KWBTS B411) Page 21 of 29 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 (KWBTS B411) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 411-B, Gulfstream Tower of The KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B411) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B411) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B411) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: Signature TRR`l7d C Daumd Printed Name Signa PrntWlWe WITNESSES: Signature Printed Name Signature u119 Z 144--1 Signature Printed Name Signature Printed Name ka. r n lid ct M ca Printed Name Date Signature Printed Name Date Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B411) Page 26 of 29 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 (KWBTS B411) Page 27 of 29 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, personal representatives, successors and assigns. WI NESSES• Signature 6 Printed Name Sig Printed ame PROPERTY OWNER: Signature K A tr c h nU Printed Name Date Exhibit E - Property Ohvner Noise Insulation Agreement (K"TS B411) Page 28 of 29 WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature Printed Name Date PROPERTY OWNER: Signature Printed Name Date Exhibit E - P►•operty Owner Noise Insulation Agreement (KWBTS B411) Page 29 of 29 Address: Key West by the Sea Unit No.: B501 Name(s): Stubblefield 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 Property Owner Noise Insulation Agreement (KWBTS B501) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B50I) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B501) Page 3 of 29 7. Impedinq 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B501) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B501) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B501) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B501) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B501) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B50I) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B501) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B501) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Chmer Noise Insulation Agreement (KWBTS B501) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B501) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B501) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B501) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from .public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B501) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B501) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNS Signs re Printed Name Signature / Printed Name IT Signature Printed Name Signature Printed Name PROPERTY OWNER: Printed Name Date :141:24ci"60 Signature • i rfTY" TOUP 0. F1 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Deputy Clerk _ Signature Date Property Owner Noise Insulation Agreement (KWBTS B501) Page 18 of 29 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 5-1/2') 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 (KWBTS B501) Page 19 of 29 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 containinq 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 (KWBTS B501) Page 20 of 29 - 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 ® 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 (KWBTS B501) Page 21 of 29 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 (KWBTS B501) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 501-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Norse Insulation Agreement (KWBTS B50I) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B501) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B501) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. Printed Name re PERTLY rNEWIn0. b Printed Name —) Date WITNESSES: PROPERTY OWNER: Signature Printed Name Signature Printed Name Signature Date Printed Name WITN ESSES: Signature Printed Name Signature PROPERTY OWNER: Signature Printed Name Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B501) Page 26 oj29 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 (KWBTS B501) Page 27 of 29 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, personal representatives, successors and assigns. re— Printed Name signature Yi Printed Name P OPERTY 6WNE ✓ r Printed Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B501) Page 28 of 29 WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B501) Page 29 of 29 Address: Key West by the Sea Unit No.: B502 Name(s): Hardej 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 Property Owner Noise Insulation Agreement (KWBTS B502) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B502) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B502) Page 3 of 29 7. Impedinq 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B502) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B502) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B502) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B502) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B502) Page 8 of29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B502) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B502) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B502) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B502) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B502) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B502) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B502) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property avner Noise Insulation Agreement (KWBTS B502) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B502) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. W, id" -M Signature J�'6x .ai i PROPERTY OWNER: Printed Name ® / '` Date 1=101;J4• MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Clerk -- Signature MEWADo Date Property Owner Noise Insulation Agreement (KWBTS B502) Page 18 of 29 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 Re lacement. 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 5-1/2') 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 (KWBTS B502) Page 19 of 29 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 (KWBTS B502) Page 20 of 29 - 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 ® 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 ® 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 (KWBTS B502) Page 21 of 29 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 (KWBTS B502) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Unit No. 502-B, of GULFSTREAM TOWER OF KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B502) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B502) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B502) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNtS��ES / PROPERTY OWNER: Signature ' iI Si ature Printed Name l4wr /41J A�4e�::�o y/'y Printed Name Signature NJ WITNESSES: Signature Printed Name Signature Printed Name Date PROPERTY OWNER: Signature Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B502) Page 26 of 29 VENTILATION HOLD HARMLESS AGREEMENT Exhibit E 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 (KWBTS B502) Page 27 of 29 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, personal representatives, successors and assigns. 1'dl1111► Printed Name Printe— d NaMe PROPERTY OWNER: Printe Name Date 1-- Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B502) Page 28 of 29 Sign re o Nrl"-s4A�-- / ! Printed Name /. WITNESSES: Signature Printed Name Signature Printed Name Signature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B502) Page 29 of 29 Address: Key West by the Sea Unit No.: B503 Name(s): Flenner 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 Property Owner Noise Insulation Agreement (KWBTS B503) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B503) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B503) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B503) Page 4 of29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B503) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. Pre-Existinq 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B503) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property avner Noise Insulation Agreement (KWBTS B503) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B503) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B503) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. Cooperation in Clearinq 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. 32. 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. 33. 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. 34.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 Property Owner Noise Insulation Agreement (KWBTS B503) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B503) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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 17'h 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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B503) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B503) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B503) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B503) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B503) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B503) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. Printed Name m. —21 Signature Printed Name IT Signature Signature Printed Name PROPERTY OWNER: �► e .` Printed Name 'a 5> Date e Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK 22 Deputy Clerk Signature A Date Dale Property Owner Noise Insulation Agreement (KWBTS B503) Page 18 of 29 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 5-1/2') 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 (KWBTS B503) Page 19 of 29 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 (KWBTS B503) Page 20 of 29 - 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 ® 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 (KWBTS B503) Page 21 of 29 - 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 (KWBTS B503) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Condominium Unit 503-B, GULFSTREAM TOWER OF THE KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B503) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B503) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B503) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. ESS Printed Name ( A--', V D - j-- ,ram ..a Z' & � � �- Signature 1. e' WITNESSES: Printed Name PROPERTY OWNER: Printed Name Date PROPERTY OWNER: Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B503) Page 26 of 29 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 (KWBTS B503) Page 27 of 29 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, personal representatives, successors and assigns. > w.w PROPERTY OWNER: ,r r s . L Mc Printed Name t ! v f Vk vL Printed Name Signature Date f Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B503) Page 28 of 29 1M► Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name Signature Printed Name Date Signature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B503) Page 29 of 29 Address: Key West by the Sea Unit No.: B504 Name(s): Flenner 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 Property Owner Noise Insulation Agreement (KWBTS B504) Page l of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B504) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Uvner Noise Insulation Agreement (KWBTS B504) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B504) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B504) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B504) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B504) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B504) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26. Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existinq Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existinq Crown Molding, During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B504) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B504) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B504) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B504) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B504) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B504) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B504) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B504) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B504) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. sign re / - , Printed Name -, - - ram, Signature Printed Name PROPERTY OWNER: f.._ Signature PAnted Name - Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk �I ■ MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B504) Page 18 of 29 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 5-1/2') 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 (KWBTS B504) Page 19 of 29 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 (KWBTS B504) Page 20 of 29 - 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 (KWBTS B504) Page 21 of 29 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 (KWBTS B504) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 504-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B504) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B504) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B504) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITN _. PROPERTY OWNER: S—iognaikoe le"'rll CJ" ignatur Printed Name I' . " iawre r'7 � Date.�- WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B504) Page 26 of 29 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 (KWBTS B504) Page 27 of 29 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, personal representatives, successors and assigns. Name nted Name OWNER: Signature t j Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B504) Page 28 of 29 WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B504) Page 29 of 29 Address: Key West by the Sea Unit No.: B507 Name(s): Hilton 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 Property Owner Noise Insulation Agreement (KWBTS B507) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Ins:dation Agreement (KWBTS B507) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Chmer Noise Insulation Agreement (KWBTS B507) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B507) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B507) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B507) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B507) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B507) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existinq Crown Molding_ During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B507) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34.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 Property Owner .Noise Insulation Agreement (KWBTS B507) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B507) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B507) Page 12 of 29 (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 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 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. Adiudication 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 Property Owner Noise Insulation Agreement (KWBTS B507) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B507) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B507) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B507) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B507) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITN SSES: ignat e 575BY—eAj 0EAA1 �S O-J Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTYOWNER:' * . _w Date Signature Printed Name Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Deputy Clerk Signature Assist - - - - -r Date Dete Property Owner Noise Insulation Agreement (KWBTS B507) Page 18 of 29 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 5-1/2') 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 (KWBTS B507) Page 19 of 29 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 (KWBTS B507) Page 20 of 29 - 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: a 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 a high flexibility for the sequencing of construction and crews a 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 (KWBTS B507) Page 21 of 29 In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings 2LjoLr 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 (KWBTS B507) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 507-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner ,Poise Insulation Agreement (KWBTS B507) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B507) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B507) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. gTRP�/En/ Os�A•�/ FRG J,st�.✓ WITNESSES: Printed Name PRO RTY OWNER: pSiigr�tu�re- 54,LCt��JnnS Printed ame Date PROPERTY OWNER: Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B507) Page 26 of 29 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 (KWBTS B507) Page 27 of 29 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, personal representatives, successors and assigns. Printed Name P Signa ure to , � WC_ Printed Name Si nature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B507) Page 28 of 29 WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name Exhibit E - Property Owner• Noise Insulation Agreement (KWBTS B507) Page 29 of 29 Address: Key West by the Sea Unit No.: B508 Name(s): Romano 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 Properly Owner Noise /nsulalion Agreement (K H"B7S B508) Page / of `29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property (honer Noise /nstdation Agreement (KWBTS B508) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWB7S B508) Page 3 of 29 7. 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. 8. Safe Workinq 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. 9. 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 Property Chmer Noise Insulation Agreemew (KH'B7S B508) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (K IVBTS B508) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise lnsulation Agreement (KIVB7S B508) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KPVB"T,S B508) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Properly Owner Noise Insulation Agreement (KIVB%S B508) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Oirner rVoise Insulation Agreement (KIVB7S B508) Page 9 of'29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. Cooperation in Clearinq 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. 32. 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. 33. 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. 34. 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 Properly Owner Noise Insulation Agreement (KIFB7S B508) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Properly Owner Noise Insublion Agreement (KIV13TS B508) Page I1 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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 17'h 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. 42.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 41. 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. Property Owner Noise Insulation Agreement (K{VBTS B508) Page 12 of 29 (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 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 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 Property Owner Noise lnsulafion Agreement (KI iBI S B508) Page 13 of 29 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 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 1314, Article VIII 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. Properly amer Noise lnsidalion.4greemew (KFV137:5I3508) Page 14 g1*29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Chimer Noise Insulation Agreement (KI4,73TS B508) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property 0hvner Noise Insulation Agreement (KUB7S 18508) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KIVBTS 8508) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: A-ox � A�"' r Signatu Printed N me t i na re y. Prin d Name WITNESSES: Signature Printed Name Signature Printed Name P Printed Name ' Date PROPERTY OWNER: Signature Printed Name Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK 0 Deputy Clerk MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWW S R508) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A W7 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 Re lacement. 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 5-1/2") 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 Gxhihil A - Properly Chimer Noise Insulalion Agreement (ti WETS I3508) Page I9 of 29 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. Exhibil A - Property Owner Noise Insulation Agreement (KW87S B508) Page 20 of 29 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 (K6V13T.S B508) Page 21 of 29 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 (KI-VB7S B508) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Condominium Unit 508-B, GULFSTREAM TOWER KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Properly Owner Noise Insulation Agreement (ti if'M BSOK) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C- Properly Owner Noise Insulalion Agreement (KItiB7S B508) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (K6MBT.S B508) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 iD shall be binding upon, and inure to the benefit of the undersigned a their respective heirs, personal representatives, successors and assigns. A WI ESBB S: PROP Y O R: Signat Si re --�rC.- l• A-,, - l rt c-f Printed Na e � -Printed Name i cure I l� `' '� Date J Printed Name WITNESSES: Signature Printed Name Signature PROPERTY OWNER: Signature Printed Name Date Printed Name WITNESSES: Signature Printed Name Signature PROPERTY OWNER: Signature Printed Name Date Printed Name &hibit D - Pi•opei7y Oirner Noise Insulation Agreement (K 1VBTS B508) Page 26 of 29 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 (KIVBTS B508) Page 27 of 29 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 Exhibit E shall be binding upon, and inure to the benefit of th T WIESkES: r- Signatur Printed NaMe S ature Printed Name P e ,e Dm rinted Name Date —/ Exhibit E - Property Owner Aoise Insulation Agreement W HIB7:S B508) Page 28 gr29 WITNESSES: Signature Printed Name Signature Printed Name Signature Printed Name Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit E - Pi-operty Owner Noise Insulation Agreement (KWBTS B508) Page 29 of 29 Address: Key West by the Sea Unit No.: B509 Name(s): Senler 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 Property L?wner Noise Insulation Agreement (KWBTS B509) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B509) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B509) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B509) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B509) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B509) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B509) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B509) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B509) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. Cooperation in Clearinq 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B509) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B509) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B509) Page 12 of 29 (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 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 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 Properly Owner Noise Insulation Agreement (KWBTS B509) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B509) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B509) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B509) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B509) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Sio.atur Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK By: r*2 Clerk PROPERTY OWNER: V Signalur Printed Name Date V z101;j 4;4 WK0-V1T1kTff-.1 Printed Name M Signature MM Property➢ Oit ner• Voise Insulation . 1greement (K[,VB IS 8509) Mae 18 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Signature AIc« wo,11 Printed Name Printed Name WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK LM Des Deputy Clerk Properly Ghvner Noise 1nsidalion Agreement (KIVBTS B509) PROPERTY OWNER: Signature OV D\ S ° ose4 rr Printed Na Apr,') Z(vt 20 i p Date Mr MAYOR / CHAIRMAN: Signature Date Page 18 of 29 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 5-1/2') 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 (KWBTS B509) Page 19 of 29 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 (KWBTS B509) Page 20 of 29 - 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 (KWBTS B509) Page 21 of 29 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 (KWBTS B509) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit: Unit No. 509-B, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Record Book 589, Page 370, et al and amendment recorded in Official Record Book 598, Page 574 and 575 of the Public Records of Monroe County, Florida, and as further amended. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B509) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B509) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B509) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: Signature lt-rt" 't'0�%� WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name Fg.Tell Signature 4- Date PROPERTY OWNER: Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B509) Page 26 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: aP-.,<. oUa a Signature Printed Name ig use ai -Ze / , Printed Name PROPERTY OWNER: Signaturfi OVA S. �oSC'4CG Printed Nanfe APn' l Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature M Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D - Proper-ty Owner Noise Insulation Agreement (KWBTS B509) Page 26 of 29 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 hive 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 (KWBTS B509) Page 27 of 29 bathroom moisture in a central building exhaust shaft. During the Program design survey process it was discovered the KVVBTS 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, personal representatives, successors and assigns. VVIT ESSE ! p Signature L tv Printed Name , Printed e m Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B509) Page 28 of 29 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, personal representatives, successors and assigns. WITNESSES: 0JJ-1)(_ CVV ktK Signature A(AA) Printed Name Printed Name PROPERTY OWNER: Signature OVA S, FoSS coe-o ' Printed Aori` 1 z(v Date Exhibit E - Property O►vner Noise Insulation Agreement (KWBTS B509) Page 28 of 29 w , • IN= Exhibit E - Property Owner• Noise Insulation Agreement (KHIBTS B509) Page 29 of 29 Address: Key West by the Sea Unit No.: B510 Name(s): Ciccarelli 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 Property Owner Noise Insulation Agreement (KWBTS B510) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Properly Owner Noise Insulation Agreement (KWBTS B510) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B510) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B510) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B510) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B5I0) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B510) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B510) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B510) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B510) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Properly Owner ,Voise Insulation Agreement (KWBTS B510) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. General Conditions. a. Governinq 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. Property Owner .Noise Insulation Agreement (KWBTS B510) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B510) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B510) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property OwnerNoise Insulation Agreement (KWBTS B510) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B510) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B510) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY R: gnat re 1 Printed Name � a Signature It o t° I / Printed Name WITNESSES: Si nature _ Printed Name L Si nature r j j Printed Name Printed Date / ignature / Printed Name d40/g, Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK Deputy Clerk Signature Date Property Owyier Noise Insulation Agreement (KWR& B510) Page 18 of 29 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 5-1/2') 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 (KWBTS BS 10) Page 19 of 29 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 (KWBTS B510) Page 20 of 29 - 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: ® 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 a 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 (KWBTS B510) Page 21 of 29 - 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 Norse Insulation Agreement (KWBTS B510) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit No. 510-B, Gulfstream Tower, KEY WEST BY THE SEA, a Condominium, according to the Declaration of Condominium recorded in Official Records Book 589, Page 370, and Exhibits thereof, and the Condominium Plans as recorded in Graphics Book #1, both of the Public Records of Monroe County, Florida, together with the undivided interest in common property declared in said Declaration of Condominium to be an appurtenance to the above described Apartment Unit. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS BSIO) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B510) Page 24 of 29 DEFICIENCY HOLD HARMLESS AGREEMENT Exhibit D me 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B510) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITN je PrintedName 4"Uj� ►' A vV, S�nature � 056 C kl u /ll Printed Name WITNESS Printed Name S' nature °� i 7 Printed Name PRO J , Printed Name f rr� GV J' d Date PROPERTY/OWNER: Signature Printed Name Lr� Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature mm Printed Name Exhibit D - Property- Owner Noise Insulation Agreement (KWBTS B510) Page 26 oJ°29 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 (KWBTS B510) Page 27 of 29 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, personal representatives, successors and assigns. WITN Signature S4ature Printed Name PROPE Signaf r Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B510) Page 28 of •29 WITNESPS: $ianature, erez, Printed Name owl Printed 'Llane WITNESSES: Signature Printed Name Signature Printed Name laziolU43 0 1 Z Signature MR-Mi M-19FTU-M I Date U k1tol U Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B510) Page 29 of'29 Address: Key West by the Sea Unit No.: B511 Name(s): O'Day 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 Property Owner Noise Insulation Agreement (KWBTS B511) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS BSI 1) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner :Noise Insulation Agreement (KWBTS B511) Page 3 of 29 7. 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. 8. Safe Workinq 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B511) Page 4 of 29 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. 10.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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B511) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B511) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B511) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B511) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre-Existinq Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.lmpact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existinq Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property OwnerNoise Insulation Agreement (KWBTS B511) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29.Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B511) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property Owner ,Noise Insulation Agreement (KWBTS B511) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. General Conditions. a. Governinq 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. Property OwnerNoise Insulation Agreement (KWBTS B511) Page 12 of 29 (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 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 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 Property Owner ;Noise Insulation Agreement (KWBTS B511) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B511) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B511) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B511) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B511) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the Coun°',y have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY OWN ' a" Printed Namd i Signature t Date Printed Name WITNESSES: Sign t Printed Na -me PROPERTY OWNER: Signature Dpa r Printed Name f Signature Ly Date Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Deputy Clerk ... m.­--- ) Signature Property Owner Noise Insulation Agreement (KWBTS B511) Page 18 of 29 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 5-1/2') 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 (KWBTS B511) Page 19 of 29 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 (KWBTS B511) Page 20 of 29 - 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: ® streamlined asbestos abatement procedures ® maximized level of construction safety and property owner protection ® minimized level of disturbance & disruption to all property owners o simplification of building walkway egress issues during abatement a 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 (KWBTS B511) Page 21 of 29 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 (KWBTS B511) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B irc Homeowner Noise Insulation Agreement Condominium Unit 511-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property O►vner Noise Insulation Agreement (KWBTS B511) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B511) Page 24 of 29 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 Exhibit D - Property Owner ,Noise Insulation Agreement (KWBTS B511) Page 25 of 29 are uncovered during the construction p necessary repairs to the Property, to minimize any delay or stoppages of work. eriod, the Property Owner agrees to complete the acceptance of the Program Manager to 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 representatives, successors and assigns. Printed Name t Date PROPERTY OWNER: Signature Printed Name Date �1120ZI8 WITNESSES: PRO : Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B511) Page 26 of 29 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 (KWBTS B511) Page 27 of 29 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, personal representatives, successors and assigns. WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B511) Page 28 of 29 WITNESSES: Sign cure - _ Printed Name Signature _ Printed W ne WITNESSES: Signatur M P 1 c _ S E 1 1-) -A PrintE:' "Je ne Signature t`lf1 Printed W ne PROPERTY OWNER: Sign re ®_AAf W Printed Name Date PROPERTY OWNER: L� I-,— Signature _451na 0, Printed Name Date �j / 2-3 // & Exhibi ` E - Property Owner Noise Insulation Agreement (KWBTS B511) Page 29 of 29 Address: Key West by the Sea Unit No.: B602 Name(s): Romano 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"). WITNESS ETH: 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 Property Owner Noise Insulation tlgreement (kil'BTS 8602) - ®_ _ Page l oj29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBT.S B602) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KPVB7S B602) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (K6i,'BTS B602) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KN'B7S B602) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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, 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KIVBT,S B602) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B602) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property O►aner :Voise /nsulalion Agreement (KWB7S B602) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre-Existinq Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property (Amer Noise Insulation Agreement (KIJ BI S B602) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34. 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 Properly Owner Noise /nsulalion Agreement (KI-VB7S B602) Page l0 of 29 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 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. 35. 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. 36. 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. 37. 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. 38.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. 39. 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 Properly (hvner Noise Insulation Agreement (KfVBl;S B602) Page l i of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KIYBIS B602) Page 12 of 29 (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 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 Property amer Noise Insulation Agreement (K6VB7S B602) Page 13 of 29 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 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 1314, Article Vlll 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. Property Owner Noise Insulation Agreement (KIVBTS B602) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property arner Noise Insulation Agreement (Kf4BI S" 8602) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Proper(}, (honer Noise Insulation Agreement (K►VBl S B602) Page 16 of 29 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 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. Property arner Noise Insulation Agreement (KHT S B602) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: 2TO. �' Signaat�t jj e / Pger- rice Printed Nafne WITNESSES: Signature Printed Name Signature Printed Name PROPE ��dl:� Printed Name Date Cry MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK LIM Nto Deputy Clerk MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (Kf3B7S B602) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A �7 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 (3/4" x 5-1/2") 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 - Properly Ghmer Noise Insulation Agreement (KH"BTS 8602) Page 19 of 29 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 (KIVBTS B602) Page 20 of 29 - 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 (KPVB7S B602) Page 21 of 29 - 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 (K6iBTS B602) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 602-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KPVBTS B602) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) F,xhibil C - Property Owner Noise Insulation Agreement (KWBTS B602) Page 24 of 29 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 Exhibit D - Property Owner Noise insulation Agreement (K I i73T5 B602) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WI E 5E5: PROP Signatu nature L0 r- ems! — l t (v P 'nted Na e WCd Printed Name r' hF s� t 7/�/d a /(r n10 CA 4 1 � �0 - Date WITNESSES: Signature Printed Name PROPERTY OWNER: Signature Printed Name Signature Date Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWB7S B602) Page 26 or29 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 .4greemeni (KII737S B602) Page 27 of `29 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, personal representatives, successors and assign WIT�,NESSES- SignaturV Panted Nabe h P Printed Name IIlt12,4011— Date Exhibit E - Property Owner Aloise hisulation Agreement (KIVBT.S B602) Page 28 of 20 Printed Name Exhibit E - Property Owner Noise Insulation Agreenlem (KIVBTJ B602) Page 29 of29 Address: Key West by the Sea Unit No.: B603 Name(s): Hopps 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"). WITNESS ETH: 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 Property toner Noise Insulation Agreement (KWBTS B603) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B603) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B603) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B603) Page 4 of 29 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. 10. 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 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. 11. 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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B603) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B603) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B603) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B603) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.lmpact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B603) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. Cooperation in Clearinq 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B603) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B603) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B603) Page 12 of 29 (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 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 Property Dinner Noise Insulation Agreement (KWBTS B603) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B603) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B603) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. p. Non -Waiver of Immunily. 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 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. Property Owner Noise Insulation Agreement (KWBTS B603) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B603) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Signature Printed Name abs/V�7 Printed Name WITNESSES: Signature Printed Name * /. ALL6(S ( t Printed flame (Seal) Attest: KEVIN MADOK, CLERK la Deputy C PROPERTY OWNER: Signature Printed Name Date I — hy V— I L 1 '9 2 20 L!R Signs ure D Printed Name /�' , ®1' Date MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B603) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A WZ 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 Re lacement. 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 5-1/2') 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 (KWBTS B603) Page 19 of 29 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 (KWBTS B603) Page 20 of 29 - 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: Propeft 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 (KWBTS B603) Page 21 of 29 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 (KWBTS B603) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 603-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B603) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B603) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B603) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: I PERTY OWNE C)�af Signature^ �� Printed N me b` enni S Printed Name o ature -�-fL� Clk(S t i -✓V Date Printed Name WITN Signature 17 0,4-'rUal I iA.LtA� Printed Name CAf-ST c_LC) Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Sign ture 90Seve CWy lids Printe Name di'j� /K , 2 of A Date • • - Signature Printed Name Date Exhibit D - Property [honer Noise Insulation Agreement (KWBTS B603) Page 26 of 29 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 (KWBTS B603) Page 27 of 29 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, personal representatives, successors and assigns. WITNESSES: Signature Ck'1k4D Printed �_ t�l� Signature Printed Name PROPERTY OWNE 0 t nat a Printed Name �TRIL 9 Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B603) Page 28 of 29 WITNESSES: Signature ure Printed Name WITNESSES: Signature Printed Name Signature Printed Name Signa4 re kLisp Printed Name AZ IK, �2 q� Date Signature Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B603) Page 29 of 29 Address: Key West by the Sea Unit No.: B604 Name(s): Michael 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 Property Owner Noise Insulation Agreement (KWBTS B604) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B604) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B604) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B604) Page 4 of 29 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. 10. 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 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. 11. 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. 12. 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 Property Owner Noise Insulation Agreement (KWBTS B604) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B604) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be reauired to complete all designated Pre -Work items utilizing their own funds and per the reauired deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Reauirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The ProperPrope!jy Owner will be res onsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur to avoid_ an potential im edance to the NIP construction rocess. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. Suspension of Proaram 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B604) Page 7 of 29 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 ost-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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B604) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existina Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existina Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B604) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B604) Page 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTSB604) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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 17"' 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. 42.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 41. General Conditions. a. Governina 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. Property Owner Noise Insulation Agreement (KWBTS B604) Page 12 of 29 (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 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 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 Disaareements. 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 Property Owner Noise Insulation Agreement (KWBTS B604) Page 13 of 29 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 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 1314, Article Vill 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. Property Owner Noise Insulation Agreement (KWBTS B604) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B604) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B604) Page 16 of 29 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 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. Property Caner Noise Insulation Agreement (KWBTS B604) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. JIE�SSES: PROPERTY OWNER: rep Signdhlw Name m Printed Name M Date PROPERTYOWUM. Signature Signature Printed Name Printed Name Signature Date Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk .-..M.,_ 1C - Signature Date Property Owner Noise Insulation Agreement (KWBTS B604) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A HSI Property Owner Noise Insulation Agreement A. Air Conditionina: 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 Re lacement. 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 5-9/2') 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 (KWBTSB604) Page 19 of 29 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 containina 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 Re uirements 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 (KWBTS B604) Page 20 of 29 - 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: PropeMj 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 (KWBTSB604) Page 21 of 29 - In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings rior to NIP construction to provide sufficient space for required asbestos abatement containment areas. H. KWBTS BOARD Authority of Desian 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 (KWBTS B604) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Unit No. 604-13, Gulfstream Tower, of KEY WEST BY THE SEA, a Condominium, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, of the Public Records of Monroe County, Florida, and exhibits thereof and amendments thereto; and the Condominium Plans as recorded in Graphics Book #1, of the Public Records of Monroe County, Florida, together with an undivided interest in the common property declared in said Declaration of Condominium to be an appurtenance to the above described unit. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B604) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C -Property Owner Noise Insulation Agreement (K'BTS B604) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (K"TS B604) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. Name WITNESSES: Signature Printed Name Signature PRO Printed Name .r 7-0/15 Date PROPERTY OWNER: Signature Printed Name Date Printed Name WITNESSES: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B604) Page 26 of 29 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 Corner Noise Insulation Agreement (KWBTS B604) Page 27 of 29 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, personal representatives, successors and assigns. IESSES: PROPERTY OWNER: 4 r Signate Name sl' Printed Name {., 2 i .. Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B604) Page 28 of 29 WITNESSES: Signature Signature Printed Name Printed Name Signature Date Printed Name WITNESSES: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B604) Page 29 of 29 Address: Key West by the Sea Unit No.: B605 Name(s): Booth & Sanford 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 Property Owner Noise Insulation Agreement (KWBTS B605) Page I of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B605) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B605) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B605) Page 4 of 29 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. 10. 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 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. 11.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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B605) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B605) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B605) Page 7 of 29 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. 20.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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. � 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24.Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B605) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B605) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B605) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property (Avner Noise Insulation Agreement (KWBTS B605) Page I I of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B605) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B605) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B605) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property 6hvner Noise Insulation Agreement (KWBTS B605) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B605) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B605) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Signature 1 O Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: Signature New c) -rl Printed Name Date PROPERTY OWNER: Si Printed Nam Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: Date Deputy Clerk ,-----,,,Signature Property Owner Noise Insulation: Agreement (K"TS B605) Page 18 of 29 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 5-1/2') 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 (KWBTS B605) Page 19 of 29 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 (KWBTS B605) Page 20 of 29 - 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 ® maximized level of construction safety and property owner protection ® minimized level of disturbance & disruption to all property owners o simplification of building walkway egress issues during abatement ® 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 (KWBTS B605) Page 21 of 29 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 (KWBTS B605) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 605-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B605) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B605) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B605) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WIT ESSE 18�60 ftKature P?rnted Name - - • t i I Printed Name WITNESSES: Signature I w Printed Name .E Signature Printed WITNESSES: Signature Printed Name Signature PROPERTY OWNER: Signature" Printed Name Date PROPERTY OWNER: ature Printed Name Date PROPERTY OWNER: Signature Printed Name Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B605) Page 26 of 29 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 (KWBTS B605) Page 27 of 29 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, personal representatives, successors and assigns. t ALES M. 64) ig at Printed Name Signature L-r � Printed Name r Exhibit E - Property Owner Noise Insulation Agreement (K"TS B605) Page 28 of 29 WITNESSES: Si re Printed r� Signature Printed Name WITNESSES: Y e Signature t C— t.L / � C5, J3o Printed Name Signature L1 C—T Printed Name e ' Ir O ; M, Signature fie -Ls —S. Date PROPERTY OWNER: Signalft— ;��4y Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B605) Page 29 of 29 Address: Key West by the Sea Unit No.: B608 Name(s): Hilton 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 Property Owner Noise Insulation Agreemeni (KWBTS B608) Page I of29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Impedinq 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B608) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B608) Page 3 of 29 7. 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. 8. Safe Workinq 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. 9. 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 Property avner :Noise Insulation Agreement (KWBTS B608) Page 4 of 29 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. 10. 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 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. 11.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 N/P 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. 12.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 Properly Owner Noise Insulation Agreement (KWBTS B608) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B608) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. P_ re & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B608) Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email andlor letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email andlor letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B608) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.lmoact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments, Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding_ During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B608) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30.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. 31. 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. 32. 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. 33. 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. 34.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 Property Owner Noise /nsidalion Agreemeni (KWBTS B608) Page 10 of 29 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 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. 35. 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. 36.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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B608) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41.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. 42.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 41. General Conditions. a. Governinq 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. Property Owner Noise Insulation Agreement (KWBTS B608) Page 12 of 29 (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 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 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 Property Owner „Noise Insulation Agreement (KWBTS B608) Page 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B608) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B608) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KTVBTS B608) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B608) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. SwlhkAj Printed Name i1� Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK By: Deputy Clerk P P R: jo P-J,.s&^®-k Signature Pri ed Name it 05' Date MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B608) Page 18 of 29 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 5-1/2') 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 (KWBTS B608) Page 19 of 29 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 (KWBTS B608) Page 20 of 29 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 a 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 a potential for extended working hours ® 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 (KWBTS B608) Page 2/ of 29 - 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 (KWBIS B608) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement "AS TO AN EASEMENT INTEREST" Unit 608-B, Gulfstream Tower of KEY WEST BY THE SEA, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 598, at Page 370 et al. and amendment recorded in Official Records Book 598, at Page 574 of the Public Records of Monroe County, Florida, and as amended in Official Records Book 613, at Page 37 of the said Public Records of Monroe County, Florida. Exhibit B - Property (honer Noise Insulation Agreement (KWBTS B608) Page 23 of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Chmer Noise Insulation Agreement (KW IS B608) Page 24 of 29 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 Exhibit D - Property Owner .Poise Insulation Agreement (KWBTS B608) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WIT ES S: Si natur Printed Name _ Printed Name PROPERTY -OWNER: Signature k,J3 s v t-,, ulkvd e% Printed Name C) Date PROPERTY OWNER: Signature Printed Name Date PROPERTY OWNER: Signature Printed Name Date Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B608) Page 26 of 29 VENTILATION HOLD HARMLESS AGREEMENT Exhibit E tr! 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 (KWBTS B608) Page 27 of 29 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, personal representatives, successors and assigns. WI _S7X/0//6n/�.o✓ �.P��sa�✓ Printed Name Signature , Printed Name PROPERTY OWNER: X t Signa re . Printed Name ., ) 7 Z_ Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B608) Page 28 oj29 WITNESSES: Signature Printed Name PROPERTY OWNER: Signature Printed Name Signature Date Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Signature Printed Name Printed Name Date Exhibit E - Property Ohvner Noise Insulation Agreement (KWBIS B608) Page 29 of 29 Address: Key West by the Sea Unit No.: B609 Name(s): Cooke 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 Property Owner Noise Insulation Agreement (KWBTS B609) Pago 1 of 20 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B609) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B609) Page 3 of 29 7. 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. 8. 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. 9. 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 Property Owner Noise Insulation Agreement (KWBTS B609) Page 4 of 29 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. 10. 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 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. 11.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/performancefissues. 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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B609) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B609) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. Pre & Post -Construction Noise Testinq 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 Property Owner Noise Insulation Agreement (KWBTS B609) Page 7 of 29 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 ve-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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B609) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre -Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Imoact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Noise Insulation Agreement (KWBTS B609) Page 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B609) Page 10 of 29 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 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. 35. 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. 36. Timina 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. 37. 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. 38. 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. 39. 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 Property Owner Noise Insulation Agreement (KWBTS B609) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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. 42.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 41. 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. Property Owner Noise Insulation Agreement (KWBTS B609) Page 12 of 29 (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 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 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 Property Owner Noise Insulation Agreement (KWBTS B609) Page 13 of 29 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 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 1314, Article Vlll 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. Property Owner Noise Insulation Agreement (KWBTS B609) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B609) Page 15 of 29 Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B609) Page 16 of 29 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 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. Property Owner Noise Insulation Agreement (KWBTS B609) Page 17 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. MiCHAZISES: PROPERTY OWNER: 'Signature —Signature > Printed Njme Printed Name WITNESSES: Signature Printed Name Signature Printed Name U" Date —A 7:d ;J Z101;j 4A WA101' Signature Printed Name Date (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: 4L 11 Depu4,'PLerk_. Signature Property Owner Noise Insulation Agreement (KWBTS B609) Page 18 of29 IN WITNESS eAec.tM, 7C grEfC;7 rmanfla:*7#q��A� \OTAR WITNESSES: • PUBU M WITNESSES: Signature Printed Name Signature Printed Name the Property Owner and the County have ," year first above written. 1;kloj�l� 0�jl � Signature Printed Name Date Signature Printed Name Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK M 1 RTT-M 7warl u 6U. Signature Property Owner Noise Insulation Agreement (KWBTS B609) Page 18 of 29 IN WITNESS WHEREOF, the Property Owner andtheCounty have -xecuted this Agreement as of the day and year first above written. IT■ C WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK 10 Deputy Clerk • - • f� Printed Name V7 , ) I at Date Signature Printed Name Date MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B609) Page 18 of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. Print Name WITNESSES: Signature Printed Name Signature Printed Name (Seal) Attest: KEVIN MADOK, CLERK Deputy Clerk Date Signature Printed Name Date Signature Printed Name Date MAYOR / CHAIRMAN: Signature Date Property Owner Noise Insulation Agreement (KWBTS B609) Page 18 of 29 PROGRAM POLICY STATEMENTS Exhibit A To Property Owner Noise Insulation Agreement A. Air Conditionina: 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 comer pilasters which will be constructed to match the quality of existing walls. The number and locations of the new vertical wall and comer 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 5-1/2') 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 (KWBTS B609) Page 19 of 29 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 Testina & 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 containin-g 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 (KWBTS B609) Page 20 of 29 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 (KWBTS B609) Page 21 of 29 - 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 (KWBTS B609) Page 22 of 29 Exhibit B To Homeowner Noise Insulation Agreement Condominium Unit 609-B, GULFSTREAM TOWER OF KEY WEST BY THE SEA, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof recorded in Official Record Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWBTS B609) Page 23 of 29 - e - aelyl e Exhibit C QW, 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C - Property Owner Noise Insulation Agreement (KWBTS B609) Page 24 of 29 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 Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B609) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 iD 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 representatives, successors and assigns. Printed Name" WITNESSES: Signature Printed Name Signature Printed Name WITNESSES: Signature Printed Name Signature Printed Name PROPERTY OWNER: S na ure Printed Name Date PROPERTY OWNER: Signature Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B609) Page 26 of 29 are uncovered during the construction period, the Property Owner agrees to complets 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 Q 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 Q shall survive the termination or expiration of the Property Owner Noise Insulation Agreement. Signatu Printed me WITNESSES: Signature Printed Name of= -0—rinhidl-Nime WITNESSES: Signature Printed Name anu 111511, 1 assigns. PROPERTY OWNER: Sinature son, rr#l:j Date MAI Printed Name 44: 0= Printed Name Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B609) Page 26 of29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: Signature Printed Name Signature lDokZ"',V=- ..-,C> '� Printed Name n l ri to f ti PROPERTY OWNER: Signature Printed Name Printed Name Date WITNESSES: Signature Printed Name Signature PROPERTY OWNER: Signature Printed Name Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B609) Page 26 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WIT ESS S: Signature Printed Na Signature Printed Name WITNESSES: Signature Printed Name Signature P OPER ER: Signature Printed Name Date PROPERTY OWNER: Signature Printed Name Printed Name Date WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B609) Page 26 of 29 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 (KWBTS B609) Page 27 of 29 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 \�#pvIhilla n4 inure to the benefit of the undersigned and their respective heirs, persons e'etti%s, successors and assigns. F. WI SSES: PROPERTY OWNER: Signature UA °52s.2�i6'pQ13�•�� Signature G Printed Nam � ����ur i n n • ��C.,�21�1. «�� � � • ��V �—� to'll A , awl i5 O vA 4 kk— Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B609) Page 28 of 29 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, personal representatives, successors and assigns PROPER NER: Printed Name ,5kdke Date Printed Name Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B609) Page 28 of 29 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, personal representatives, successors and assigns. Signature v A Printed Name PROPERTY OWNER: Signature �- Printed Name Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B609) Page 28 of 29 WITNESSES: Signature Printed Name Signature WITNESSES: Signature Printed Name Signature I ;J zTel ;J 4 Z4 Signature Printed Name 1;Jael Signature Printed Name Datz Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B609) Page 29 of'29 Address: Key West by the Sea Unit No.: B610 Name(s): Corbett 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 Property Owner Noise Insulation Agreement (KWBTS B61 D) Page 1 of 29 sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 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. Pre- & Post -Construction Responsibilities The Property Owner shall meet all responsibilities and requirements pertaining to both pre -construction and post -construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre -Construction requirements to include: Property Owner Noise Insulation Agreement (KWBTS B610) Page 2 of 29 (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage Space Area" within the condominium, providing the required "clear area" (white space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. (3) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; (4) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust -sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; (6) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shall meet all Post -Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; (3) Re -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre -Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. d. In the event the Property Owner fails to perform any and all of the above Post -Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement (KWBTS B610) Page 3 of 29 7. 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. 8. 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. 9. 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.4c mplications are beyond Property Owner Noise Insulation Agreement (KWBTS B610) Page 4 of 29 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. 10. 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 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. 11. 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. 12.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 Property Owner Noise Insulation Agreement (KWBTS B610) Page 5 of 29 construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 13. 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 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. 14. 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. 15. Pre -Work Requirements. The Property Owner will be required to complete any and all Pre -Work, as required by the NIP to Property Owner Noise Insulation Agreement (KWBTS B610) Page 6 of 29 successfully accommodate the NIP acoustic modifications. The Property Owner will be required to complete all designated Pre -Work items utilizing their own funds and per the required deadlines as established by the NIP. In the event the Property Owner fails to complete the designated Pre -Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 16. City of Key West "Hard -Wired" Smoke Alarm Requirement. In compliance with the City of Key West Fire Marshall and the City of Key West Building Department construction permit issuance requirements, the Property Owner will be required to install 120-volt "hard -wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Owner will be responsible to ensure that the smoke alarms are not installed in same areas within the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner fails to install the designated "hard -wired" smoke alarms by the established NIP deadline, the Property Owner shall be removed from NIP participation. 17. 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. 18. Limitation on Alterations to the Property. 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, 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. 19. 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 Property Owner Noise Insulation Agreement (KWBTS B610) . Page 7 of 29 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. 20. 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. 21. 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. 22. Design and Bid Process Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter), 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 collect and develop all final design and bid documents. These visits could include, but not be limited to, property survey, design survey, hazardous material inspection, pre -noise testing and pre -bid visit. In the event the Property Owner fails to provide access to the Property for all required NIP Design and Bid Process visits, the Property Owner shall be removed from NIP participation. 23. Pre -Construction Access. The Property Owner agrees to provide access to the Property forty-eight (48) hours prior to the scheduled start of NIP construction. This short visit will provide the Program Manager with the ability to ensure that the Property Owner has met all furniture storage responsibilities. Failure could result in the suspension of the scheduled NIP construction and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 24. Construction Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per the established NIP construction schedule assignment, the Property Property Owner Noise Insulation Agreement (KWBTS B610) Page 8 of 29 Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to provide all required NIP Pre - Construction, Construction and Post -Construction visits. These visits could include, but not be limited to final measurement, pre -construction inspections, review of Designated Storage Space requirements, post construction inspections and post -construction noise testing. The Property Owner agrees to relocate from their condominium for the entire designated time period, per the designated NIP construction schedule. The Property Owner agrees not to re-enter their property for any reason during the established construction period due to safety concerns and the potential to negatively impact the Contractor. Furthermore, in the event the Property Owner fails to provide access for all required NIP Construction visits, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 25. Discovery of Pre-Existinq Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP construction process that negatively impact the installation of the NIP improvements, the Property Owner agrees to immediately repair and remediate such deficiencies in an effort to reduce any negative impact on the scheduled construction period. The Property Owner understands that, depending on the timing of the pre-existing deficiency repair, the NIP construction period may need to be extended, at no fault of the Program Manager or Contractor. 26.Impact of Unforeseen KWBTS Buildinq Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may arise during the NIP construction may have the potential to increase the original scheduled duration of construction, which is not the fault of the Program Manager nor Contractor. The Property Owner needs to plan for the "worst -case" possibility that the originally -scheduled construction completion date may be delayed a few additional days due to unforeseen building conditions that may arise and complicate the NIP construction. 27. Existing Window / Door Treatments. Shades and Blinds. The Property Owner understands that, after the installation of new NIP acoustic window and doors, the existing window and/or door treatments, shades and blinds may not be compatible nor able to be re -installed due to size differences between the new and existing windows and doors. 28. Existing Crown Molding. During the installation of the new acoustic windows and doors, the NIP will be providing new "standard" replacement interior trim and sills. The Property Owner understands that the NIP replacement trim will not match custom and/or specialized crown molding patterns and/or custom window and door trim. After the completion Property Owner Norse Insulation Agreement (KWBTS B610) 9 of 29 of the NIP modifications, the Property Owner will have the ability to make modifications to the NIP interior trim at their own expense. 29. Communication Requirements. The Property Owner agrees to read and review all NIP emails and/or letters in a timely fashion which are being provided by the NIP to ensure schedule conformance. In the event the Property Owner fails to meet this requirement, it could result in removal from NIP participation. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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 Property Owner Noise Insulation Agreement (KWBTS B610) 10 of 29 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 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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 Property (]honer Noise Insulation Agreement (KWBTS B610) Page 11 of 29 succeeding breach of the same or any other term, covenant or condition hereof. 40. 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 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. 41. 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. 42.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 41. 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. � 10 Property Owner Noise Insulation Agreement (KWBTS B610) Page 12 of 29 (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 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. Adiudication 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 Property Owner Noise Insulation Agreement (KWBTS B610) 13 of 29 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 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 1314, Article VIII 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. Property Owner Noise Insulation Agreement (KWBTS B610) Page 14 of 29 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. 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. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Property Owner Noise Insulation Agreement (KWBTS B610) Page 15 of Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. 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 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. Property Owner Noise Insulation Agreement (KWBTS B610) Page 16 of 29 r. Legal Obligations ions 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 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. Property OW ner Noise Insulation Agreement (KWBTS B610) Page 1 � of 29 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: Name Signature Printed Name � WITNESSES•9 Si natu Printed Name _ L Signature Printed Name PROPERTY OWN Printed Name C Date PROPERTY OWNE �; Signature Printed Name 9 Date MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK Deputy Clerk Property Owner Noise Insulation Agreement (KWBTS B610) Signature Date Page 18 of 29 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 (KWBTS B610) Page 19 of 29 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 (KWBTS B610) M Page 20 of 29 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 (KWBTS B610) M Page 21 of 29 - 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 (KWBTS B610) Page 22 of 29 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 610-B, Gulfstream Tower of KEY WEST BY THE SEA, a Condominium according to the Declaration of Condominium thereof, recorded in Official Record Book 589, Page 370, together with all appurtenances thereto, including an undivided interest in the common elements of said Condominium and any amendments as amended from time to time all of the Public Records of Monroe County, Florida. Exhibit B - Property Owner Noise Insulation Agreement (KWB7S B610) ; Page of 29 PROGRAM IMPROVEMENTS 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 • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) Exhibit C -Property Owner Noise Insulation Agreement (KWBTS B610) Page 24 of 29 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 Exhibit D -Property Owner Noise Insulation Agreement (KWBTS B610) Page 25 of 29 are uncovered during the construction period, the Property Owner agrees to complete 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 representatives, successors and assigns. WITNESSES: Printed Name Sign I , • A J' 1 WITNESSES: Signature L/ Print6d Name AA n 1 WITNESSES: Signature Printed Name k, 6C Printed Name Date P OPERTY OWN Signature &M CV Printed Name c�M d 1 + Date PROPERTY OWNER: Signature Printed Name Signature Date Printed Name Exhibit D - Property Owner Noise Insulation Agreement (KWBTS B610) Page 26 of 29 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 -Properly Owner Noise Insulation Agreement (KWBTS B610) X Page 27 of 29 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, personal representatives, successors and assigns. WITNESSES: Signature &Z Printed Name Signature Printed Name PROPE WNE ¢f ignature Printed Name t Date Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B610) Page 28 of 29 WITNESSES: Signature Printed Name i'M I I L, I *TJ T3 M,= Printed Name PROPERTY OWNER: .) P.0', -lq% - - - ----------- ----------------------- Signature AJ4,k� C-4C� YC 6 Printr-f Nane 14- -)4o(y Date =Z9105MM7,75'R Signature Mrall 1=11 - WOM Exhibit E - Property Owner Noise Insulation Agreement (KWBTS B61 0) Page 29 of 29