09/19/2018 Easement ��N�
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,,pe." .... Kevin Madok, CPA
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0 ..: _� Clerk of the Circuit Court & Comptroller — Monroe County, Florida
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DATE: October 11, 2018
TO: Beth Leto, Airports
Business Manager
FROM: Pamela G. Hanco c41gI .C.
SUBJECT: September 19 BOCC Meeting
Attached is an electronic copy of Item C12, Avigation Easements and Property Owner
Noise Insulation Agreements for thirty-two participating units at Key West by the Sea for the Key
West International Airport Noise Insulation Program Building B, Floors 3 -6 Construction Project,
for your handling.
Should you have any questions, please feel free to contact me at (305) 292 -3550. Thank
you.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070 Plantation Key, Florida 33070
305- 294 -4641 305 - 289 -6027 305 - 852 -7145 305 - 852 -7145
Doc 2190221 10/11/2018 2:09PM
Prepare, By and Return To: Filed & Recorded in Official Records of
Heather a. Faubert MONROE COUNTY KEVIN MADOK
NIP Ass3tant Project Manager
THC, Inc
710 Dacula Rd., Suite 4A #315 10/11/2018 2:09PM
Dacula, 3A 30019 DEED DOC STAMP CL: Brit $0.70
•
AVIGATION EASEMENT
Key West International Airport
Noise Insulation Program
THIS EASEMENT AGREEMENT is entered into this I day of ¥
2018, by "WILLIAM L. O "DAY, JR. & ELISA R. O'DAY ", 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 ")
local d in Monroe County, Florida, more particularly described as follows:
Condorr .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
Condorr::inium thereof recorded in Official Record Book 589, Page 370, as amended from
time to tme, of the Public Records of Monroe County, Florida.
also identified as street address: "2601 S. Roosevelt Blvd., Unit B511"
B. The :;3000 is the owner and operator of Key West International Airport ( "the Airport") and
desii 3s 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 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
interi.:)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 sipersede any implied or prescriptive easements that the BOCC may have obtained
uncle.; applicable laws.
D. The iunding 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 e 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 will benefit the Property Owner and the Property by providing certain remedial sound
atter.:aation construction on all eligible residential structures on the property necessary
Key West In' :rnational Airport NIP — Avigation Easement (Unit #8511) Page 1 of 4
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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.
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Bk t 2931 POI 905
Key West International Airport NIP — Avigation Easement (Unit #B511) 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 �r 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.
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Key West International Airport NIP — Avigation Easement (Unit #B511) Page 3 of 4
This Easement Agreement is executed as of the date first above written.
PROP E - TY OWNER: PROPERTY OWNER:
II Age _
Signature Signature
Gj I G m 0 � r E), FA Oda%
Print-: Name p Printed Name
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Date Date
STATE OF t2 -4 i
COUNTY OF A(/EU/ 0 /Q E
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The foregoing instrument was acknowledged before me this / day o L l �% o M Mi
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{ Property Owner Name(s) ; A i�9u sf 2 5 — 1 x 0
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Notary Public Signature � � / /�, I f D I . ` 1�1 \ i \ \ \ \ 1 �N
MONROE COUNTY BOARD OF COU1sEr Cte � ! t ERS:
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Date ON- • • A • .,
Printed Name Ey
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STATE OF FLORIDA PE -•• . MERCADO
ASSISTA► • ,- - • -11 • G
COUNTY OF MONROE Dat: 0 (d lU
The foregoing instrument was acknowledged before me this 16 day of 20
by 0a.v;01 R:c.e. -
as Mayor of the Monroe County Board of County Commissioners, a body politic and cor•orate.
f , . . , P b • PAMELA MISS N # F 96
G71(.1 'a° 0 MY COMMISSION a} FF 963818
* * EXPIRES: February 22,2020
No
M Commission E •�
Public y �. -: oa;Co Bonded Thru Notary Public Underwriters
Notary Signature .
Key West International Airport NIP - Avigation Easement (Unit #8511) P;,ge 4 of 4
MONROE COUNTY
OFFICIAL RECORDS