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09/27/2017 Agreement
Address: Key West by the Sea Unit No.: B109 Name(s): Dahl PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West International Airport (the "Airport"), situated in the City of Key West, County of Monroe, State of Florida, and in close proximity to the Property; and WHEREAS, the County desires to obtain and preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking off from, or maneuvering about the Airport; and WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will.participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: Property Owner Noise Insulation Agreement Page 1 of 25 1. Grant of Easement. Simultaneously with the execution of this Agreement, the Property Owner executed and delivered to the County an avigation easement (the "Easement") which Easement has been recorded in the public records of Monroe County, Florida. The Easement remains in full force and effect and is hereby ratified in all respects. 2. Program Policy Statements. Consistent with the Program and/or Federal Aviation Administration Airport Improvement Program policies and procedures, the Program Manager has developed a series of Program Policy Statements outlining construction and eligibility restrictions. The Property Owner understands that prescribed Program Improvements will be consistent with the Program Policy Statements provided to the Property Owner by the Program Manager. A copy of the Program Policy Statements is attached hereto as Exhibit A. 3. Payment of Program Improvements. The County agrees to pay for the Program Improvements described in Exhibit C attached hereto. The Program Improvements will be approved by the Property Owner and County, managed by the Program Manager, and performed by the Contractor. 4. Impeding Competitive Bid Process. The Property Owner shall not impede or interfere with the Contractor's ability to select between approved product manufacturers and subcontractors in the preparation of bid submittals. To insure a competitive bid environment, the Property Owner is prohibited from having any discussion or communication with the Contractor in relation to the Program, the contractor's bid, or this Agreement until after award of the construction contract by the County. Failure of the Property Owner to comply with this provision shall, at the option of the County in its sole discretion, result in disqualification from the Program and cancellation of this Agreement. 5. Construction Contract. The County will award the contract for the Program Improvements consistent with Federal and County competitive bidding policies and procedures. The contract will require the Contractor to complete the Program Improvements within a time period defined by the Program Manager. 6. Impeding Construction. Once construction of the Program Improvements begins, the Property Owner shall not impede construction or alter construction schedules. In addition, the Property Owner shall prevent any and all tenants that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement Page 2 of 25 7. Safe Working Environment. The Property Owner shall be responsible for providing a safe working environment for the Program Manager, Contractor, subcontractors, suppliers, and City, County, State and federal inspectors. a. Throughout all phases of design and construction of the Program Improvements, the Property Owner shall be responsible for: (1) Providing a working environment that is free from potential health risks, biohazard conditions, hazardous chemicals, obstacles, weapons of any kind and/or explosives; (2) Refraining from verbal abuse or profanity; (3) Refraining from aggressive physical contact; and (4) Insuring that all pets are completely secured and contained. b. In the event the Property Owner fails to meet any of the foregoing conditions, the Program process may, at the County's discretion, be temporarily suspended at any time. In'such event, the Program Manager shall notify the Property Owner in writing, stating the corrective action(s) and/or condition(s) required to be completed or performed by the Property Owner prior to the County resuming the Program process. c. In the event the Program process is not resumed due to the Property Owner's failure to complete the corrective action(s) and/or condition(s) required by the Program Manager, the Property Owner shall be liable to the County and/or Contractor for any and all damages and all direct and indirect costs related thereto. d. If the Program process is resumed, the Property Owner shall be liable to the County and/or Contractor for any and all damages and all direct and indirect costs related to or caused by the temporary suspension of the Program process. 8. Construction Delays. During the construction period, the Contractor may experience unforeseen complications relating to the installation of the Program Improvements. The construction contract shall provide that delays related to these unforeseen complications are beyond the control of the Contractor and shall be excused so that the time for completion may reasonably be extended. Construction schedules may also be revised if there is a delay in awarding of the contract or if the Program Improvements have to be re-bid in the event of lack of bidding contractors and/or failure of the lowest responsive, responsible bidder to execute the contract, provide a payment and performance bond or show proof of required insurance. 9. Changes to Scope of Work. The Program Manager reserves the right to make changes to the plans and specifications and the Property Owner Noise Insulation Agreement Page 3 of 25 Program Improvements, at its sole discretion, at any time during the Program process, provided such changes do not reduce the scope or quality of the Program Improvements described in Exhibit C and such changes are necessitated by the discovery of hidden conditions not readily detectable during normal property inspection procedures. 10.Acceptance of Work. Upon completion of the Program Improvements, the Program Manager shall inspect or cause the inspection of the Program Improvements to determine if they were completed pursuant to the terms of the contract. The Program Manager retains sole discretion and authority on program conformance and performance issues as they relate to the Contractor, subcontractors, suppliers and acoustic designs. The Property Owner is requested to attend the Substantial Completion Inspection and provide input to the Construction Manager with respect to the identified punch-list items. In addition, the Property Owner is welcome to attend the Final Inspection. In the event the Property Owner elects to not attend the Substantial Completion and Final Inspections, they release and surrender their ability to provide input to the Construction Manager with respect to the acceptance of the Program Improvements. In the event there is a disagreement between the Property Owner and the Program Manager as to a conformance or performance issue, the Property Owner shall be required to submit the discrepancy in writing to Monroe County (representative to be defined before the NIP construction process) within 7 days of the inspection giving rise to the discrepancy. Monroe County shall then make a determination as to the acceptability of the conformance/performance issue and any remedial action that may need to be " taken. ,Monroe County shall be the final arbiter of any conformance/performance/issues. Failure by the Property Owner to submit the written complaint within the time period specified above shall thereafter foreclose the Property Owners right to file such complaint. 11.Termination of Agreement. The Property Owner understands that the signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the Program Improvements to be performed in accordance with the Program. Therefore, if the Property Owner attempts to terminate this Agreement or otherwise impedes the progress of the performance of the Program Improvements after the award of the construction contract, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs caused thereby. 12.Warranties. The County does not represent or warrant the level of noise reduction that the Property Owner will experience within the Property as a result of the Program Improvements performed as part of the Program. a. The County agrees that its contract with the Contractor will include standard one (1) year warranties from the Contractor for all materials and workmanship. Such one-year warranty period shall commence as of the time of the acceptance of the Property Owner Noise Insulation Agreement Page 4 of 25 work as provided for in Paragraph 9. In addition, the Program Manager will provide the Property Owner with copies of the warranty policies for all products used in the construction of the Program Improvements. The Property Owner understands that the warranty policies for products used in the construction of the Program Improvements differ among product manufacturers. The Property Owner understands that it is solely responsible for pursuing all future product warranty issues directly with each product manufacturer. b. In the following instances, the Property Owner shall be solely responsible for, and agrees to contact the Contractor or product manufacturer directly to coordinate any required warranty service and agrees to look solely to the general contractor or the product manufacturer for fulfillment of all warranties and for resolution of all product or construction warranty issue(s): (1) The Property Owner's inquiry is not directly related to either construction warranties or product warranties (such as window cleaning or product maintenance) regardless of whether the Property Owner's inquiry arises during the one- year warranty period from the Contractor or thereafter; (2) The Property Owner believes that warranty service is required with respect to construction warranty issues, and the one-year warranty period from the general contractor has expired; (3) The Property Owner believes that service is required with respect to product warranty issues, the advertised warranty period for the product has not expired, and the manufacturer is currently conducting its business; and (4) The Property Owner believes that service is required with respect to product warranty issues, and the advertised warranty period for the product has expired. 13.Pre-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. 14.Suspension of Program Process. The Program process may be temporarily suspended at any time during the design and/or construction phases upon the discovery of Deficiencies due to their potential impact on the Program Improvements and product warranties. The Program process will not resume until the Property Owner has corrected all related problems to the satisfaction of the Program Manager. In the event repairs are not completed in a timely manner, the Property Owner will be liable to the County for any and all damages and all direct and indirect costs due to delay and/or stoppages of the work. 15.Limitation on Alterations to the 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, Property Owner Noise Insulation Agreement Page 5 of 25 doors and/or walls from the time of the Design process until the construction of the Program Improvements have been completed. Exceptions to this rule must be pre-approved in writing by the Program Manager. Failure to adhere to this requirement may, at the option of the Program Manager in its sole discretion, result in an immediate suspension of the construction of the Program Improvements on the Property. The Property Owner will be liable to the County for all direct and indirect costs associated with unapproved alterations and damages related thereto. 16.Pre & Post Construction Noise Testing Process. Pre & post construction noise testing is a very important Program process that is designed to measure and determine the actual achieved noise level reduction level at treated properties. If selected by the Program Manager for pre & post construction noise testing, the Property Owner agrees to provide access to their property for testing and agrees to not to make alterations to the interior of their property (with the exception of repairs of Deficiencies) from the time of the pre-construction noise test to the post-construction noise test. In an effort to insure consistent noise data collection, the Property Owner also agrees to preserve the interior layout of furniture, floor coverings and window treatments from the time of the pre-construction noise test to the post-construction noise test. The Property Owner understands that the failure to adhere to this requirement may result in corruption of the noise testing data. Therefore, the Property Owner understands they may be liable to the County for any direct and indirect noise testing costs in the event these requirements are not met. 17.Cooperation. As reasonably requested, the Property Owner shall cooperate with the Contractor, the Program Manager and Monroe County in the performance of all phases of the Program Improvements including, but not limited to, the removal and reinstallation of rugs, wall hangings and furniture as necessary. 18.Utilities. The Property Owner shall permit the Contractor to use, at no cost to the Contractor or the County, existing utilities such as light, heat, power and water necessary to carry out the Program Improvements. 19.Access. At scheduled times and/or upon not less than twenty-four (24) hours advance notice, the Property Owner agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City, County, State and federal inspectors and consultants access to the Property to perform all phases of the Program Improvements, including property survey, design survey, hazardous material inspection, pre/post noise testing, pre-bid visit, construction and final inspection phases. The Property Owner agrees to relocate from their condominium for a one (1) calendar month period to facilitate a "floor by floor" construction process. The Property Owner agrees not to re-enter their property for any reason Property Owner Noise Insulation Agreement Page 6 of 25 during the established construction period due to safety concerns and the potential to negatively impact the Contractor. 20.Title Examination. The Program Manager has obtained or will obtain, at its sole cost and expense, an "Abstract of Title" to ensure that the Property title is free from liens and/or title defects. 21.Cooperation in Clearing Title. Prior to the commencement of construction of the Program Improvements, the Property Owner shall cooperate with the County in order to (i) correct any title defects affecting the Property which are disclosed by the "Abstract of Title" and in the sole determination of the County may serve to invalidate the Easement, and (ii) secure the written consent of any and all mortgage holders to the Property Owner's conveyance of the Easement to the County if the County determines that it is necessary or desirable to do so (collectively, the "Title Matters"). If, prior to the commencement of construction of the Program Improvements, the County, in its sole discretion, determines that the Title Matters affecting the Property may invalidate the Easement, this Agreement shall be null and void, and the Easement shall be terminated. 22.Federal Assurance. As required by the Federal Aviation Administration, the Property Owner agrees to the following provisions: a. The Property Owner shall subject the construction work on the project to such inspection and approval during the construction of the Program Improvements and after completion of the Program Improvements as may reasonably be requested by the Program Manager and/or Monroe County. b. After final completion of the Program Improvements, the Property Owner shall assume the responsibility for maintenance and operation of the items installed, purchased or constructed under this Agreement. Neither the Federal Aviation Administration nor the County bears any responsibility for maintenance and operation of these items. 23.Reduction of Fresh Air Infiltration. The Property Owner will be required to sign Exhibit E (Ventilation Hold Harmless Agreement) which imputes all responsibility to the Property Owner for the proper maintenance of interior moisture and humidity levels. 24.Salvage of Materials & Equipment. If the Property Owner desires to retain any of the material or equipment removed from the Property as a result of the Program Improvements, the Property Owner shall arrange for the salvage of said materials and equipment directly with the Contractor at the Property Owner's sole risk and expense. The County assumes no responsibility for the condition of the material, equipment or surrounding surfaces as a result of the owner-requested salvage. The Property Owner and the Contractor shall, prior to the commencement of construction, agree upon and execute a document listing those items to be Property Owner Noise Insulation Agreement Page 7 of 25 , • salvaged. In the absence of such a written agreement, all items shall become the property of the Contractor. Materials and equipment not listed for salvage by the Property Owner shall become the property of the Contractor. 25.Property Insurance. During Program construction period, the Contractor will provide builder's risk insurance for the Property. The Property Owner shall have the option, at the Property Owner's sole cost and expense, to maintain a homeowner's insurance policy for the duration of the construction of the Program Improvements. The Property Owner understands that, following final completion, the Contractor's builder's risk insurance will cease and it is advisable for the Property Owner to obtain insurance to cover any value added to the Property by the Program. 26.Timing and Effects of Construction. The Property Owner understands that there is a chance that construction itself may exceed the Contractor's original projected construction time period. The Property Owner also understands that the construction may involve substantial inconvenience and could generate significant quantities of dust and debris rendering portions of the Property uninhabitable for extended periods of time. 27.Labor and Material Release. The Property Owner releases and forever discharges any and all claims, suits and actions against the Program Manager; the County and its officers, employees, agents, consultants; and contractors and suppliers with respect to issues relating to the conformance of labor, materials and acoustic designs utilized in the Program Improvements. Nothing in this paragraph shall limit the warranties for materials and workmanship contained in the contract with the general contractor. 28.Sale of Property. In the event the Property Owner sells, conveys or otherwise transfers title to the Property before the completion of all phases of the Program process, the Property Owner hereby agrees to provide the buyer with a copy of this Agreement prior to the closing on the sale, conveyance or other transfer, and to transfer all of the Property Owner's responsibilities and obligations under this Agreement to the buyer as a condition of the purchase, conveyance or other transfer of the Property. 29.Waiver. No waiver of, acquiescence in, or consent to any breach of any term, covenant or condition hereof shall be construed as, or constitute, a waiver of, acquiescence in, or consent to any other, further or succeeding breach of the same or any other term, covenant or condition hereof. 30.Release of Easement. In the event that this Agreement is cancelled or the County determines that the Easement should be released of record, the Property Owner, upon written request by the County, shall pay Property Owner Noise Insulation Agreement Page 8 of 25 to the County the sum of One Hundred Dollars ($100.00) to cover the costs of the preparation and recording of the Release of Easement document in the public records of Monroe County, Florida. Property Owner understands that it is the Property Owner's,responsibility to insure such payment is made in order to "clear" the title to the Property. 31.Authority to Execute On Behalf Of County. By Resolution No. 111-2004, duly motioned and passed at a lawfully announced public meeting, the Board of County Commissioners of Monroe County, did, on the 17th day of March, 2004, grant full authority for the County Administrator to execute this Agreement on behalf of the County without further action by the Board of County Commissioners. 32.Attachments. Attachments to this Agreement include the following, which are incorporated into this Agreement by reference. a. Exhibit A: Program Policy Statements. b. Exhibit B: Legal Description of Property c. Exhibit C: Program Improvements. d. Exhibit D: Deficiency Hold Harmless Agreement e. Exhibit E: Ventilation Hold Harmless Agreement 33. General Conditions. a. Governing Law, Venue, Interpretation, Costs, and Fees. (1) This Agreement shall be governed by and construed in accordance with the Laws of the State of Florida applicable to contracts made and to be performed entirely in the State. (2) In the event that ,any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and Property Owner agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. (3) The County and Property Owner agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them, the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. (4) The County and Property Owner agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party. Mediation proceedings Property Owner Noise Insulation Agreement Page 9 of 25 • • initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. b. 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 party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. i. Nondiscrimination. The County and Property Owner agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction `that discrimination has Property Owner Noise Insulation Agreement Page 10 of 25 occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. The County and Property Owner agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: (1) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (2) Section 504 of the Rehabilitation Act of 1973, as amended (20 U.S.C. s. 794), which prohibits discrimination on the basis of handicap; (3) The Age Discrimination Act of 1975, as amended (42 U.S.C. ss. 6101-6107), which prohibits discrimination on the basis of age; (4) The Drug Abuse Office And Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (5) The Comprehensive Alcohol Abuse And Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health Service Act of 1912, ss. 523 and 527, (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (7) The Americans With Disabilities Act of 1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; (8) The Florida Civil Rights Act of 1992, (Chapter 760, Florida Statutes, and Section 509.092, Florida Statutes), as may' be amended from time to time, relating to nondiscrimination; (9) The Monroe County Human Rights Ordinance (Chapter 13, Article VI, Sections 13-101 through 13- 130), as may be amended from time to time, relating to nondiscrimination; and (10) any other nondiscrimination provisions in any federal or state statutes or local ordinances which may apply to the parties to, or the subject matter of, this Agreement. j. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, the County and Property Owner agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. The County and Property Owner specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement or any Attachment or Addendum to this Agreement. k. Books, Records, and Documents. The County and Property Owner shall maintain books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for audit purposes during the term of the Agreement and for four years following the termination of this Agreement. I. Covenant of No Interest. The County and Property Owner covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. Property Owner Noise Insulation Agreement Page 11 of 25 m. Code of Ethics. The County agrees that the officers and employees of the County recognize and will be required to comply with the standards of conduct relating to public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. n. No Solicitation/Payment. The County and Property Owner warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and Property Owner in this Agreement and the acquisition of any commercial liability insurance coverage, self- insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity by the County to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. q. Privileges and Immunities. All of the privileges and immunities from liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, volunteers, or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. r. Legal Obligations and Responsibilities; Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or Property Owner Noise Insulation Agreement Page 12 of 25 statutory duties of the County, except to the extent permitted by the Florida constitution, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance 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 orProperty Owner under this Agreement. u. No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. v. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. w. Section Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITH TEES:.y, JCL'Ci PROP TY W Signature �• aW n-�^0 RO-TE\^ ��,l�cv�/L� � Signature Printed Name �v u RIB �1, „�,/ I Printed Name `s-1 Y /\ Signa96Att i/�,y, �/ 0 q / /, /7 `�n/ic `/USl0/1 Date 6 `� Printed Name Property Owner Noise Insulation Agreement Page 13 of 25 WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature C; C A Date Printed Name Qom. :. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: -i' �" ;Nr4- WITNESSES: MA, OR: r'" _:_. . . '�.y Signature :° � .., Signature Printed Name George Neugent Printed,Name Signature S'eptemh'er 27, 2017 Printed Name fir\`•�✓r ' A N CLERK JA l STATE OF FLORIDA ;".„aP COUNTY OF MONROE '�` ~ DEPUTY CLERK ' 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 M 01M54, 1)VEY Property Owner Noise Insulation Agreement PEDRO ,-N Page25 cuL. T,` NCTCj IRc 6 Date le / ZS 14 of 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 (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 Page 15 of 25 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. D. Door Threshold Heights. Due to stringent Florida hurricane impact and water infiltration building codes, all new aluminum acoustical prime entry swinging doors and sliding glass patio doors will have thresholds that are considerably higher (from the floor) than existing door thresholds. These higher door thresholds are designed to provide optimum protection to the interior of a condominium from water infiltration during a hurricane. E. Summary of Asbestos Testing & Findings As required by state and federal requirements, THC conducted asbestos testing on a random sample of KWBTS condominiums in Buildings A, B and C. The tests results showed a presence of asbestos containing materials (ACM) in several areas to include stucco, window & door caulking, gypsum board compound, and ceiling texture. Given these findings, the proposed NIP scope of work will be directly impacted in several areas to include: - window removal and acoustic window installation, - door removal and acoustic door installation, - removal of portable "through-wall" AC units and the infilling of openings, - ceiling cuts required for installation of the ductless AC, - wall cuts required for the installation of the ductless AC, - construction of vertical wall pilasters required for installation of the ductless AC system & ERV ducts, - construction of closet soffit for installation of the ERV. F. Asbestos Abatement: Construction Requirements The presence of ACM in the KWBTS buildings will result in several new asbestos abatement requirements for the NIP to include: - Construction of ACM containment barriers in all areas (walls, ceilings, closets, windows/doors), approximately 4 feet from all walls and areas impacted by the NIP modifications. - Abatement and bagging of ACM (resulting from demolition process) by certified asbestos abatement staff. - Air sampling of containment areas and clearance of all areas by certified asbestos abatement staff to allow access to containment areas by traditional (non-abatement) workers. - THC will be required to provide executive oversight of all ACM abatement processes in all condominiums throughout the NIP construction process to ensure proper compliance with federal and state abatement guidelines. Exhibit A-Property Owner Noise Insulation Agreement Page 16 of 25 - The presence of ACM will have a significant impact on the NIP construction process, lengthening the construction period and increasing the sequencing and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA will require THC to develop a design and construction plan that minimizes the disturbance of ACM to ensure the minimization of construction costs, duration, and liability to the contractor and KWBTS property owners. This plan will result in new property owner requirements and design restrictions which are outlined below. G. Asbestos Abatement: Property Owner Requirements The presence of ACM in the KWBTS buildings will result in several new property owner requirements to include: - Given these new safety and construction crew sequencing challenges, NIP construction will be accomplished using a "total building floor" method, where a total floor area (Buildings A & B) or half-floor area (Building C) will be closed, and vacated for an estimated one (1) calendar-month period. Due to federal bidding regulations, the final NIP construction schedule for Building B will not be developed until Monroe County awards the construction contract to the lowest, responsible bidding general contractor. - To accommodate this construction schedule, property owners will be required to vacate their condominium for a one (1) month period to allow for the efficient completion of the NIP construction. This will provide an array of advantages that will provide the potential for construction efficiencies to include: o streamlined asbestos abatement procedures o maximized level of construction safety and property owner protection o minimized level of disturbance & disruption to all property owners o simplification of building walkway egress issues during abatement o high flexibility for the sequencing of construction and crews o potential for extended working hours o simplification of construction inspections - Prior to the start of NIP construction, property owners will be required to remove all window and door treatments, wall hangings, and custom built-ins (including but not limited to furniture, cabinets, and shelving) that conflict with the construction of the required wall & corner vertical pilasters. In addition, property owners will be required to move their furniture within the designated areas as outlined in their final design documents to allow for the construction of required asbestos abatement containment corridors. Exhibit A-Property Owner Noise Insulation Agreement Page 17 of 25 5 - In the event a condominium has excessive furniture and furnishings, the property owners will be required to remove all excessive furniture and furnishings prior to NIP construction to provide sufficient space for required asbestos abatement containment areas. H. KWBTS BOARD Authority of Design Decisions. The KWBTS Board will have the Authority to make several of the Program design decisions to include: 1. Acoustical Window and Door Material 2. Acoustical Window and Door Color and Hardware Finishes 3. Acoustical Window and Door Operational Styles 4. Interior Ductless "Mini-Split" AC System Installation Requirements 5. Interior Ductless "Mini-Split" AC System Interior Soffit Design and Placement 6. In-Filled Kitchen Prime Door Policy Treatment Exhibit A-Property Owner Noise Insulation Agreement Page 18 of 25 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Property Owner Noise Insulation Agreement UNIT 109-B GULFSTREAM TOWER OF KEY WEST BY THE SEA-A CONDO OR628- 545 0R950-2021 0R951-2475 OR1108-1061 0R2785-2445LET/ADM Exhibit B-Property Owner Noise Insulation Agreement Page 19 of 25 PROGRAM IMPROVEMENTS Exhibit C To Property Owner Noise Insulation Agreement This Exhibit C represents the Program Improvement package for an eligible home that includes the Program Improvements developed by the Program Manager to reduce the interior environment of a property by a minimum of five (5) decibels. A typical Program Improvement package may include: • Architectural Drawings • Replacement Aluminum Acoustical Windows • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) • Ductless Mini-Split Air Conditioning System Modifications and Wall Pilasters • Energy Recovery Ventilator (ERV) unit • Electrical panel modifications (only if required) Exhibit C-Property Owner Noise Insulation Agreement Page 20 of 25 DEFICIENCY HOLD HARMLESS AGREEMENT Exhibit D To Property Owner Noise Insulation Agreement 1. In partial consideration of the compensation to be paid on behalf of the County and the Program for the Program Improvements to be made to the Property described in the Agreement of even date herewith (the "Agreement") between the County and Property Owner and to which this Exhibit D is attached, the undersigned, for and on behalf of the undersigned and the heirs, personal representatives, successors, and assigns of the undersigned, forever releases, remises, discharges, indemnifies and covenants not to sue, institute claims against, or institute any proceedings against, the County, or any of its agents, officers, employees, consultants and/or contractors concerning any and all claims, demands, damages, actions or causes of action of whatsoever kind and nature on account of bodily injuries or death, damage to the property, and the consequences thereof, and any of the foregoing which may accrue to the undersigned or their respective heirs, personal representatives, successors and assigns in connection with any and all Pre-Existing Deficiencies (the "Deficiencies") against said County or any of its officers, agents, employees, consultants and/or contractors to be legally liable. 2. The Property Owner understands and assumes full responsibility for the Deficiencies present in the Property, whether visible to the Program Manager or unseen. 3. The Property Owner understands that the Deficiencies include any deficiencies present in the Property at the time of execution of this Agreement which could include, but not be limited to, code violations, structural damage, water / moisture damage, hazardous materials, infestation and/or any issue that would negatively impact the installation and performance of the Program Improvements. 4. If visible, the Property Owner understands that the Program Manager may identify and document Deficiencies at any time throughout the Program process (including design, bid and construction processes). If identified and documented, the Program Manager will classify the observed Deficiencies as either"Minor" or"Severe". 5. The Property Owner assumes full responsibility for the worsening of any documented Minor Deficiencies. 6. In the rare event "Severe" Deficiencies are identified during the design process, the Property Owner agrees to complete necessary repairs to the Property, to the acceptance of the Program Manager, as a precondition to the commencement of construction of the Program Improvements. In the rare event that "Severe" Deficiencies are uncovered during the construction period, the Property Owner agrees to complete Exhibit D-Property Owner Noise Insulation Agreement Page 21 of 25 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. 7. The undersigned acknowledge and agree that all of the release and hold harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit D apply to property damage, injuries, deaths, or damages arising from the Deficiencies and/or all negative impacts that later result after the addition of the Program Improvements. The provisions of this Exhibit D shall survive the termination or expiration of the Property Owner Noise Insulation Agreement. 8. The undersigned hereby agree that the terms and provisions of this Exhibit D shall be binding upon, and inure to the benefit of the undersigned and their respective heirs, personal representatives, successors and assigns. WITNE "fie SS : PROPER OWNER / Sign t re U VaW0\ — \C \%a-r 1- r ; Signature Printed Name � I\, ` L/ ` �/ Printed Name ,,,LLLJJJ• /Q1 Gv /,t Signat e / 501 Date Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name 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 Page 22 of 25 • •, VENTILATION HOLD HARMLESS AGREEMENT • Exhibit E To Property Owner Noise Insulation Agreement 1. , In partial consideration of the compensation to be paid on behalf of the County and the Program for the Program Improvements to be made to the Property described in the Agreement of even date herewith (the "Agreement") between the County and Property Owner and to which this Exhibit E is attached, the undersigned, for and on behalf of the undersigned and the heirs, personal representatives, successors, and assigns of the undersigned, forever releases, remises, discharges, indemnifies and covenants not to sue, institute claims against, or institute any proceedings against, the County, or any of its agents, officers, employees, consultants and/or contractors concerning any and all claims, demands, damages, actions or causes of action of whatsoever kind and nature on account of bodily injuries or death, damage to the property and the consequences thereof, and any of the foregoing which may accrue to the undersigned or their respective heirs, personal representatives, successors and , assigns in connection with any and all Ventilation Deficiencies (the "Deficiencies") against said County or any of its officers, agents, employees, consultants and/or contractors to be legally liable. 2. The Program Improvements may include the addition of acoustical windows and doors, removal and infilling of "through-wall" portable air conditioner units and the addition of a replacement ductless "mini-split" air conditioning system. Because these modifications will result in a tighter interior environment due to the elimination of all passive inside / outside air leakage that was naturally occurring in all openings, the Program will also include the addition of a energy recovery ventilation (ERV) unit which will provide an adequate exchange of inside / outside air to the condominium as required by building code. 3. Given the tightened interior environment of the treated condominium, the Property Owner agrees to assume full responsibility for the proper operation of the new Program ductless AC system and energy recovery ventilation (ERV) unit to avoid the potential for mold and moisture problems, especially during periods when the condominium is closed and uninhabited. 4. Due to FAA eligibility limitations, the Program will not be providing bathroom exhaust fan treatments. Since bathroom tubs and/or showers are a source of moisture generation in the interior environment of a condominium, the Property Owner agrees to assume full responsibility for ensuring that all bathrooms have an operable bathroom exhaust fan capable of properly exhausting bathroom moisture to the exterior of the building. It should also be noted that the original KWBTS condominiums were constructed with a small wall vent that was designed to allow the passive exhaust of Exhibit E-Property Owner Noise Insulation Agreement Page 23 of 25 1 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 E��SSE$1 u. PROPER O ,E40,4 I Signature /^,__ e&_ 4xcNeul-kaakt r Signat n a � Printed Name V�sQn-1. © t' GfU Printed Name 1 Signat / / /,� //�1 P /L/e / 7 0/r/14. /(U 5[v1/ Date Printed Name Exhibit E-Property Owner Noise Insulation Agreement Page 24 of 25 WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit E-Property Owner Noise Insulation Agreement Page 25 of 25