07/15/2010 Agreement • Parcel No. 1Oc&Ao
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1
2 HOMEOWNER NOISE INSULATION AGREEMENT
3 KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY
4
5 THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and
6 effective the date last below written by and between MONROE COUNTY, a municipal
7 corporation organized and existing under the laws of the State of Florida (the "County"),
8 and the undersigned (the "Homeowner").
9 WITNESSETH:
10
11 WHEREAS, the Homeowner is the sole record owner in fee simple of
12 certain real property located in the City Key West, County of Monroe, State of Florida,
13 and more particularly described on Exhibit B attached hereto (the "Property"); and
14 WHEREAS, the County is the owner and operator of the Key West
15 International Airport (the "Airport"), situated in the City of Key West, County of Monroe,
16 State of Florida, and in close proximity to the Property; and
17 WHEREAS, the County desires to obtain and preserve for the use and
18 benefit of the public a right of free and unobstructed flight for aircraft landing upon,
19 taking off from, or maneuvering about the Airport; and
20 WHEREAS, the Homeowner has elected to participate in the Phase 7
21 Noise Insulation Program (the "Program") and, as part of the Program, the Homeowner
22 has elected to obtain acoustical treatments and improvements to the Property as more
23 particularly described on Exhibit C attached hereto (the "Program Improvements"); said
24 Program Improvements to be paid for by the County at no cost to the Homeowner and
25 in exchange for the granting to the County of an avigation easement over, across and
26 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:
Homeowner Noise Insulation Agreement Page 1 of 21
•
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. Payment of Program 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. Impeding 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. Failure of the Homeowner to comply with this provision shall, at the option of
17 the County 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 defined 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. Impeding 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 Working 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: •
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1 1. Providing a working environment that is free from
2 potential health risks, biohazard conditions, hazardous chemicals, obstacles, weapons
3 of any kind and/or explosives;
4 2. Refraining from verbal abuse or profanity;
5 3. Refraining from aggressive physical contact; and
6 4. Insuring that all pets are completely secured and
7 contained.
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
11 Homeowner in writing, stating the corrective action(s) and/or condition(s) required to be
12 completed or performed by the Homeowner prior to the County resuming the Program
13 process.
14 c. In the event the Program process is not resumed due to the
15 Homeowner's failure to complete the corrective action(s) and/or condition(s) required by
16 the Program Manager, the Homeowner shall be liable to the County and/or Contractor
17 for any and all damages and all direct and indirect costs related thereto.
18 d. If the Program process is resumed, the Homeowner shall be
19 liable to the County and/or Contractor for any and all damages and all direct and
20 indirect costs related to or caused by the temporary suspension of the Program
21 process.
22 7. Construction Delays. During the 30-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:
31 a. Lack of bidding general contractors
32 b. failure of the lowest responsive, responsible bidder to
33 execute the contract, provide a payment and performance bond or show proof of
34 required insurance.
35 8. Changes to Scope of Work. The Program Manager reserves the
36 right to make 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
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1 C 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 Improvements, 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 Agreement. 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 Homeowner 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 reduction 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 Noise Insulation 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;
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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 Program Process. The Program process may be
20 temporarily suspended at any time during the design and/or construction phases upon
21 the discovery of structural or water damage issues, city code violations, unapproved
22 alterations to 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 and/or the County for
28 any and all damages and all direct and indirect costs due to delay and/or stoppages of
29 the work.
30 14. Limitation on Alterations to the Property. 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 and/or 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
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1 Improvements 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,
10 including initial inspection, design, construction, final inspection, acoustic testing and
11 ventilation testing phases. The Homeowner agrees that access to the Property for
12 purposes of construction will be available to the general contractor and its
13 subcontractors between the hours of 8:00 AM and 5:00 PM each day of construction,
14 unless otherwise agreed to by the Homeowner and the Contractor. The Homeowner
15 further agrees to provide keys to the Property to the Contractor for the lock box which
16 will be placed on or near the Property's door which will be utilized for access to the
17 Property during all phases of the Program process.
18 18. Title Examination. The County has obtained or will obtain, at its
19 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
21 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 Clearing 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 Easement, 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
31 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 compatibility measures and after completion of the measures as may reasonably
41 be requested by the Program Manager.
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1 b. After final completion of the Program Improvements, the
2 Homeowner shall assume the responsibility for maintenance and operation of the items
3 installed, purchased or constructed under this Agreement. Neither the Federal Aviation
4 Administration nor the County bears any responsibility for maintenance and operation of
5 these items.
6 c. If Federal funds for the noise compatibility measures are
7 transferred by the County to the Homeowner, or the Homeowner's agents, the
8 Homeowner shall agree to maintain and make available to the County, upon reasonable
9 request, records disclosing the amount of funds received and the disposition of these
10 funds. Homeowner shall retain such records for a period of four (4) years from the date
11 of termination of this Agreement.
12 21. Reduction of Fresh Air Infiltration. The Program Improvements
13 (which may include window and door treatments, addition of wall and attic insulation
14 and vent baffling) should provide a greater sealing of the building envelope, thereby
15 reducing noise infiltration into the house and, as a result, thereby reducing the
16 exchange of fresh air into and out of the house (a "tighter" home).
17 a. The County and/or the Program Manager does not guarantee
18 the drafting effectiveness and venting systems of gas or electric appliances, fireplaces,
19 heating, air conditioning and ventilation systems or the venting of the same (collectively,
20 "Interior Combustion Appliances") following completion of the Program Improvements.
21 b. The Homeowner assumes full responsibility for any occurrence,
22 reoccurrence or worsening of any indoor air quality, interior moisture and humidity levels
23 in the house, including the potential for the development of, or the actual development
24 of, microbial growth, mold or fungus, arising out of the Program Improvements, the
25 Interior Combustion Appliances or arising out of any preexisting indoor air quality
26 conditions at the Homeowner's property immediately following (i) the Program
27 Manager's determination that no remedial modifications to address ventilation and
28 interior humidity and moisture conditions are necessary, or (ii) the completion of any
29 such remedial modifications as the Program Manager may have determined to be
30 necessary.
31 22. Post Ventilation Test. Subject to the Homeowner's assumption of
32 responsibility set forth in the foregoing paragraph, after the construction of the Program
33 Improvements, the Program Manager may elect to conduct air leakage testing at the
34 Property, as well as performing humidity measurements and commissioning of any air
35 conditioning and ventilation Program Improvements (collectively, the two test
36 procedures are referred to herein as the "Post Ventilation Test"). Based on the results of
37 the Post Ventilation Test, the Program Manager may make recommendations for
38 additional Program Improvements, to meet the Program's ventilation standards. The
39 Homeowner understands that the Post Ventilation Test procedures do not consider the
40 effect of interior humidity levels generated by the Homeowner. The Program Manager
41 will provide Homeowner with a copy of the results from the Post Ventilation Test as
42 soon as reasonably possible after such results are available.
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1 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.
11 c. Homeowner shall hold the Program Manager and /or 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 remedial modifications. The provisions of this sub-section shall survive the
18 termination of this Agreement.
19 23. Salvage of Materials & Equipment. 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 surrounding 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. Property 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 added to the Property by the Program.
37 25. Timing 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 significant quantities of dust and debris rendering portions of the Property
41 uninhabitable for extended periods of time.
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•
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 utilized 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 Policy 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
11 restrictions. The Homeowner understands that prescribed Program Improvements will
12 be consistent 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 Property. 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 conveyance 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
31 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 Agreement. 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. 111-
38 2004 , duly motioned and passed at a lawfully announced public meeting, the Board of
39 County Commissioners of Monroe County did, on the 17th day of March, 2004, grant full
40 authority for the County Administrator to execute this Agreement on behalf of the
41 County without further action by the Board of County Commissioners.
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1 33. Attachments. Attachments to this Agreement include the following,
2 which are incorporated 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
7 34. General Conditions.
8 a. Governing Law, Venue, Interpretation, Costs, and Fees.
9
10 1. This Agreement shall be governed by and construed in accordance
11 with the Laws of the State of Florida applicable to contracts made and to be performed
12 entirely in the State.
13
14 2. In the event that any cause of action or administrative proceeding is
15 instituted for the enforcement or interpretation of this Agreement, the County and
16 Homeowner agree that venue will lie in the appropriate court or before the appropriate
17 administrative body in Monroe County, Florida.
18
19 3. The County and Homeowner agree that, in the event of conflicting
20 interpretations of the terms or a term of this Agreement by or between any of them, the
21 issue shall be submitted to mediation prior to the institution of any other administrative
22 or legal proceeding.
23
24 4. The County and Homeowner agree that in the event any cause of
25 action or administrative proceeding is initiated or defended by any party relative to the
26 enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
27 reasonable attorneys' fees, court costs, investigative, and out-of-pocket expenses, as
28 an award against the non-prevailing party. Mediation proceedings initiated and
29 conducted pursuant to this Agreement shall be in accordance with the Florida Rules of
30 Civil Procedure and usual and customary procedures required by the circuit court of
31 Monroe County.
32
33 b. Binding Effect. The terms, covenants, conditions, and provisions of
34 this Agreement shall bind and inure to the benefit of the County and Homeowner and
35 their respective legal representatives, successors, and assigns.
36
37 c. Severability. If any term, covenant, condition or provision of this
38 Agreement (or the application thereof to any circumstance or person) shall be declared
39 invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining
40 terms, covenants, conditions and provisions of this Agreement shall not be affected
41 thereby; and each remaining term, covenant, condition and provision of this Agreement
42 shall be valid and shall be enforceable to the fullest extent permitted by law unless the
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1 enforcement of the remaining terms, covenants, conditions and provisions of this
2 Agreement would prevent the accomplishment of the original intent of this Agreement.
3
4 d. Authority. 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.
7
8 e. Duration of Agreement. This Agreement shall commence upon the
9 execution of this Agreement, subsequent to execution by the Homeowner and by the
10 County and shall remain in effect for a period reasonably required to effect the Program
11 Improvements (the "Term"), except as may be sooner terminated in accordance with
12 the provisions of this Agreement.
13
14 f. Acceptance of Gifts, Grants, Assistance Funds, or Bequests. The
15 County and Homeowner agree that each shall be, and is, empowered to accept for the
16 benefit of any or all of them, gifts, grants, assistance funds, or bequests to be used for
17 the purposes of this Agreement.
18
19 g,, 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
21 state funds to further the purpose of this Agreement; provided that all applications,
22 requests, grant proposals, and funding solicitations by the Homeowner shall be
23 approved by the County prior to submission.
24
25 h. Adjudication of Disputes or Disagreements. 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.
31
32 i. 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 origin; (2) Section 504 of the Rehabilitation Act of 1973, as amended (20
41 U.S.C. s. 794), 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
Homeowner Noise Insulation Agreement Page 11 of 21
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 Rights 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
11 L 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 this 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 k. 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 I. 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 n. No Solicitation/Payment. 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 this 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
Homeowner Noise Insulation Agreement Page 12 of 21
1 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 0. 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.
10
11 o Non-Waiver of Immunity. Notwithstanding the provisions of Sec.
12 286.28, Florida Statutes, the participation of the County and Homeowner in this
13 Agreement and the acquisition of any commercial liability insurance coverage, self-
14 insurance coverage, or local government liability insurance pool coverage shall not be
15 deemed a waiver of immunity by the County to the extent of liability coverage, nor shall
16 any contract entered into by the County be required to contain any provision for waiver.
17
18 g_ Privileges and Immunities. All of the privileges and immunities from
19 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,
21 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 r. Legal Obligations and Responsibilities: Non-Delegation 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
31 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 duties 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 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
41 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
Homeowner Noise Insulation Agreement Page 13 of 21
1 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.
11
12 v. 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 Headings. 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 Agre en as of the day and ye first above written.
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Homeowner Noise Insulation Agreement Page 14 of 21
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1 PROGRAM POLICY STATEMENTS
2 Exhibit A to Homeowner Noise Insulation Agreement
3
4 A. Air Conditioning: General Restrictions. While providing cooling to your home as
5 part of the Noise Insulation Program Acoustic Design Package, the following limitations
6 and restrictions will apply to all homes. During development of the final air conditioning
7 plan, the Noise Insulation Program WILL NOT:
8
9 1. Penetrate load-bearing poured concrete walls, concrete block walls and pre-cast
10 concrete ceilings in garages.
11 2. Cut floor joists to truck ductwork into space.
12 3. Install ductwork through slab on grade floors.
13 4. Install ductwork throughout garages.
14 5. Install ductwork inside finished walls.
15 6. Install supply branch ductwork with long runs and numerous elbows that may restrict
16 air flow.
17 7. Install ductwork on the exterior of the home.
18 8. Install supply ducts to areas which would be already adequately cooled by cool air
19 coming from adjacent area or rooms. (Note: Supply ducts are not always provided in
20 each room.)
21 9. Run duct extensions in the event the Homeowner does not allow closet or living
22 space for chase location.
23 10.Install booster fans inside supply ducts to increase airflow.
24 11.Provide soffits for existing exposed ductwork.
25 12.Provide multiple thermostats and zoned cooling of central A/C systems.
26 13.Correct electrical deficiencies found in a home.
27 14.Replace water heaters.
28
29
30 B. Air Conditioning: Post-Design System Replacement. The following policy
31 applies if an air conditioning system replacement was not prescribed by the architect in
32 the original Noise Insulation Program acoustic design package:
33
34 1. Air Conditioning Replacements. If the air conditioning system fails
35 any time after the bids have been opened for the project cycle, the Noise Insulation
36 Program will provide for its replacement during construction. This will be accomplished
37 by a Change Order accompanied by a memo from the Architect.
38 2. Electrical Service Replacements. If it is determined by the Architect
39 that the electrical service requires replacement after the bids have been opened for the
40 project cycle, the Noise Insulation Program will provide for its replacement during
41 construction. This will be accomplished by a Change Order accompanied by a memo
42 from the Architect.
43 C. Wood Door Limitations. All approved products used in the Noise Insulation
44 Program have specific warranties. The manufacturer's warranty on prime wood doors is
45 very restrictive and typically covers defects in workmanship and materials for a period of
46
Homeowner Noise Insulation Agreement Page 16 of 21
1 two (2) years for oak and five (5) years for pine. Since a wood prime replacement door
2 is made of organic materials, homeowners should be aware of the following
3 complications that may arise due to seasonal and environmental changes:
4 1. Wood doors are subject to expansion and contraction due to humidity
5 levels in the air which may affect the operation of a wood prime door. Consequently,
6 during humid weather, wood grain will absorb moisture and expand, making it difficult
7 for doors to open and close properly. It is important to note that this normal movement
8 of the wood grain due to humidity levels is not a condition that is covered by the product
9 manufacturer or the product warranty.
10 2. Wood doors are subject to splitting and cracking due to expansion and
11 contraction. This condition is not a condition that is covered by the product manufacturer
12 or the product warranty.
13 3. Wood doors are subject to deterioration caused by termite infestation.
14 This condition is not a condition that is covered by the product manufacturer or the
15 product warranty.
16 4. The manufacturer's product warranty does not cover wood grain
17 inconsistency, stain absorption inconsistency or moisture absorption and retention.
18 Therefore, Homeowners selecting a prime wood door should understand
19 and accept the above concerns and limitations. Furthermore, homeowners will be
20 required to release the Noise Insulation Program and Monroe County from responsibility
21 of any problems or issues that may occur, directly or indirectly, in relation to prime wood
22 doors.
Homeowner Noise Insulation Agreement Page 17 of 21
LEGAL DESCRIPTION OF PROPERTY
Exhibit B to Homeowner Noise Insulation Agreement
(2917 Venetian Drive)
KW AMENDED PLAT OF RIVIERA SHORES-FIRST ADDN PB5-88 LOT 73
0R347-101/102 0R615-677 0R883-1121/1122 0R886-1262Q/C 0R1432-1964
0R2056-2302 0R2337-2301C/T 0R2348-710/11
Homeowner Noise Insulation Agreement Page 18 of 21
PROGRAM IMPROVEMENTS
Exhibit C to Homeowner Noise Insulation Agreement
This exhibit will represent the sound insulation design package for an eligible home that
includes the various program improvements (sound insulation modifications) developed
by the THC 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
Homeowner Noise Insulation Program Page 19 of 21
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 undersigned 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 demands, 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
30 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.
Homeowner Noise Insulation Agreement Page 20 of 21
1 As reasonably requested, the undersigned shall cooperate with the general
2 contractor in the performance of all phases of the Program process including, but not
3 limited to, the removal and reinstallation of rugs, wall hangings and furniture as
4 necessary.
5
6 The undersigned hereby agree that the terms and provisions of this Agreement
7 (Exhibit D) shall be binding upon, and inure to the benefit of the undersigned and their
8 respective heirs, personal representatives, successors and assigns.
9
10
HO OW R/PROPERTY OWNER: HOM R/PROPER WNER:
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Signature Signature
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11
Homeowner Noise Insulation Agreement Page 21 of 21