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09/18/2019 Agreement/Easement-C201 �d. eY Clerk of the Circuit Court&Comptroller®Monroe County Florida DATE: April 21, 2020 i Uto,Airports Business Manager . qISUBJECrt : September 18, 2019e 1 , 2020 BOCC Meetings Enclosedis the diumh drive with dieNoise Insulation Agreements (both documents scannedone document for sixty-five participating units at y West by the Sea for the Key West International Airport Noise 'on ConstructionProgram Building C je o enclosed are the originally recorded Easements for THCs record. Sliould you liave any questions,please feel free to contact me at(305) 5 . CC: County Attorney Finance ` e MARATHONKEYWEST PLANTATION .. BUILDING 3117 Ovemas HighwayiPoint Road Key ®Rodda 33040 Marathon,Florida 33050 Plantation Ke%Rodda 33070 Plantation ,flolda 0 - 1 - 1305-852-7145 PrORared—BxAAn Return To: Heather P. Fart lMc#22637217 E&o3Ngpg#2M NIP Assistant Project Manager R=Or&d 4/21t2020 11:08 AM PAP I of 4 THC, Inc. 710 Dacula Rd., Suite 4A#315 Dead Doc StasW So.00 Dacola, GA 30019 Filed Md Recorded in Official Rem&of MONME COINW XXVIN MAWK.CPA AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this .10 day of J6-CkUCkJ-L111-1 "WILLIAM D. SCHENCK JR. & HANNA S—CHENICK", hereinafter referred to as '1�—eProperly Owner," in favor of the MONROE COUNTY BOA'RD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") I ocated in Monroe County, Florida, more particularly described as follows- Condominium Unit 201-C, CORAL BAY GARDENS OF KEY WEST BY THE SEA, a condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page 370, as amended from time to time, of the Public Records of Monroe County, FL. aI so identified as street address. "2601 S. Roosevelt Blvd., Unit C2011' B. The SOCC is the owner and operator of Key West International Airport("the Airport") and desires to make properties that, through interior noise exposure testing, are determined incompatible as a result of their exposure to aircraft noise compatible for residential purposes through the implementation of a Noise Insulation Program ("NIP"). C. Under the NIP, the Airport will design and install or pay for the installation of improvements and modifications to the Property Owners Property necessary to reduce interior noise levels at least 5 dB and to bring the average interior noise level below 45 dB in accordance with Federal Aviation Administration policy. Granting of an Avigation Easement ("Easement") is a BOCC condition of participation in the NIP. The Easement will supersede any implied or prescriptive easements that the BOCC may have obtained under applicable laws. D. The funding source for said NIP will include funding from the United States Government pursuant to the Airport and Airway Improvement Act of 1982, and will include funding from the BOCC, acting in its capacity as the owner and operator of the Airport. E. The Property Owner desires to participate in the NIP and has entered into a Property ..................................... Key West International Airport NIP—Avigation Easement(UnIt#C201) .. ........ P,ag a-1,of 4 Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefit the Property Owner and the Property by providing certain remedial sound attenuation construction on all eligible residential structures on the property necessary to achieve a reduction in DNL indoor noise levels of at least 5 dB and bring the average interior noise level below 45 dB in accordance with Federal Aviation Administration policy. F, The Property Owner fully understands that the NIP eligibility could change at some future time, but is currently based on the 2013 Existing Condition Noise Exposure Map accepted by the Federal Aviation Administration ("the FAA") on December 19, 201& G. The NIP will be administered in accordance with the current FAA Order 5100.38, Airport Improvement Program Handbook. H. It is the purpose of this Easement Agreement to grant to the BOCC a perpetual avigation easement, on terms as hereinafter set forth. NOW THEREFORE,for and in consideration of the improvements to be made to the Subject Property through the NIP,the receipt and adequacy of which is hereby acknowledged by both parties, and in consideration and incorporation into this Avigation Easement of the recitals set forth above, the Property Owner and the BOCC agree as follows: I. The Property Owner on behalf of the Property Owner and its heirs, assigns and all successors in interest, does hereby grant, bargain, sell and convey to the BOCC, its successors and assigns, a perpetual avigation easement over the property. The use of the Easement shall include the right to generate and emit noise and to cause other effects as may be associated with the operation of aircraft over or in the vicinity of the property. This Easement shall apply to all such aircraft activrty at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it in the intent of the parties that all such Airport activity shall be deemed to be included within the purview of this Easement. 2. This Easement shall be perpetual in nature and shall bind and run with the title to the property and shall run to the benefit of the BOCC or its successor in interest as owner and operator of the Airport. 3. The Property Owner on behalf of the Property Owner, its heirs, assigns and successors in interest, does hereby release the BOCC, and any and all related parties of the BOCC, including but not limited to BOCC members, officers, managers, agents, servants, empI oyees and lessees, from any and all claims, demands, damages, debts, liabilities, costs, attorney's fees or causes of action of every kind or nature for which the Property Owner or its heirs, assigns, or successors currently have, have in the past possessed, or will in the future possess, as a result of Airport operations or aircraft activities and noise levels related to or generated by Airport activity, or may hereafter have as a result of use of this Easement, including but not limited to damage to the above-mentioned property or contiguous property due to noise, and other effects of the operation of the Airport or of aircraft landing or taking off at the Airport, - -- ---------------- ------- ..... . ---___---- .......... Key West International Airport NIP—AvIgation Easement(Unit MC201) —Peg.92a . This Easement expressly excludes and reserves to the Property Owner and to the Property Owner's heirs, assigns and successors in interest, claims, demands, damages, debts, liabilities, costs, attorneys' or expert's fee, or causes of action for physical damage or personal injury caused by any aircraft or part of any aircraft using the Easement that does identifiable physical damage to the property or injury to a person on the property by coming into direct physical contact with the property orl a person on the property. . Should either party hereto or any of their successors or assigns in interest retain counsel to enforce any of the provisions herein or protect its interest in any matter arising under this Agreement, or to recover damages by reason of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to all costs, damages and expenses incurred including, but not limited to, attorney's fees and costs incurred in connection therewith, including appellate action. 6. No provision of this Agreement is to be interpreted for or against any party because that party or that a 's legal representative drafted such provision. This Agreement shall be interpreted and construed according to the laws of the State of Florida. 7, No breach of any provision of this Agreement may be waivedunless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of the same or any other provision of this Agreement. This Agreement may be amended only by written instrument executed by the parties in interest at the time of the modification. In the event that any one or more covenant, condition or provision contained herein is held invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any other provision hereof so long as the remaining provisions do not materially alter the rights and obligations of the parties. If such condition, covenant or other provision shall be deemed invalid due to this scope or breadth, such covenant, condition or other provision shall be deemed valid to the extent of the scope or breadth permitted by law. 8. In the event the Airport shall be subdivided into more than one parcel, or the Airport or portion thereof becomes subject to operation, management or administration by a party in addition to or in lieu of the BOCC, then and in that event the parties agree that same shall not terminate or otherwise affect this Agreement so long as a portion of the Airport continues to operate for standard airport flight purposes, and that any such successor in interest to the BOCC shall be entitled to all of the benefits running to the BOCC hereunder. . The Property Owner agrees that the Property Owner shall bear and be responsible for all costs of maintaining and operating any sound attenuation materials and equipment installed in the Property by or on behalf of the BOCC. .............___ _ _ _.............---_ ........_........ ....... Key West International airport NIP—AvIgation Easement(Unit 201) Pape 3 of 4 This Easement Agreement is executedIrst above written, .._........... ....__ _ _.................. NEB •.r ® _ OWNER,; ------------- K' -gam � a Printed Name Minted Nerne 4 3 — n Cats Date STATE OF COUNTY OF The foregoing Instrument was acknowledged before a this . a f 20-LS by WN Ella ids qo% ommi ion Sre o � � I � 0,14otary Public Signature ., GIG �U � 20002 11 _.. .... _... .... .. __,.......... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: WITNESSES: MAY, Signaturer. S�gn� �rePY n Pim—nwd-Name — Printed Nan r Signature r' .......... ._ Printed Name STATE OF FLORIDA COUNTY OF MONROE , The foregoing instrument was acknowledged before me this day of 20 byo - ........... as Mayor of the Monroe County Board of County Commissioners, a body politic and corporate. kotery �m =Public Slg—nirture y Commission Expires: _.._ .. .... .............._....................__ _.. NET 2� Key of International I cN NINIP— I.... Icr� asrrrant ' .n, �� '� RINEY Page 4 of � N. 7Address: ak est % eo.: C201 s Name(s) Schenck PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL ,MONROE COUNTY THIS NOISE (this "Agreement") is made and effectivethe datelast below wriften organizedcorporation i tip r the laws of the StateFlorida (t a, , and the undersigned (t "Property Owner"). WHEREAS, the Property Owner is the solerecord owneri i I f certainreal property located in the Cityt, County of Monroe, State of Florida, and more particularly described __ _i t ( "Property")- and the County is the owner and operator of, the Key West International it ( "Airport"), it t in the Cityf Key West, County of Monroe, State of Florida, and in closer i i to the Property, and WHEREAS, the Countyit to obtainr r the use and benefit f the publicright of free and unobstructedflight for aircraft landing takingr , or maneuvering about the Airport, and WHEREAS, the r r has electedto participatein the Key West International Aitport's Noise Insulation Pr r (t "Program") and, as part of the Program, the Propertyr has electedi i ! treatments improvements to the Propertyr iIrldescribed hereto (t "Program improvements"); i r r Improvements to be paidfor by the County t no cost to the Propertyin exchange for the r to the County f an avigationv r� r the Property; WHEREAS, the County will enter into a constructioncontract i general contractor ( "Contractor") provide installation of the Program Improvements; rr the Programis managed by the consultantconsisting team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and constructionr selected by t (t "Program r"); and WHEREAS, the Property Owner and the Countymutually it to agree to the termsi the Propertyr will participate in the Programreceive Programthe Improvements upon the termsconditions provided herein; THEREFORE, in considerationf the terms, v conditions t forth herein, and other good and valuablei t ti , the receipt roper n r Noise Insulation Agreement Pa e I oft sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: 1. Grant of Easement. Simultaneously with the execution of this Agreement, the Property Owner executed and delivered to the County an avigation easement (the "Easement') which Easement has been recorded in the public records of Monroe County, Florida. The Easement remains in full force and effect and is hereby ratified in all respects. 2. Program Policy Statements, Consistent with the Program and/or Federal Aviation Administration Airport Improvement Program policies and procedures, the Program Manager has developed a series of Program Policy Statements outlining construction and eligibility restrictions. The Property Owner understands that prescribed Program Improvements will be consistent with the Program Policy Statements provided to the Property Owner by the Program Manager. A copy of the Program Policy Statements is attached hereto as Exhibit A. & Payment of Program Improvements. The County agrees to pay for the Program Improvements described in Exhibit C attached hereto. The Program Improvements will be approved by the Property Owner and County, managed by the Program Manager, and performed by the Contractor. 4. Impedfteg Comppt its Bid Process. The Property Owner shall not impede or interfere with the Contractor's ability to select between approved product manufacturers and subcontractors in the preparation of bid submittals. To insure a competitive bid environment, the Property Owner is prohibited from having any discussion or communication with the Contnactor in relation to the Program, the contractor's bid, or this Agreement until after award of the construction contract by the County. Failure of the Property Owner to comply with this provision shall, at the option of the County in its sole discretion, result in disqualification from the Program and cancellation of this Agreement. 5. Construction Contract. ' The County will award the contract for the Program Improvements consistent with Federal and County competitive bidding policies and procedures. The contract will require the Contractor to complete the Program Improvements within a time period defined by the Program Manager. 6. Pre- & Post-Construction_ . The Property Owner shall meet all responsibilities and requirements pertaining to both pro-construction and post- construction, a. Prior to the start of NIP construction, the Property Owner shall meet all Pre-Construction requirements to include: (1) Removing all valuables (such as jewelry, coins, guns, antiques, heirlooms, etc.) from their condominium; (2) Moving of all furniture and belongings into the "Designated Storage.Space Area" within the condominium, providing the required "clear area" (white .................... .................... Property Owner Noise Insulation Ageement Page 2 of 28 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor toceiling" space. ( ) Removing of all excessive furniture and belongings from the condominium that will not fit in the "Designated Storage Space Area"; ( ) Removing all window and door treatments (such as blinds, drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space Area"; (5) Removing all electronic and dust-sensitive items from their condominium or wrapping with protective poly before storing them in the "Designated Storage Space Area"; ( ) Removing all wall hangings (such as mirrors, pictures, hanging shelves, etc.) and storing them in the "Designated Storage Space Area"; (7) Moving all small Items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" . After completion of the NIP construction, the Property Owner shall meet all Post-Construction requirements to include: (1) Moving of all furniture and belongings stored in the "Designated Storage Space Areas" back to their original positions in thecondominium: ( ) Moving of any excessive furniture and belongings back into the ndominium; ( ) -installation of all wall treatments, door treatments and wall hangings back to their original positions in the condominium. c. In the event the Property Owner fails to perform any and all of the above Pre-Construction responsibilities, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. . In the event the Property Owner fails to perform any and all of the above Post-Construction responsibilities, the Property Owner shall be liable to the County and/or Contractor for any and all resulting damages and all direct and indirect costs related thereto. 7. Impeding_ Construction. Once construction of the Program Improvements begins, the Property Owner shall not impede construction or alter construction schedules. In addition, the Property Owner shall prevent any and all tenants that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or _. . _._. . ................................ _...... _. _ � __... ..._ Property Owner Noise Imulation Agreement Page 3 o 2 aIt ers the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. 8. Safe Working Environment. The Property Owner shall be responsible for providing a safe working environment for the Program Manager, Contractor, subcontractors, suppliers, and City, County, State and federal inspectors, a. Throughout all phases of design and construction of the Program Improvements, the Property Owner shall be responsible for: (1) Providing a working environment that is free from potential heaIt h risks, blohazard conditions, hazardous chemicals, obstacles, weapons of any kind and/or explosives; (2) Refraining from verbal abuse or profanity; (3) Refraining from aggressive physical contact, and (4) Insuring that all pets are completely secured and contained. b. In the event the Property Owner fails to meet any of the foregoing conditions, the Program process may, at the County's discretion, be temporarily suspended at any time. In such event, the Program Manager shall notify the Property Owner in writing, stating the corrective action(s) and/or condition(s) required to be completed or performed by the Property Owner prior to the County resuming the Program process. c. In the event the Program process is not resumed due to the Property Owner's failure to complete the corrective action(s) and/or condition(s) required by the Program Manager, the Property Owner shall be liable to the County and/or Contractor for any and all damages and all direct and indirect costs related thereto, d. If the Program process is resumed, the Property Owner shall be liable to the County and/or Contractor for any and all damages and all direct and indirect costs related to or caused by the temporary suspension of the Program process. 9. Construction Delay . During the construction period, the Contractor may experience unforeseen complications relating to the installation of the Program Improvements. The construction contract shall provide that delays related to these unforeseen complications are beyond the control of the Contractor and shall be excused so that the time for completion may reasonably be extended. Construction schedules may also be revised if there is a delay in awarding of the contract or if the Program Improvements have to be re-bid in the event of lack of bidding contractors and/or fallure of the lowest responsive, responsible bidder to execute the contract, provide a payment and performance bond or show proof of required insurance. 10. Cha..D�Ies toScope of Work, The Program Manager reserves the right to make changes to the plans and specifications and the Program Improvements, at its -—-—------- ..................... ............... Property Owner of Insulation Agreement Page 4 oft sole discretion, t any timerig the Program r provided h t reduce the scope r quality of the ProgramImprovements ri in Exhibit such changes are necessitatedthe discoveryhidden conditionst readily detectablerig l property inspection t r . . Acg@ptance of Work. Upon completion of the ProgramImprovements, the Program Manager shall inspect or cause the inspection ' f the Program Improvements to determineif they were completedt to the the contract' The Programr retains soJ i ti authority r performanceconformance and issues as they relateContractor, subcontractors, suppliersi designs. The Propertyr is requested to attend the Substantial CompletionInspection provide input t tr i t with respect to the identified -lit items. In addition, the Propertyr is welcome attend the Final Inspection. In the event the Propertyr elects to not attend the Substantial Completion and Final ! l@ they releasesurrender their ability t provide input to the Constructionr with respect to the acceptance Program Improvements, In the event there is a disagreement between the Property Owner and ther r as to a conformancer performance issue, t Propertyr shall be required to submit the discrepancyin writingto Monroe County (representative 1 t within of the inspection i in the discrepancy. r shall then make a determination the acceptabilityr issue remedial i t may need to be taken. MonroeII be the final arbiter of any conformance/performancefissues. it r to submit the written complaint within the time specified shall thereafter foreclose Propertyright to filecomplaint. 12. Termination g r t. The Propertyr understands that the signingthis Agreement initiates I l f the Program Improvements in accordanceh the Program. Therefore, ift r r attempts to terminate this Agreement or otherwise impedes the progressthe performanceProgram r t r the award of the construction tr 9 the Property Owner will be liable the County for any and all damages and all direct and indirect t thereby. 1 . Warranties. The Countyt represent or warrant the level of noisereduction that the Propertywill experience withinresult f the Program Improvements performed as part of the Program. agreesa. The County that its contracti the Contractor will include standard (1) year wawarranties from Contractor for all materials andr n i . Such one-year warranty periodshall commence as of the time f the acceptance of the work as providedfrig Paragraph 9. b. t the end of construction, the Programr will provide the Propertyr with a WarrantyFinal Closeout Package which will contain copiesf the warranty policies, r instructions, i rat legal documents. As condition receiving C Final Closeout Package, the Propertyr _......_. ............._. _ .... Property nNoise Insulation a et Page S of 28 must first submit a completed NIP Property Owner Satisfaction Survey to the Program Manager. After receiving the Warranty & Final Closeout Package, the Property Owner understands that the warranty policies for products used in the construction of the Program Improvements differ among product manufacturers. In the event of claim, the Property Owner is solely responsible for pursuing all future product warranty issues directly with each product manufacturer. c. In the event of a claim, the Property Owner shall be solely responsible for, and agrees to contact the Contractor or product manufacturer directly to coordinate any required warranty service and agrees to look solely to the general contractor or the product manufacturer for fulfillment of all warranties and for resolution of all product or construction warranty issue(s): (1) The Property Owner's inquiry is not directly related to either construction warranties or product warranties (such as window cleaning or product maintenance) regardless of whether the Property Owner's inquiry arises during the one- year warranty period from the Contractor or thereafter; (2) The Property Owner believes that warranty service is required with respect to construction warranty issues, and the one-year warranty period from the general contractor has expired, (3) The Property Owner believes that service is required with respect to product warranty issues, the advertised warranty period for the product has not expired, and the manufacturer is currently conducting its business; and (4) The Property Owner believes that service is required with respect to product warranty issues, and the advertised warranty period for the product has expired. 14. Pre-Existina Deficiencies. The Property Owner will be required to sign Exhibit Q (Deficiency Hold Harmless Agreement) which will impute all responsibility and liability to the Property Owner for any and all present Pre-Existing Deficiencies at the Property, whether seen or unseen. 15. Pre-Work Requirements. The Property Owner will be required to complete any and all Pre-Work, as required by the NIP to successfully accommodate the NIP acoustic modifications. !he Erpp Owner�wfll ber%quired to complete all 4esj9fl_qtA0 Pre-Work items util their own funds and P-@r the required deadlines as established by the NIP. In the event the Property Owner fails to complete the desiig`hii6d Pre-Work items by the established NIP deadline, the Property Owner shall be removed from NIP participation and the Property Owner shall be liable to the County and/or Contractor.for any and all resulting damages and all direct and indirect costs reIt ed thereto. 16. City qfAey West "Hard-Wired" Smoke Alarm Requirement, In compliance with the City of Key West it Marshall and the City of Key West Building Depqrtment construction permit issuance requirements, the Property Owner will be requlred• to install 120-volt "hard-wired" smoke alarms in their condominium in .......................................................... .............. ............... Property Owwr Noise Imulation Agreement Page 6 of accordance with all applicable codes and regulationsrequired lire established the NIP. The Propeavr will q-be repponsible to ensureu that the smoke alarms are_not installed in same areaswithin the condominiumrNIP modification ill occur, t_ avoid any potential Impedance, to the NIP construction ,pMqess. In the r falls to install t i "hard-wired" alarmssmoke lished NIP deadline, the Propertyr shall be removed from i i ti . . Sy§pqnsion of Program Process'. rprocess may be temporarily suspended at any time during i t construction the discoveryt their potential impact on the Program Improvements and pr rr ti . The Programr ill not resume until the Propertyr has correctedall related problemsthe i f iProgram Manager. In the event repairs arenot completed in a timely r, the Property Owner will be liable the County for any and all damages and all direct and indirect delaycosts due to r stoppages of the work. . Limitation on Alterationsto the Property. The Propertyr agreest to make alterations, r to permit any tenant occupyingportion of the Propertyr to the existingwindows, r walls fromthe timef the Designt ti construction f the ProgramImprovements completed. ti to thisrule pre-approvedin writingProgram Manager. Failure to adhere to thisi the optionProgram Manager in Its Idiscretion, It in an immediate suspensi try ti f the Program Improvements on the Property. r r will be liable to the County for all direct and indirect costs associatedIt r i damages related thereto. t . and i T tang_ r r - post- construction i ing i important _ ram process that is designed measure and determine l achieved noiselevel reduction ll at treated properties. If selectedthe Programr for pre- & post-construction no testing, the Propertyr agrees to provideto their property for testing agreest to make alterationsthe interior their property (witht f repairsi ies) from the time f the pre-constructioni test to thtjaq§!- construction noise test. f insure consistent noise datall i the OwnerProperty also agrees to preserveinterior layout of furniture, floor coverings windowand treatments r the time - t i i, test t _ t post- construction i test. The Propertyr understands t liar to adheret t i-requirement result in corruptionthe noisetip t . Therefore, the Propertyr understands they may be liable t for any directit noiseti in the event these requirements are not met. 20. Coop.tiion. As reasonablyrequested, the Propertyr shall cooperateit Contractor, the Programr and Monroe County in the performanceII phases of the ProgramImprovements including, t not limited t , the removal and reinstallation of rugs, li hangings and furniture Property OwnerNoise Insuladon.4greement Page2 . ,Utilities. The Propertyr shall permit the Contractor to use, at no cost to the Contractor or the County, existingutilities light, heat, power and water r out the r r Improvements. 22. i n and Bidr . At scheduled times and/or t less t twenty-fournotice (via NIPi letter), the Propertyr agrees to provideProgram r, Contractor, subcontractors, suppliers, City, County, State and federalip It to the Propertyto collectI ll final design and bidvisits I include, but not be limited t , property survey, design , hazardous material inspection, pre-noise i pre-bid i . In thet the Propertyr fails t provide access to the Propertyfor all required NIP Designi r visits, the Propertyr shall be removed fromi i ti . 23. Pre-Construction A _ r agrees to provide access to roperty forty-eight prior to the scheduledI construction. This visit will provide the Program i# the abilityensure that the Propertyr has met all furniture storageresponsibilities. Fait r 1 result in the suspensionf the scheduled [ tr ion and the Property Owner shall be liable to the Countyr Contractor for [I resulting damages and all direct and indirect It thereto. 24. Pre and Post Constructionl i r upon not less than twenty-four (24) hours advance n (via NIP email andlor leffer) and r the establishedI try i schedule i t, the Propertyr agreesto provideto the Programr, Contractor, subcontractors, suppliers, City, County, State federal ire It to the Propertyprovide all required - r i - try i visits. These visits I include, t not be limited to final measurement, pre-construction inspections, review Designatedrrequirements, t construction inspections post- construction i testing. In the event the Property Owner falls to provider all required i t Construction visits, the Propertyshall be removed from participation r r shall be liable t r Contractor for any and all resulting II direct and indirect t related thereto. Construction25. Period construction contract, tContractorct ill provide t Program r it their final construction schedule, which ill include the required r of calendar days to complete construction in each of the participatingcondominiums. I , the Program Managr will assign each Propertyr with a designatedr of calendar in whichtry i rt will occur in their condominium. The Property Owner agrees to relocate from their condominium for the entire1 time period. 1 addition, the Propertyr t re-enter their property for any reason during their assigned constructionperiod to safety concerns and the potential to negatively impact the Contractor. In the event the Propertyr fails to providefor their assignedtry i time period, the Propertyr shall be removed from I Property Owe oise insulation Agreement e participation a # r r shall be liable h r Contractor for any and all resulting ll direct and indirect related r 26. Construction riod Extension Due to Hurricanes. i ! construction iwill extend into the Key West hurricane , there is potential for construction and/or stoppages, beyond the control of the Contractor, in the event f a threat of an approachinghurricane and/or an actual hurricane event. Due to this possibility, r r understands that delays may occur in ii their originally asi ru ion time period, without any fault or cost to the Contractor and Program r. Furthermore, the Propertyr agrees to r !ocate from their condominium r all additional calendar days resulting from ! ru i r stoppagesu to a hurricanethreat or event at no cost to the County, Contractor r Program r. In the event the Property Owner fails to providethe required additional access to their condominium due to hurricane-related wor , the Propertyr shall be removed from ! i ` i the r shall be liable to t r Contractor for any and all resulting ll direct and indirect It thereto. 27. Discovery r - i iDeficienciesDuring Construction. In the event-the Contractor discovers pre-existingdeficiencies roperty during the NIP construction r that negativelyimpact the installation of the NIPimprovements, the Propertyr agrees to immediately repair and remediate such deficienciesin an effort to reduce any negativeimpact on the scheduledconstruction riProperty Owner understands that, depending on the timingthe pre-existing defici repair, the NIP constructionperiod to be extended, at no ! f the Program Manager r Contractor. 28. t of Qnforeseen KWBTS BL01 Conditions an Construction Schedule. r r understands that unforeseen i1 iti t may arise during the NIP constructionpotential to increase ri i t scheduledr i construction, i is not the faultthe r r nor Contractor. The Propertyr needs to planfor the "worst-case" i ili that the originally-scheduled contr i letion date may be delayed a few additional days due to unforeseen building conditionsthat may ariselip 1 construction. ® xstinq _ i r Treatments, li Propertyr understands that, after the installation of new NIPiwindow and doors, the existing i r door treatments, shades and blindst be compatible r able to be re-Installed to sizei the now and existing i . 30 'Exist'Existina CrownI ink,,. During the installation of the new acoustici , the NIPill be providingr " replacement interior trim sills. The Propertyr understands that the NIPreplacement trim ill not matchcustom and/or specialized crownlip rand/or custom window and r trim. After the completionf the NIPmodifications, the Property Owner will have the abilityto i i ti to the NIP interior ri t their own expense. ......_ ..... ...... . ....... -------------_- Propeny Owner Noise Insulation Agree Page f. Communication Re uirements. The Propertyr agrees t read and reviewall NIP emailsand/or letters in a timely hion which arebeing provided the I 1e conformance. In thet the Property fa.11s to meet this requirement, it could result in removal from [ i i ti . 32. Title i ti . The Programr has obtainedr will obtain, t its sole "Abstract it " to ensure that tProperty title is free liens r title defects. 33. Cooperation iClearingni l , Prior t t f construction f r Improvements, t r r shall cooperate with County in r r to (i) correct any titlei ich are disclosed by the "Abstract of Title" and in the 1 r i ti f the County may serve to invalidate the Easement, and (11) secure the writtent of any and all mortgage holdersto the Propertyr' v t to the if the County determines that it is necessary or desirable to do so (colledvely, t "Title Matters"). If, prior to the construction the ProgramImprovements, the County, in its solei t ti , determines that the Titler i the r may invalidate the Easement, this Agreement shall be null and void, and the t shall be terminated. Federal34. Assurance. As required the Federal Aviation Administration, the Propertyr agrees to the followingvi i s a. The Propertyr shall subject the constructionr project to such inspectionapproval during the tr I n of the Program Improvements and after completion of the ProgramImprovements as may reasonably be requested r r r Monroe County. b. After final completion of the ProgramImprovements, the Property Owner shall assume the responsibility for maintenance and operationthe items installed, r r constructed under this Agreement. Neither the Federal Aviation Administration nort responsibility r maintenance and operation these items. Reduction35. f Fresh Air Infiltration. r will be required to sign (Ventilation [d Harrnless Agreement) hi imputes l! responsibility to the Property Owner for the proper maintenance of interior moisture and humiditylevels. 36. Salvage f mMaterials & Eguipment. If the Propertyr desires to retain f the material orequipment removed from the Propertyresult f the Program Imr v t , the Propertyr shall arrange for the salvagef said materials andi it Iy with theContractor at the roperty Owner's solerisk and expense. The County assumes no responsibility for the conditi f the material, equipmentr surrounding surfaces as a result of the owner-requested salvage, Propertyr and the Contractor shall, prior to t of construction, agree. t listing items to lv . In the absence _. .... _ . _........ �..�..._......_...... ....__ roper n .'Noise Insulation a e 10 o 2 of such a written agreement, all items shall become the property of the Contractor. Materials and equipment not listed for salvage by the Property Owner shall become the property of the Contractor. 37 R[g2qft y Insurance. During Program construction period, the Contractor will provide builder's risk insurance for the Property. The Property Owner shall have the option, at the Property Owner's sole cost and expense, to maintain a homeowner's insurance policy for the duration of the construction of the Program Improvements. The Property Owner understands that, following final completion, the Contractor's builder's risk insurance will cease, and it is advisable for the Property Owner to obtain insurance to cover any value added to the Property by the Program. 38. Timing and m.Effects of Construction. The Property Owner understands that there is a chance that c try ction itself may exceed the Contractors original projected construction time period. The Property Owner also understands that the construction may involve substantial inconvenience and could generate significant quantities of dust and debris rendering portions of the Property uninhabitable for extended periods of time. 39. Labor and Material Release. The Property Owner releases and forever discharges any and all claims, it and actions against the Program Manager; the County and its officers, employees, agents, consultants; and contractors and suppliers with respect to issues relating to the conformance of labor, materials and acoustic designs utilized in the Program Improvements. Nothing in this paragraph shall limit the warranties for materials and workmanship contained in the contract with the general contractor, 40 In the event the Property Owner sells, conveysoir otherwise transfers title to the Property before the completion of all phases of the Program process, the Property Owner hereby agrees to provide the buyer with a copy of this Agreement prior to the closing on the sale, conveyance or other transfer, and to transfer all at the Property Owner's responsibilities and obligations under this Agreement to the buyer as a condition of the purchase, conveyance or other transfer of the Property. 41. Waiver. No waiver of, acquiescence in, or consent to any breach of any term, covenant or c6ndition hereof shall be construed as, or constitute, a waiver of, acquiescence in, or consent to any other, further or succeeding breach of the same or any other term, covenant or condition hereof. 42. Release of Easement. In the event that this Agreement is cancelled or the County determines that the Easement should be released of record, the Property Owner, upon written request by the County, shall pay to the County the sum of One Hundred Dollars ($100-00) to cover the costs of the preparation and recording of the Release -of Easement document in the public records of Monroe County, Florida. Property Owner understands that it is the Property Owners responsibility to insure such payment is made in order to uclear" the title to the Property. .....................—-------- ........... Prop"Owner Noise Insulation Agreement Page 11 of 28 43. Authoritv to Execute On Behalf Of,, . By Resolution No. 111- 2004, duly motioned and passed at a lawfully announced public meeting, the Board of County Commissioners of Monroe County, did, on the 17th day of March 2004, grant full authority for the County Administrator to execute this Agreement on behalf of the County without further action by the Board of County Commissioners. 44. Attachments. Attachments to this Agreement include the following, which are incorporated into this Agreement by reference, a. Exhibit A: Program Policy Statements. b. Exhibit B: Legal Description of Property c. Exhibit C: Program Improvements. d. Exhibit D: Deficiency Hold Harmless Agreement e. Exhibit E: Ventilation Hold Harmless Agreement 45. General Conditions. a. Governinq Law, Venue, inter.rotation, Costs, and Fees. (1) This Agreement shall be govemed by and construed in accordance with the Laws of the State of Flodda applicable to contracts made and to be performed entirely in the State. (2) In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and Property Owner agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. (3) The County and Property Owner agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them, the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding, (4) The County and Property Owner agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. b. BindjM Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Property Owner and their respective legal representatives, successors, and assigns. ............ .............................-—---------------- ....... Property Owner Noise Insulation Agreement Page 12 of28 c. Severability. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provislon of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. . Authod . Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Apgreement. This Agreement shall commence upon the execution of this Agreement, subsequent to.execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. f. Acceptance of Gift, rants, Assistance Funds, or Beggests. The County and Property Owner agree that each shall be, and is, empowered to accept for the benefit of any or all of them, gifts, grants, assistance funds, or bequests to be used for the purposes of this Agreement. . Claims, for ,Federal or State Aid. The County and Property Owner agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations by the Property Owner shall b approved by the County prior to submission. h. Adjudication of Disgutes or Disagreements. The County and Property Owner agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. L Nondiscrimination. The Countyand PropertyOwner agree that the will no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. The County and Property Owner agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limit to: (1) Title VI of the Civil Rights Act of 1 (P.L. -352) which prohibits discrimination on the basis of race, color or national origin; ( ) Section 504 of the Rehabilitation Act of 1973, s amended (20 U.S.C. s. 79 ), which prohibits discrimination on the basis of handicap; ( ) The Age Discrimination Act of 1975, amended ( 2 U.S.C. s . 6101-6107), which _...... _ _ _. --_ ... _... __ Property ner Nobe.14ulation Agreement a e 13 0,f prohibits discrimination on the basis of age; ( ) The Drug Abuse Office And Treatment Act of 172 (P.L. - ), as amended, relating to nondiscrimination on the basis of drug abuse; (5) The Comprehensive Alcohol Abuse And Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91 16), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health Service Act of 1912, ss. 523 and 527, ( 2 U.S.C. 290 -3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient ; (7) The Americans With Disabilities Act of 1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; (8) The Florida Civil Rights Act of 1992, (Chapter 7 , Florida Statutes, and Section 5 .0 , Florida Statutes), a may be amended from time to time, relating to nondiscrimination; (9) The Monroe County Human Rights Ordinance (Chapter 11 , Article Vlll Sections 13-101 through 13-1 ), as may be amended from time to time, relating to nondiscrimination; and (10) any other nondiscrimination provisions in any federal or state statutes or local ordinances which may apply to the parties to, or the subject matter of, this Agreement. j. Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, the County and Property Owner agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. The County and Property Owner specifically agree that no party to this Agreement shall be requiredto enter into any arbitration proceedings related to this Agreement or any Attachment or Addendum to this Agreement. . Books, Records,, and Documents.. The County and Property Owner shall maintain books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accountingprinciples consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for audit purposes during the term of the Agreement and for four years following the termination of this Agreement. I. Covenant of No Interest. The County and Property Owner covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performanceunder this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. m. Code of Ethics. The County agrees that the officers and employees of the County recognize and will be required to comply with the standards of conduct relating to public officers and employees as delineated in Section 11 . 1 , Florida Statutes, regarding, but not limited to, solicitation or acceptance of gift; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. _. ................_...... roper Owner of I don Agreement Page 14 of 2 Sol!citation/Payment. The County and Property Owner warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee worldng solely for ® , any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement-, and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the. Property Owner. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida, The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, records, papers, lefters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Property Owner. Failure of the Property Owner to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Property Owner is encouraged to consult with b advisors about Florida Public Records Law in order to comply with this provision. Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Property Owner is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt-'from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as ............................... Property Owner Noise Insulation Agreement Page 15 of28 authorized by law for the duration of the contract term and following completion of the contract if the Property Owner does not transfer the records to the County. ( ) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Property Owner or keep and maintain public records that would be required by the County to perform the service. If the Property Owner transfers all public records to the County upon completion of the contract, the Property Owner shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Property Owner keeps and maintains public records upon completion of the contract, the Property Owner shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the Coun 's custodian of records, in a format that is compatible with the information technology systems of the County. ( ) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Property Owner of the request, and the Property Owner must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Property Owner has questions regarding the application of Chapter 11 , Florida Statutes, to the Property Owner's duty to provide public records relating to this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. . Non-Waiver of Immuni o ithstandin the provisions of Sec. 7 . , Florida Statutes, the participation of the County and Property Owner in this Agreement and the acquisition of any commercial liability insurance coverage, self- insurance vre, or local government liability insurance pool coverage shall not b deemed a waiver of immunity y the County to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. . Privileges and Immunities. All of the privileges and immunities from liability; exemptions from- laws, ordinances, and rules; and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, volunteers, or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. r. Legal, Obligations and es gnsibiliti s Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, ------------------------ ---------- Property ner Noise Insulation Page 16 o state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes, s. Non-Reliance by Non-Parties. No person oreintity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the County and Property Owner agree that neither the County nor Property Owner or any agent, officer, or employee of each shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. t. Aftestations. The Property Owner agrees to execute such documents as the County may reasonably require in the performance of the obligations and duties of the County or Property Owner under this Agreement. u. No Personal Liabilltv. No covenant or agreement contained herein shall be deemed tr;-bea covenant or agreement of any member, officer, agent or empI oyee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. v. Execution in CounteEpArtp. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. w. Section Headings. Section headings have been inserted in this Agreement as a miiii-o-foonvenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. ..................... Property Owner Noise Imulation Agreement Page 17 of28 IN WITNESSHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. W PROPERTY' R:.... s � Si nsi ner___., ' �� , �ja�,an9 Printed Name Prfilb, Name i nature e �... Printed e WI„ .......... S PROPERTY OWNER: n f Signature .n .• / i rinted � Fh 7ill netu -- Printed Name iva.. s 4p' _....._............................... .... ._.. . ION I NTY BOARD OF COUNTY COMMISSIONERS: k MAYOR 1 CHAIRMAN: KEVt. ,...WOK, CLERK SLYVIA fln ' By: s a Deputy Clerk Signatu 6, e ' ''OE COUNTY,- N EM �.r Property ner Noise Insulation AgreementP "fir of 2 PF'Inflo J. FTR -PROGRAM POLICY STATEMENTS Exhibit A To Property Owner Noise Insulation Agreement A. Air Conditioning: General Restrictions. While providing a new ductless "mini- split" AC system to your condominium as a part of the Noise Insulation Program modifications, the following limitations and restrictions will apply to all condominiums. 1. All condensing units will be installed on the balcony 2. All refrigerant lines (running from the balcony condensing unit) will be installed consistent with KWBTS Board policy rules, maintaining a maximum height of 48 inches. 3. All condensate lines will be installed on the building exterior consistent with KWBTS Board policy rules to ensure the highest level of consistency and building architectural aesthetics. 4. All interior AC lines (refrigerant, condensate, electdcal) and Energy Recovery Ventilator (ERV) ducts will be housed in new vertical wall and corner pilasters which will be constructed to match the quality of existing walls. The number and locations of the new vertical wall and corner pilasters will differ depending on your unique condominium floor plan and number of bedrooms, The NIP executive architect will review this information with you at your NIP Design Review Meeting. 5. Only electrical service panels that are determined by the Program Manager to be deficient will be replaced by the Program as a part of the Noise Insulation Program modifications. B. Window Sill Replacement. Due to the presence of asbestos, the NIP will provide a nei�—custom wood surround and sill instead of the existing gypsum board surround. Due to this revised plan, existing custom sills (marble, granite, wood) will not be replaced. This revision will be an improvement, it decreasing constriction costs and improving time efficiencies. C. CLIStOM Crown Moldinq and Baseboards Restrictions l7. new asbestos abatement requirements will restrict the ability to remove existing custom trim and baseboard prior to construction (as originally assumed), which will not allow sufficient time for the awarded general contractor to secure custom matched replacement trim. Therefore, existing crown moldings, wall trim, and bass, the contractor will, instead, cut the existing wood trim flush to the face of the new pilaster or thru wall ac-infill. At new pilaster locations and, if the thru wall ac infill abuts the existing baseboards, the contractor will install a standard (314" x 5-112") painted wood trim to abut the existing trim, rather than attempting to match the existing custom trim profiles and materials. After the completion of the NIP construction, the property owner will ........—-—--------------------------- ...................................................................- -------- --- ........... Exhibit A-Property Owner Noise Insulation Agreement Page 19 of 28 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. D. Door Threshold H Ights. Due to stringent Florida hurricane impact and water infiltration building codes, all new aluminum acoustical prime entry swinging doors and sliding glass patio doors will have thresholds that are considerably higher (from the floor) than existing door thresholds. These higher door thresholds are designed to provide optimum protection to the interior of a condominium from water infiltration during a hurricane. E. KWBTS Asbestop Testing As required by state and federal requirements, THC conducted asbestos testing on all participating KW13TS condominiums in Buildings A, B and C during the November 2017 to April 2018 time period. This testing included collecting 7 to 9 samples at each condominium to include gypsum board joint compound, window glazing, and exterior window and door caulking. In addition, random exterior stucco samples were collected an both the "walkway" and "courtyard I 6-ailc6W building elevations. Depending on the laboratory analysis of these samples, the presence of asbestos containing materials (ACM) have the potential to impact several areas of the NIP construction process to include: - window removal and acoustic window installation, - door removal and acoustic door installation, - removal of portable "through-wall"AC units and the infilling of openings, - ceiling cuts required for installation of the ductless AG, - wall cuts required for the installation of the ductless AC, - construction of vertical wall pilasters required for installation of the ductless AC system & ERV ducts, - construction of closet it for installation of the ERV. F. Asbestos Abatement ReqgjEqments In the event any samples show a presence of asbestos containing material (ACM), the awarded NIP contractor will be required to perform the following abatement requirements during construction: Lf skMp elAhow aj-)rq The NIP contractor will be required to comply with OSHA worker safety requirements to include worker respirators, poly curtains in all areas where the surfaces are disturbed and the use of HEPA vacuum cleaners in the areas where surfaces are chipped, cut and/or sanded. ........... ExhibitA-Property Owner Noise Insulation Agreement Page 20 of 2,8-- if, samples show a Prsnce of ACM '1% The NIP contractor will be required to perform full asbestos abatement procedures as directed by the Environmental Protection Agency (EPA) to include: - Construction of ACM containment barriers in all areas (walls, ceilings, closets, inos/ oors), approximately 4 feet from all walls and areas impacted by the NIP modifications. - Abatement and bagging of ACM (resulting from demolition process) by certified asbestos abatement staff. - Air sampling of containment areas and clearance of all areas by certified asbestos abatement staff to allow access to containment areas by traditional (non-abatement) workers. - THC will be required to provide executive oversight of all ACM abatement processes in all condominiums throughout the NIP construction process to ensure proper compliance with federal and state abatement guidelines. - The presence of ACM will have a significant impact on the NIP construction process, lengthening the construction period and increasing the sequencing and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA will require THC to develop a design and construction plan that minimizes the disturbance of ACM to ensure the minimization of construction costs, duration, and liability to the contractor and KWBTS property owners. This plan will result in new property owner requirements and design restrictions which are outlined below. H. KWBTS BOARD on!y of Design Decisions. The KWBTS Board will have the Authority to make several of the Program design decisions to include: 1. Acoustical Window and Door Material 2. Acoustical Window and Door Color and Hardware Finishes 3. Acoustical Window and Door Operational Styles . Interior Ductless "Mini-Split"AC System Installation Requirements . Interior Ductless " ini-Split"AC System Interior Soffit Design and Plaoement . In-Filled Kitchen Prime Door Policy Treatment _....._ ........ _... ibit A-Property n ise Insulation.4greement Page 21 of 28 LEGAL DESCRIPTION OF PROPERTY Exhibit To Homeowner Noise Insulation Agreement Condominium Unit 01- , CORAL BAY GARDENS OF KEY WEST BY THE SEA, condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, recorded in Official Records Book 589, Page(s) 370, as amended from time to time, of the Public Records of Monroe County, FL. i i- - ro ner Noise I t do .4 ee en e 22 of 2 PROGRAM IMPROVEMENTS Exhibit C To Homeowner Noise Insulation Agreement This Exhibit C represents the Program Improvement package for an eligible home that includes the Program Improvements developed by the Program Manager to reduce the interior environment of a property by a minimum of five (5) decibels. A typical Program Improvement packag' e may include: Architectural Drawings a, Replacement Aluminum Acoustical Windows 0 Replacement Aluminum Acoustical Swinging Prime Door(s) Replacement Aluminum Acoustical Sliding Glass Patio Door(s) ...................................... Exhihif C-Property Owner Noise Insulation,4greement Page 23 of28 DEFICIENCY HOLD HARMLESS AGREEMENT Exhibit D To Property Owner Noise Insulation Agreement 1. In partial consideration of the compensation to be paid on behalf of the County and the Program for the Program Improvements to be made to the Property described in the Agreement of even date herewith (the "Agreementl between the County and Property Owner and to which this 0rhibit Q is attached, the undersigned, for and on behalf of the undersigned and the heirs, personal representatives, successors, and assigns of the undersigned, forever releases, remises, discharges, indemnities and covenants not to sue, institute claims against, or institute any proceedings against, the County, or any of its agents, officers, employees, consultants and/or contractors concerning any and all claims, demands, damages, actions or causes of action of whatsoever kind and nature on account of bodily injuries or death, damage to the property, and the consequences thereof, and any of the foregoing which may accrue to the undersigned or their respective heirs, personal representatives, successors and assigns in connection with any and all Pre-Existing Deficiencies (the "Deficiencies") against said County or any of its officers, agents, employees, consultants and/or contractors to be legally'liable. . 2. The Prop" Owner understands and assumes full responsibility for the Deficiencies present in the Property, whether visible to the Program Manager or unseen. 3. The Property Owner understands that the Deficiencies include any deficiencies present in the Property at the time of execution of this Agreement which could include, but not be limited to, code violations, structural damage, water / moisture damage, hazardous materials, infestation and/or any issue that would negatively impact the installation and performance of the Program Improvements, 4. If visible, the Property Owner understands that the Program Manager may Identify and document Deficiencies at any time throughout the Program process (including design, bid and construction processes). If identified and documented, the Program Manager will classify the observed Deficiencies as either"Minor" or"Severe". 5. The Property Owner assumes full responsibility for the worsening of any documented Minor Deficiencies. 6. In the rare event "Severe" Deficiencies are identified during the design process, the Property Owner agrees to complete necessary repairs to the Property, to the acceptance of the Program Manager, as a precondition to the commencement of construction of the Program Improvements. In the rare event that "Severe" Deficiencies are uncovered during the construction period, the Property Owner agrees to complete ....................... ...........__------ ---------------- Exhibit D-Property Owner Noise Insulation Agreement Page 24 qf28 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. 7. The undersigned acknowledge and agree that all of the release and hold harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit Q_ apply to property damage, injuries, deaths, or damages arising from the Defficiencies and/or all negative impacts that later result after the addition of the Program Improvements. The provisions of this Exhibft Q shall survive the termination or expiration of the Property Owner Noise Insulation Agreement. The undersigned hereby agree that the terms and provisions of this Exhibmf _ shall bindingupon, and inureto the benefit of the undersigned and their respective heirs, personal representatives, successors and assigns. -_ ..._. _. _....... __.... r. WITNESSES`-— ' Signature Lc),�,,.baet 4 Atq Printed a _ r - .......... IPrint ad IN Si arpre k Data Printed m WITNESSES: _..... PRQPE'ITY OWNER Signature Printed Name � • �� Fir tni ed Name ®, . r r� SbTature Date Pion —Name ITNE : PROPERTY OWNER: Signature Signature Printed Neme v �---- �� a Printed Name _ - Signature � I Date prin d Name .. .................. Exhibit D-Property Owner 1voise insulation ee of 28 VENTILATION HOLD HARMLESS AGREEMENT Exhibit E To Property Owner Noise Insulation Agreement ® In partial consideration of the compensation to be paid on behalf of the County and the Program for the Program Improvements to be made to the Property described in the Agreement of even date herewith (the "Agreement") between the County and Property Owner and to which this Exhibit E is attached, the undersigned, for and on behalf crf the undersigned and the heirs, personal representatives, successors, and assigns of the undersigned, forever releases, remises, discharges, inderrinifies and covenants not to sue, institute claims against, or institute any proceedings against, the County, or any of its agents, officers, employees, consultants and/or contractors concerning any and all claims, demands, damages, actions or causes of action of whatsoever kind and nature on aocount of bodily injuries or death, damage to the property. and the consequences thereof, and any of the foregoing which may accrue to the undersigned or their respective heirs, personal representatives, successors and assigns in connection with any and all Ventilation Deficiencies (the "Deficiencies") against said County or any of its officers, agents, employees, consultants and/or contractor's to be legally liable. Z The Program Improvements may include the addition of acoustical windows and doors, removal and infilling of "through-wall" portable air conditioner units and the addition of a replacement ductless "mini-split" air conditioning system. Because these modifications will result in a tighter interior environment due to the elimination of all passive inside / outside air leakage that was naturally occurring in all openings, the Program will also include the addition of a energy recovery ventilation (ERV) unit which will provide an adequate exchange of inside / outside air to the condominium as required by building code. 3. Given the tightened interior environment of the treated condominium, the Property Owner agrees to assume full responsibility for the proper operation of the new Program ductless AC system and energy recovery ventilation (ERV) unit to avoid the potential for mold and moisture problems, especially during periods when the condominium is closed and uninhabited. 4. Due to FAA eligibility limitations, the Program will not be providing bathroom exhaust fan treatments. Since bathroom tubs and/or showers are a source of moisture generation in the interior environment of a condominium, the Property Owner agrees to assume full responsibility for ensuring that all bathrooms have an operable bathroom exhaust fan capable of properly exhausting bathroom moisture to the exterior of the building. It should also be noted that the original KWBTS condominiums were constructed with a small wall vent that was designed to allow the passive exhaust of ..........____ ........................... .....................---------------- Exhibit E-Property Owner Noise Insulation Agreement Page 26 of28 bathroom i t in a central buildingt shaft. DuringProgram i processsurvey it was discoveredthe KWBTS buildings [ solid central building exhaust shaft. Due to this i ti condition, these original wall vents (ifstillpresent) have the potentialt ide a pathway for unwanted air, r gages into the condominium interior. The Propertyr agrees to assume full responsibility for the sealing f original wall vents in all bathrooms and for any and all negative impacts may result i left untreated. 5. It is clearlybuilding ! ti to duct laundry dryer exhaust to the KWBTS central exhaust shaft, I roperty Owner has incorrectly their laundry dryer vent to the KWBTS central building exhaust shafts, they agreet correct i deficiency properly ti their laundry dryer exhaust in an alternative method tht meets current buildingtheir cost before the initiation of the Program tr ion process, Furthermore, the Propertyr agrees to assume any and all liability r !ated to the improper i f their laundry dryer exhaust. Property6. The t that the ProgramImprovements ill not addressitchen and bathroom ventilationi interior humidity levels generated by the Propertyr within the interior oft iiProperty Owner understands and assumes full responsibility for maintenanceinterior moisture and humidity levels, The Propertyr agrees to assume full responsibility for any occurrence, r rr r worsening of moistureproblems and/or interior humidity levels in the Property. [ ' i , the Propertyto assume full responsibility for the maintenancet[ f the NIP ventingmodifications r completion of the ProgramImprovements, 7. The undersigned ! that all oft release, l harmless indemnity r i i t forth in Paragraphf this Exhibit E applyt injuries, g or damages sustainedin connectionit r as a result of any and all interior ventilation deficienciesarising r the additionf the ProgramImprovements including, but notlimited t , high humidity, mold, mildew,-and/or lack of proper exhaust ventilation. The provisionsthis it ll survive the tennination or expiration of Ownerthe Property Noise Insulation . ® The undersignedr that the terms and provisionsf this _Exhibit E shall be bindinginure to the benefiti their respective i , personalrepresentatives, successors and assigns. r . . << ' �.®P RTY. o re signatu i 6� ``�� s ¢ Pdnted Name 5U 1 F '� 1 Me n ame _ ---- ...... ...... _...-._ Exhibit ."r r nff poise Insulation Agreepnent Page 2 7 iT E PROPERTY O NE : Signature L � �i nature g Printed Name ....... Printed Name Sin turme „u r Date in J ... _...... _. WITNESSES: PROPERTY OWNER: Signature �..- ®. Slntu r1n Name Printed Signature Date rin d Name _......._ ..... ...._ .__. ................. _ _................... ibis - roe Noise insulation e of 2