03/15/2006 Agreement
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Ref. No. ~"2-6"O
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HOMEOWNER NOISE INSULATION AGREEMENT
KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY
THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and
effective the date last below written by and between MONROE COUNTY, a municipal
corporation organized and existing under the laws of the State of Florida (the "County"),
and the undersigned (the "Homeowner").
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WIT N E SSE T H:
WHEREAS, the Homeowner is the sole record owner in fee simple of
certain real property located in the City 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
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WHEREAS, the Homeowner has elected to participate in the Phase 5
Noise Insulation Program (the "Program") and, as part of the Program, the Homeowner
has elected to obtain acoustical treatments and improvements to the Property as more
particularly described on Exhibit C attached hereto (the "Program Improvements"); said
Program Improvements to be paid for by the County at no cost to the Homeowner and
in exchangle for the granting to the County of an avigation easement over, across and
through the Property; and
27 WHEREAS, the County will enter into a construction contract with a
28 General Contractor (the "Contractor") to provide the installation of the Program
29 Improvements; and
30 WHEREAS, the Program is managed by the consultant team consisting of
31 a team manager, architect, acoustician and construction manager selected by the
32 County (the "Program Manager"); and
33 WHEREAS, the Homeowner and the County mutually desire to agree to
34 the terms upon which the Homeowner will participate in the Program and receive the
35 Program Improvements upon the terms and conditions provided herein;
36 NOW, THEREFORE, in consideration of the terms, covenants and
37 conditions set forth herein, and other good and valuable consideration, the receipt and
38 sufficiency of which are hereby acknowledged, the Homeowner and the County hereby
39 agree as follows:
1 1. Grant of Easement. Simultaneously with the execution of this
2 Agreement, the Homeowner executed and delivered to the County an avigation
3 easement (the "Easement") which Easement has been recorded in the public records of
4 Monroe County, Florida. The Easement remains in full force and effect and is hereby
5 ratified in all respects.
6 2. Pavment of ProQram Improvements. The County agrees to pay for
7 the Program Improvements described in Exhibit C attached hereto. The Program
8 Improvements will be approved by the Homeowner and County, managed by the
9 Program Manager, and performed by the Contractor.
10 3. Impedina Competitive Bid Process. The Homeowner shall not
11 impede or interfere with the general contractors' ability to select between approved
12 product manufacturers and subcontractors in the preparation of bid submittals. To
13 insure a competitive bid environment, the Homeowner is prohibited from having any
14 discussion or communication with the Contractor in relation to the Program, the
15 contractor's bid, or this Agreement until after award of the construction contract by the
16 County. F:3ilure of the Homeowner to comply with this provision shall, at the option of
17 the Countll in its sole discretion, result in disqualification from the Program and
18 cancellation of this Agreement.
19 4. Construction Contract. The County will award the contract for the
20 Program Improvements with the County's competitive bidding policies and procedures.
21 The contract will require the general contractor to complete the Program Improvements
22 within a dE~fined thirty (30) day period commencing upon the start of construction;
23 however, the general contractor will have the flexibility to schedule the defined thirty
24 (30) calendar day construction period with the written approval of the Homeowner and
25 within the total contract construction period as specified in the construction contract.
26 5. Impedina Construction. Once construction of the Program
27 Improvements begins, the Homeowner shall not impede construction or alter
28 construction schedules. In addition, the Homeowner shall use its best efforts to prevent
29 any and all tenants that may occupy the Property during the construction of the Program
30 Improvements from impeding construction or altering construction schedules. In the
31 event the Homeowner or any tenant occupying the Property impedes construction or
32 alters the construction schedule, the Homeowner shall be liable to the general
33 contractor and the County for any damages and all direct and indirect costs related
34 thereto.
35 6. Safe Workina Environment. The Homeowner shall be responsible for
36 providing a safe working environment for the Program Manager, Contractor,
37 subcontractors, suppliers, and City, County, State and federal inspectors.
38 a. Throughout all phases of design and construction of the
39 Program Improvements, the Homeowner shall be responsible for:
1 1. Providing a working environment that is free from
2 potential health risks, biohazard conditions, hazardous chemicals, obstacles, weapons
3 of any kindl and/or explosives;
4 2. Refraining from verbal abuse or profanity;
5 3. Refraining from aggressive physical contact; and
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4. Insuring that all pets are completely secured and
8 b. In the event the Homeowner fails to meet any of the foregoing
9 conditions, the Program process may, at the County's discretion, be temporarily
10 suspended at any time. In such event, the Program Manager shall notify the
] ] Homeowner in writing, stating the corrective action(s) and/or condition(s) required to be
]2 completed or performed by the Homeowner prior to the County resuming the Program
]3 process.
]4 c. In the event the Program process is not resumed due to the
]5 Homeowner's failure to complete the corrective action(s) and/or condition(s) required by
]6 the Program Manager, the Homeowner shall be liable to the County and/or Contractor
] 7 for any and all damages and all direct and indirect costs related thereto.
] 8 d. If the Program process is resumed, the Homeowner shall be
] 9 liablE! to the County and/or Contractor for any and all damages and all direct and
20 indirE~ct costs related to or caused by the temporary suspension of the Program
2] process.
22 7. Construction Delavs. During the 3D-day construction period, the
23 Contractor may experience unforeseen complications relating to the installation of
24 windows, doors, insulation, mechanical systems, ductwork, electrical systems, vent
25 treatment installations and related items. The construction contract shall provide that
26 delays related to these unforeseen complications are beyond the control of the
27 Contractor and shall be excused so that the time for completion may reasonably be
28 extended. Construction schedules may also be revised if there is a delay in awarding of
29 the contract or if the Program Improvements have to be re-bid for reasons such as the
30 following:
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a.
Lack of bidding general contractors
failure of the lowest responsive, responsible bidder to
provide a payment and performance bond or show proof of
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execute the contract,
required insurance.
35 8. Chanaes to Scope of Work. The Program Manager reserves the
36 right to mak'9 changes to the plans and specifications and the Program Improvements,
37 at its sole discretion, at any time during the Program process, provided such changes
38 do not reduce the scope or quality of the Program Improvements described in Exhibit
1 ~ and such changes are necessitated by the discovery of hidden conditions not readily
2 detectable during normal property inspection procedures.
3 9. Acceptance of Work. Upon completion of the Program
4 ImprovemEmts, the Program Manager shall inspect or cause the inspection of the
5 Program Improvements to determine if they were completed pursuant to the terms of
6 the contract. The Program Manager retains sole discretion and authority on program
7 conformance and performance issues as they relate to program general contractors,
8 subcontractors, suppliers and acoustic designs.
9 10. Termination of Aareement. The Homeowner understands that the
10 signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the
11 Program Improvements to be performed in accordance with the Program. Therefore, if
12 the HOmel)Wner attempts to terminate this Agreement or otherwise impedes the
13 progress of the performance of the Program Improvements after the award of the
14 construction contract, the Homeowner will be liable to the Contractor and/or the County
15 for any and all damages and all direct and indirect costs caused thereby.
16 11. Warranties. The County does not represent or warrant the level of
17 noise reduGtion that the Homeowner will experience within the Property as a result of
18 the Program Improvements performed as part of the Program.
19 a. The County agrees that its contract with the Contractor will
20 include standard one-year warranties from the general contractor for all materials and
21 workmanship. Such one-year warranty period shall commence as of the time of the
22 acceptance of the work as provided for in Paragraph 9. In addition, the Program
23 Manager will provide the Homeowner with copies of the warranty policies for all
24 products used in the construction of the Sound Il)sulation Improvements. The
25 Homeowner understands that the warranty policies for products used in the construction
26 of the Program Improvements differ among product manufacturers. The Homeowner
27 understands that it is solely responsible for pursuing all future product warranty issues
28 directly with each product manufacturer.
29 b. In the following instances, the Homeowner shall be solely
30 responsible for, and agrees to contact the Contractor or product manufacturer directly to
31 coordinate any required warranty service and agrees to look solely to the general
32 contractor or the product manufacturer for fulfillment of all warranties and for resolution
33 of all product or construction warranty issue(s):
34 (1) The Homeowner's inquiry is not directly related to either
35 construction warranties or product warranties (such as window cleaning or product
36 maintenancE~) regardless of whether the Homeowner's inquiry arises during the one-
37 year warranty period from the Contractor or thereafter;
38 (2) The Homeowner believes that warranty service is
39 required with respect to construction warranty issues, and the one-year warranty period
40 from the general contractor has expired;
1 (3) The Homeowner believes that service is required with
2 respect to product warranty issues, the advertised warranty period for the product has
3 not expired, and the manufacturer is currently conducting its business; and
4 (4) The Homeowner believes that service is required with
5 respect to product warranty issues, and the advertised warranty period for the product
6 has expired.
7 12. Repair of Premises. At the Design Visit, the Program Manager may
8 identify pre-existing conditions that require repair at the Property (the Pre-Existing
9 Defects). If directed by the Program Manager, the Homeowner agrees to complete
10 necessary repairs to the Property as a precondition to the commencement of
11 construction of the Program Improvements. If any such necessary repairs (including,
12 but not limited to, code violations that could or would affect the performance of any of
13 the Program Improvements) are cited to the Homeowner at any time prior to the
14 commencement of construction of the Program Improvements, repairs must be
15 completed by the Homeowner before the design review meeting between the
16 Homeowner and the Program Manager. In the event any Pre-Existing Defects are cited
17 to the Homeowner after the design review meeting, repairs must be completed by the
18 Homeowner before the construction of the Program Improvements may commence.
19 13. Suspension of Proaram Process. The Program process may be
20 temporarily suspended at any time during the design andlor construction phases upon
21 the discovery of structural or water damage issues, city code violations, unapproved
22 alterations 110 the Property or other issues that could or would affect the performance of
23 any of the Program Improvements, due to their potential impact on the Program
24 Improvements, product warranties and ventilation modifications. The design phase or
25 the construction phase, as appropriate, of the Program process will not resume until the
26 Homeowner has corrected all related problems. In the event repairs are not completed
27 in a timely manner, the Homeowner will be liable to the Contractor andlor the County for
28 any and all damages and all direct and indirect costs due to delay andlor stoppages of
29 the work.
30 14. Limitation on Alterations to the Propertv. The Homeowner agrees
31 not to make alterations, or to permit any tenant occupying any portion of the Property to
32 make alterations, to the Property (with the exception of repairs of Pre-Existing Defects
33 required by the Program Manager) from the date upon which the Program Manager
34 conducts the Design Visit at the Property until the Program Improvements have been
35 completed. Exceptions to this rule must be pre-approved in writing by the Program
36 Manager. Failure to adhere to this requirement may, at the option of the Program
37 Manager in its sole discretion, result in an immediate suspension of the construction of
38 the Program Improvements on the Property. The Homeowner will be liable to the
39 Contractor andlor the County for all direct and indirect costs associated with
40 unapproved alterations and damages related thereto.
41 15. Cooperation. As reasonably requested, the Homeowner shall
42 cooperate with the Contractor in the performance of all phases of the Program
] ImprovemE~nts including, but not limited to, the removal and reinstallation of rugs, wall
2 hangings and furniture as necessary.
3 16. Utilities. The Homeowner shall permit the Contractor to use, at no
4 cost to the Contractor or the County, existing utilities such as light, heat, power and
5 water necessary to carry out the Program Improvements.
6 17. Access. At scheduled times and/or upon not less than twenty-four
7 (24) hours advance notice, the Homeowner agrees to provide to the Program Manager,
8 Contractor, subcontractors, suppliers, City, County, State and federal inspectors and
9 consultants access to the Property to perform all phases of the Program Improvements,
] 0 including initial inspection, design,. construction, final inspection, acoustic testing and
] ] ventilation testing phases. The Homeowner agrees that access to the Property for
]2 purposes of construction will be available to the general contractor and its
] 3 subcontractors between the hours of 8:00 AM and 5:00 PM each day of construction,
]4 unless otherwise agreed to by the Homeowner and the Contractor. The Homeowner
]5 further agmes to provide keys to the Property to the Contractor for the lock box which
]6 will be placed on or near the Property's door which will be utilized for access to the
] 7 Property during all phases of the Program process.
]8 18. Title Examination. The County has obtained or will obtain, at its
]9 sole cost and expense, an ALTA Title Insurance Commitment (the "Commitment")
20 relating to the Property. The County will deliver to the Homeowner a copy of such
2] Commitment on or before the acceptance of the work as provided for in Paragraph 9.
22 The selection of the provided of the title insurance commitment shall be the sole
23 responsibility of the County, acting through the County Attorney's office.
24 19. Cooperation in Clearina Title. Prior to the commencement of
25 construction of the Program Improvements, the Homeowner shall cooperate with the
26 County in order to (i) correct any title defects affecting the Property which are disclosed
27 by the Commitment and in the sole determination of the County may serve to invalidate
28 the Easeme!nt, and (ii) secure the written consent of any and all mortgage holders to the
29 Homeowner's conveyance of the Easement to the County if the County determines that
30 it is necessary or desirable to do so (collectively, the "Title Matters"). If, prior to the
3] commencement of construction of the Program Improvements, the County, in its sole
32 discretion, determines that the Title Matters affecting the Property may invalidate the
33 Easement, this Agreement shall be null and void, and the Easement shall be
34 terminated.
35 20. Federal Assurance. As required by the Federal Aviation
36 Administration (Order 5100.38A, paragraph 707), the Homeowner agrees to the
37 following provisions:
38 a. The Homeowner shall subject the construction work on the
39 project to such inspection and approval during the construction or installation of the
40 noise compcltibility measures and after completion of the measures as may reasonably
4] be requested by the Program Manager.
1 b. After final campletian .of the Pragram Impravements, the
2 Hameawner shall assume the respansibility far maintenance and aperatian .of the items
3 installed, purchased .or canstructed under this Agreement. Neither the Federal Aviatian
4 Administratian nar the Caunty bears any respansibility far maintenance and aperatian .of
5 these items.
6 c. If Federal funds far the naise campatibility measures are
7 transferred by the Caunty ta the Hameawner, or the Hameawner's agents, the
8 HameawnE!r shall agree ta maintain and make available ta the Caunty, upan reasanable
9 request, records disclasing the amaunt .of funds received and the dispasitian .of these
10 funds. Hameawner shall retain such recards far a periad .of faur (4) years fram the date
11 .of terminati.on .of this Agreement.
12 21. Reductian .of Fresh Air Infiltratian. The Program Improvements
13 (which may include wind.ow and daar treatments, additian .of wall and attic insulatian
14 and vent baffling) shauld provide a greater sealing .of the building envelape, thereby
15 reducing naise infiltratian inta the hause and, as a result, thereby reducing the
16 exchange of fresh air inta and aut .of the hause (a "tighter" hame).
17 a. The Caunty and/ar the Pragram Manager daes nat guarantee
18 the drafting effectiveness and venting systems .of gas or electric appliances, fireplaces,
19 heating, air canditianing and ventilatian systems .or the venting .of the same (callectively,
20 "Interiar Cambustian Appliances") fallawing campletian .of the Pragram Improvements.
21 b. The Hameawner assumes full respansibility far any .occurrence,
22 reaccurrence .or warsening .of any indaar air quality, interiar maisture and humidity levels
23 in the hause, including the patential for the develapment .of, .or the actual develapment
24 .of, micrabial grawth, maid .or fungus, arising aut .of the Program Improvements, the
25 Interiar Cambustian Appliances or arising aut .of any preexisting indaar air quality
26 canditians at the Hameawner's property immediately fallawing (i) the Program
27 Manager's determinatian that na remedial madificatians ta address ventilatian and
28 interiar humidity and maisture canditians are necessary, .or (ii) the campletian .of any
29 such remedial madificatians as the Program Manager may have determined ta be
30 necessary.
31 22. Past Ventilatian Test. Subject ta the Hameawner's assumptian .of
32 respansibility set farth in the faregaing paragraph, after the canstructian .of the Program
33 Impravements, the Program Manager may elect ta canduct air leakage testing at the
34 Praperty, a8 well as performing humidity measurements and cammissianing .of any air
35 canditianing and ventilatian Program Impravements (callectively, the twa test
36 pracedures are referred ta herein as the "Past Ventilatian Test"). Based an the results .of
37 the Past Ventilatian Test, the Pragram Manager may make recammendatians far
38 additianal Program Improvements, ta meet the Program's ventilatian standards. The
39 Hameawner understands that the Past Ventilatian Test procedures da nat can sider the
40 effect .of interiar humidity levels generated by the Hameawner. The Program Manager
41 will pravide Hameawner with a capy .of the results from the Past Ventilatian Test as
42 saan as reasanably passible after such results are available.
I a. The Homeowner agrees to allow the Program Manager access
2 to the Property to perform the Post Ventilation Test process and agrees to allow the
3 Contractor to perform additional Program Improvements to the Property. The
4 Homeowner understands that these additional modifications by the Contractor may
5 include the installation of an exhaust fan.
6 b. Failure to allow the Contractor to perform the remedial
7 modifications to address the ventilation, humidity and attic/wall insulation concerns
8 raised by the Program Manager or to maintain and prevent any consequences of
9 inadequate ventilation, humidity or attic/wall insulation shall constitute a breach of this
10 Agreement.
II c. Homeowner shall hold the Program Manager and lor County
12 harmless from all liability and expense in connection with all claims, suits and actions
13 brought against the Program Manager and/or County for injuries, deaths, or damages
14 sustained in connection with or as a result of any interior moisture, humidity, lack of
15 ventilation or conditions arising from such interior moisture, humidity, or lack of
16 ventilation, including, without limitation, mold or mildew, following the completion of the
17 County's rElmedial modifications. The provisions of this sub-section shall survive the
18 termination of this Agreement.
19 23. SalvaQe of Materials & Eauipment. If the Homeowner desires to
20 retain any of the material or equipment removed from the Property as a result of the
21 Program Improvements, the Homeowner shall arrange for the salvage of said materials
22 and equipment directly with the Contractor at the Homeowner's sole risk and expense.
23 The County assumes no responsibility for the condition of the material, equipment or
24 surroundin~1 surfaces as a result of the owner-requested salvage. The Homeowner and
25 the Contractor shall, prior to the commencement of. construction, agree upon and
26 execute a document listing those items to be salvaged. In the absence of such a written
27 agreement, all items shall become the property of the Contractor. Materials and
28 equipment not listed for salvage by the Homeowner shall become the property of the
29 Contractor.
30 24. Propertv Insurance. The Homeowner shall have the option, at the
31 Homeowner's sole cost and expense, to maintain a homeowner's insurance policy for
32 the duration of the construction of the Program Improvements. The Homeowner
33 understands that, following substantial completion and acceptance of the work by the
34 Program Manager, builder's risk insurance ceases to provide insurance coverage on the
35 Property and that it is advisable for the Homeowner to obtain insurance to cover any
36 value addecl to the Property by the Program.
37 25. Timina and Effects of Construction. The Homeowner understands
38 that the construction itself may exceed thirty (30) days. The Homeowner also
39 understands that the construction may involve substantial inconvenience and could
40 generate si!lnificant quantities of dust and debris rendering portions of the Property
41 uninhabitable for extended periods of time.
1 26. Labor and Material Release. The Homeowner releases and forever
2 discharges any and all claims, suits and actions against the Program Manager; the
3 County and its' officers, employees, agents, consultants; and contractors and suppliers
4 with respect to issues relating to the conformance of labor, materials and acoustic
5 designs utlilized in the Program Improvements. Nothing in this paragraph shall limit the
6 warranties for materials and workmanship contained in the contract with the general
7 contractor.
8 27. Program Policv Statements. Consistent with the Program and/or
9 Federal Aviation Administration Part 150 Program directives, the Program Manager has
10 developed a series of Program Policy Statements outlining construction and eligibility
I I restrictions. The Homeowner understands that prescribed Program Improvements will
12 be consistEmt with the Program Policy Statements provided to the Homeowner by the
13 Program Manager. A copy of the Program Policy Statements is attached hereto as
14 Exhibit A.
15 28. Sale of Propertv. In the event the Homeowner sells, conveys or
16 otherwise transfers title to the Property before the completion of all phases of the
17 Program process (including initial inspection, design, construction, final inspection and
18 acoustical test and Post Ventilation Test phases), the Homeowner hereby agrees to
19 provide thE! buyer with a copy of this Agreement prior to the closing on the sale,
20 conveyance or other transfer, and to transfer all of the Homeowner's responsibilities and
21 obligations under this Agreement to the buyer as a condition of the purchase,
22 conveyancEl or other transfer of the Property.
23 29. Waiver. No waiver of, acquiescence in, or consent to any breach of
24 any term, covenant or condition hereof shall be construed as, or constitute, a waiver of,
25 acquiescence in, or consent to any other, further or succeeding breach of the same or
26 any other term, covenant or condition hereof.
27 30. Release of Easement. In the event that this Agreement is
28 cancelled or the County determines that the Easement should be released of record,
29 the Homeowner, upon written request by the County, shall pay to the County the sum of
30 One Hundred Dollars ($100.00) to cover the costs of the preparation and recording of
3 I the Release of Easement document in the public records of Monroe County, Florida.
32 Homeowner understands that it is the Homeowner's responsibility to insure such
33 payment is made in order to "clear" the title to the Property.
34 31. Release. Hold Harmless, and Access Aareement. Homeowner has
35 executed a separate document entitled Release, Hold Harmless, and Access
36 Agreement which is attached hereto as Exhibit D;
37 32. Authority To Execute On Behalf Of County. By Resolution No.
38 111-2004 , duly motioned and passed at a lawfully announced public
39 meeting, the Board of County Commissioners of Monroe County did, on the
40 17th day of March , 2004, grant full authority for the County
4 I Administrator to execute this Agreement on behalf of the County without further action
42 by the Board of County Commissioners.
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I 33. Attachments. Attachments to this Agreement include the following,
2 which are Ilncorporated into this Agreement by reference.
3 a. Exhibit A: Program Policy Statements.
4 b. Exhibit B: Legal Description of Property
5 c. Exhibit C: Program Improvements.
6 d. Exhibit D: Release, Hold Harmless, and Access Agreement
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34. 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
Homeowner agree that venue will lie in the appropriate court or before the appropriate
administrative body in Monroe County, Florida.
3. The County and Homeowner agree that, in the event of conflicting
interpretations of the terms or a term of this Agreement by or between any of them, the
issue shall be submitted to mediation prior to the institution of any other administrative
or legal proceeding.
4. The County and Homeowner agree that in the event any cause of
action or adlministrative 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 Procedlure and usual and customary procedures required by the circuit court of
Monroe County.
~ Bindina Effect. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Homeowner and
their respective legal representatives, successors, and assigns.
c. Severabilitv. 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
2 Agreement would prevent the accomplishment of the original intent of this Agreement.
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4 d. Authoritv. Each party represents and warrants to the other that the
5 execution, delivery and performance of this Agreement have been duly authorized by all
6 necessary County and Homeowner action, as may be required by law.
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8 e. Duration of Aareement. This Agreement shall commence upon the
9 execution of this Agreement, subsequent to execution by the Homeowner and by the
] 0 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
]2 the provisions of this Agreement.
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]4 L Acceptance of Gifts. Grants. Assistance Funds. or Beauests. The
] 5 County and Homeowner agree that each shall be, and is, empowered to accept for the
]6 benefit of any or all of them, gifts, grants, assistance funds, or bequests to be used for
] 7 the purpoSl~S of this Agreement.
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] 9 9.." Claims for Federal or State Aid. The County and Homeowner
20 agree that each shall be, and is, empowered to apply for, seek, and obtain federal and
2] state funds to further the purpose of this Agreement; provided that all applications,
22 requests, !~rant proposals, and funding solicitations by the Homeowner shall be
23 approved by the County prior to submission.
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25 11 Adiudication of Disputes or DisaQreements. The County and
26 Homeowner agree that all disputes and disagreements shall be attempted to be
27 resolved by meet and confer sessions between representatives of each of the parties.
28 If the issue or issues are still not resolved to the satisfaction of the parties, then any
29 party shall have the right to seek such relief or remedy as may be provided by this
30 Agreement or by Florida law.
3]
32 1. Nondiscrimination. The County and Homeowner agree that there
33 will be no discrimination against any person, and it is expressly understood that upon a
34 determination by a court of competent jurisdiction that discrimination has occurred, this
35 Agreement automatically terminates without any further action on the part of any party,
36 effective thE! date of the court order. The County and Homeowner agree to comply with
37 all Federal and Florida statutes, and all local ordinances, as applicable, relating to
38 nondiscrimination. These include but are not limited to: (1) Title VI of the Civil Rights
39 Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or
40 national ori9in; (2) Section 504 of the Rehabilitation Act of 1973, as amended (20
4] U.S.C. s. 7~94), which prohibits discrimination on the basis of handicap; (3) The Age
42 Discrimination Act of 1975, as amended (42 U.S.C. ss. 6101-6107), which prohibits
43 discrimination on the basis of age; (4) The Drug Abuse Office And Treatment Act of
44 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug
45 abuse; (5) The Comprehensive Alcohol Abuse And Alcoholism Prevention, Treatment
46 and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination
47 on the basis of alcohol abuse or alcoholism; (6) The Public Health Service Act of 1912,
48 ss. 523 and 527, (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to
1 confidentiality of alcohol and drug abuse patient records; (7) The Americans With
2 Disabilities Act of 1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time,
3 relating to nondiscrimination on the basis of disability; (8) The Florida Civil Rights Act of
4 1992, (Chapter 760, Florida Statutes, and Section 509.092, Florida Statutes), as may be
5 amended ,From time to time, relating to nondiscrimination; (9) The Monroe County
6 Human Ri9hts Ordinance (Chapter 13, Article VI, Sections 13-101 through 13-130), as
7 may be amended from time to time, relating to nondiscrimination; and (10) any other
8 nondiscrimination provisions in any federal or state statutes or local ordinances which
9 may apply to the parties to, or the subject matter of, this Agreement.
10
IlL Cooperation. In the event any administrative or legal proceeding is
12 instituted against either party relating to the formation, execution, performance, or
13 breach of this Agreement, the County and Homeowner agree to participate, to the
14 extent required by the other party, in all proceedings, hearings, processes, meetings,
15 and other activities related to the substance of this Agreement or provision of the
16 services under this Agreement. The County and Homeowner specifically agree that no
17 party to th,is Agreement shall be required to enter into any arbitration proceedings
18 related to this Agreement or any Attachment or Addendum to this Agreement.
19
20 ~ Books, Records. and Documents. The County and Homeowner
21 shall maintain books, records, and documents directly pertinent to performance under
22 this Agreement in accordance with generally accepted accounting principles
23 consistently applied. Each party to this Agreement or their authorized representatives
24 shall have reasonable and timely access to such records of each other party to this
25 Agreement for audit purposes during the term of the Agreement and for four years
26 following the termination of this Agreement.
27
28 L Covenant of No Interest. The County and Homeowner covenant
29 that neither presently has any interest, and shall not acquire any interest, which would
30 conflict in any manner or degree with its performance under this Agreement, and that
31 only interest of each is to perform and receive benefits as recited in this Agreement.
32
33 m. Code of Ethics. The County agrees that the officers and
34 employees of the County recognize and will be required to comply with the standards of
35 conduct relating to public officers and employees as delineated in Section 112.313,
36 Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing
37 business with one's agency; unauthorized compensation; misuse of public position,
38 conflicting employment or contractual relationship; and disclosure or use of certain
39 information.
40
41 !:L. No Solicitation/Pavment. The County and Homeowner warrant
42 that, in respect to itself, it has neither employed nor retained any company or person,
43 other than a bona fide employee working solely for it, to solicit or secure this Agreement
44 and that it has not paid or agreed to pay any person, company, corporation, individual,
45 or firm, other than a bona fide employee working solely for it, any fee, commission,
46 percentage, gift, or other consideration contingent upon or resulting from the award or
47 making of thllS Agreement. For the breach or violation of this provision, the Homeowner
48 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
2 of such fee" commission, percentage, gift, or consideration.
3
4 o. Public Access. The County and Homeowner shall allow and permit
5 reasonable access to, and inspection of, all documents, papers, letters, or other
6 materials subject to the provisions of Chapter 119, Florida Statutes, and made or
7 received by the County and Homeowner in conjunction with this Agreement; and the
8 County shall have the right to unilaterally cancel this Agreement upon violation of this
9 provision by the Homeowner.
]0
] ] IL Non-Waiver of .Immunitv. Notwithstanding the provisions of Sec.
]2 286.28, Florida Statutes, the participation of the County and Homeowner in this
]3 Agreement and the acquisition of any commercial liability insurance coverage, self-
]4 insurance Goverage, or local government liability insurance pool coverage shall not be
]5 deemed a waiver of immunity by the County to the extent of liability coverage, nor shall
] 6 any contract entered into by the County be required to contain any provision for waiver.
]7
] 8 .Q." Privileoes and Immunities. All of the privileges and immunities from
] 9 liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability,
20 workers' compensation, and other benefits which apply to the activity of officers, agents,
2] volunteers, or employees of the County, when performing their respective functions
22 under this Agreement within the territorial limits of the County shall apply to the same
23 degree and extent to the performance of such functions and duties of such officers,
24 agents, volunteers, or employees outside the territorial limits of the County.
25
26 1. Leoal Oblioations and Responsibilities; Non-Deleoation of
27 Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be
28 construed as, relieving any participating entity from any obligation or responsibility
29 imposed upon the entity by law except to the extent of actual and timely performance
30 thereof by any other participating entity, in which case the performance may be offered
3] in satisfaction of the obligation or responsibility. Further, this Agreement is not intended
32 to, nor shall it be construed as, authorizing the delegation of the constitutional or
33 statutory dullies of the County, except to the extent permitted by the Florida constitution,
34 state statutes, case law, and, specifically, the provisions of Chapters 125 and 163,
35 Florida Statutes.
36
37 s. Non-Reliance Qy Non-Parties. No person or entity shall be entitled
38 to rely upon the terms, or any of them, of this Agreement to enforce or attempt to
39 enforce any third-party claim or entitlement to or benefit of any service or program
40 contemplated hereunder, and the County and Homeowner agree that neither the
4] County nor Homeowner or any agent, officer, or employee of each shall have the
42 authority to inform, counsel, or otherwise indicate that any particular individual or group
43 of individuals, entity or entities, have entitlements or benefits under this Agreement
44 separate and apart, inferior to, or superior to the community in general or for the
45 purposes contemplated in this Agreement.
46
I t Attestations. The Homeowner agrees to execute such documents
2 as the County may reasonably require in the performance of the obligations and duties
3 of the County or Homeowner under this Agreement.
4
5 u. No Personal Liability. No covenant or agreement contained herein
6 shall be deemed to be a covenant or agreement of any member, officer, agent or
7 employee of Monroe County in his or her individual capacity, and no member, officer,
8 agent or employee of Monroe County shall be liable personally on this Agreement or be
9 subject to any personal liability or accountability by reason of the execution of this
10 Agreement.
II
12 y. Execution in Counterparts. This Agreement may be executed in
13 any number of counterparts, each of which shall be regarded as an original, all of which
14 taken together shall constitute one and the same instrument and any of the parties
15 hereto may execute this Agreement by signing any such counterpart.
16
17 w. Section HeadinQs. Section headings have been inserted in this
18 Agreement as a matter of convenience of reference only, and it is agreed that such
19 section headings are not a part of this Agreement and will not be used in the
20 interpretation of any provision of this Agreement.
21
22 IN WITNESS WHEREOF, the Homeowner and the County have executed
23 this Agreement as of the day and year first above written.
24 W..lNFSSF '
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(Seal)
Attest:
DANNYL.KOLHAGE,CLERK
By:
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUN ,FLORIDA
By:
County Admi istrator,
Date: 2-/1,/ ~ 7
1
2 PROGRAM POLICY STATEMENTS
3 Exhibit A to Homeowner Noise Insulation Agreement
4
5 A. Air Conditioning: General Restrictions. While providing cooling to your home as
6 part of the Noise Insulation Program Acoustic Design Package, the following limitations
7 and restrictions will apply to all homes. During development of the final air conditioning
8 plan, the Noise Insulation Program WILL NOT:
9
10 1. Penetrslte load-bearing poured. concrete walls, concrete block walls and pre-cast
11 concrete ceilings in garages.
12 2. Cut floor joists to truck ductwork into space.
13 3. Install ductwork through slab on grade floors.
14 4. Install ductwork throughout garages.
15 5. Install ductwork inside finished walls.
16 6. Install supply branch ductwork with long runs and numerous elbows that may restrict
17 air flow.
18 7. Install ductwork on the exterior of the home.
19 8. Install supply ducts to areas which would be already adequately cooled by cool air
20 coming from adjacent area or rooms. (Note: Supply ducts are not always provided in
21 each room.)
22 9. Run duct extensions in the event the Homeowner does not allow closet or living
23 space for chase location.
24 1 O.lnstall booster fans inside supply ducts to increase airflow.
25 11. Provide soffits for existing exposed ductwork.
26 12. Provide multiple thermostats and zoned cooling of central AlC systems.
27 13. Correct 1~lectrical deficiencies found in a home.
28 14. Replace water heaters.
29
30
3] B. Air Conditioning: Post-Design System Replacement. The following policy
32 applies if an air conditioning system replacement was not prescribed by the architect in
33 the originalllJoise Insulation Program acoustic design package:
34
35 1. Air Conditioning Replacements. If the air conditioning system fails
36 any time after the bids have been opened for the project cycle, the Noise Insulation
37 Program will provide for its replacement during construction. This will be accomplished
38 by a Change Order accompanied by a memo from the Architect.
39 2. Electrical Service Replacements. If it is determined by the Architect
40 that the electrical service requires replacement after the bids have been opened for the
41 project cycle, the Noise Insulation Program will provide for its replacement during
42 construction. This will be accomplished by a Change Order accompanied by a memo
43 from the Architect.
I C. Wood Door Limitations. All approved products used in the Noise
2 Insulation Program have specific warranties. The manufacturer's warranty on prime
3 wood doors is very restrictive and typically covers defects in workmanship and materials
4 for a period of two (2) years for oak and five (5) years for pine. Since a wood prime
5 replacement door is made of organic materials, homeowners should be aware of the
6 following complications that may arise due to seasonal and environmental changes:
7 1. Wood doors are subject to expansion and contraction due to humidity
8 levels in the air which may affect the operation of a wood prime door. Consequently,
9 during humid weather, wood grain will absorb moisture and expand, making it difficult
IO for doors to open and close properly. It is important to note that this normal movement
I I of the wood grain due to humidity levels is not a condition that is covered by the product
12 manufacturer or the product warranty.
13 2. Wood doors are subject to splitting and cracking due to expansion and
14 contraction. This condition is not a condition that is covered by the product manufacturer
J 5 or the product warranty.
16 3. Wood doors are subject to deterioration caused by termite infestation.
17 This condition is not a condition that is covered by the product manufacturer or the
18 product warranty.
19 4. The manufacturer's product warranty does not cover wood grain
20 inconsistency, stain absorption inconsistency or moisture absorption and retention.
21 Therefore, Homeowners selecting a prime wood door should understand
22 and accept the above concerns and limitations. Furthermore, homeowners will be
23 required to I'elease the Noise Insulation Program and Monroe County from responsibility
24 of any problems or issues that may occur, directly or indirectly, in relation to prime wood
25 doors.
26
LEGAL DESCRIPTION OF PROPERTY
Exhibit B to Homeowner Noise Insulation Agreement
(1901 Seidenberg Avenue)
KW KW REALTY CO'S FIRST SUB PBI-43 LOT 1 SQR 19 TR 21 Y-128 ORI63-502/6
OR514-397 OR573-228 OR769-1692 OR924-1003/AFF OR924-1004/l005 OR941-739/740
OR996-194 ORI067-1974 OR1250-153
PROGRAM IMPROVEMENTS
Exhibit C to Homeowner Noise Insulation Agreement
This exhibilt will represent the sound insulation design package for an eligible home that
includes the various program improvements (sound insulation modifications) developed
by the THG design team to reduce the interior environment of a home by at least 5
decibels.
A typical program improvement package may include:
. Architectural drawings
. Replacement window schedule
. Replacement door schedule
. Mechanical modifications
. Electrical modifications
. Ventilation modifications
1 Release, Hold Harmless, And Access Agreement
2 Exhibit D To Homeowner Noise Insulation Agreement
3
4 In partial consideration of the compensation to be paid by the County for the
5 Program Improvements of that real property (the "Property") described in the
6 Agreement of even date herewith between the County and Homeowner and to
7 which this Exhibit is attached, the undersigned, for and on behalf of the
8 undersi!~ned and the heirs, personal representatives, successors, and assigns of
9 the undersigned, forever releases, remises, discharges and covenants not to sue,
10 institute claims against, or institute any proceedings against, the County, or any of
11 its agents, officers, employees or consultants, concerning any and all claims,
12 demandls, damages, actions or causes of action of whatsoever kind and nature on
13 account of bodily injuries or death, damage to property, and the consequences
14 thereof, and any of the foregoing which may accrue to the undersigned their
15 respective heirs, personal representatives, successors and assigns, whether
16 caused by the contractor completing the Program Improvements (as such term is
17 defined in the Agreement of even date herewith between Homeowner and the
18 County), or otherwise, in connection with or arising out of the Program
19 Improvements to the Property or the presence of any Pre-existing Defects (as such
20 term is defined in the Agreement of even date herewith between Homeowner and
21 the County) at the Property for which the undersigned might otherwise assert
22 against said County or any of its officers, agents, consultants or employees to be
23 legally liable.
24
25 Pre-existing Defects shall also include, at the time of the execution of this
26 Agreement, any violations of any City, County or State codes and any other pre-
27 existing defects in the architectural, structural, mechanical or electrical systems in
28 the Property subject in any part to the Agreement. THE CORRECTION OF ANY
29 VIOLATIONS OF ANY CITY, COUNTY OR STATE,CODES AND ANY OTHER
3G PRE-EXISTING DEFECTS SHALL BE THE SOLE RESPONSIBILITY OF THE
31 UNDERSIGNED. Prior to the Program construction process at the Property, the
32 undersigned shall properly correct any Pre-existing Defects which may prevent the
33 contractor from providing the Program Improvements to the Property (the "Required
34 Repairs"). As may be applicable, any and all tenants occupying the Property shall
35 allow the Property Owner and its agents reasonable access to the Property to
36 make such Required Repairs, if, any, and shall otherwise cooperate with the
37 Property Owner in the performance of the Required Repairs.
38
39 At scheduled times and/or upon not less than twenty-four (24) hours
40 advance notice, the undersigned shall grant the County, its supervisors,
41 contractors, subcontractors, suppliers, City, County, State and federal inspectors
42 and consultants access to the Property for the purpose of performing and
43 supervising all phases of the Program Improvements. The undersigned agree
44 that access to the Property for purposes of construction will be available to the
45 general contractor and its subcontractors between the hours of 8:00 AM and 5:00
46 PM each day of construction, unless otherwise agreed to by the undersigned.
47 The undersigned further agree to provide keys to the Property to the Contractor
48 for the lock box which will be placed on or near the Property's door which will be
49 utilized for access to the Property during all phases of the Program process.
1
2 As reasonably requested, the undersigned shall cooperate with the
3 general contractor in the performance of all phases of the Program process
4 including, but not limited to, the removal and reinstallation of rugs, wall hangings
5 and furniture as necessary.
6
7 The undersigned hereby agree that the terms and prOVISions of this
8 Agreement (Exhibit D) shall be binding upon, and inure to the benefrt of the
9 undersigned and their respective heirs, personal representatives, successors and
10 assigns.
11
12
13
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