09/16/2020 Agreement ,,y\III
10, Kevin Madok, CPA
Clerk of the Circuit Court&Comptroller—Monroe County, Florida.
DATE: November 13, 2020
TO: Beth Leto, Airports
Business Manager, KWIA
FROM: Pamela G. HancoC.
SUBJECP: September 16''/ Item9999C20 BOCC Meeting
Enclosed are the original recorded Avigation Easements and copies of die Property Owner
Noise Insulation Agreements for twenty-one,of twenty-eight, units at Key West by the Sea that are
participating in the Key West International Airport Noise Insulation Program Building A - Part 1
Construction Project for your handling.
Should you have any questions please feel free to contact me at(305) 292-3550.
cc: File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145
Address: Key West by the Sea
Unit No.: ,�t k
Name(s): ��
PROPERTY OWNER NOISE INSULATION AGREEMENT
KEY WEST INTERNATIONAL AIRPORT,MONROE COUNTY
THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and
effective the date last below written by and between MONROE COUNTY, a municipal
corporation organized and existing under the laws of the State of Florida (the "County"),
and the undersigned (the "Property Owner").
WITNESS ETH:
WHEREAS, the Property Owner is the sole record owner in fee simple of
certain real property located in the City of Key West, County of Monroe, State of Florida,
and more particularly described on Exhibit B attached hereto (the "Property"); and
WHEREAS, the County is the owner and operator of the Key West
International Airport (the "Airport"), situated in the City of Key West, County of Monroe,
State of Florida, and in close proximity to the Property; and
WHEREAS, the County desires to obtain and preserve for the use and
benefit of the public a right of free and unobstructed flight for aircraft landing upon,
taking off from, or maneuvering about the Airport; and
WHEREAS, the Property Owner has elected to participate in the Key West
International Airport's Noise Insulation Program (the "Program") and, as part of the
Program, the Property Owner has elected to obtain acoustical treatments and
improvements to the Property as more particularly described on Exhibit C attached
hereto (the "Program Improvements"); said Program Improvements to be paid for by the
County at no cost to the Property Owner and in exchange for the granting to the County
of an avigation easement over, across and through the Property; and
WHEREAS, the County will enter into a construction contract with a
general contractor (the "Contractor") to provide the installation of the Program
Improvements; and
WHEREAS, the Program is managed by the consultant team consisting of
a team manager and assistant manager, architect, mechanical / electrical engineer,
acoustician and construction manager selected by the County (the "Program Manager");
and
WHEREAS, the Property Owner and the County mutually desire to agree
to the terms upon which the Property Owner will participate in the Program and receive
the Program Improvements upon the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the terms, covenants and
conditions set forth herein, and other good and valuable consideration, the receipt and
Property Owner Noise Insulation Agreement Page 1 of 28
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.
3. Payment of Program Improvements. The County agrees to pay for
the Program Improvements described in Exhibit C attached hereto. The Program
Improvements will be approved by the Property Owner and County, managed by the
Program Manager, and performed by the Contractor.
4. Impeding Competitive Bid Process. The Property Owner shall not
impede or interfere with the Contractor's ability to select between approved product
manufacturers and subcontractors in the preparation of bid submittals. To insure a
competitive bid environment, the Property Owner is prohibited from having any
discussion or communication with the Contractor in relation to the Program, the
contractor's bid, or this Agreement until after award of the construction contract by the
County. Failure of the Property Owner to comply with this provision shall, at the option
of the County in its sole discretion, result in disqualification from the Program and
cancellation of this Agreement.
5. Construction Contract. The County will award the contract for the
Program Improvements consistent with Federal and County competitive bidding policies
and procedures. The contract will require the Contractor to complete the Program
Improvements within a time period defined by the Program Manager.
6. Pre- & Post-Construction Responsibilities. The Property Owner shall
meetali responsibilities and requirements pertaining to both pre-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 Agreement Page 2 of28
space in sketch) for the Contractor. When doing so, the Property Owner will have the
ability to utilize the complete "floor to ceiling" space.
(3) Removing of all excessive furniture and belongings from the
condominium that will not fit in the "Designated Storage Space Area";
(4) 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";
(6) 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"
b. 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 the condominium:
(2) Moving of any excessive furniture and belongings back into
the condominium;
(3) Re-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.
d. 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 Insulation Agreement Page 3 of28
alters the construction schedule, the Property Owner shall be liable to the Contractor
and the County for any damages and all direct and indirect costs related thereto.
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
health risks, biohazard conditions, hazardous chemicals, obstacles, weapons of any
kind and/or explosives;
(2) Refraining from verbal abuse or profanity;
(3) Refraining from aggressive physical contact; and
(4) Insuring that all pets are completely secured and contained.
b. In the event the Property Owner fails to meet any of the foregoing
conditions, the Program process may, at the County's discretion, be temporarily
suspended at any time. In such event, the Program Manager shall notify the Property
Owner in writing, stating the corrective action(s) and/or condition(s) required to be
completed or performed by the Property Owner prior to the County resuming the
Program process.
c. In the event the Program process is not resumed due to the
Property Owner's failure to complete the corrective action(s) and/or condition(s)
required by the Program Manager, the Property Owner shall be liable to the County
and/or Contractor for any and all damages and all direct and indirect costs related
thereto.
d. If the Program process is resumed, the Property Owner shall be
liable to the County and/or Contractor for any and all damages and all direct and indirect
costs related to or caused by the temporary suspension of the Program process.
9. Construction Delays. During the construction period, the Contractor
may-experience unforeseen complications relating to the installation of the Program
Improvements. The construction contract shall provide that delays related to these
unforeseen complications are beyond the control of the Contractor and shall be excused
so that the time for completion may reasonably be extended. Construction schedules
may also be revised if there is a delay in awarding of the contract or if the Program
Improvements have to be re-bid in the event of lack of bidding contractors and/or failure
of the lowest responsive, responsible bidder to execute the contract, provide a payment
and performance bond or show proof of required insurance.
10. Changes to Scope of Work. The Program Manager reserves the right
to make changes to the plans and specifications and the Program Improvements, at its
Property Owner Noise Insulation Agreement Page 4 of 28
sole discretion, at any time during the Program process, provided such changes do not
reduce the scope or quality of the Program Improvements described in Exhibit C and
such changes are necessitated by the discovery of hidden conditions not readily
detectable during normal property inspection procedures.
11. Acceptance of Work. Upon completion of the Program Improvements,
the Program Manager shall inspect or cause the inspection of the Program
Improvements to determine if they were completed pursuant to the terms of the
contract. The Program Manager retains sole discretion and authority on program
conformance and performance issues as they relate to the Contractor, subcontractors,
suppliers and acoustic designs. The Property Owner is requested to attend the
Substantial Completion Inspection and provide input to the Construction Manager with
respect to the identified punch-list items. In addition, the Property Owner is welcome to
attend the Final Inspection. In the event the Property Owner elects to not attend the
Substantial Completion and Final Inspections, they release and surrender their ability to
provide input to the Construction Manager with respect to the acceptance of the
Program Improvements. In the event there is a disagreement between the Property
Owner and the Program Manager as to a conformance or performance issue, the
Property Owner shall be required to submit the discrepancy in writing to Monroe County
(representative to be defined before the NIP construction process) within 7 days of the
inspection giving rise to the discrepancy. Monroe County shall then make a
determination as to the acceptability of the conformance/performance issue and any
remedial action that may need to be taken. Monroe County shall be the final arbiter of
any conformance/performance/issues. Failure by the Property Owner to submit the
written complaint within the time period specified above shall thereafter foreclose the
Property Owners right to file such complaint.
12. Termination of Agreement. The Property Owner understands that
the signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of
the Program Improvements to be performed in accordance with the Program.
Therefore, if the Property Owner attempts to terminate this Agreement or otherwise
impedes the progress of the performance of the Program Improvements after the award
of the construction contract, the Property Owner will be liable to the County for any and
all damages and all direct and indirect costs caused thereby.
13. Warranties. The County does not represent or warrant the level of
noise reduction that the Property Owner will experience within the Property as a result
of the Program Improvements performed as part of the Program.
a. The County agrees that its contract with the Contractor will include
standard one (1) year warranties from the Contractor for all materials and workmanship.
Such one-year warranty period shall commence as of the time of the acceptance of the
work as provided for in Paragraph 9.
b. At the end of construction, the Program Manager will provide the
Property Owner with a Warranty & Final Closeout Package which will contain copies of
the warranty policies, product instructions, design documents and legal documents. As
a condition of receiving the Warranty & Final Closeout Package, the Property Owner
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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-Existing Deficiencies. The Property Owner will be required to
sign Exhibit D (Deficiency Hold Harmless Agreement) which will impute all
responsibility and liability to the Property Owner for any and all present Pre-Existing
Deficiencies at the Property, whether seen or unseen.
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. The Property Owner will be required to complete all
designated Pre-Work items utilizing their own funds and per the required deadlines as
established by the NIP. In the event the Property Owner fails to complete the
designated 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
related thereto.
16. City of Key West "Hard-Wired" Smoke Alarm Requirement. In
compliance with the City of Key West Fire Marshall and the City of Key West Building
Department construction permit issuance requirements, the Property Owner will be
required to install 120-volt "hard-wired" smoke alarms in their condominium in
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accordance with all applicable codes and regulations by the required deadline as
established by the NIP. The Property Owner will be responsible to ensure that the
smoke alarms are not installed in same areas within the condominium where NIP
modification work will occur, to avoid any potential impedance to the NIP construction
process. In the event the Property Owner fails to install the designated "hard-wired"
smoke alarms by the established NIP deadline, the Property Owner shall be removed
from NIP participation.
17. Suspension of Program Process. The Program process may be
temporarily suspended at any time during the design and/or construction phases upon
the discovery of Deficiencies due to their potential impact on the Program
Improvements and product warranties. The Program process will not resume until the
Property Owner has corrected all related problems to the satisfaction of the Program
Manager. In the event repairs are not completed in a timely manner, the Property
Owner will be liable to the County for any and all damages and all direct and indirect
costs due to delay and/or stoppages of the work.
18. Limitation on Alterations to the Property. The Property Owner
agrees not to make alterations, or to permit any tenant occupying any portion of the
Property to make alterations to the existing windows, doors and/or walls from the time of
the Design process until the construction of the Program Improvements have been
completed. Exceptions to this rule must be pre-approved in writing by the Program
Manager. Failure to adhere to this requirement may, at the option of the Program
Manager in its sole discretion, result in an immediate suspension of the construction of
the Program Improvements on the Property. The Property Owner will be liable to the
County for all direct and indirect costs associated with unapproved alterations and
damages related thereto.
19. Pre and Post-Construction Noise Testing Process. Pre- & post-
construction noise testing is a very important Program process that is designed to
measure and determine the actual achieved noise level reduction level at treated
properties. If selected by the Program Manager for pre- & post-construction noise
testing, the Property Owner agrees to provide access to their property for testing and
agrees to not to make alterations to the interior of their property (with the exception of
repairs of Deficiencies) from the time of the pre-construction noise test to the post-
construction noise test. In an effort to insure consistent noise data collection, the
Property Owner also agrees to preserve the interior layout of furniture, floor coverings
and window treatments from the time of the pre-construction noise test to the post-
construction noise test. The Property Owner understands that the failure to adhere to
this requirement may result in corruption of the noise testing data. Therefore, the
Property Owner understands they may be liable to the County for any direct and indirect
noise testing costs in the event these requirements are not met.
20. Cooperation. As reasonably requested, the Property Owner shall
cooperate with the Contractor, the Program Manager and Monroe County in the
performance of all phases of the Program Improvements including, but not limited to,
the removal and reinstallation of rugs, wall hangings and furniture as necessary.
Property Owner Noise Insulation Agreement Page 7 428
21. Utilities. The Property Owner shall permit the Contractor to use, at
no cost to the Contractor or the County, existing utilities such as light, heat, power and
water necessary to carry out the Program Improvements.
22. Design and Bid Process Access. At scheduled times and/or upon
not less than twenty-four (24) hours advance notice (via NIP email and/or letter), the
Property Owner agrees to provide to the Program Manager, Contractor, subcontractors,
suppliers, City, County, State and federal inspectors and consultants access to the
Property to collect and develop all final design and bid documents. These visits could
include, but not be limited to, property survey, design survey, hazardous material
inspection, pre-noise testing and pre-bid visit. In the event the Property Owner fails to
provide access to the Property for all required NIP Design and Bid Process visits, the
Property Owner shall be removed from NIP participation.
23. Pre-Construction Access. The Property Owner agrees to provide
access to the Property forty-eight (48) hours prior to the scheduled start of NIP
construction. This short visit will provide the Program Manager with the ability to ensure
that the Property Owner has met all furniture storage responsibilities. Failure could
result in the suspension of the scheduled NIP construction 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.
24. Pre and Post Construction Access. At scheduled times and/or
upon-not less than twenty-four (24) hours advance notice (via NIP email and/or letter)
and per the established NIP construction schedule assignment, the Property Owner
agrees to provide to the Program Manager, Contractor, subcontractors, suppliers, City,
County, State and federal inspectors and consultants access to the Property to provide
all required NIP Pre-Construction and Post-Construction visits. These visits could
include, but not be limited to final measurement, pre-construction inspections, review of
Designated Storage Space requirements, post construction inspections and post-
construction noise testing. In the event the Property Owner fails to provide access for all
required NIP Pre and Post Construction visits, 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.
25. Construction Period Access. Upon award of NIP construction
contract, the Contractor will provide the Program Manager with their final construction
schedule, which will include the required number of calendar days to complete the NIP
construction in each of the participating condominiums. Based on this schedule, the
Program Manager will assign each Property Owner with a designated number of
calendar days in which construction will occur in their condominium. The Property
Owner agrees to relocate from their condominium for the entire assigned time period. In
addition, the Property Owner agrees not to re-enter their property for any reason during
their assigned construction period due to safety concerns and the potential to negatively
impact the Contractor. In the event the Property Owner fails to provide access for their
assigned construction time period, the Property Owner shall be removed from NIP
Properly Owner Noise Insulation Agreement Page 8 of28
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.
26. Construction Period Extension Due to Hurricanes. Since the NIP
construction period will extend into the Key West hurricane season, there is potential for
construction delays and/or stoppages, beyond the control of the Contractor, in the event
of a threat of an approaching hurricane and/or an actual hurricane event. Due to this
possibility, the Property Owner understands that delays may occur in addition to their
originally assigned construction time period, without any fault or cost to the Contractor
and Program Manager. Furthermore, the Property Owner agrees to relocate from their
condominium for all additional calendar days resulting from NIP construction work
stoppages due to a hurricane threat or event at no cost to the County, Contractor and/or
Program Manager. In the event the Property Owner fails to provide the required
additional access to their condominium due to hurricane-related work stoppages, 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.
27. Discovery of Pre-Existing Deficiencies During Construction. In the
event the Contractor discovers pre-existing deficiencies at the Property during the NIP
construction process that negatively impact the installation of the NIP improvements,
the Property Owner agrees to immediately repair and remediate such deficiencies in an
effort to reduce any negative impact on the scheduled construction period. The Property
Owner-understands that, depending on the timing of the pre-existing deficiency repair,
the NIP construction period may need to be extended, at no fault of the Program
Manager or Contractor.
28. Impact of Unforeseen KWBTS Building Conditions on Construction
Schedule. The Property Owner understands that unforeseen building conditions that
may arise during the NIP construction may have the potential to increase the original
scheduled duration of construction, which is not the fault of the Program Manager nor
Contractor. The Property Owner needs to plan for the "worst-case" possibility that the
originally-scheduled construction completion date may be delayed a few additional days
due to unforeseen building conditions that may arise and complicate the NIP
construction.
29. Existing Window / Door Treatments, Shades and Blinds. The
Property Owner understands that, after the installation of new NIP acoustic window and
doors, the existing window and/or door treatments, shades and blinds may not be
compatible nor able to be re-installed due to size differences between the new and
existing windows and doors.
30. Existing Crown Molding. During the installation of the new
acoustic windows and doors, the NIP will be providing new "standard" replacement
interior trim and sills. The Property Owner understands that the NIP replacement trim
will not match custom and/or specialized crown molding patterns and/or custom window
and door trim. After the completion of the NIP modifications, the Property Owner will
have the ability to make modifications to the NIP interior trim at their own expense.
Property Owner Noise Insulation Agreement Page 9 of 28
31. Communication Requirements. The Property Owner agrees to
read and review all NIP emails and/or letters in a timely fashion which are being
provided by the NIP to ensure schedule conformance. In the event the Property Owner
fails to meet this requirement, it could result in removal from NIP participation.
32. Title Examination. The Program Manager has obtained or will
obtain, at its sole cost and expense, an "Abstract of Title" to ensure that the Property
title is free from liens and/or title defects.
33. Cooperation in Clearing Title. Prior to the commencement of
construction of the Program Improvements, the Property Owner shall cooperate with the
County in order to (i) correct any title defects affecting the Property which are disclosed
by the "Abstract of Title" and in the sole determination of the County may serve to
invalidate the Easement, and (ii) secure the written consent of any and all mortgage
holders to the Property Owner's conveyance of the Easement to the County if the
County determines that it is necessary or desirable to do so (collectively, the "Title
Matters"). If, prior to the commencement of construction of the Program Improvements,
the County, in its sole discretion, determines that the Title Matters affecting the Property
may invalidate the Easement, this Agreement shall be null and void, and the Easement
shall be terminated.
34. Federal Assurance. As required by the Federal Aviation
Administration, the Property Owner agrees to the following provisions:
a. The Property Owner shall subject the construction work on the
project to such inspection and approval during the construction of the Program
Improvements and after completion of the Program Improvements as may reasonably
be requested by the Program Manager and/or Monroe County.
b. After final completion of the Program Improvements, the Property
Owner shall assume the responsibility for maintenance and operation of the items
installed, purchased or constructed under this Agreement. Neither the Federal Aviation
Administration nor the County bears any responsibility for maintenance and operation of
these items.
35. Reduction of Fresh Air Infiltration. The Property Owner will be
required to sign Exhibit E (Ventilation Hold Harmless Agreement) which imputes all
responsibility to the Property Owner for the proper maintenance of interior moisture and
humidity levels.
36. Salvage of Materials & Equipment. If the Property Owner desires
to retain any of the material or equipment removed from the Property as a result of the
Program Improvements, the Property Owner shall arrange for the salvage of said
materials and equipment directly with the Contractor at the Property Owner's sole risk
and expense. The County assumes no responsibility for the condition of the material,
equipment or surrounding surfaces as a result of the owner-requested salvage. The
Property Owner and the Contractor shall, prior to the commencement of construction,
agree upon and execute a document listing those items to be salvaged. In the absence
Property Owner Noise Insulation Agreement Page 10 of 28
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. Property Insurance. During Program construction period, the
Contractor will provide builder's risk insurance for the Property. The Property Owner
shall have the option, at the Property Owner's sole cost and expense, to maintain a
homeowner's insurance policy for the duration of the construction of the Program
Improvements. The Property Owner understands that, following final completion, the
Contractor's builder's risk insurance will cease, and it is advisable for the Property
Owner to obtain insurance to cover any value added to the Property by the Program.
38. Timing and Effects of Construction. The Property Owner
understands that there is a chance that construction itself may exceed the Contractor's
original projected construction time period. The Property Owner also understands that
the construction may involve substantial inconvenience and could generate significant
quantities of dust and debris rendering portions of the Property uninhabitable for
extended periods of time.
39. Labor and Material Release. The Property Owner releases and
forever discharges any and all claims, suits and actions against the Program Manager;
the County and its officers, employees, agents, consultants; and contractors and
suppliers with respect to issues relating to the conformance of labor, materials and
arniistic 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. Sale of Property. In the event the Property Owner sells, conveys or
otherwise transfers title to the Property before the completion of all phases of the
Program process, the Property Owner hereby agrees to provide the buyer with a copy
of this Agreement prior to the closing on the sale, conveyance or other transfer, and to
transfer all of the Property Owner's responsibilities and obligations under this
Agreement to the buyer as a condition of the purchase, conveyance or other transfer of
the Property.
41. Waiver. No waiver of, acquiescence in, or consent to any breach of
any term, covenant or condition hereof shall be construed as, or constitute, a waiver of,
acquiescence in, or consent to any other, further or succeeding breach of the same or
any other term, covenant or condition hereof.
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 Owner's
responsibility to insure such payment is made in order to "clear" the title to the Property.
Property Owner Noise Insulation Agreement Page I I 428
43. Authority to Execute On Behalf Of County. By Resolution No. 111-
2004, duly motioned and passed at a lawfully announced public meeting, the Board of
County Commissioners of Monroe County, did, on the 17th day of March 2004, grant full
authority for the County Administrator to execute this Agreement on behalf of the
County without further action by the Board of County Commissioners.
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. Governing Law, Venue, Interpretation, Costs, and Fees.
(1) This Agreement shall be governed by and construed in
accordance with the Laws of the State of Florida applicable to contracts made and to be
performed entirely in the State.
(2) In the event that any cause of action or administrative
proceeding is instituted for the enforcement or interpretation of this Agreement, the
County and Property Owner agree that venue will lie in the appropriate court or before
the appropriate administrative body in Monroe County, Florida.
(3) The County and Property Owner agree that, in the event of
conflicting interpretations of the terms or a term of this Agreement by or between any of
them, the issue shall be submitted to mediation prior to the institution of any other
administrative or legal proceeding.
(4) The County and Property Owner agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party
relative to the enforcement or interpretation of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, court costs, investigative, and out-of-pocket
expenses, as an award against the non-prevailing party. Mediation proceedings
initiated and conducted pursuant to this Agreement shall be in accordance with the
Florida Rules of Civil Procedure and usual and customary procedures required by the
circuit court of Monroe County.
b. Binding Effect. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Property Owner
and their respective legal representatives, successors, and assigns.
Property Owner Noise Insulation Agreement Page 12 of 28
c. Severability. If any term, covenant, condition or provision of this
Agreement (or the application thereof to any circumstance or person) shall be declared
invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining
terms, covenants, conditions and provisions of this Agreement shall not be affected
thereby; and each remaining term, covenant, condition and provision of this Agreement
shall be valid and shall be enforceable to the fullest extent permitted by law unless the
enforcement of the remaining terms, covenants, conditions and provisions of this
Agreement would prevent the accomplishment of the original intent of this Agreement.
d. Authority. Each party represents and warrants to the other that the
execution, delivery and performance of this Agreement have been duly authorized by all
necessary County and Property Owner action, as may be required by law.
a Duration of Agreement. This Agreement shall commence upon the
execution of this Agreement, subsequent to execution by the Property Owner and by
the County and shall remain in effect for a period reasonably required to effect the
Program Improvements (the "Term"), except as may be sooner terminated in
accordance with the provisions of this Agreement.
f. Acceptance of Gifts Grants, Assistance Funds, or Bequests. The
County and Property Owner agree that each shall be, and is, empowered to accept for
the benefit of any or all of them, gifts, grants, assistance funds, or bequests to be used
for the purposes of this Agreement.
g. Claims for Federal or State Aid. The County and Property Owner
agree that each shall be, and is, empowered to apply for, seek, and obtain federal and
state funds to further the purpose of this Agreement; provided that all applications,
requests, grant proposals, and funding solicitations by the Property Owner shall be
approved by the County prior to submission.
h. Adjudication of Disputes or Disagreements. The County and
Property Owner agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties.
If the issue or issues are still not resolved to the satisfaction of the parties, then any
party shall have the right to seek such relief or remedy as may be provided by this
Agreement or by Florida law.
i. Nondiscrimination. The parties agree that there will be no
-discrimination against any person, and it is expressly understood that upon a
determination by a court of competent jurisdiction that discrimination has occurred, this
Agreement automatically terminates without any further action on the part of any party,
effective the date of the court order. The parties agree to comply with all Federal and
Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination.
These include but are not limited to: 1) Title VII of the Civil Rights Act of 1964 (PL 88-
352), which prohibit discrimination in employment on the basis of race, color, religion,
sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended
(20 USC §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of
sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC § 794),
Property Owner Noise Insulation Agreement Page 13 of 28
which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act
of 1975, as amended (42 USC §§ 6101-6107), which prohibits discrimination on the
basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as
amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91 616), as amended, relating to nondiscrimination on
the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, §§
523 and 527 (42 USC §§ 690dd-3 and 290ee-3), as amended, relating to confidentiality
of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42
USC §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC §§ 12101),
as amended from time to time, relating to nondiscrimination in employment on the basis
of disability; 10) Monroe County Code Chapter 14, Article II, which prohibits
discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual
orientation, gender identity or expression, familial status or age; and 11) any other
nondiscrimination provisions in any federal or state statutes which may apply to the
parties to, or the subject matter of, this Agreement.
j. Cooperation. In the event any administrative or legal proceeding is
instituted against either party relating to the formation, execution, performance, or
breach of this Agreement, the County and Property Owner agree to participate, to the
extent required by the other party, in all proceedings, hearings, processes, meetings,
and other activities related to the substance of this Agreement or provision of the
services under this Agreement. The County and Property Owner specifically agree that
no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement or any Attachment or Addendum to this Agreement.
k. Books, Records, and Documents. The County and Property Owner
shall maintain books, records, and documents directly pertinent to performance under
this Agreement in accordance with generally accepted accounting principles
consistently applied. Each party to this Agreement or their authorized representatives
shall have reasonable and timely access to such records of each other party to this
Agreement for audit purposes during the term of the Agreement and for four years
following the termination of this Agreement.
I. Covenant of No Interest. The County and Property Owner
covenant that neither presently has any interest, and shall not acquire any interest,
which would conflict in any manner or degree with its performance under this
Agreement, and that only interest of each is to perform and receive benefits as recited
in this Agreement.
m. Code of Ethics. The County agrees that the officers and
employees of the County recognize and will be required to comply with the standards of
conduct relating to public officers and employees as delineated in Section 112.313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing
business with one's agency; unauthorized compensation; misuse of public position,
conflicting employment or contractual relationship; and disclosure or use of certain
information.
Property Owner Noise Insulation Agreement Page 14 of 28
n. No Solicitation/Payment. The County and Property Owner warrant
that, in respect to itself, it has neither employed nor retained any company or person,
other than a bona fide employee working solely for it, to solicit or secure this Agreement
and that it has not paid or agreed to pay any person, company, corporation, individual,
or firm, other than a bona fide employee working solely for it, any fee, commission,
percentage, gift, or other consideration contingent upon or resulting from the award or
making of this Agreement. For the breach or violation of this provision, the Property
Owner agrees that the County shall have the right to terminate this Agreement without
liability and, at its discretion, to offset from monies owed, or otherwise recover, the full
amount of such fee, commission, percentage, gift, or consideration.
o. Public Access. 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, letters
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 its 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
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.
(4) 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
Property Owner Noise Insulation Agreement Page I5 of 28
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 County's
custodian of records, in a format that is compatible with the information technology
systems of the County.
(5) 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 does not comply with the County's request for records, the
County shall enforce the public records contract provisions in accordance with the
contract, notwithstanding the County's option and right to unilaterally cancel this
contract upon violation of this provision by the Property Owner. A Property Owner who
fails to provide the public records to the County or pursuant to a valid public records
request within a reasonable time may be subject to penalties under Section 119.10,
Florida Statutes.
If the property owner has questions regarding the application of chapter 119, 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, bradley-
brianemonroecounty-fi.gov, Monroe County Attorney's office, 1111 12th Street, Suite
408, Key West, FL 33040.
p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec.
768.28, Florida Statutes, the participation of the County and Property Owner in this
Agreement and the acquisition of any commercial liability insurance coverage, self-
insurance coverage, or local government liability insurance pool coverage shall not be
deemed a waiver of immunity by the County to the extent of liability coverage, nor shall
any contract entered into by the County be required to contain any provision for waiver.
q. Privileges and Immunities. All of the privileges and immunities from
liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability,
workers' compensation, and other benefits which apply to the activity of officers, agents,
volunteers, or employees of the County, when performing their respective functions
under this Agreement within the territorial limits of the County shall apply to the same
degree and extent to the performance of such functions and duties of such officers,
agents, volunteers, or employees outside the territorial limits of the County.
r. Legal Obligations and Responsibilities' Non-Delegation of
Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be
construed as, relieving any participating entity from any obligation or responsibility
Property Owner Noise Insulation Agreement Page 16 of28
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,
state statutes, case law, and, specifically, the provisions of Chapters 125 and 163,
Florida Statutes.
s. Non-Reliance Non-Parties. No person or entity shall be entitled
to rely upon the terms, or any of them, of this Agreement to enforce or attempt to
enforce any third-party claim or entitlement to or benefit of any service or program
contemplated hereunder, and the County and Property Owner agree that neither the
County nor Property Owner or any agent, officer, or employee of each shall have the
authority to inform, counsel, or otherwise indicate that any particular individual or group
of individuals, entity or entities, have entitlements or benefits under this Agreement
separate and apart, inferior to, or superior to the community in general or for the
purposes contemplated in this Agreement.
t. Attestations. The Property Owner agrees to execute such
documents as the County may reasonably require in the performance of the obligations
and duties of the County or Property Owner under this Agreement.
u. No Personal Liability. No covenant or agreement contained herein
shall be deemed to be a covenant or agreement of any member, officer, agent or
employee of Monroe County in his or her individual capacity, and no member, officer,
agent or employee of Monroe County shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this
Agreement.
v. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be regarded as an original, all of which
taken together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart.
w. Section Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that such
section headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
Property Owner Noise Insulation Agreement Page 17 of 28
IN WITNESS WHEREOF, the Property Owner and the County have
executed this Agreement as of the day and year first above written.
WITNESSE : PROPERTY OWNER:
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WITNESSES: PROPERTY OWNER:
Signature
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t� ' t'i OUNTY BOARD OF COUNTY COMMISSIONERS: �t s `�_
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Date TANT ATTORNEYg/26/20 - Dat
Properly Owner Noise Insulation Agreement Page 181/28
PROGRAM POLICY STATEMENTS
Exhibit A
To
Property Owner Noise Insulation Agreement
A. Air Conditioning: General Restrictions. While providing a new ductless "mini-
split" AC system to your condominium as a part of the Noise Insulation Program
modifications, the following limitations and restrictions will apply to all condominiums:
1. All condensing units will be installed on the balcony
2. All refrigerant lines (running from the balcony condensing unit) will be installed
consistent with KWBTS Board policy rules, maintaining a maximum height of 48
inches.
3. All condensate lines will be installed on the building exterior consistent with KWBTS
Board policy rules to ensure the highest level of consistency and building
architectural aesthetics.
4. All interior AC lines (refrigerant, condensate, electrical) and Energy Recovery
Ventilator (ERV) ducts will be housed in new vertical wall and corner pilasters which
will be constructed to match the quality of existing walls. The number and locations
of the new vertical wall and corner pilasters will differ depending on your unique
condominium floor plan and number of bedrooms. The NIP executive architect will
review this information with you at your NIP Design Review Meeting.
5. Only electrical service panels that are determined by the Program Manager to be
deficient will be replaced by the Program as a part of the Noise Insulation Program
modifications.
B. Window Sill Replacement. Due to the presence of asbestos, the NIP will provide a
new custom wood surround and sill instead of the existing gypsum board surround. Due
to this revised plan, existing custom sills (marble, granite, wood) will not be replaced.
This revision will be an improvement, while decreasing constriction costs and improving
time efficiencies.
C. Custom Crown Molding and Baseboards Restrictions
The new asbestos abatement requirements will restrict the ability to remove existing
custom trim and baseboard prior to construction (as originally assumed), which will not
allow sufficient time for the awarded general contractor to secure custom matched
replacement trim. Therefore, existing crown moldings, wall trim, and base, the
contractor will, instead, cut the existing wood trim flush to the face of the new pilaster or
thru wall ac-infill. At new pilaster locations and, if the thru wall ac infill abuts the existing
baseboards, the contractor will install a standard (3/4" x 5-1/2') painted wood trim to
abut the existing trim, rather than attempting to match the existing custom trim profiles
and materials. After the completion of the NIP construction, the property owner will
Exhibit A -Properly 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 Heights. Due to stringent Florida hurricane impact and water
infiltration building codes, all new aluminum acoustical prime entry swinging doors and
sliding glass patio doors will have thresholds that are considerably higher (from the
floor) than existing door thresholds. These higher door thresholds are designed to
provide optimum protection to the interior of a condominium from water infiltration during
a hurricane.
E. KWBTS Asbestos Testing
As required by state and federal requirements, THC conducted asbestos testing on all
participating KWBTS 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
on both the "walkway" and "courtyard / balcony" 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 AC,
- wall cuts required for the installation of the ductless AC,
- construction of vertical wall pilasters required for installation of the ductless
AC system & ERV ducts,
- construction of closet soffit for installation of the ERV.
F. Asbestos Abatement Requirements
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:
If samples show a presence of ACM < 1%
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.
Exhibit A -Properly Owner Noise Insulation Agreement Page 20 of 28
If samples show a presence 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,
windows/doors), approximately 4 feet from all walls and areas impacted by
the NIP modifications.
- Abatement and bagging of ACM (resulting from demolition process) by
certified asbestos abatement staff.
- Air sampling of containment areas and clearance of all areas by certified
asbestos abatement staff to allow access to containment areas by traditional
(non-abatement) workers.
- THC will be required to provide executive oversight of all ACM abatement
processes in all condominiums throughout the NIP construction process to
ensure proper compliance with federal and state abatement guidelines.
- The presence of ACM will have a significant impact on the NIP construction
process, lengthening the construction period and increasing the sequencing
and coordination requirements of contractor crews.
- Given the cost to provide required asbestos abatement procedures, the FAA
will require THC to develop a design and construction plan that minimizes the
disturbance of ACM to ensure the minimization of construction costs,
duration, and liability to the contractor and KWBTS property owners. This plan
will result in new property owner requirements and design restrictions which
are outlined below.
G. KWBTS BOARD Authority of Design Decisions. The KWBTS Board will have the
Authority to make several of the Program design decisions to include:
1. Acoustical Window and Door Material
2. Acoustical Window and Door Color and Hardware Finishes
3. Acoustical Window and Door Operational Styles
4. Interior Ductless "Mini-Split" AC System Installation Requirements
5. Interior Ductless "Mini-Split" AC System Interior Soffit Design and Placement
6. In-Filled Kitchen Prime Door Policy Treatment
Exhibit A -Property Owner Noise Insulation Agreement Page 21 of 28
LEGAL DESCRIPTION OF PROPERTY
Exhibit B
To
Homeowner Noise Insulation Agreement
Apartment Unit known as Unit 111-A, Atlantic Tower, KEY WEST BY THE SEA,
a Condominium, according to the Declaration of Condominium recorded in
Official Records Book 589, at Page 370, of the Public Records of Monroe
County, Florida.
Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28
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 package may include:
• Architectural Drawings
• Replacement Aluminum Acoustical Windows
• Replacement Aluminum Acoustical Swinging Prime Door(s)
• Replacement Aluminum Acoustical Sliding Glass Patio Door(s)
Exhibit C-Property Owner Noise Insulation Agreement Page 23 oJ28
DEFICIENCY HOLD HARMLESS AGREEMENT
Exhibit D
To
Property Owner Noise Insulation Agreement
1. In partial consideration of the compensation to be paid on behalf of the
County and the Program for the Program Improvements to be made to the Property
described in the Agreement of even date herewith (the "Agreement") between the County
and Property Owner and to which this Exhibit D is attached, the undersigned, for and on
behalf of the undersigned and the heirs, personal representatives, successors, and
assigns of the undersigned, forever releases, remises, discharges, indemnifies and
covenants not to sue, institute claims against, or institute any proceedings against, the
County, or any of its agents, officers, employees, consultants and/or contractors
concerning any and all claims, demands, damages, actions or causes of action of
whatsoever kind and nature on account of bodily injuries or death, damage to the property,
and the consequences thereof, and any of the foregoing which may accrue to the
undersigned or their respective heirs, personal representatives, successors and assigns in
connection with any and all Pre-Existing Deficiencies (the "Deficiencies") against said
County or any of its officers, agents, employees, consultants and/or contractors to be
legally liable.
2. The Property Owner understands and assumes full responsibility for the
Deficiencies present in the Property, whether visible to the Program Manager or unseen.
3. The Property Owner understands that the Deficiencies include any
deficiencies present in the Property at the time of execution of this Agreement which could
include, but not be limited to, code violations, structural damage, water / moisture
damage, hazardous materials, infestation and/or any issue that would negatively impact
the installation and performance of the Program Improvements.
4. If visible, the Property Owner understands that the Program Manager may
identify and document Deficiencies at any time throughout the Program process
(including design, bid and construction processes). If identified and documented, the
Program Manager will classify the observed Deficiencies as either "Minor" or "Severe".
5. The Property Owner assumes full responsibility for the worsening of any
documented Minor Deficiencies.
6. In the rare event "Severe" Deficiencies are identified during the design
process, the Property Owner agrees to complete necessary repairs to the Property, to
the acceptance of the Program Manager, as a precondition to the commencement of
construction of the Program Improvements. In the rare event that "Severe" Deficiencies
are uncovered during the construction period, the Property Owner agrees to complete
Exhibit D-Property Owner Noise Insulation Agreement Page 24 of28
necessary repairs to the Property, to the acceptance of the Program Manager to
minimize any delay or stoppages of work.
7. The undersigned acknowledge and agree that all of the release and hold
harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit D apply to
property damage, injuries, deaths, or damages arising from the Deficiencies and/or all
negative impacts that later result after the addition of the Program Improvements. The
provisions of this Exhibit D shall survive the termination or expiration of the Property
Owner Noise Insulation Agreement.
8. The undersigned hereby agree that the terms and provisions of this Exhibit
D shall be binding upon and inure to the benefit of the undersigned and their respective
heirs, personal representatives, successors and assigns.
WI NE SE : PROP TY OWNER:
Si a rr ( IMtiC.J�-
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Signature
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Printed Name
WITNESSES: PROPERTY OWNER:
Signature
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Printed Name
Printed Name
Signature
Date
Printed Name
WITNESSES: PROPERTY OWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28
VENTILATION HOLD HARMLESS AGREEMENT
Exhibit E
To
Property Owner Noise Insulation Agreement
1. In partial consideration of the compensation to be paid on behalf of the
County and the Program for the Program Improvements to be made to the Property
described in the Agreement of even date herewith (the "Agreement") between the County
and Property Owner and to which this Exhibit E is attached, the undersigned, for and on
behalf of the undersigned and the heirs, personal representatives, successors, and
assigns of the undersigned, forever releases, remises, discharges, indemnifies and
covenants not to sue, institute claims against, or institute any proceedings against, the
County, or any of its agents, officers, employees, consultants and/or contractors
concerning any and all claims, demands, damages, actions or causes of action of
whatsoever kind and nature on account of bodily injuries or death, damage to the
property and the consequences thereof, and any of the foregoing which may accrue to
the undersigned or their respective heirs, personal representatives, successors and
assigns in connection with any and all Ventilation Deficiencies (the 'Deficiencies') against
said County or any of its officers, agents, employees, consultants and/or contractors to be
legally liable.
2. The Program Improvements may include the addition of acoustical
windows and doors, removal and infilling of "through-wall" portable air conditioner units
and the addition of a replacement ductless "mini-split" air conditioning system. Because
these modifications will result in a tighter interior environment due to the elimination of
all passive inside / outside air leakage that was naturally occurring in all openings, the
Program will also include the addition of a energy recovery ventilation (ERV) unit which
will provide an adequate exchange of inside / outside air to the condominium as
required by building code.
3. Given the tightened interior environment of the treated condominium, the
Property Owner agrees to assume full responsibility for the proper operation of the new
Program ductless AC system and energy recovery ventilation (ERV) unit to avoid the
potential for mold and moisture problems, especially during periods when the
condominium is closed and uninhabited.
4. Due to FAA eligibility limitations, the Program will not be providing
bathroom exhaust fan treatments. Since bathroom tubs and/or showers are a source of
moisture generation in the interior environment of a condominium, the Property Owner
agrees to assume full responsibility for ensuring that all bathrooms have an operable
bathroom exhaust fan capable of properly exhausting bathroom moisture to the exterior
of the building. It should also be noted that the original KWBTS condominiums were
constructed with a small wall vent that was designed to allow the passive exhaust of
Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28
bathroom moisture in a central building exhaust shaft. During the Program design
survey process it was discovered the KWBTS buildings lack a solid central building
exhaust shaft. Due to this existing condition, these original wall vents (if still present)
have the potential to provide a pathway for unwanted air, smoke and/or gases into the
condominium interior. The Property Owner agrees to assume full responsibility for the
sealing of original wall vents in all bathrooms and for any and all negative impacts that
may result if left untreated.
5. It is clearly a building code violation to duct laundry dryer exhaust to the
KWBTS central exhaust shaft. In the event a Property Owner has incorrectly ducted
their laundry dryer vent to the KWBTS central building exhaust shafts, they agree to
correct this deficiency by properly exhausting their laundry dryer exhaust in an
alternative method that meets current building code, at their cost before the initiation of
the Program construction process. Furthermore, the Property Owner agrees to assume
any and all liability related to the improper ducting of their laundry dryer exhaust.
6. The Property Owner understands that the Program Improvements will not
address kitchen and bathroom ventilation and/or excessive interior humidity levels
generated by the Property Owner within the interior of the condominium. The Property
Owner understands and assumes full responsibility for maintenance of interior moisture
and humidity levels. The Property Owner agrees to assume full responsibility for any
occurrence, reoccurrence or worsening of moisture problems and/or interior humidity
levels in the Property. In addition, the Property Owner agrees to assume full
responsibility for the maintenance and operation of the NIP venting modifications after
completion of the Program Improvements.
7. The undersigned acknowledge and agree that all of the release, hold
harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit E apply to
injuries, deaths, or damages sustained in connection with or as a result of any and all
interior ventilation deficiencies arising after the addition of the Program Improvements
including, but not limited to, high humidity, mold, mildew,-and/or lack of proper exhaust
ventilation. The provisions of this Exhibit E shall survive the termination or expiration of
the Property Owner Noise Insulation Agreement.
8. The undersigned hereby agree that the terms and provisions of this
Exhibit E shall be binding upon and inure to the benefit of the undersigned and their
respective heirs, personal representatives, successors and assigns.
WIT ES � P O�NER:si _
' ^ Signe ure
Printed Name I ^,.
�7[//Jv,{`//// lei Printed Name
(�,wY Ci
Signature -2124
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freo(er: Jk H� t`. )•, Date
,
Printed Name
Exhibit E-Property Owner Noise Insulation Agreement Page 27 of28
WITNESSES: PROPERTY OWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
WITNESSES: PROPERTY OWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28