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Item K1 K.1 Coty f � ,�� ,' BOARD OF COUNTY COMMISSIONERS �� Mayor David Rice,District 4 The Florida Keys � Mayor Pro Tem Craig Cates,District I y Michelle Coldiron,District 2 James K.Scholl,District 3 Ij Holly Merrill Raschein,District 5 County Commission Meeting October 19, 2022 Agenda Item Number: K.1 Agenda Item Summary #11120 BULK ITEM: Yes DEPARTMENT: Airports TIME APPROXIMATE: STAFF CONTACT: Richard Strickland(305) 809-5200 N/A AGENDA ITEM WORDING: Approval of Avigation Easements and Property Owner Noise Insulation Agreements for sixteen (16) units at Key West by the Sea that are participating in the Key West International Airport Noise Insulation Program (NIP) Construction Project- Final Phase. ITEM BACKGROUND: This agenda item is for the approval of Avigation Easements and Property Owner Noise Insulation Agreements for sixteen (16)participating units included in the final phase at Key West by the Sea. A list of the sixteen (16)units is attached. The Avigation Easements are a BOCC condition of participation in the NIP and all property owners who desire to participate in the NIP also enter into the Property Owner Agreement. One of the sixteen (16) units (B 105) has an existing Avigation Easement that was previously approved and recorded. This unit was originally scheduled to be constructed in an earlier phase but dropped out at the last minute. The Avigation Easement was not rescinded and is still valid and in effect. The owner of this unit was required to execute a new Property Owner Agreement, so, there are fifteen (15) Avigation Easements and sixteen (16)Property Owner Agreements included in this agenda item. The objective of this project is to reduce interior noise levels generated by exterior aircraft operations for neighboring residents whose homes qualify for the FAA-approved Noise Insulation Program. Qualification is based on the FAA-approved 14 CFR Part 150 Noise Compatibility Program and associated Noise Exposure Map, and pursuant to AIP Handbook Appendix R and other related federal requirements. PREVIOUS RELEVANT BOCC ACTION: On February 16, 2022, the BOCC granted approval to advertise for bids and the bid opening was held April 26, 2022. On September 21, 2022 the BOCC approved the following agenda items: 1. FAA NIP Grant 37-71; 2. Award of bid/contract to DEC Contracting Group, Inc. 3. Approval of PSO 48 with THC for construction management& administration; and 4. Jacobs Project Managements Co's PSO 2022-11 for Airport Noise Program Coordinator Packet Pg. 2755 K.1 services. CONTRACT/AGREEMENT CHANGES: New Avigation Easements and Property Owner Agreements STAFF RECOMMENDATION: Approval DOCUMENTATION: AVIGATION EASEMENT A 10 1 AVIGATION EASEMENT A201 AVIGATION EASEMENT A208 AVIGATION EASEMENT A401 AVIGATION EASEMENT A603 AVIGATION EASEMENT A605 AVIGATION EASEMENT B208 AVIGATION EASEMENT B307 AVIGATION EASEMENT B309 AVIGATION EASEMENT B405 AVIGATION EASEMENT B611 AVIGATION EASEMENT C115 AVIGATION EASEMENT C211 AVIGATION EASEMENT C219 AVIGATION EASEMENT C317S PROPERTY OWNER AGREEMENT A 10 1 PROPERTY OWNER AGREEMENT A201 PROPERTY OWNER AGREEMENT A208 PROPERTY OWNER AGREEMENT A401 PROPERTY OWNER AGREEMENT A603 PROPERTY OWNER AGREEMENT A605 PROPERTY OWNER AGREEMENT B 105 PROPERTY OWNER AGREEMENT B208 PROPERTY OWNER AGREEMENT B307 PROPERTY OWNER AGREEMENT B309 PROPERTY OWNER AGREEMENT B405 PROPERTY OWNER AGREEMENT B611 PROPERTY OWNER AGREEMENT C115 PROPERTY OWNER AGREEMENT C211 PROPERTY OWNER AGREEMENT C219 PROPERTY OWNER AGREEMENT C317S List FINANCIAL IMPACT: Effective Date: Expiration Date: Packet Pg. 2756 K.1 Total Dollar Value of Contract: 0 Total Cost to County: 0 Current Year Portion: Budgeted: n/a Source of Funds: n/a CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: n/a If yes, amount: Grant: County Match: Insurance Required: No Additional Details: REVIEWED BY: Beth Leto Completed 09/17/2022 5:09 PM Richard Strickland Completed 10/04/2022 10:28 AM Pedro Mercado Completed 10/04/2022 11:15 AM Purchasing Completed 10/04/2022 11:16 AM Budget and Finance Completed 10/04/2022 11:22 AM Brian Bradley Completed 10/04/2022 11:23 AM Lindsey Ballard Completed 10/04/2022 11:38 AM Board of County Commissioners Pending 10/19/2022 9:00 AM Packet Pg. 2757 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of MACLk n 20 by"SHEILA A. BARBER", hereinafter referred to as"the Property Owner,' in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 U) located in Monroe County, Florida, more particularly described as follows: LO i Apartment Unit Known as Unit 101-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. also identified as street address: "2601 S. Roosevelt Blvd., UnitA101 B. The BOCC 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 Owner's 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. �......_— ..... _.... ._.......— �...... ... Key West International Airport NIP—Avigation Easement(Unit#A101) Page 1 of 4 Packet Pg. 2758 K.1.a E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. �- 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 od 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: LO i 1. 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#A101) Page 2 of 4 Packet Pg. 2759 K.1.a 4. 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 or the person on the property. 5, 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. & No provision of this Agreement is to be interpreted for or against any party because that party or that party'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 waived unless in writing. Waiver of W any one breach of any provision of this Agreement shall not be deemed to be a waiver od of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 CD It- 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. & In the event the Airport shall be subdivided into more than one parcel, or the Airport or a 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. E 9. 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. ..._. ......_. ...... a . Key West International Airport NIP Avigation Easement(Unit#A101) Page 3 of 4 Packet Pg. 2760 K.1.a This Easement Agreement is executed as of the date first above written.. _... ............................_ ...... ....... PROPERTY OWNER: PROPERTY OWNER Signature Signature r Printed Name Printed Name Date Date cu STATE OF i010A COUNTY OF Subscribed and sworn to(or affirmed) before me, by means of 2Pohysical presence or❑online notarization, < on (date) by (name of affiant). He/She is personally known to me or has produced 1 U (type of identification) as identification. LO i Notary Pudic state or Florid. lef Kristine MsrshaM r my Comm4sicn HH 055M ow aw Expirae 10121IM24 NOTARY PUBLIC ............. ........ ....... ..........----......_ MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date -661 so S w v RCADO Cate ............ KeyWes..... ....... ._ .....�...W ... �... .................... _ ..... .t International Airport NIP—Avigation Easement(Unit#A101) Page 4 of 4 Packet Pg. 2761 Pure are 'By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEIVIENT Key West International Airport Noise Insulation Program THIS ASEMENT AGREEMENT is entered into this �-) day of 20 � by "MICHAEL HALPERN, as Trustee of the MICHAEL HAL ERN REVOCABLE TRUST", hereinafter referred to as"the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." RECITALS: od U) A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: LO I Apartment Unit Known as Unit 201-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. N also identified as street address: "2601 S. Roosevelt Blvd., Unit A201 B. The BOCC 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 Owner's 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. Key West International Air ort NIP—Avi ation Ea _f4 p g Easement(Unit#A201) Page 1 of 4 Packet Pg. 2762 K.1.b E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL CL 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals W set forth above, the Property Owner and the BOCC agree as follows: LO I 1. 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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. ._.- . ....... . ........... . 2 Page . Key West International Airport NIP—Avigation Easement(Unit#A201) Pa g of 4 Packet Pg. 2763 K.1.b 4, 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 or the person on the property. 5, 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 thatCL party or that party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver od of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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. IfCN 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 a 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. 9. 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#A201) Page 3 of 4 Packet Pg. 2764 K.1.b This Easement Agreement is executed as of the date first above written. PROPERTY 0 NE PROPERTY OWNER: Signature Signature Printed Name 41 Printed Name pate Date STATE OF Ze�e'/.Q fl COUNTY OF Mµw Subscribed and sworn to(or affirmed)before me, by means of Erphysical presence or❑online notarization, U) on (date) by c� 06 (name of affiant). He/She is personally known to me or has produced U) (type of identification) as identification. py N"Wy Oulk 1**,of FWWO PON Ju Ju AL 11 aw= NOTARY PUBLIC CN _...... ...... _ ...... ._ _.m._ �.. ..�.... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date Ou' TTO . PEDRO MEA DO , S'SIS i 9at _ _. .. ..... Key West International Airport NIP—Avigation Easement(Unit#A201) Page 4 of 4 Packet Pg. 2765 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this D day of )l 20 , by "ANDREA LYNN MARION", hereinafter referred to as"the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: od A. The Property Owner is the fee simple titleholder to certain real property ("the Property") U) located in Monroe County, Florida, more particularly described as follows: LO I Unit No. 208-A, Atlantic Tower, in 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 00 Records of Monroe County, Florida. N also identified as street address: "2601 S. Roosevelt Blvd., Unit A208 B. The BOCC 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 Owner's 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. Key West International Airport NIP—Avigation Easement(Unit#A208) Page 1 of 4 Packet Pg. 2766 K.1.c E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL _ 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 od 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: LO I 1. 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 N 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#A208) Page 2 of 4 Packet Pg. 2767 K.1.c 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of od any one breach of any provision of this Agreement shall not be deemed to be a waiver U) 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 LO 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 00 CD remaining provisions do not materially alter the rights and obligations of the parties. If CN 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 a 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. 9. 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#A208) Page 3 of 4 Packet Pg. 2768 K.1.c This Easement Agreement is executed as of the date first above written. PR Y O N : PROPERTY OWNER: Si natu Signature (� �'� (�1� rirr@ed Na a Printed Name Date Date LL STATE OF COUNTY OF Z U) Subscribed and sworn to(or affirmed)before me, by means of physical presence or Donline notarization, CL on L (date) by C Vk&l - od (name of affiant). He/She i�`ersonaily known me or has produced U) (type of identification) as identification. ,` LOx VANESSA C.SOWERS Commission#HH 154698 Expires November'16,2025 00 exr NOTARY PUBLIC CN MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date E GNU TlO NEY of w o J. I &CADO ASSISTANT fat P � Key West International Airport NIP—Avigation Easement(Unit#A208) Page 4 of 4 Packet Pg. 2769 Pre aced By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of l 20�, by"DOMINIQUE SELLIER", hereinafter referred to as"the Property Owne ," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: V- od A. The Property Owner is the fee simple titleholder to certain real property ("the Property") U) located in Monroe County, Florida, more particularly described as follows: LO Unit No. 401-A, Atlantic Tower, in 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, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit A401" B. The BOCC 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 Owner's 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. KeyWest International Airport NIP—Avigation Easement(Unit#A401 ......_ ) Page 1 of 4 Packet Pg. 2770 K.1.d E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL _ avigation easement, on terms as hereinafter set forth. NOW THEREFORE,for and in consideration of the improvements to be made to the Subject od Property through the NIP the receipt and adequacy of which is hereby acknowledged by both U) parties, and in consideration and incorporation into this Avigation Easement of the recitals LO set forth above, the Property Owner and the BOCC agree as follows: 1. 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 W 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being en 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, employees 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. _ _ _ .........- y p mm g sement(Unit#A401 � Ke West International Airport NIP—Avi ation Ea ) Page 2 of 4 Packet Pg. 2771 K.1.d 4. 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 or the person on the property. 5. 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 party's legal representative drafted such provision. This Agreement shall be U) interpreted and construed according to the laws of the State of Florida. 7. No breach of any provision of this Agreement may be waived unless in writing. Waiver of od any one breach of any provision of this Agreement shall not be deemed to be a waiver U) of any other breach of the same or any other provision of this Agreement. This Agreement LO 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 a 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. c� 9. 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—Avi ation Easement(Unit #A401) Page 3 of 4 Packet Pg. 2772 K.1.d This Easement Agreement is executed as of the date first above,written. . ...-... . _ ._....... . ...... ._ _ _ �....._. PROPERTY O ER �.. ... PROPERTY OWNER. Signature Signature Ptuwlt d Name Printed Name v Date Date STATE OF COUNTY OF f'- 1) Subscribed and sworn to(or affirmed) before me, by means of Ffphysical presence or❑online notarization, CL on (date) by 't 06 (name of affiant). He/She is personally known to me or has produced 1) (type of identification) as identification. LO NOWY PUTAC State of Flonda �y J SWA i_ w0pl . r r o F:.pres 0612112025 NOTARY PUBL IC MONROE COUNTY BOARD O _.... _ _ _ ..._ _ ..m._.... ....... F COUNTY COMMISSIONERS. (Seal) MAYOR / CHAIRMAN; Attest: KEVIN MADOK, CLERK By, As Deputy Clerk Signature Date _. .._.. ........ OOU ....... ..... .._. ._.... _ NE late ......... _ _ ....... ....... ........ Key West International Airport NIP—Avigation Easement(Unit#A401) Page 4 of 4 Packet Pg. 2773 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of " 20 g by "THOMAS R. SCHMITT, as Trustee of the THOMAS R. SCHMITT REVOCABLE TRUST", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: od A. The Property Owner is the fee simple titleholder to certain real property ("the Property") W located in Monroe County, Florida, more particularly described as follows: LO i Unit No. 603-A, Atlantic Towers, in 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, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit A603 B. The BOCC 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 Owner's 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. .ITITITITIT ......— (U Key West International Airport NIP—Avigation Easement � _ ....� IT— ....nit#A603) Page 1 of 4 Packet Pg. 2774 K.1.e E. The Property Owner desires to participate in the NIP and has entered into a Property Owner Noise Insulation Agreement with the BOCC. The BOCC's implementation of the NIP will benefitthe 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, 2013. �- 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 CL CL 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 06 W 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: LO i 1. 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#A603) Page 2 of 4 Packet Pg. 2775 K.1.e 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of W any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 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 LO time of the modification. In the event that any one or more covenant, condition or i V- 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. & In the event the Airport shall be subdivided into more than one parcel, or the Airport or a 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. 9. 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#A603) Page 3 of 4 Packet Pg. 2776 K.1.e This Easement Agreement is executed as of the date first above written. _� ... ....._ _....._ PR E Y OWN PROPERTY OWNER. u Sagrttwre t Signature _m Printed Na; Printed Name :31 QM/ Date Date STATE OF F LO r-1 _ COUNTY OF ,. Subscribed and sworn to(or affirmed) before me, by means of physical presence or❑online notarization, U) on 3 �a (date) by l (/ ( p y known to me' r has produced U) name of affiant . H She Is t�sortal� (type of Identification) as Identification. LO TINA MASTERS ��Commission k GG237836 0 i4W P m . %* k My Commission ExpiresI July 12, 2022 NOTARY PUBLIC M ....... .................._..._ ..........._. _ ... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date ROE OOU TT Ny P .M PEDA011 . ACADO ASSISTANT 'U A Data 7 . EY Ke West International Air ort NIP—Avi ation Easement(Unit#A _,....._ ....— _.._y ........ p g ...603) Page 4 of 4 Packet Pg. 2777 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this h` day of 20 1� ! by"GARY R. ONDERDONK and DIANE M. ONDERDONK", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: V- A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 located in Monroe County, Florida, more particularly described as follows: LO i Unit No. 605-A, Atlantic Tower, in 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 91 Records of Monroe County, Florida. ` also identified as street address: "2601 S. Roosevelt Blvd., Unit A605 B. The BOCC 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 Owner's 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. Key West International Airport_ ........_ .�..._.. ................�.....,. ..... NIP—Avigation Easement(Unit#A605) Page 1 of 4 Packet Pg. 2778 K.1.f E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. �- 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 CL CL 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals W set forth above, the Property Owner and the BOCC agree as follows: LO i 1. 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 useLO 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#A605) Page 2 of 4 Packet Pg. 2779 K.1.f 4. 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 or the person on the property. 5. 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. & No provision of this Agreement is to be interpreted for or against any party because that party or that party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 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 LO time of the modification. In the event that any one or more covenant, condition or i V- 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 theLO CD 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. & In the event the Airport shall be subdivided into more than one parcel, or the Airport or a 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. 9. 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. KeyWest International Airport NIP— — _............ _._ ..._ p Avigation Easement(Unit#A605) Page 3 of 4 Packet Pg. 2780 K.1.f This Easement Agreement is executed as of the date first above written.. _..... . P ERTY NE : PROPERT�O"II'�NER: " ry Signature grra ure Printed Name ' Prin ed Name Date Date STATE OF �� f _ COUNTY OF Subscribed and sworn to(or affirmed) before me, by means of-t physical presence or❑online notarization, r) on i ar �(date) by v� k (name of affiant). He/She is personally known to me or has produ (type of identification) as identification. �; ,O e wtw,wr "" ., RUTH BREVIL ;"`fir ' Notary Public State of Florida Commission#GG 922494 ', areti My Commission Expires December 09,2023 LO NOTARY PUBLIC CD �MONROE COUNTY BOARD __..- _....._. OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN:. Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date _......__... . .... .. MQN OE COUNTY Tt R SSP'STNT D to Ke West International Air ort NIP—Avi ation Easement Unit#A605 Page y p g � � 4of4 Packet Pg. 2781 Pre aced By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered unto this day off..... 20 , by "BRIDGET HALPIN and RAYMOND HALPIN", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 located in Monroe County, Florida, more particularly described as follows: W LO I Unit No. 208-B, Gulfstream Tower, in 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 91 00 Records of Monroe County, Florida. N also identified as street address: "2601 S. Roosevelt Blvd., Unit B208 B. The BOCC 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 Owner's 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. ._. — ......... ................._. ................... .... Key West International Airport NIP—Avigation Easement(Unit#13208) Page 1 of 4 Packet Pg. 2782 K.1.g E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. �- 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 CL CL 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 06 W 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: LO i 1. 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 use00 of the Easement shall include the right to generate and emit noise and to cause other N 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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 _.�. _._._... ort NIP—Avigation Easement(Unit#B208) Page 2 of 4 Packet Pg. 2783 K.1.g 4. 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 or the person on the property. 5. 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. & No provision of this Agreement is to be interpreted for or against any party because that party or that party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 00 remaining provisions do not materially alter the rights and obligations of the parties. If CD CN 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 a 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. 9. 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#B208) Page 3 of 4 Packet Pg. 2784 K.1.g This Easement Agreement is executed as of the date first above written. .... .. ...... ..... ....._ _.._.._ _. ..__ PROPERTY OWNER: PROPERTY OWN Signature Signature Printed Na a Printed Name `27 Gate gate STATE OF COUNTY OF 't " l Subscribed and sworn to(or affirmed)before me, by means of LEI physical presence or❑online notarization, U' CL on ut)V (date) by06 1( i (name of affiant). He/She is personally known to me or has produced U) (type of identification) as identification. LO I ,rax Of, Notary Public State of Florida Jessica L Wallace My Commission HH 127202 * r+ Expires 05121/2025 00 NOTARY PUBLIC Q ................ _.. .. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN.: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date �.�... E Ey prDs t EA ,7/1- ZL ....... ........ _.._... .....- ..__...�.. ........ Key West International Airport NIP—Avigation Easement(Unit#B208) Page 4 of 4 Packet Pg. 2785 Prepared By and Return To;. Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this - day of d-jvNtL 0 20 ?.. by"PHYLLIS ANNETTE STOUT", hereinafter referred to as"the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: T- A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 W located in Monroe County, Florida, more particularly described as follows: LO Unit No. 307-13, Gulfstream Tower, in KEY WEST BY THE SEA, a Condominium, together with an IV- 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, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B307 B. The BOCC 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 Owner's 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. _.................... _.... ......_ ................... ...... .._ Key West International Airport NIP—Avigation Easement(Unit#13307) Page 1 of 4 Packet Pg. 2786 K.1.h E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. G. The NIP will be administered in accordance with the current FAA Order 5100.38, Airport n_ Improvement Program Handbook. H. It is the purpose of this Easement Agreement to grant to the BOCC a perpetual CL 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals W set forth above, the Property Owner and the BOCC agree as follows: LO I 1. 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#B307) Page 2 of 4 Packet Pg. 2787 K.1.h 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver od of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 a 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. E 9. 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. KeyWest International Airport NIP—Avi atiomm .....,.3 p g n Easement(Unit#B307) Page 3 of 4 Packet Pg. 2788 This Easement Agreement is executed as of the date first above written. ----............ ...................... .. ......... ....... ............................... PROPE�R'Y OWNER: PROPERTY OWNER: Signatd're I Signature r L 'Printed Name' Printed Name z Z. Date Date STATE OF )P— 6,4 U- COUNTY OF Z Subscribed and sworn to(or affirmed) before me, by means of Mephysical presence orElonline notarization, U) 0 4,5 A 57007- a. on (date b 17 (date (name of affiant). He/She is Cersonally known t 'me or has produced od U) W (type of identification as identification. LO MARIA ELENA PELLON Notary Public-state of Florida GG 9126759] Commission 2024 A 22,2024 of lee, my comm.Expires Feb 22,2024 >- Bonded through National Notary A",. NOTARY PUBLIC Cn ...... ......---.................. ................ Z MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W 2 W (Seal) MAYOR CHAIRMAN: W Attest: Z 0 KEVIN MADOK, CLERK By: As Deputy Clerk Signature E Date .............. ............ ......................... OE COUNTY NEY P AS ST T EY Date ................ Key West International Airport NIP—Avigation it#13307) Page 4 of 4 1 Packet Pg. 2789 �'r area a and Return T0: Heather P. Faubert �. NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this j� day of 20 21A, by"WILLIAM WOOLSEY and CAROL WOOLSEY", hereinafter referred to as"the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: V- A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 located in Monroe County, Florida, more particularly described as follows: W LO Unit No. 309-B, 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, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B309 B. The BOCC is the owner and operator of Key West International Airport("the Airport"') and desires to mare 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 Owner's 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. .o..__ .....� ... _ �.._..._.. Key West International-Airport NIP.1—Avigation. Easement. (Unit#B309) Fa—gel of 4 Packet Pg. 2790 K.1.i E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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. U) 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals U) set forth above, the Property Owner and the BOCC agree as follows: LO I 1. 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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„ employees 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—Avi Page 2 of 4 gation Easement(Unit#6309) Packet Pg. 2791 K.1.i 4. 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 or the person on the property. 5. 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 party's Illegal representative drafted such provision. This Agreement shall be interpreted and construed according to the laws of the State of Florida. U) 7. No breach of any provision of this Agreement may be waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver od of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 a 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. E 9. 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_ i. -r P _...._. 9 .�..._n( ) ._ Page 3 of 4. West International Air ort NIP—Avi ation Easement Unit#6309 Packet Pg. 2792 K.1.i This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: PLOP TY OWE R Signatu re Signature: g �� A&I A ?/)1 l '- �o L �00 0(f Printed Name � Panted Name Date Date STATE OF � Ov � - T _ ,. . COUNTY OF Subscribed and sworn to(or affirmed) before me, by means of 12physical presence or❑online notarization, U). ?r (date) by (name of affiant). He/She is personally known to me or has produced 06 (type of identification) as identification. LO I Nowny Pub4c State of Flonda Jeswm L Walla " 4,y E)q 06121=25 W Rif Vw NOTARY PUBLIC M _.. m ... ....... .......� .. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN Attest: KEVIN MADOK, CLERK By As Deputy Clerk Signature c� ........ Date ��O COUNTY t EY Sit Dates _. ........... .._.�_ Key West International Airport NIP—Avigation Easement(Unit#13309) Page 4 of 4 Packet Pg. 2793 Prepared Bv and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program S AGREEMENT is entered into this, ay of 20 EASEMENT�, by "LORIA. FOGARTY, TRUSTEE of the LORI A. FOGARTY REVOCABLE � � TRUST AGREEMENT", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and _ corporate, hereinafter referred to as "BOCC." U) RECITALS: T- od U) A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: LO Unit No. 405-B, Gulfstream Tower, in 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 LO Records of Monroe County, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B405 B. The BOCC 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 Owner's 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. Key West Internationai..Ai ""......a"—m""..."n""_ �.__. _.._. _... _.. Arport NIP—Avigation Easement(Unit#13405) Page I of 4 Packet Pg. 2794 K.1.j E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL CL 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 od 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: LO I 1. 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 useLO 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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. KeyWest International Airport NIP—Avi ation Easement Unit#B405 Page 2 P 9 � ) g of 4 Packet Pg. 2795 K.1.j 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of V- any one breach of any provision of this Agreement shall not be deemed to be a waiver od 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 LO time of the modification. In the event that any one or more covenant, condition or V- 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 LO CD 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 a 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. 9. 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#B405) Page 3 of 4 Packet Pg. 2796 K.1.j This Easement Agreement is executed as of the date first above written. ...._�_ .......... ..... PROP TY OWNER: PROPERTY OWNER: ... ......_ ........... �. ature Signature Printed Name Tinted Name Date Date STATE OF COUNTY OF M IN) E-7 Subscribed and sworn to(or affirmed)before me, by means of Ej physical presence or❑online notarization, a) on ° J �(date) byod (name of affiant). He/She is personally known to me or has produced ) (type of identification) as identification. LO gar F-(" Notary Pubhc Stater of Honda Jesmoa L Wall am gs My commission n HH t27202 Expires 051211202 NOTARY PUBLIC LO _........... _. ...................... ............ .................. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date ..........._ ._ ..._ ..... _.. _..... � ..._... IW. COU1 0 ,` EIS PODRO J. EFIC ASSISTANT 00 A ......._ ........ ............... ......... _..� Key West International Airport NIP—Avigation Easement(Unit#B405) Page 4 of 4 Packet Pg. 2797 Prepared By and Return To: Heather P. Faubert F K.1.k NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this day of 20 ; by "WARREN S. ROSENFELD and DANA L. ROSENFELD", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: V- A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 located in Monroe County, Florida, more particularly described as follows: LO Unit No. 611-B, Gulfstream Tower, in KEY WEST BY THE SEA, a Condominium, together with an It- 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, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit B611 B. The BOCC 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 Owner's 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. ....... ...... .......... ......... ....... .. ....----...... Key West International Airport NIP—Avigation Easement(Unit#B611) Page 1 of 4 Packet Pg. 2798 K.1.k E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. �- 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 CL CL 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 06 W 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: LO i 1. 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 It- 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 activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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. KeyWest International Ai ..................... . .......Airport NIP—Avigation Easement(Unit#B611) Page 2 of 4 Packet Pg. 2799 K.1.k 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 V- 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 a 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. 9. 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. Airport. _ ... ............._ ......... ........_.._. ......_.......�... ...._._.— KeyWest International NIP—Avigation Easement(Unit#B611) Page 3 of 4 Packet Pg. 2800 This Easement Agreement is executed as of the date first above written. ............... PR PERTY OW R ;PROP7TY 0 N R R�C A ............. Sign i g n 41 ,re -- ignature Z�W — _T�AI?9 /-- I Printed Name Printed Name Date Date Ma land STATE OF VJ o rt-cs4e-r- COUNTY OF Z Subscribed and sworn to(or affirmed) before me, by means of 0'physical presence or online notarization, U)< o2 on CL (date) byWareen Dam.... 12p_q_-n-PJ4 S W (name of affiant). He/She is personally known to me or has produced 1 06 1-1 Vu,< ILan-au— U) W Iss ct < (type of identification) as identification. LO W \j NOTARY PUBLIC ............ ............. .......................................... ....... Z ............................................... W MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: 2 W (Seal) MAYOR CHAIRMAN: W Z Attest: 0 KEVIN MADOK, CLERK By: As Deputy Clerk Signature E ...................... Date ..................... ....... a COU NEY AP PEDROJ ER ASSSIST�W" Date-, Z"L ........................__........... Key West International Airport NIP-Avigation Easement(Unit#B611) Page 4 of 4 1 Packet Pg. 2801 Pre ar d,Bv and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this i0day of 20 f', by "BRIAN L. HILL and SUSAN M. HILL, TRUSTEES of the HILL FAMILY TRUST", hereinafter referred to as"the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: od U) A. The Property Owner is the fee simple titleholder to certain real property ("the Property") located in Monroe County, Florida, more particularly described as follows: LO i Unit No. 115-C, Coral Bay Gardens, in 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 LO Records of Monroe County, Florida. U also identified as street address: "2601 S. Roosevelt Blvd., Unit C115 B. The BOCC 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 Owner's 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. .. ...................... Key West International Airport NIP—Avigation Easement(Unit#C115) Page 1 of 4 Packet Pg. 2802 K.1.1 E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL CL 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals W set forth above, the Property Owner and the BOCC agree as follows: LO i 1. 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 LO 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 U property. This Easement shall apply to all such aircraft activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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. ....... ........ _. m....._ _ ...__.._ �. Key West International Airport NIP—Avigation Easement(Unit#C115) Page 2 of 4 Packet Pg. 2803 K.1.1 4. 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 or the person on the property. 5. 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. & No provision of this Agreement is to be interpreted for or against any party because that party or that party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 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 LO time of the modification. In the event that any one or more covenant, condition or i V- 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 theLO remaining provisions do not materially alter the rights and obligations of the parties. If IC- 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 a 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. 9. 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—Avi ation E _ f.......... y p g asement(Unit#C115) Page 3 of 4 Packet Pg. 2804 K.1.1 This Easement Agreement is executed as of the date first above written.. ....... ....._ ...........�.. ...... _... __...._ ...... ....._.._ PROPERTY OWNER: PROPERTY OWNER: Signature Signature Printed Name -Printed Name Date Date STATE OF \ \ ,- COUNTY OF Subscribed and sworn to(or affirmed) before me, by means of physical presence or❑online notarization, U) � on � � �� (date) by � Tl U: c1�CL .. 06 (name of affiant). He/She is personally known to me or has produced U) (type of identification) as identification. LO Notary PuWic State of Flowa, w MY 1 41P1"9dS$40 4 HH 12'7202 � NOTARY PUBLIC 'I- T- ....... ._..:...... ..............._....... ....... U ........_.._. ... ...._ MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date 1n "N Ct U OR E PE-D J, Rc Date ............. _W_......._. _...... .... . ...... ._........._.. Key West International Airport NIP—Avigation Easement(Unit#C115) Page 4 of 4 Packet Pg. 2805 Pre ared and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this 3b day of 20'z--Z---by"JILL R. KEELER", hereinafter referred to as"the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 located in Monroe County, Florida, more particularly described as follows: LO Unit No. 211-C, Coral Bay Gardens, in KEY WEST BY THE SEA, a Condominium, together with an It- 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, Florida. also identified as street address: "2601 S. Roosevelt Blvd., Unit C211 U B. The BOCC 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 Owner's 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 E 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. KeyWest International Airport NIP Avi -p gation Easement(Unit#C211) Page 1 of 4 Packet Pg. 2806 K.1.m E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL CL 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals W set forth above, the Property Owner and the BOCC agree as follows: LO i 1. 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 N effects as may be associated with the operation of aircraft over or in the vicinity of the U property. This Easement shall apply to all such aircraft activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#C211) Page 2 of 4 Packet Pg. 2807 K.1.m 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 CN such condition, covenant or other provision shall be deemed invalid due to this scope or U 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 a 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. 9. 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. ....... ... ... ....... ............ y West International Airport NIP—Avigation Easement(Unit#C211) Page 3 of 4 Packet Pg. 2808 K.1.m This Easement Agreement is executed as of the date first above written. P7�7'__-_ ER: PROPERTY OWNER: Su nn lure Signature Printed Name Printed Name Date Date STATE OF ov o-� IL COUNTY OF M(A)21L Subscribed and sworn to(or affirmed) before me, by means of physical presence or❑online notarization, U) on ���� l �(date) by C� �l\ \e� 06 (name of affiant). He/She is personally known to me or has produced U) (type of identification) as identification. LO i ago"00 Notary Public State of Florida Jessica L Wallace •••• r My Commis-_HH 127202 " , Expires 05/21/2025 or NOTARY PUBLIC ...........�... ....... ........_ ......._._......_.. ......�..� ....... ..... ._ _ U MONROE COUNTY BOARD OF COUNTY COMMISSIONERS : (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date .._. . .. ._..... '0119E Go 0 NV ^ � P � o .. pEDROJ. RCA ASStS ,,T Date _ .._. _._._.. ........ .... ........ ._ .._ —. Key West International Airport NIP Avigation Easement(Unit#C211) Page 4 of 4 Packet Pg. 2809 Pre aced B and Return To: Heather P. Faubert F K.1.n NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into thisLd�ay of 20 Z?—, by"MARINA J. EPSTEIN", hereinafter referred to as"the Property O er," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: V- A. The Property Owner is the fee simple titleholder to certain real property ("the Property") 06 located in Monroe County, Florida, more particularly described as follows: LO Unit No. 219-C, Coral Bay Gardens, in KEY WEST BY THE SEA, a Condominium, together with an V- 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, Florida. N U also identified as street address: "2601 S. Roosevelt Blvd., Unit C219 B. The BOCC 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 Owner's 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. __.... . Key West International Airport NIP—Avigation Easement(Unit#C219) Page 1 of 4 Packet Pg. 2810 K.1.n E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL CL 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 06 parties, and in consideration and incorporation into this Avigation Easement of the recitals W set forth above, the Property Owner and the BOCC agree as follows: LO i 1. 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 U property. This Easement shall apply to all such aircraft activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#C219) Page 2 of 4 Packet Pg. 2811 K.1.n 4. 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 or the person on the property. 5. 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 party'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 waived unless in writing. Waiver of any one breach of any provision of this Agreement shall not be deemed to be a waiver 06 of any other breach of the same or any other provision of this Agreement. This Agreement W may be amended only by written instrument executed by the parties in interest at the LO 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 V- such condition, covenant or other provision shall be deemed invalid due to this scope or U 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 a 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. 9. 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#C219) Page 3 of 4 Packet Pg. 2812 K.1.n This Easement Agreement is executed as of the date first above written. PROPERTY OWNER: .......�..� ITITIT�PROPERTY 0�� WW������� ......... W � W WNER 'gig ataare Signature Alar� Printed Name int — Printed Name ZZ Date Date STATE OF !C" COUNTY OF w a s, � Subscribed and sworn to(or affirmed)before me, by means of&?physical presence or❑online notarization, on OS (date) by M ari,,)a— ✓� CL (name of affiant). He/She is personally known tome or has produced d CV16 f�_ 06 U) (type of identification) as identification, LO lA l I VV > NOTARY PUBLIC ' c� MONROE COUNTY . BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature Date ._......-........ ..... ..... ........... �... ...... _..__. p O SOU BE P CtU Oat Key West International Airport NIP—Avi ation Easement ..._ ..._ _......_ p g (Unit#C219) Page 4 of 4 Packet Pg. 2813 Prepared By and Return To: Heather P. Faubert NIP Assistant Project Manager THC, Inc. 3300 Breckinridge Blvd., Suite 200 Duluth, GA 30096 AVIGATION EASEMENT Key West International Airport Noise Insulation Program THIS EASEMENT AGREEMENT is entered into this 16 day of / v1Atci4 , 200 2 , by "BARBARA YOUNGMAN", hereinafter referred to as "the Property Owner," in favor of the MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, a body politic and corporate, hereinafter referred to as "BOCC." U) RECITALS: 06 A. The Property Owner is the fee simple titleholder to certain real property ("the Property") U) located in Monroe County, Florida, more particularly described as follows: LO V- Unit No. 317-S, Coral Bay Gardens, in 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 W Records of Monroe County, Florida. U also identified as street address: "2601 S. Roosevelt Blvd., Unit C317S B. The BOCC 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 Owner's 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. Ke West International Airport NIP—Avigation Easem ent(Unit#C317S) 9 Y Page 1 of 4 Packet Pg. 2814 K.1.o E. The Property Owner desires to participate in the NIP and has entered into a Property 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, 2013. 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 CL _ 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 od 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: LO i V_ 1. 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 U property. This Easement shall apply to all such aircraft activity at the Airport, present or future, in whatever form or type, during operation at, on, to or from the Airport, and it being 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, employees 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#C317S) Page 2 of 4 Packet Pg. 2815 K.1.o 4. 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 or the person on the property. 5. 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 party's legal representative drafted such provision. This Agreement shall be U) interpreted and construed according to the laws of the State of Florida. 7. No breach of any provision of this Agreement may be waived unless in writing. Waiver of od any one breach of any provision of this Agreement shall not be deemed to be a waiver U) of any other breach of the same or any other provision of this Agreement. This Agreement LO 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 W 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 U 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 a 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. E 9. 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#C317S) Page 3 of 4 Packet Pg. 2816 This Easement Agreement is executed as of the date first above written. ....................... _"'___............. ......... P, PEr%1Y.OWK, R: PROPERTY OWNER: .............. Aignabire Signature Printed Name Printed Name 03// Z6 2- a Date—— STATE OF COUNTY OF CL CL E U) Subscribed and sworn to(or affirmed)before me, by means of E�physical presence or Donline notarization, < 0 (L on (date) by 06 (name of affiant). He/She is personally known to me or has produced U) W (type of identification) as identification. to �t, Notary Pubk state of Fiotwa 49 JeSsMa L WaflaW My Commssw H11 122202 41>o'rya E xpres 0512112025 NOTARY PUBLIC ............. ........ ...... M U Z W MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: 2 W (Seal) MAYOR CHAIRMAN: W Attest: Z KEVIN MADOK, CLERK By. - As Deputy Clerk Signature E Date .......... ..................... (WONS E COU ORN PPWT Fo:)v PrR ROJ, RCA00 ASSISP, 'T MY A7 po; Date_ ,mz �_ .......................... ........ .......................... Key West International Airport NIP—Avigation Easement(Unit#C317S) Page 4 of 4 1 Packet Pg. 2817 K.1.p Address: Kev West bv the Sea Unit No.: A 1 Q 1 Name(s): Barber PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal �- corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 V- It- WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor(the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: _... __..... _.... .................. f28. l 0 e ., Property Owner Noise Insulation Agreement Page Packet Pg. 2818 K.1.p 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 Pro ram 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. od 4. Impeding Com etitive Bid Process. The Property Owner shall not LO 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 meet all responsibilities and requirements pertaining to both pre-construction and post- CL 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space.. ........ ..�.. .... Property _. Owner Noi se Insulation Agreement Page 2 of 28 Packet Pg. 2819 K.1.p (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. ...... __ ______. ......__.-... .. Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 2820 K.1.p 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 U) (4) Insuring that all pets are completely secured and contained. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 It- 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 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. .. Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 2821 K.1.p 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W 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 CL 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 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. _._.....__ _ ....... ....................... Property Owner Noise Insulation Agreement Page 5 of 28 Packet Pg. 2822 K.1.p c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; CL (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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-Ex�istilng 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. The PropeLty Owner will be re uired to complete all designated Pre-Work items ufl-rizing 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 CL thereto. 16. City of Key West "Hard-Wired" Smoke Alarm Re uirement. 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 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 Noise Insulation Agreement Page 6 of 28 Packet Pg. 2823 K.1.p 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 Pro ert . 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 06 U) 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 LO 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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 CL requirements are not met. CL 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. 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. _....._- _. ...... ........ ......... . ......._. ... .......... �. Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 2824 K.1.p 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. od U) 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 LO 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 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 Property Owner Noise Insulation _ g f ..... p ty Agreement Page 8 0 28 Packet Pg. 2825 K.1.p 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-Existinq 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 od construction period may need to be extended, at no fault of the Program Manager or LO 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 acousticCL 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. 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. _. .�....... ........ ..................... Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 2826 K.1.p 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 U) terminated. 34. Federal Assurance. As required by the Federal Aviation od Administration, the Property Owner agrees to the following provisions: U) a. The Property Owner shall subject the construction work on the LO T_ 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 & E ui ment. 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 CL 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 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. Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 2827 K.1.p 37. Prope!ly 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. U) 39. Labor and Material Release. The Property Owner releases and forever discharges any and all claims, suits and actions against the Program Manager; od the County and its officers, employees, agents, consultants; and contractors and U) 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 LO limit the warranties for materials and workmanship contained in the contract with the It I 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. 43. Authority to Execute On Behalf Of Count . 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 17t" 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.. ..........................._........ ....... .............. �_ _.....__...._ _..w._.. Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 2828 K.1.p 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. U) a. 'Governing Law Venue Interpretation, Costs and Fees. (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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 W 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. CL b. Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Property Owner and their respective legal representatives, successors, and assigns. c. Severabili, 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 .._..... .... ..._.. Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2829 K.1.p 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. Authori . 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 A regime rt. 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. M f. Acceptance of Gifts, Grants, Assistance Funds, or Perms. 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 od for the purposes of this Agreement. U) LO 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 W approved by the County prior to submission. h. Adjudication, of Disoutes 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 prohibits 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), 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) _..... .................._. -................... Property Owner Norse Insulation Agreement Page 13 of 28 Packet Pg. 2830 K.1.p 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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 0 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. n. No Solicitation/Pa meat. 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 __..._ ................... ._............. 14 Page ...... Property Owner Noise Insulation Agreement Pa of 28 Packet Pg. 2831 K.1.p firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 W 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 ... ........ .............._.............._. .. ............ Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 2832 K.1.p 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. M p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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 W 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; Colon-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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-reliance by 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 .......... � .�... ... ...�.�... ..-........ ...... . Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 2833 K.1.p 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may LO 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 W section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. . .,.�........er . ......_.... ...mm... ........... Prop ty Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 2834 K.1.p IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY OWNER: Signatiganature u Pr Name _... Printed Name Sign V A b 2 2— CL _ "y Date Printed Name _. _.., _ ............. . .......... CL U) WITNESSES: PROPERTY OWNER: LO i Signature W Signature Printed Name Printed Name Signature Date Printed Name .................... ............ ................................... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN; CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature P . Date - ` 4 mm ,. ......._ P. ..._ age 18 of 28 Packet Pg. 2835 K.1.p 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architecturalLO 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 Re lacement. 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 0 revision will be an improvement, while decreasing constriction costs and improving time efficiencies. CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. _.... _ _. . ........ Exhibit A Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 2836 K.1.p 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 U) 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 od construction process to include: - window removal and acoustic window installation, LO - 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 Re uirements 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 AGM < 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. 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. Exhibit A -Property_ Owner .._... ........_ .............. _........_....... ................. ._. _. .. Noise Insulation Agreement Page 20 of 28 Packet Pg. 2837 K.1.p - 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 n_ 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 U) and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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 Authori 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 Packet Pg. 2838 K.1.p LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Apartment Unit Known as Unit 101-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. z od U) Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 2839 K.1.p 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: < r Architectural Drawings 06 • Replacement Aluminum Acoustical Windows W LO o Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CL ..._. . .,.....- Exhibit C-Property Owner Norse Insulation Agreement P. 23 of_ age of 28 Packet Pg. 2840 K.1.p 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 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, 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. _. ._ __.._ ............_.._ ..----- _ Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 2841 K.1.p 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. _...._ . WITNESSES: P" %PERTY OWNER: U) Signature , Signature � . CL Printe ame C W Printed Name e) Si e Da4e Printed Name .......................... - _. ..,.... _ __.... ._....,.._ ..... .......... ._....... _._ .-........... . WITNESSES: PROPERTY OWNER: Signature Signature Printed Name ......... ........ Printed Name Signature _. Date Printed Name CL ._. ............. ............. .........mm ..m ...... WITNESSES: PROPERTY OWNER a� Signature ....... ........... U Signature Printed Name Printed Name Signature Date Printed Name . . _........� ........_ _.._. _ _ _...._... _ Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 2842 K.1.p 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it .� ....... Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 2843 K.1.p 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any W occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO levels in the Property. In addition, the Property Owner agrees to assume full responsibility i 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 0 heirs, personal representatives, successors and assigns. WITNESSES: __........ _ .__ .... ..._. ..........._�.... .......� _... PROPERTY OWNER: CL a� Signature __ _--- ' Signa re Printed arras .. Printed Name Si atur Date —. Printed Name ......... ... .._... Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 2844 ..............----.................................... WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature LL Date Printed Name M ..... ............. ............... .......................... ........................ .........--.-................... z WITNESSES: PROPERTY OWNER: U)< 0 CL Signature .......... Signature U) w Printed Name LO Printed Name ........... Signature >- ....Date .... ..... Printed Name Q .............................. ........... ................ z w 2 w w w 0 w z 3: 0 w CL 0 w CL E .......................... ................ Exhibit E-Property Owner Noise Insulation Agreement Page 28 of28 Packet Pg. 2845 Address: West by the Sea Unit No.: A201 Name(s): m Halpern PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the, "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 V- WHEREAS, the Property Owner has elected to participate in the Key West < International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: _ Property �_ ------ p ty Owner Noise Insulation Agreement Page I of 28 Packet Pg. 2846 K.1.q 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. Pro ram 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. Pa ment of Pro ram 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. od 4. Impeding Competitive Rid Process. The Property Owner shall not LO 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 N 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. ._. . _.. ....._.......... ........ ._....... ...... ..... ....... Property Owner Noise Insulation Agreement 8 f Page 2 0 28 Packet Pg. 2847 K.1.q (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"; CL CL (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 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. ....... _._._... _W __ ......... . .. e .. Pa 3 . Pr 11 operty Owner Noise Insulation Agreement g of 28 Packet Pg. 2848 K.1.q 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. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 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. Property Owner Noise Insulation -Agreement Page 4 of 28 Packet Pg. 2849 K.1.q 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W Program Improvements to be performed in accordance with the Program. Therefore, if the Property Owner attempts to terminate this Agreement or otherwise impedes the N 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 CL 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 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. Property Owne..._ ....® _...._. ......_. .... .__ r Noise Insulation Agreement Page 5 of 28 Packet Pg. 2850 K.1.q c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 N 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. The Propertv Owner will be re uired to comp,lete all desi nated Pre-Work items utilizing their own funds and per the re used deadlines as established by the GRIP. 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. Citv of Kev West "Hard-Wired" Smoke Alarm Ike uirement. 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 accordance with all applicable codes and regulations by the required deadline as established by the NIP. The PropertyOwner 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 ..Pro Property Owner Noise Insulation ....-.-.� _ ......._ ...,........ . _... p ty n Agreement Page 6 of 28 Packet Pg. 2851 K.1.q 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 od 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Testina 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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 CL requirements are not met. CL 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. 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. .. ..._ ................ __._._. _ _....... .. .. _...... e Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 2852 K.1.q 22. Desi n 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 E 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. od U) 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 LO 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 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 .... __ ............_ .......... ..._ __....... Pa...e -_ Property Owner Norse Insulation Agreement g 8 0f28 Packet Pg. 2853 K.1.q 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. Discove 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 od construction period may need to be extended, at no fault of the Program Manager or LO Contractor. 2& Impact of Unforeseen KWBTS Buildin 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 N 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 acousticCL 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. 31. Communication Reguirements. 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. .... Property Noise _ ._.......�........... .._._... .... ....... .... _. Insulation Agreement Page 9 of 28 Packet Pg. 2854 K.1.q 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. Coo eration 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: od a. The Property Owner shall subject the construction work on the LO It- 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 c E ui ment. If the Property Owner desires to CL 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 CL 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 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. _ .�...._ ._ ......._ .......... .... Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 2855 K.1.q 37. Pro ertv 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. Timin 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Property. In the event the Property Owner sells, conveys or V- otherwise transfers title to the Property before the completion of all phases of the Program Q 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. 43. Authority to Execute On Behalf Of Coun . 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 17t" 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. ............_. W .._ .......... ... _ _. Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 2856 K.1.q 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. U) a. Governina Law Venue Inter retation Costs and' Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. N (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. c. Severabili y. 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 Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2857 K.1.q shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of A reement. 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 �e provisions of this Agreement. U) f. Acceptance of Gifts, Grants, Assistance Funds, or Sets. 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 06 for the purposes of this Agreement. U) LO 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. N h. Adiudi�onn of Dis utes 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 0 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 prohibits 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), 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) ITITITITIT Property Owner Noise Insulation Agreement ..,..-ITIT- ��� ��...._ ..,.,..�.,.... Page 13 of 28 Packet Pg. 2858 K.1.q 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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 0 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. n. No Sol icitatilon/Pa meet. 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 _ ..... Property Owner Noise Insulation Agr � ..........._..... Page 14 of 28 Packet Pg. 2859 K.1.q firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to 06 the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 W 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 N 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 __._. �.....� ...__.. .......... .............-- Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 2860 K.1.q 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 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. U) 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 od this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and Property Owner in this LO 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. N 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 Obl�n and Responsibilities, Non;-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or 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 by 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 ..... _. ....... ... _ _.... ... Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 2861 K.1.q 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 Liabilit . 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 U) Agreement. v. execution in Counterparts. This Agreement may be executed in any 06 number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may LO 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 W section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. C1' _. .. ....... _ ... .. ._....___ Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 2862 K.1.q IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY OWNER: Sign re �- Signature anted Name Printed Name Signature Date Printed Neme .. ..... ._---_._ CL WITNESSES: PROPERTY OWNER: LO i Signature _.... W Signature Printed Name cN Printed Name Signature .. Date Printed Name ............ ................., ............. ........_.. ...... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN: CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature SON PIS . PIA ED Date PEE . , . .. � __a Property Owtier ar. rst�a�a >i-etT Page 18 of 28 Packet Pg. 2863 K.1.q 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architecturalLO 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 N 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 Re lacement. 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 0 revision will be an improvement, while decreasing constriction costs and improving time efficiencies. C. Custom Crown Molding and Baseboards Restrictions CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. Exhibit A -Property Owner Noise Insulation Agreem ent Page 19 of 28 Packet Pg. 2864 K.1.q D. Door Threshold Hei hts. 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 Testirn 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 od construction process to include: - window removal and acoustic window installation, LO - 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 N system & ERV ducts, - construction of closet soffit for installation of the ERV. F. Asbestos Abatement Re uirrements 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. 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. ..._ ...-.. ......... Exhibit A -Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 2865 K.1.q - 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 od will require THC to develop a design and construction plan that minimizes the W disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. N 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 CL 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 g f Page 21 0 28 Packet Pg. 2866 K.1.q LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Apartment Unit Known as Unit 201-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. U) od U) _....._ _._._..-...-... - ...........__ ... _ ......-. ...Page 22 0f28 ..m Exhibit B-Property Owner Noise Insulation Agreement Packet Pg. 2867 K.1.q 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: < 0 Architectural Drawings od • Replacement Aluminum Acoustical Windows W LO o Replacement Aluminum Acoustical Swinging Prime Door(s) T- • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CN CL .. Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 2868 K.1.q 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. �..... .._._....-.........._ Exhibit D Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 2869 K.1.q 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. __. _. .. .. ........... . .......... _.. CL ;S-igna HE SES: PROPERTY OWN CL Signature CL CL Printed Name Printed Name e) SignatureLO 1 i Date Printed Name _...... ......_.............. ..,..,-.. ....... ,._ _ __.,.._ ......... _.�.........._ .._... .............. -.......... . WITNESSES: PROPERTY OWNER: CN Signature ••— Signature Printed Name Printed Name Signature Date Printed Name CL WITNESSES: _ PROPERTY OWNE ..WIT. . ....... R: Signature w_.... cs Signature Printed Name Printed Name Signature Date Printed Name ... ..... _.... ___ ..,_ ............... ........ Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 2870 K.1.q 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 U) 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequencesLO 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it ._.._..�. ..___._......,_._..,— ................ Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 2871 K.1.q 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. U) 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 od Owner understands and assumes full responsibility for maintenance of interior moisture U) and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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 CN 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. .. __ ......._.....- .... _ - _. ESSES: PROPERTY OWNER. gCL, , nat re __ Signature Printed Name Printed Name Sr n uire ._. Date Printed Name ...... ........ _..._... Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 2872 K.1.q _._.. ... ............ WITNESSES: PROPERTY OWNER: Signature ....... Signature Printed Name Printed Name M Signature S Date Printed Name ........._....�. .-.mm. ....._... .. ...... ._.... .. ....... ..... ----- _ _ .... WITNESSES: PROPERTY OWNER. CL Signature Signature U) Printed Name LO Printed Name i Signature Date Printed Name cN E Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28 Packet Pg. 2873 K.1.r Address: Key,West by the Sea Unit No.: A208 Name(s): Marion PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of Z 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 od 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 LO 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; and00 N 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 CL WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: Property Owner Noise Insulation Agreement Page I of 28 Packet Pg. 2874 K.1.r 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. U) 3. Payment of Pro ram 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 od Program Manager, and performed by the Contractor, U) 4. Impeding Competitive Bid Process, The Property Owner shall not LO 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 00 contractor's bid, or this Agreement until after award of the construction contract by the N 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 meet all responsibilities and requirements pertaining to both pre-construction and post CL - 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 2875 K.1.r (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"; U) (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 06 meet all Post-Construction requirements to include: LO T- (1) Moving of all furniture and belongings stored in the T- "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into the condominium; N (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 2876 K.1.r 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 Z (4) Insuring that all pets are completely secured and contained. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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. 00 c. In the event the Program process is not resumed due to the Property Q 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 ork. The Program Manager reserves the right to make changes to the plans and specifications and the Program Improvements, at its sole discretion, at any time during the Program process, provided such changes do not reduce the scope or quality of the Program Improvements described in Exhibit C and such changes are necessitated by the discovery of hidden conditions not readily detectable during normal property inspection procedures. Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 2877 K.1.r 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 U) 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 00 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 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. Property Owner Noise Insulation Agreement Page S of 28 Packet Pg. 2878 K.1.r c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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; V_ (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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. 00 14. Pre-Existina 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 PropeLty Owner will be re uired to com lete all designated Pre-Work items utilizing their own funds and per the re uired 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 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 rocess. In the event the Property Owner Noise Insulation Agreement Page 6 of 28 Packet Pg. 2879 K.1.r 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 U) 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 06 to adhere to this requirement may, at the option of the Program Manager in its sole W discretion, result in an immediate suspension of the construction of the Program LO 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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. 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. Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 2880 K.1.r 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 U) 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. od U) 24. Pre and Post Construction Access. At scheduled times and/or upon LO 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 00 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 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 Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 2881 K.1.r 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. Discove of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP W construction period may need to be extended, at no fault of the Program Manager or LO 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 00 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. Existinq 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. 31. Communication lie uiremenits. 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. Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 2882 K.1.r 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 Clearin 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 U) terminated. 34. Federal Assurance. As required by the Federal Aviation od Administration, the Property Owner agrees to the following provisions: U) LO 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. 00 b. After final completion of the Program Improvements, the Property N 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 dE (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 CL 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 CL .. 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 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. Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 2883 K.1.r 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. U) 39. Labor and Material Release. The Property Owner releases and forever discharges any and all claims, suits and actions against the Program Manager; 06 the County and its officers, employees, agents, consultants; and contractors and U) suppliers with respect to issues relating to the conformance of labor, materials and LO 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. Sale of Prpert . In the event the Property Owner sells, conveys or 00 0 otherwise transfers title to the Property before the completion of all phases of the Program N 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 CL 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. 43. Authority to Execute On Behalf Of Count . 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 17t" 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. Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 2884 K.1.r 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. U) a. Governing Law Venue Interpretation, Costs and Fees. (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be W performed entirely in the State. LO (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 00 the appropriate administrative body in Monroe County, Florida. Q (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 0 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. c. aeverability. 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 Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2885 K.1.r shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement. This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) 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 od for the purposes of this Agreement. W LO 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 00 approved by the County prior to submission. N 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 prohibits 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), 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) Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 2886 K.1.r 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. U) 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 od W 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 LO T- 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. 00 k. Books, Records,, and Documents, The County and Property Owner N 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. 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 Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 2887 K.1.r firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 00 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 Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 2888 K.1.r 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 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 has questions regarding the application of Chapter 119, Florida Statutes, to the Property Owner's duty to provide public records relating to od this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. W p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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 00 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 Res onsibilities° Non-Dele ation 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 2889 K.1.r 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any 06 number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 00 section headings are not a part of this Agreement and will not be used in the interpretation N of any provision of this Agreement. Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 2890 K.1.r IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERT W ER: Signature Signature /a _ ti C w LGLO✓� Printed Name t/S Printed Name d�itre Z©22 Date "gyp" e) Prirltecf Name CL .........__ W 06 LO WITNESSES:. PROPERTY OWNER: i Signature Signature 00 Printed Name cN Printed Name Signature Date Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: (Seal) MAYOR / CHAIRMAN: Attest: KEVIN MADOK, CLERK By: As Deputy Clerk � Signature M OE OOU TOR P 4eATTORNEY 4— JPEDSO J. A Date ASSISTANT Dale Property Owner Noise Insulation Agreement Page 18 of 28 Packet Pg. 2891 K.1.r 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 apart of the Noise Insulation Program modifications, the following limitations and restrictions will apply to all condominiums: U) 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 od inches. U) 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 LO 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 00 the new vertical wall and corner pilasters will differ depending on your unique N 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. Exhibit A-Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 2892 K.1.r 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. l4W" BTS Asbestos Testin 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 �e condominium to include gypsum board joint compound, window glazing, and exterior window and door caulking. In addition, random exterior stucco samples were collected on U) both the "walkway" and "courtyard / balcony" building elevations. Depending on the laboratory analysis of these samples, the presence of asbestos od containing materials (ACM) have the potential to impact several areas of the NIP M construction process to include: LO - 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, 00 - wall cuts required for the installation of the ductless AC, Q - 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. the Abatement Requirements In F he 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. 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. Exhibit A-Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 2893 K.1.r 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 U) and coordination requirements of contractor crews. V_ Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that miinimizes the W disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. 00 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 CL 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 Packet Pg. 2894 K.1.r LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 208-A, Atlantic Tower, in 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 U) from time to time, of the Public Records of Monroe County, Florida. od U) 00 Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 2895 K.1.r 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 od U) • Replacement Aluminum Acoustical Windows LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) 00 CN CL Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 2896 K.1.r 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, od 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 LO 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. 00 N 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 2897 K.1.r 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. WITNESSES: PROP TY OWNER: CL Signature Signatu Printed Name " 1 (iL go Printed Name Sig ure �V j� 2 PrNrt ed am— �Ll�-7— Date 00 WITNESSES: PROPERTY OWNER: CN Signature Signature Printed Name Printed Name Signature Date Printed Name CL WITNESSES: PROPERTY OWNER: ; Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 2898 K.1.r 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 z 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 od agents, officers, employees, consultants and/or contractors concerning any and all W 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 LO 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. 00 N 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 CL 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 2899 K.1.r 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. U) 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 Propertyod Owner understands and assumes full responsibility for maintenance of interior moisture M and humidity levels. The Property Owner agrees to assume full responsibility for any LO 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. 00 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. WITNESSES: PROP Y OWNERS rg,n�atre EaU r° SU(�l�. aignatsare Printed Name RY&D- L AA W r i V 1 k ,.v Printed Name .0 "Ka�ufe "`. Date Printed Name Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 2900 K.1.r WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature LL Date Printed Name U) WITNESSES: PROPERTY OWNER: CL Signature e) Signature Printed Name LO I Printed Name Signature W Date 00 Printed Name cN c� Exhibit E-Property Owner Noise Insulation Agreement g f Page 28 0 28 Packet Pg. 2901 K.1.s Address: Key West by the Sea Unit No.: A401 Name(s): Domin ue Sellier PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of U) 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 od 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 LO 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 0 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 c� WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: �......... _......................._. ._.._.......__ ..._. ._ Property Owner Noise 1nsidation Agreement Page 1 of 28 Packet Pg. 2902 K.1.s 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. U) 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 06 Program Manager, and performed by the Contractor. U) 4. Im edin Com etitive Bid Process. The Property Owner shall not LO 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 W 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. _ _. �...�.... _ .....�. .�. _ _... .......... Pro _ er Owner Noise Insulation p tj, Agreement Page 2 of 28 Packet Pg. 2903 K.1.s (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"; U) (7) Moving all small items and belongings into either the closets or bathrooms as outlined in the "Designated Storage Space Sketch" T_ b. After completion of the NIP construction, the Property Owner shall od U) meet all Post-Construction requirements to include: LO T- (1) Moving of all furniture and belongings stored in the T- "Designated Storage Space Areas" back to their original positions in the condominium: (2) Moving of any excessive furniture and belongings back into T- 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. Impedinq Construction. Once construction of the Program Improvements begins, the Property Owner shall not impede construction or alter construction schedules. In addition, the Property Owner shall prevent any and all tenants that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. ...................... _.. _. _ ............. -__ _ Page .3._ Property Owner Noise Insulation Agreement of 28 Packet Pg. 2904 K.1 s 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 Z (4) Insuring that all pets are completely secured and contained„ b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 le 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 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. ........... Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 2905 K.1.s 11. Acce tance 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 U) construction process) within 7 days of the inspection giving rise to the discrepancy. CL 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 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. ... .................. ................. ment Page S of 28 Packet Pg. 2906 K.1.s c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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; V_ (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO i (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--Existin i 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 re uired 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 Ke 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 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 Norse Insulation Agreement Page 6 of 28 Packet Pg. 2907 K.1.s 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 U) 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 06 to adhere to this requirement may, at the option of the Program Manager in its sole U) discretion, result in an immediate suspension of the construction of the Program LO 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 re-construction noise test to, thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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. 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. ................................................_.-... . �._ . Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 2908 K.1.s 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 U) 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. od U) 24. Pre and Post Construction Access. At scheduled times and/or upon LO 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 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 �.� .._._..._...... _ ..... _ .._..._ _. ... ......................_.�. Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 2909 K.1 s 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. Discover of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 Ownerod understands that, depending on the timing of the pre-existing deficiency repair, the NIP W construction period may need to be extended, at no fault of the Program Manager or Contractor. LO 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 E make modifications to the NIP interior trim at their own expense. 31. Communication Re uiements. 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. __.... .. .......................... ............ _.......... Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 2910 K.1.s 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 U) terminated. 34. Federal Assurance. As required by the Federal Aviation od Administration, the Property Owner agrees to the following provisions: U) a. The Property Owner shall subject the construction work on theLO 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 & E ui rrment. If the Property Owner desires to CL 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 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. ... ...._u__.... ._. .._. ....._........_ Prop erty Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 2911 K.1.s 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. U) 39. Labor and Material Release. The Property Owner releases and forever discharges any and all claims, suits and actions against the Program Manager; od the County and its officers, employees, agents, consultants; and contractors and U) suppliers with respect to issues relating to the conformance of labor, materials and LO 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. 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 CL 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. 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 17t" 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. ............. ........................ ............ . .. ...............-.-.-._________ _ Property Owner Noise Insulation Agreement Page I I of 28 Packet Pg. 2912 K.1 s 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. U) a. Governing Law Venue Interpretation, Casts and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be W performed entirely in the State. LO (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 0 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 E this Agreement shall bind and inure to the benefit of the County and Property Owner and their respective legal representatives, successors, and assigns. c. Severability, If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement ....._ Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2913 K.1 s shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of A r em nt. 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. U) f. Acceptance gf 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 od for the purposes of this Agreement. (n LO 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. Adiudication 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 prohibits 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), 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) ......-........... ...__ Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 2914 K.1.s 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 VII I 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 od required by the other party, in all proceedings„ hearings, processes, meetings„ and other W activities related to the substance of this Agreement or provision of the services under LO 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. 1. Covenant of No Interest. The County and Property Owner covenant that neither presently has any interest, and shall not acquire any interest, which, would 0 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. n. No Solicitation/Pa meat. 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 Property Owner glnsulatianA ..�..._� ...... --� �. .�. rr ...... Agreement Page 14 of 2 Packet Pg. 2915 K.1.s firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 .. ....... ...... ............... ..... ___............................_.._ Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 2916 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 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 Z be inspected or copied within a reasonable time. U) 0 If the Property Owner has questions, regarding the application of Chapter CL W 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) W p. Non-VVaiver gf IMMunity, Notwithstanding the provisions of Sec. < LO 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 3: 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. Privies and Immunities. All of the privileges and immunities from Z liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability, W 2 workers' compensation, and other benefits which apply to the activity of offiicers, agents, W W volunteers, or employees of the County, when performing their respective functions under W 0 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, W W volunteers, or employees outside the territorial limits of the County. Z 3: 0 r. Lgg.�jl Obliqations gnd ResponsibilitieL Ngn&!�� Of W Constitutional or Statuto�N Qufies. This Agreement is not intended to, nor shall it be W 0- construed as, relieving any participating entity from any obligation or responsibility 0 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 by Non-Pairties. 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 ......... Page 16 of28 Property Owner Noise Insulation Agreement I Packet Pg. 2917 K.1.s 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any 06 number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 Packet Pg. 2918 K.1.s IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY OWNER: 3 at re Signature„_116 - PrintedLL L Punted'Name Signature 0 2i ®�{ v�Z/ Date en Printed Name CL ........ ...._ _m._ .......... ......... ...._.,,,,,.. .,..,. u9 WITNESSES: PROPERTY OWNER: Signature �� �pp�� Signature �G � �. �"���t" �► C.2 Printed Nam' Printed Name Signature Date Printed Name MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN: CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature O� FE COUNTY TTI -RNEY EU M Ab b0 J. Date ASSISTANTCP �" ._. ........�........ _ / . Date Property Owner Noise /nstdation Agreement °•---••-----�—..___....�. ..��-.�.�_..... ........__ _. ......_ ....._. Page 18 of 28 Packet Pg. 2919 K.1.s 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: U) 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 od 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 LO 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 Re lacement. 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. _° ... mma .IT Exhibit A -Property Owne r~Noise Inszrlaion Agreement Agr°eenaen[ Page 19 of 28 Packet Pg. 2920 K.1.s D. Doer 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 U) both the "walkway" and "courtyard / balcony" building elevations. Depending on the laboratory analysis of these samples, the presence of asbestos od containing materials (ACM) have the potential to impact several areas of the NIP M construction process to include: LO - 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 Re uirements 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. If samples show a resence 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. Exhibit A -Property Owner _m ._ _... _ .................� ............._.._.................... Noise Insulation Agreement Page 20 of 28 Packet Pg. 2921 K.1.s - 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 U) and coordination requirements of contractor crews. Given the cost to provide required asbestos abatement procedures, the FAA 06 will require THC to develop a design and construction plan that minimizes the W disturbance of ACM to ensure the minimization of construction costs, duration, LO 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 c� ...., .. . _.w........... Exhibit A -Property _. . _.._...._ Ow ner Noise Insulation Agreement Page 21 of 28 Packet Pg. 2922 K.1.s LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 401-A, Atlantic Tower, in 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 U) from time to time, of the Public Records of Monroe County, Florida. od U) _._ :._..._ ...... .........�_ Exhibit B-Property er Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 2923 K.1 s 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: 0 Architectural Drawings od U) • Replacement Aluminum Acoustical Windows LO Replacement Aluminum Acoustical Swinging Prime Door(s) ' • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CL CL Exhibit C-Property Owner Noise Insulation Agreeme nt Page 23 of 28 Packet Pg. 2924 K.1 s 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, W 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 LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. .................. ._....................m .... ...... Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 2925 K.1.s 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 O 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 O 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. NESSES: _...�.. ___. ._.u....___-___...........PROP._._ . IT ERT NIER: tw�'- z nature ......................._.� �� SignatureCL anted Name i aPrinted Name CAI Ar7:0:�� /l► Signature u9 �p __ .2—J -77 0� � ✓ i e "t a d ® (� Date Printed Na e WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name CL WITNESSES: PROPERTY OWNER: Signature Signature �_........ .. ....... ....... ...... . Printed Name Printed Name Signature —_ ------- .......... Date Printed Name Exhibit D-Property Owner Noise Insulation Agreement _.M.... Page 25 of 28 Packet Pg. 2926 K.1.s VENTILATION HOLD HARMLESS AGREEMENT Exhibit E To Property Owner Noise Insulation Agreement en 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it Exhibit E Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 2927 K.1.s 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. U) 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 od Owner understands and assumes full responsibility for maintenance of interior moisture U) and humidity levels. The Property Owner agrees to assume full responsibility for any LO 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. .................. .._...... .................................................._ WITNESSES: PROPERTY OWNER: CL a n�ttare 9 Si natufe . � Panted Name 1 Pri6t d Name Signature > t Date m . Printed Name ... Exhibit E-Property Owner Noise Insulation Agreement ....._..�.�.. �n ___, Page 27 of 28 Packet Pg. 2928 K.1 s WITNESSES: PROPERTY OWNER: Signature SignatureW� � Printed Name Printed Name Signature Date Printed Name ..................... ....®_ .........._ .............. uy WITNESSES: PROPERTY OWNER: CL Signature ........................ e) Signature Printed Name ........................ LO I Printed Name Signature ............................................... Date Printed Name .. ... ._.._.. ...w .................... ....... Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28 Packet Pg. 2929 K.1.t Address: Ke West b the Sea. Unit No.: A603 _. Name(s): Schmitt 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 E attached hereto (the "Property"); and CL WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO WHEREAS, the County desires to obtain and preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking >- off from, or maneuvering about the Airport; and WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: --- ............................ _. ....... ... Property Owner Norse Insulation Agreement Page 1 of 28 Packet Pg. 2930 K.1.t 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. Pa ment of Pro ram Im rovements, 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 od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Bid Process, The Property Owner shall not LO 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 meet all responsibilities and requirements pertaining to both pre-construction and post- CL 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. ..... _....._... .... Pa Property Owner Noise Insulation Agreement ge 2..of 28 Packet Pg. 2931 K.1.t (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. _...... ..............__ .......... ............._..._ .................. Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 2932 K.1.t 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 U) (4) Insuring that all pets are completely secured and contained. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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. Chan es to Sco e of Work. The Program Manager reserves the right to make changes to the plans and specifications and the Program Improvements, at its sole discretion, at any time during the Program process, provided such changes do not reduce the scope or quality of the Program Improvements described in Exhibit C and such changes are necessitated by the discovery of hidden conditions not readily detectable during normal property inspection procedures. ............................. _. ..._._. _ _...... . Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 2933 K.1.t 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 U) 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W 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 CL 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 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. _. _ .... ..._. ....... IT. Property Owner Noise Insulation Agreement Page S of 28 Packet Pg. 2934 K.1.t c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not U) expired, and the manufacturer is currently conducting its business; and LO (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 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 Re uirements. 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 utilizina their own funds and per the required deadlines as established bV 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 CL thereto. 16. City of Key West "Hard-Wired" Smoke Alarm Reguirement. 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 accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Prooerty 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 Noise Insulation Agreement Page 6 of 28 Packet Pg. 2935 K.1.t 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 od 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 LO 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 reWconstruction noise test to the ost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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 CL requirements are not met. CL 20. Coo erg ation. 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, theCU removal and reinstallation of rugs, wall hangings and furniture as necessary. 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. ...... -.-. - _ ..... f28 7 0 e Property Owner Noise Insulation Agreement Pa g Packet Pg. 2936 K.1.t 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 E 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. od U) 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 LO 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 CL 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 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 . .... .._... _ ............�.. ...... Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 2937 K.1.t 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. Discove 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 od construction period may need to be extended, at no fault of the Program Manager or LO 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. Existina 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 acousticCL 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. 31. Communication. Requirement . 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. ..._�. ..�. . ...._..........._ ......_._..............................� Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 2938 K.1.t 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 T_ Administration, the Property Owner agrees to the following provisions: od a. The Property Owner shall subject the construction work on the LO It- 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 & E ui ment. If the Property Owner desires to CL 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 CL 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 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. Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 2939 K.1.t 37. Pro ertv 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- 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 CU is made in order to "clear" the title to the Property. 43. Authoritv to Execute On Behalf Of Count . 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 17t" 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.. ._.. �. ..... .�... �" Property Owner Noise Insulation Agree�mm "" _ _.. Agreement Page 11 of 28 Packet Pg. 2940 K.1.t 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. U) a. Governing Law Venue Interpretation, Costs and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. Bindin Effect, The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Property Owner and their respective legal representatives, successors, and assigns. c. Severabilitty. 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 ._............. _._ _�........._. Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2941 K.1.t 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. Auto. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement. This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) f. Acceptance of Gifts, Grants, Assistance Funds, or Beguest . 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 od for the purposes of this Agreement. U) LO 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 W approved by the County prior to submission. h. Adcudiicatia of CDi�sputes 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 prohibits discrimination in employment on the basis of race, CU 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), 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) .......w.__.. .... ................ .._ . � ... Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 2942 K.1.t 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services underLO 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 0 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. n. No Solicitation/Pa meat. 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 _._._._. ...... Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 2943 K.1.t firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to 06 the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 ....... _... ....._........ ......... Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 2944 K.1.t 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 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. U) 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 od this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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 W any contract entered into by the County be required to contain any provision for waiver. q. Privily 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 Obli ate .ion and Res onsibilities lon-10elegation 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 - Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 2945 K.1.t 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 LIabili 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 od number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may LO 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 Packet Pg. 2946 K.1.t IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITN SES: PROPERTYOWNER: Signature -- S Signature�,„_M.•s,..,.. � Printed Name ~°�" - LL P'-nJ� d-LNaZ� Signature yss l� r/fl1M w l Date Printed Name .. ................ ._.. ....... od WITNESSES: PROPERTY OWNER: LO i Signature Signature W Printed Name _ Q Printed Name Signature Date Printed Name -._...,_ -.-- ........... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN' CL Attest: KEVIN MADOK, CLERK By: As De�y ut� Clerk Signature MONK � �O ATi�O FDA .MERCADO Date ANSI M D erInsulation _ ..._...• Prop ty Owner Noise Insulatio_ n Agreement Page 18 of28 Packet Pg. 2947 K.1.t 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architecturalLO 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 Re lacemen . 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 0 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. ....... __ Exhibit A -Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 2948 K.1.t 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. KWRTS 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 od construction process to include: - window removal and acoustic window installation, LO - 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. 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. Exhibit A -Property Owner Noise Insulation - ._.._ _. ww . Agreement Page 20 of 28 Packet Pg. 2949 K.1.t 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 U) and coordination requirements of contractor crews. Given the cost to provide required asbestos abatement procedures, the FAA V_ od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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 CL 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 Packet Pg. 2950 K.1.t LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 603-A, Atlantic Towers, in 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 U) from time to time, of the Public Records of Monroe County, Florida. od U) Exhibit B-Property Owner Noise Insulation_ _,_,__ _ ., p ty .__ Agreement Page 22 of 28 Packet Pg. 2951 K.1.t 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CL _............�..._. _...... Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 2952 K.1.t 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. .._...... .....,�. ......... Page 24 0 28.... Exhibit D Property Owner Noise Insulation Agreement g .f Packet Pg. 2953 K.1.t 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 Exhibits a 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. _. ........ ............... ........... ....... WITNESSES: PROPERTY ER: U) Signature ...__. d Signature �# �. CL Printed Name Printed Name U) Signature �.,. LO S-A COM?A Date M Printed Name -._._._ __.... -...., ..._._. .......... .................. ...... _ -._._ _.. ..... WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date >- Printed Name CL ....WITNESSES:.... .�........ _......m.. _....PROPERTY__ .._ ......m.. .......... _. OWNER: CL Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit ..............• .... g D-Property Owner Noise Insulation Agreement Page 25 o 28 Packet Pg. 2954 K.1.t 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 U) 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequencesLO 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 CL 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it _ _ .. _ Exhibit E-Property Owner Noise Insulation Agreement e...... Page 26 of 28 Packet Pg. 2955 K.1.t 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO levels in the Property. In addition, the Property Owner agrees to assume full responsibility i 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 0 heirs, personal representatives, successors and assigns. ...... CL WIT ESSES: PR OPERTY OWNER: CL Signatur/e�- , �_ r .. ' _• s tom'1 Vy ae — Sigmpa r ...M. Printed Name IL ,.... 4✓' Printed Name Sign _....�.... �� atur Date Printed Name . . ....._ Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 2956 ................... WITNESSES y ER: c Signature e oi?O f Printed Name Printed Name .......... Signature A11- LL Date Printed Name ........................ z ................ ........................................ ..........WITNESSES: PROPERTY OWNER: U)< 0 CL (D Signature 06 Signature U) w Printed Name LO Printed Name Signature w Date CV) Printed Name Q z w 2 w w w 0 w z 3: 0 w CL 0 w CL Exhibit E-Property Owner Noise Insulation Agreement Page 28 of28 I Packet Pg. 2957 K.1.0 Address: Ke West h the Sea Unit No.: -A605 Name(s): _ Onderdonk PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on E'xh bit B attached hereto (the `Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 LO WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor(the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: .. ....... ....... Property Owner Noise Insulation Agreement Page 1 of 28 Packet Pg. 2958 K.1.0 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 Poli,gy 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 (n Program Improvements described in Exhibit C attached hereto. The Program CL Improvements will be approved by the Property Owner and County, managed by the od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Sid Process. The Property Owner shall not LO 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 2959 K.1.0 (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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; LO (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 E construction schedules. In addition, the Property Owner shall prevent any and all tenants that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. ....... _.... _ ...._ __ Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 2960 K.1.0 8. Safe Workina 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. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 LO 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 Dela s. 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. Chan es to Scope of Work. The Program Manager reserves the right to make changes to the plans and specifications and the Program Improvements, at its sole discretion, at any time during the Program process, provided such changes do not reduce the scope or quality of the Program Improvements described in Exhibit C and such changes are necessitated by the discovery of hidden conditions not readily detectable during normal property inspection procedures. ......- ..... _. ......... ......... _.� ..._ .......... Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 2961 K.1.0 11. Acce tance 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO above shall thereafter foreclose the Property Owners right to file such complaint. 12. Termination ofAgreement. The Property Owner understands that the signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the W Program Improvements to be performed in accordance with the Program. Therefore, if LO 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 CL 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 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. _. _._._........_._. ........_. _ ...... Property Owner Noise Insulation Agreement Page 5 of 28 Packet Pg. 2962 K.1.0 c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required withod respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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. LO 14. Pre-Existing 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 Re uirements. 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 re uired to complete all designated Pre-Work items utilizing their own funds and per the re uired 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 Re urement. 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 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 . ........ .........__._. ....... P.. .... . Property Owner Noise Insulation Agreement age 6 of 28 Packet Pg. 2963 K.1.0 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. Sus erasion 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 Pro ert . 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 od 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Testing Process. Pre- & post- LO 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 re-construction noise test to thepost-construction: noise test. In an effort to ensure 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 re-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 CL requirements are not met. CL 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. 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. ._..... �...... f28.....d 7 0 e Property Owner Noise Insulation Agreement Page Packet Pg. 2964 K.1.0 22. Desi n 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 U) 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. od U) 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 LO 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 W NIP Pre-Construction and Post-Construction visits. These visits could include, but not be LO 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 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 ........... ....... ___..... ....... ....... Proper ._....... ty Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 2965 K.1.0 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. Discove of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP U) construction period may need to be extended, at no fault of the Program Manager or LO Contractor. 2& 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 LO 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 CL 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. 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. ..............._.... _ ......_..__....._ __.._. u_.____......... . Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 2966 K.1.0 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 Clearin_q 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: od a. The Property Owner shall subject the construction work on the LO project to such inspection and approval during the construction of the Program It- Improvements and after completion of the Program Improvements as may reasonably be requested by the Program Manager and/or Monroe County. LO 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 h (Ventilation Hold Harmless Agreement) which imputes all responsibility to the Property Owner for the proper maintenance of interior moisture and humidity levels. 0 36. Salvage of Materials & E ui ment. If the Property Owner desires to CL 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 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. _ ... suti mPropert Owner Noise Insulation Agreeent Page 10 of28 Packet Pg. 2967 K.1.0 37. Properly 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 �e quantities of dust and debris rendering portions of the Property uninhabitable for extended _ periods of time. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Pro pert In the event the Property Owner sells, conveys or LO 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. 43. Authoritv to Execute On Behalf Of Count . 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 17t" 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. Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 2968 K.1.0 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. U) a. Governinq Lew Venue Interpretation, Costs and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. LO (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. 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 . ...... ..........._..... Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2969 K.1.0 shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement. This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) f. Acceptance of Gifts, Grants, Assistance Funds, or Se uq�e, ts. 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 od for the purposes of this Agreement. U) LO 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. LO h. Adjudication of Digits 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 prohibits 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), 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) Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 2970 K.1.0 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. U) j. Cooperation.on 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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. LO k. Books, Records r 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 0 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. n. No Solicitation/Pa meat. 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 .. ........ _ ............._. . .... �_..... �.� Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 2971 K.1.0 firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to 06 the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 LO 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 ........ .. .......... Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 2972 K.1.0 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. M p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. LO q. Privies 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 Obligation and Responsibilities„ Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or 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 by 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 ___ .... ......._. _ ................ - _._..... Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 2973 K.1.0 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any 06 number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 LO of any provision of this Agreement. E Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 2974 K.1.0 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY 0 NER: Signature SL Sign tare S Printed Name ,— 06nted Name Signature .. Date z Printed NaSF O'V-1 der �. ............. CL U) WITNESSES: PROPERTY OWE: LO i Signature S na ure w_.... AD AA Printed Nam c� Printed ame .,,�...W......_.,s.. Signature,, y Date 0 CJ 0 Printed Name .......... .._.. .._ .w................_...._...................... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN: CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature F00 OE COUNTY A RN ED � a .. P'CP MEAD Date ASgSI TA U ... ...� ........ ........... ....._ ........ ..... .._ ..._ Property Owner Noise Insulation Agreement Page 18 of 28 Packet Pg. 2975 K.1.0 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 LO 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 Re lacernent. 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 0 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. ._.........._ ......__..._ ... .._ _._._ ........ �. Exhibit A-Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 2976 K.1.0 D. Door Threshold Hei hts. 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. l^ W TS 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 06 U) construction process to include: - window removal and acoustic window installation, LO - 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, LO - 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: 0 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. 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. ....... ........... ...... Exhibit A-Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 2977 K.1.0 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 0 and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. LO 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 Packet Pg. 2978 K.1.0 LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 605-A, Atlantic Tower, in 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 U) from time to time, of the Public Records of Monroe County, Florida. od U) Exhibit B-Property _._......-...._..-......... ...._.__..._. ..._....�. ._...-... Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 2979 K.1.0 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) LO CL ....._....._ _ .-........ ........................... Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 2980 K.1.0 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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. LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. Exhibit D-Property Owner Noise Insulation Agreement g f Page 24 0 28 Packet Pg. 2981 K.1.0 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. _.. _._. .........._.......__.. .................. ..... __.... . ...... WITNESSES: PROPERTY OWNER: CL _...... ..w.. U) Signature nature Un rum Signature CL Printed Name r j� I Printed Name e) .., ,.. u9 Signature~ Sa CIO Date Printed Name .............-.... ... ......., LO WITNESSES: PROPERTY OWN * ._. Signature ~ Sign-ure Print ame n CA` C f Printed Name z � '1 � . '0 Date J Printed Name CL ........... ............... _....... ....... ...-..mm._. ........ WITNESSES: PROPERTY OWNER: Signature cs Signature .......... Printed Name Printed Name Signature Date Printed Name .......,_.,._ ......., ....�.._._... Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 2982 K.1.0 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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. LO 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it Exhibit E Proper Owner Noise Insulation Agreement _ ...., 2 �, g t Page 26 of 28 Packet Pg. 2983 K.1.0 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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. LO 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 0 heirs, personal representatives, successors and assigns. WITNESSES: PROPERTY 01 ER Signat , Signature Printed Name � Printed Name Signature" Date Printed Name ....it E-Pro Property N ._..... __. ...... Exhibit ..._._ � ........ b p ty Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 2984 K.1.0 WITNESSES: ...... ..._..._ ......... ......PROPERTY OW�E...�_......_.�_�_. R: ri Signature �� n, Srgn"azure l%1 � Printed Name ;rlOame Signature 1, ... 6dC2 Date 2 6/S Printed Name ........... _ .,,..,_ ._...._-... _..... .................._. .... - ...... WITNESSES: _ PROPER . _ ....... TY OWNER: < CL Signature Signature U) Printed Name LO Printed Name i Signature Date LO Printed Name CL CL Exhibit E-Property Owner Noise Ins g _... Insulation Agreement Page 28 of 28 Packet Pg. 2985 Address: Key West by the Sea Unit No.: B 105 Name(s): Sellier PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal . corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, U) State of Florida, and in close proximity to the Property; andLO 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 LO 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"); CL and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: Property Owner Noise _ ..... ....... ......._._,.,_ ....... _. p ty e Insulation Agreement Page 1 of 28 Packet Pg. 2986 K.1.v 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. Pro ram Polic 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. Pa meat 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 od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Bid Process. The Property Owner shall not LO impede or interfere with the Contractor's ability to select between approved product It I 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 LO contractor's bid, or this Agreement until after award of the construction contract by theIt- 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 meet all 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: E (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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. _..... ... ...__ ........__. _. ..................... Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 2987 K.1.v (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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; LO (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. _..... _. ....._ _...... __.._...... Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 2988 K.1.v 8, Safe Workinci 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. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 LO 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 Dela s. 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 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. Property-._Owner Noise Insulation.Agreement_ _ ....... ............ . .... Page 4 of 28 Packet Pg. 2989 K.1.v 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W Program Improvements to be performed in accordance with the Program. Therefore, if LO 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 CL 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 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. ....... . ...... .._.. _..._.... .. ,. ­..- _ ............. Property Owner Noise Insulation Agreement Page 5 of 28 Packet Pg. 2990 K.1.v c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; CL (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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. LO 14. Pre-Existing 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 Re uirements. 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 re uired to complete all designated Pre-Work items utilizing their own funds and per the re uired 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 CL thereto. 16. City of Key West "Hard-Wired" Smoke Alarm Re uirement. 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 accordance with all applicable codes and regulations by the required deadline as established by the NIP, The PropertyOwner 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 Noise Insulation Agreement Page 6 of 28 Packet Pg. 2991 K.1.v 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 CL 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 06 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Testing Process. Pre- & post LO - 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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 CL requirements are not met. CL 20. C000eration. 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. 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. _................. .................... ........ .................... _ ................. Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 2992 K.1.v 22. Desi n 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. od 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 LO 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 LO 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 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 .... .... ...........�..... Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 2993 K.1.v 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-Existinq Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP U) construction period may need to be extended, at no fault of the Program Manager or LO 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 LO 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. Existina 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 CL 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. 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. ......... .............. ..._._.._ ............. Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 2994 K.1.v 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 z terminated. 34. Federal Assurance. As required by the Federal Aviation Administration, the Property Owner agrees to the following provisions: od a. The Property Owner shall subject the construction work on the LO 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. LO 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. 0 36. Salve e of Materials & E ui menu. If the Property Owner desires to CL 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 CL 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 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. _. _.. .................... ....... _ ....... Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 2995 K.1.v 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 �e quantities of dust and debris rendering portions of the Property uninhabitable for extended _ periods of time. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Pro erk . In the event the Property Owner sells, conveys or LO 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. 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 17t" 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. �_........ _. _ ......_.._. ......................_........ - .. Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 2996 K.1.v 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. U) a. Governinq Lave Venue Interpretation, Costs., and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. LO (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. 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 ................ Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 2997 K.1.v 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. Authorit 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 A r em nt. 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 �e provisions of this Agreement. U) f. Acce Lance 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 06 for the purposes of this Agreement. U) LO 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. LO h. Adjudication of Dilutes 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 0 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 prohibits 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), 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) ............. ------ ........_.� __ ..... _ ........�... Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 2998 K.1.v 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 �e matter of, this Agreement. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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. LO 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 0 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. n. No 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 _. ......... ....... ....... ............ _... _. Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 2999 K.1.v firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and U) 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 od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 LO 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 ._._._. _. ._...�._......� n_....� _...._� .._._............ Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3000 K.1.v 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. LO q. Privilege 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-l0ele at ion 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by Non-Parfies. 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 Property Owner Noise Insulation Agreementmm Page 16 of 28 Packet Pg. 3001 K.1.v 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 LO of any provision of this Agreement. _._...._............ ......_ ........ Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 3002 K.1.v IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WIT 'ES S. PROPERTY OWNER: W7 Signature fj Tl�l Q / C Signature Printed Narrate � Printed Name 6 2� nature _ J �� e) Date "�„ Printed Namd 1 _.._ _.._.. ..... - ....... _......... ....._. WITNESSES: PROPERTY OWNER: LO i Signature __ • Signature LO Printed Name Printed Name Signature Date Printed Name it _... ._. _................,. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN: CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature E COtd O Ve P PEDRO JL FI; DQ .ry Date S IS � � P: ' . .... .. _....M._ _ _ _.._ Dais / . Property Owner Noise Insulation Agreement Page 18 of 28 Packet Pg. 3003 K.1.v 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 LO 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 0 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. _. __..... ............_ .. ..... Exhibit A -Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 3004 K.1.v 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. KWWBTS 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 od construction process to include: - window removal and acoustic window installation, LO - 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, LO - wall cuts required for the installation of the ductless AC, It- - 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 Re uiirements 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. 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. ....... ..............._. ._._.........._. ..... . Exhibit _...._..... _......._... _ _. A -Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 3005 K.1.v - 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 U) and coordination requirements of contractor crews. Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. LO G. KWBTS BOARD Authorily 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 c� ................._..�..... ...........-. _...._ Exhibit A -Property Owner Noise Insulation Agreement Page 21 of 28 Packet Pg. 3006 K.1.v LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 105-B, Gulfstream Towers, in 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 U) from time to time, of the Public Records of Monroe County, Florida. CL od LO LO Exhibit B-Pro Property Owner Noise Insulation ..._ _,_, ..,_._,_ p ty Agreement Page 22 of 28 Packet Pg. 3007 K.1.v 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) LO CL ......... ... ._..... .___...__ Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3008 K.1.v 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account U) of bodily injuries or death, damage to the property, and the consequences thereof, and any LO It- 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. LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. ....... .. �..�.,. .....�. .......... Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 3009 K.1.v 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 O 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 Q 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 Exhibif D shall be binding upon and inure to the benefit of the undersigned and their respective heirs, personal representatives, successors and assigns. WITNESSES: ....__ PROPERTY _ ......... OWNER: �� ➢ U) ignataare;./ c- r_ (`�, Signature CL Printed Na e Printed Name Stgt tur'e �� ZZLO Date � Printed Name W ....... mm.._. LO WITNESSES: PROPERTY OWNER: Signature Signature - mm Printed Name Printed Name Signature Date 0 Printed Name CL .... WITNESSES: PROPERTY _. OWNER: CL Signature _...... cs Signature Printed Name Printed Name Signature Date Printed Name .._ ..._g. .._ .... ._...._..-,.. ....... ... Exhibit D-Property reement Owner Noise Insulation A Page 25 of 28 Packet Pg. 3010 K.1.v 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 U) undersigned, forever releases, remises, discharges, indemnifies and covenants not to sue, CL 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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. LO IV- 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 CL 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it w.uu........... .....Exhibit E Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3011 K.1.v 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. U) 6. The Property Owner understands that the Program Improvements will not address kitchen and bathroom ventilation and/or excessive interior humidity levels CL generated by the Property Owner within the interior of the condominium. The Property od Owner understands and assumes full responsibility for maintenance of interior moisture U) and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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. LO 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. .......... _..........._...... ... ..... _ _ ......._ ..... ._ . WITNESSES: 1 PROPERTY OWNER. 5C mature ......._ ' Signature Printed N me �Q\\^ CZ C X_G r nted Name i iature Date ON itedName Exhibit ...�..�...�.............. E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 3012 .......... ............................................. WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature U- LO Date Printed Name M 3: ................................ .............. z ..................... ...... WITNESSES: PROPERTY OWNER: U)< 0 CL Signature Signature U) W Printed Name LO Printed Name Signature W Date LO Printed Name Q ...................... ........... z W 2 W W W 0 W z 3: 0 W CL 0 E .......... ....................... Exhibit E-Property Owner Noise Insulation Agreement Page 28 of28 I Packet Pg. 3013 Address: --!Lev West bL, t ,Sea K.1.w Unit No.: B208 Name(s): Halpin__.. PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 00 WHEREAS, the Property Owner has elected to participate in the Key West N International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor(the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: __ _...._ .. ....... .- - ....... .f28 I o e Property Owner Noise Insulation Agreement Page Packet Pg. 3014 K.1.w 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. Pro ram 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 Pro ram Im rovements. 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 od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Bid Process. The Property Owner shall not LO 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, the00 contractor's bid, or this Agreement until after award of the construction contract by the N 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. Res onsibilities, The Property Owner shall meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. .............._ .................... _. _.. ......_._. ._.. ..._.. e ._ 2 028 f Property Owner Noise Insulation Agreement g Packet Pg. 3015 K.1.w (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 U) bathrooms as outlined in the "Designated Storage Space Sketch" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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; N (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 CL related thereto. CL 4i 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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. _......._- _ ........................................._...._.................................. ...._ �_._._.. Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3016 K.1.w 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. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily U) suspended at any time. In such event, the Program Manager shall notify the Property LO 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 00 0 Owner's failure to complete the corrective action(s) and/or condition(s) required by the N 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 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. Property _ -_ ......._.....__._ ............_ ._........ Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3017 K.1.w 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W Program Improvements to be performed in accordance with the Program. Therefore, if 00 the Property Owner attempts to terminate this Agreement or otherwise impedes the N 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 CL 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 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. _._...... _ ........... _ Property Owner Noise Insulation Agreement Page S of 28 Packet Pg. 3018 K.1.w c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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. 00 14. Pre-Existing Deficiencies. The Property Owner will be required to N 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. The Property Owner will be re uired to complete all designated Pre-Work items utilizin their own funds and er the re uired deadlines a 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 CL thereto. 16, City of Key West "Hard-Wired" Smoke Alarm lie uirement. 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 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 ..erNoise ....... _....._. ........... Pro _ . p ty Owner Nois e Insulation Agreement Page 6 of 28 Packet Pg. 3019 K.1.w 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. Sus ension 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 Pro pert 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 od 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 LO 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 re-construction noise test to the ost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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 CL requirements are not met. CL 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. 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. . ... m .., Property Owner Noise Insulation greeent Page 7 of 28 Packet Pg. 3020 K.1.w 22. Desi n 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. od U) 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 LO 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 00 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 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 Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 3021 K.1.w 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. Discove of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 od construction period may need to be extended, at no fault of the Program Manager or LO 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 originalco 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 Moldin . During the installation of the new acousticCL 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. 31. Communication Re ueements. 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. ................................. Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 3022 K.1.w 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 E terminated. 34. Federal Assurance. As required by the Federal Aviation Administration, the Property Owner agrees to the following provisions: od a. The Property Owner shall subject the construction work on the LO 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. 00 b. After final completion of the Program Improvements, the Property Q 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 & E ui ment. 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 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. Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 3023 K.1.w 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Prosy. In the event the Property Owner sells, conveys or 00 otherwise transfers title to the Property before the completion of all phases of the Program Q 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. 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 17t" 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. ....._....._ .............---___ ._................. .._ Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 3024 K.1.w 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. U) a.. Governing Law Venue Interpretation, Costs and Fees. (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. 00 N (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. c. Severabilt . 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 _ .Property Owner .._... ......_..................._.._._ .............. __ _ Noise Insulation Agreement Page 12 of 28 Packet Pg. 3025 K.1.w shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of! gr men . 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. U) 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 06 for the purposes of this Agreement. U) LO 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. 00 N h. Adjudicationof 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 0 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 prohibits 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), 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) ............................-..... _...._..................................... . Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 3026 K.1.w 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. U) j. Coition. 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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. 00 k. Books, Records, and Documents. The County and Property Owner shall maintain books, records, and documents directly pertinent to performance under this N 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. 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 ........ . ....... ......._ _.._ .....- Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 3027 K.1.w firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. Public Records Compliance. Property Owner must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and U) 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 od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 00 with that proceeding. This provision shall survive any termination or expiration of the N 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 _.... _. _......_ .._...._ ........ _.............._ Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3028 K.1.w 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to od this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. M p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. 00 q. Privies 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 Res onsibilities, 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 er Owner Noise .._. ..� .�...._._ .. ...................— Prop erty ty _ 'se Insulation Agreement g f Page 28 Packet Pg. 3029 K.1.w 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 Liabilit 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 06 number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may LO execute this Agreement by signing any such counterpart. I V- 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 W section headings are not a part of this Agreement and will not be used in the interpretation 00 of any provision of this Agreement. _......_ Properry Owner Noise Insulation Agreement Page 17 of28.._. Packet Pg. 3030 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. .....................................................................................--.................... WITNESSES: PROPERTY OWNER: Signature —T C' Signature M Printed Name ............... g-., S nL LL Printed Nzfne ,Signature Date z U) Printed Name < 0 ................ CL od U) .................. ........ W WITNESSES: PROPERTY OWNER: LO Signature ijn—ature ri 00 �Lr, Q Printed dame CN 3rinte Printed Name M z W Si nature .......... W W 41 fA �ez 'IV�A Printed Nime IV W ............................................................................... z 3: 0 .......... ..................................................... ....................... >- MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 (Seal) MAYOR CHAIRMAN: W CL Attest: KEVIN MADOK, CLERK E By: As Deputy Clerk Signature mA ROE U ATMM P �D .............. ED Ji.MERCAD0 Date ASSISTAN_�99U Date .................. ............................... Property Owner Noise Insulation Agreement Page 18 0f28 I Packet Pg. 3031 K.1.w 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 00 the new vertical wall and corner pilasters will differ depending on your unique Q 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 Re lacernent. 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 0 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. _ ................_._. _ .................. ... Exhibit A -Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 3032 K.1.w 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 U) 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 od construction process to include: - window removal and acoustic window installation, LO - 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, 00 - construction of vertical wall pilasters required for installation of the ductless AC N system & ERV ducts, - construction of closet soffit for installation of the ERV. F. Asbestos Abatement Re uirement 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. 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. ................_ ..... ... ........ ..... �. Exhibit A -Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 3033 K.1.w w 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 U) and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. 00 G. KWBTS BOARD Auithori!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 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 .._�. P �, Page 21 of 28 Packet Pg. 3034 K.1.w LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 208-B, Gulfstream Tower, in 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, Florida. U) od U) 00 .......... ..... _. ._........._ ..... Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 3035 K.1.w 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) 00 CN CL ..._.... Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3036 K.1.w 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 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, 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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. 00 2. The Property Owner understands and assumes full responsibility for the N 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 3037 K.1.w 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. .... _. WITNESSES: PROPERTY OWNER: U) Signature - —� Signature t -T• — ��P CL Printed Wine (�.4 (D � Printed Name ei7 Signature LO ......... I Date Printed Name _._ ........ .. ...PROPERTY OWN -- mm WITNESSES: ER: CN Signatui _ Signature Printed Name 7 f� Printed Name M Signature _L 0 ..... Date Printed Name CL WITNESSES _........ _- .. .....°..mm.° _ ... ....... � ......— PROPERTY OWNER: Signature Signature M Printed Name Printed Name Signature Date Printed Name Exhibit D-Property Owner Noise Insulation Agreement ...._e _.•.._•_ ....... Page 25 of 28 Packet Pg. 3038 K.1.w 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequencesLO 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. 00 2. The Program Improvements may include the addition of acoustical windows N 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 CL 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it ........ ..._ _ .__ .................. .....� Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3039 K.1.w 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO levels in the Property. In addition, the Property Owner agrees to assume full responsibility i for the maintenance and operation of the NIP venting modifications after completion of the Program Improvements. 00 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 0 heirs, personal representatives, successors and assigns. . ................._.. _.... .......... WITNESSES: PROPERTY OWNER: Si g ature n �, ds e r X y r/ Signature cs Pnnted Nam4 La W/L_ Printed Name W , Signature rv. Date Printed Nance Property Owner Noise Insulation Agreement - Exhibit E-Pr Bement ._ . -ITITIT Page 27 of 28 Packet Pg. 3040 K.1.w ...... ............ _ .......... ._�... ........ ........... WITNESSES: PR OPERTY OWNER: �f � 4x"-- SignaturaV Signature Printed N me Printed Name Si azure 7 Date Printed game ........._..�................. ......... ......... ....... �. WITNESSES: PROPERTY OWNER _ �.............._ .... CL Signature 06 Signature us Printed Name Prrrrote Na, _ u9 Signature00 Date Printed Name CD cN E .... .......... .................. Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28 Packet Pg. 3041 K.1.x Address: Key West her the Sea Unit No.: B307 Name(s): _ Stout PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal �- corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit E attached hereto (the "Property"); and CL WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO WHEREAS, the County desires to obtain and preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking >- off from, or maneuvering about the Airport; and WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: ._._. _ Property Owner Noise Insulation Agreement Page I of 28 Packet Pg. 3042 K.1.x 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. Pro ram 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 Program Improvements. The County agrees to pay for the Program Improvements described in Exhibit attached hereto. The Program CL Improvements will be approved by the Property Owner and County, managed by the od Program Manager, and performed by the Contractor. U) 4. Impeding. Competitive Sid Process. The Property Owner shall not LO 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. .. ......................... . . ..... Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 3043 K.1.x (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 U) bathrooms as outlined in the "Designated Storage Space Sketch" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 CL related thereto. 7. Im edina Construction. Once construction of the Program Improvements begins, the Property Owner shall not impede construction or alter construction schedules. In addition, the Property Owner shall prevent any and all tenants that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. ..... ..... ........_ _.__. ... Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3044 K.1.x 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 od conditions, the Program process may, at the County's discretion, be temporarily U) suspended at any time. In such event, the Program Manager shall notify the Property LO 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 Del a s. 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 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. ............_......__ __ �.._._ .. ..._ _..._ Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3045 K.1.x 11. Acce tance 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 z 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO above shall thereafter foreclose the Property Owners right to file such complaint. 12. Termination of A reement. The Property Owner understands that the signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the W 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 0 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 CL 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 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. .. ..... ........ _,_- _ .............................. ...................._ ___..__ _-----_.. Property Owner Noise Insulation Agreement Page S of 28 Packet Pg. 3046 K.1.x c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 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. The Property Owner will be required to complete all desi mated Pre-Work items utilizing their own funds and per the re ti red 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 CL thereto. 16. Citv of Kev West "Hard-Wired" Smoke Alarm Ede uirement. 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 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 __..,.__ . ....... ... ..... .. ._ Noise Insulation Agreement Page 6 of 28 Packet Pg. 3047 K.1.x 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 od discretion, result in an immediate suspension of the construction of the Program W Improvements on the Property. The Properly Owner will be liable to the County for all LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Te;tina 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-construction noise test. The Property Owner understands that the failure to adhere to this requirement may result in 0 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 CL requirements are not met. CL 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. 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. ........... ....__ ..-_.. .............._� ....... _ ....._ _._ Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 3048 K.1.x 22. Desi n 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 �e 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. od 24. Pre and Post Construction Access. At scheduled times and/or upon W not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per LO 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 0 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 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. 2& 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 .......... _..- ...... Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 3049 K.1.x 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. Discove 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 U) construction period may need to be extended, at no fault of the Program Manager or LO 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. Existinq Crown Molding. During the installation of the new acoustic CL 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. 31. Communication Re uiements. 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. _ .....- Property Owner Noise Insulation Agreement Page 9 of- 28 Packet Pg. 3050 K.1.x 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. Coo eration in Clearin 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: 06 U) a. The Property Owner shall subject the construction work on the LO It- project to such inspection and approval during the construction of the Program It- 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. 0 36. Salva a of Materials & E ui meat. 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 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. Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 3051 K.1.x 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- 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. 43. Authority to Execute On Behalf Of Count . By Resolution No. 11.1- 2004, duly motioned and passed at a lawfully announced public meeting, the Board of County Commissioners of Monroe County, did, on the 17t" 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. _ . .._...... . ....... ._ ..._..__ .... Page 11 0f 28 . Property Owner Noise Insulation Agreement g Packet Pg. 3052 K.1.x 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. U) a. Governing Law Venue Interpretation, Costs and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. 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 Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 3053 K.1.x shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. ,Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement. This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) f. Acceptance of Gifts, Grants, Assistance Funds, or Beguests. 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 od for the purposes of this Agreement. U) LO 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 W 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 0 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 prohibits discrimination in employment on the basis of race, CU 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), 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) ...............................__. ._ ._._._ ......... �..... Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 3054 K.1.x 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings; and other W activities related to the substance of this Agreement or provision of the services under LO 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 0 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. CL m. Code of Ethics. The County agrees that the officers and employees of the County recognize and will be required to comply with the standards of conduct relating to public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. n. No Solicitation/Payment. The County and Property Owner warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or .................._ .... �. Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 3055 K.1.x firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to 06 the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 ...................... _... ......_ ......................... ..... Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3056 K.1.x 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. Privile_es 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 andResponsibilities; 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 .... __ ..._ ..... .. .... - Property Owner Noise Insulation Agreement Page . e 16 ol 28 Packet Pg. 3057 K.1.x 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 06 number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. LO 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 W section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. c� ... er ...... ........ Pro _..._ ...__-____. ..... ._...._ Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 3058 K.1.x IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY OWNER: signature .t Agrwatur Printed Name l ar t Printed Name Signatur/e� , T'Tl— C,v4q r— 2-7-0 Date m. us Printed Name .............. _......... ......._....._ .... _............ uy WITNESSES: PROPERTY OWNER: LO i Signature >- Signature ....... Printed Name Printed Name Signature Date Printed Name _._... .... ....... ............. �.. ..... 0 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN: CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature 0 ROE C ATT RNEY PkInVET P R6 j, ESC DO Date AS MAKE _ ........_ _._ ._....... .... _._ ar Property Owner Noise Insulation Agreement Page 18 of 28 Packet Pg. 3059 K.1.x 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 Re lacemeint. 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. CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. Exhibit A -Property Owner Noise Insulation A Agreement Page .-................._ P �, g 19 of 28 Packet Pg. 3060 K.1.x 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 Testin 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 od construction process to include: - window removal and acoustic window installation, LO - 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 Re uirements 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. 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. ......... .. . .. ...._ _. —. Exhibit A-Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 3061 K.1.x - 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 od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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 Authori 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 CL 5. Interior Ductless "Mini-Split" AC System Interior Soffit Design and Placement 6. In-Filled Kitchen Prime Door Policy Treatment ............. _...._.. m.. _....�.._ ......... .............._. ....._ Exhibit A -Property Owner Noise Insulation Agreement Page 21 of 28 Packet Pg. 3062 K.1.x LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 307-B, Gulfstream Tower, in 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, Florida. U) od U) ExhibitB-Pro.. ........ .......... ....a_ _... _._._..._. _ Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 3063 K.1.x 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CL ... _........... Exhibit C Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3064 K.1.x 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and anyLO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. ... Exhibit D-Property _.__.�_.._.. ......................_. _ ..._..... ............ Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 3065 K.1.x 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. fi .............�.... ......... . _ _ ............_�. ........ WITNESSE PROPERTY OW. NER sign ure ��" 0 A�f Signature CL Printed Name , .� a Printed Name U) Signature LO Date Printed Name ............. ....... .......__ . .. .............. >- ..........._ ...._....,..,_ ...._ . ........, ..........,-.. ..... .. � WITNESSES: PROPERTY OWNER: Signature Signature Printed Name Printed Name Signature Date Printed Name CL ......................._.. ._-.._............................... .....,. ....... _... ..... WITNESSES: PROPERTY OWNER: CL Signature Signature Printed Name Printed Name Signature Date Printed Name Exhibit D-Pro er Owner Noise Insulation Agreement p ty g ement Page 25 of 28 Packet Pg. 3066 K.1.x 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 U) 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequencesLO 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 CL 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it - Exhibit .. ......_ .. _.... _......_ ibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3067 K.1.x 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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 0 heirs, personal representativ „ sac essors and assigns.. ......... ............. ........... _. . .._..._ ESE PROPERTY OWNER: i rgnature _ `' Signature � t1� Printed Name '71/1 Printed Name Signature ._. Z Z,?,22_ 7q-1—t(,,)-q— Date�WWW. Printed Name Exhibit E-Property Owner Noise Insulation Agreement _ .2 .- P �, � g t Page 27 of 28 Packet Pg. 3068 K.1.x _ PROPERTY .._ ... WITNESSES: � OWNER: Signature Signature .... Printed Name Printed Name M Signature Date Printed Name _..._ _._ WITNESSES: ........_ __........ ...... PROPERTY OWN . .._. CL Signature Signature Printed Name W_ u9 Printed Namej Signature Date Printed Name Q CL CL ExhibitE- ....... ._.. _.... _...-.. ....... _......_ ...... Property Owner Noise Insulation Agreement Page 28 of 28 Packet Pg. 3069 K.1.y Address: —Key West bv the Sea Unit No.: B309 Name(s): Woolsey 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 CL WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO WHEREAS, the County desires to obtain and preserve for the use and benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking off from, or maneuvering about the Airport; and WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and >- WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: Property Owner Noise Insulation Agreement Page I of 28 Packet Pg. 3070 K.1.y 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. U) 3. Payment of Program Improvements. The County agrees to pay for the Program Improvements described in Exhibit C attached hereto. The Program CL Improvements will be approved by the Property Owner and County, managed by the od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Sid Process. The Property Owner shall not LO 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. _.. __ _._. ... ..... .... ............. Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 3071 K.1.y (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. Property Owner Noise - Page 3 0 28..... p ty Insulation Agreement g f Packet Pg. 3072 K.1.y 8. Safe Workinq 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 U) (4) Insuring that all pets are completely secured and contained. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 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. ......._........ Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3073 K.1.y 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W 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 CL 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 aCU condition of receiving the Warranty & Final Closeout Package, the Property Owner 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. Property Owner Noise Insulation Agre ement Page S of 28 Packet Pg. 3074 K.1.y c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; CL (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 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 Re uirements. 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 re uired to complete all designated Pre-Work items utilizing their own funds and per the re uired 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 CL thereto. 16. City of Key West "Hard-Wired" Smoke Alarm Re uirement. 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 accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property Propeqy 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 Noise Insulation Agreement Page 6 of 28 Packet Pg. 3075 K.1.y 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 Pro pert . The Property Owner agrees CL 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 od 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 LO 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to the ost-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 CL requirements are not met. CL 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, theCU removal and reinstallation of rugs, wall hangings and furniture as necessary. 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. ____...............m_ ._._.._._ ..... Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 3076 K.1.y 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 �e 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. od U) 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 LO 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 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 �........ ......._ __.._ .... ...... ......_._ .... ......... ._ Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 3077 K.1.y 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 od construction period may need to be extended, at no fault of the Program Manager or LO 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 CL 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. 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. .-............__ ........ .......... Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 3078 K.1.y 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 Clearin 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: od a. The Property Owner shall subject the construction work on the LO It- 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 & E ui meat. If the Property Owner desires to CL 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 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. . ..... ...._... ............._......... f28.._10 0g e Property Owner Noise Insulation Agreement Pa Packet Pg. 3079 K.1.y 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- 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. 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. .... ..... ----.._...................... . ......... 11 0g e Property Owner Noise Insulation Agreement Pa f 28 Packet Pg. 3080 K.1.y 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. U) a. Governing Law Venue Interpretation, Costs and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. c. Severabilily. 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 ................. Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 3081 K.1.y shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement,. This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) f. Acceptance of Gifts, Grants, Assistance Funds, or Becuests. 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 od for the purposes of this Agreement. U) LO 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. Adjud cati n 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 0 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 prohibits discrimination in employment on the basis of race, CU 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), 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) �...... _ .... ............. _ ._...._. ....... Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 3082 K.1.y 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services underLO 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. n. No Sol icitation/P'a meat, 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 WWWWWWWWW _ ........................,.,_ . Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 3083 K.1.y firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to 06 the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 .w..____.... .. Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3084 K.1.y 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 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 has questions regarding the application of Chapter CL 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. od p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and Property Owner in this LO Agreement and the acquisition of any commercial liability insurance coverage, self- insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity by the County to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. , q. Privileges and Immunities. All of the privileges and immunities from liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, volunteers, or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. r. Legal Obligations and 'Responsibilities; Non-Delegation of Constitutional or Statutory Duties, This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or 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 by 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 . .........._._ ...............____.......... Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 3085 K.1.y 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO execute this Agreement by signing any such counterpart. w. Section Headin s. 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 Packet Pg. 3086 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. ....................... ......--............... ...... .... ......... WITNESSES: PROPERTY OWNER: Signature ---4� Signature 24L Printed Nam �z Prin,ged N"a'me!- Date E U) P Znn d a m le 0 ............... CL .......... ...... ...................... .......... ...... U) W WITNESSES: PROPERTY OWNER: LO f 1 .. Z Ie /" ),N' Signatu4 ' ........... Signature k Printed Nae .......... Printed- Name z 2- W 2 Signa ure W Date W r r 6) f-a' Printed Name W ............ .................................... z 3: 0 ................. ................ MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 (Seal) MAYOR CHAIRMAN: W CL I Attest: KEVIN MADOK, CLERK E By: As Deputy Clerk Signature cou ORNEFV� ED KDRO MERCADO Date ...................... ...... ................ ........ .................--- �3rqperty Owner Noise Insulation Agreement Page 18 of28 I Packet Pg. 3087 K.1.y PROGRAM POLICY STATEMENTS Exhibit A To Property Owner Noise Insulation Agreement A. Air Conditionin : 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architecturalLO 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. W'indow Sill Re lacerri nt. 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. . ............. ......... ...... Exhibit -Pro Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 3088 K.1.y D. Door Threshold Heigh . 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 06 U) construction process to include: - window removal and acoustic window installation, LO - 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. 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. Exhibit A -Pro erwner Noise Insulation r P �,O tio Agreement Page 20 of 28 Packet Pg. 3089 K.1.y - 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 U) and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the disturbance of ACM to ensure the minimization of construction costs, duration, LO 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 c� Exhibit A -Pro Property ......._� _m. p ty Owner Noi se Insulation Agreement Page 21 of 28 Packet Pg. 3090 K.1.y LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 309-B, 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, Florida. U) od U) ...._.... ....... ....._ ...... Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 3091 K.1.y 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: U) Architectural Drawings 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CL .. er ................... ................. _ Ex _..._ .._ ...... ._ Exhibit C-Pro Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3092 K.1.y 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, od 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 anyLO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. _ _ Exhibit D-Property Owner Noise Insulation _- .2 _. Agreement Page 4 of 28 Packet Pg. 3093 7. The undersigned acknowledge and agree that all of the release and hold harmless and indemnity provisions set fo�rth in Paragraph 1 of this Exhibit Q 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 Exh Q shall be binding upon and inure to the benefit of the undersigned and their respective U- heirs, personal representatives, successors and assigns. ...........--............ WITNESSES: PROPERTY OWNER: z na-P .—.- Signature // Signature 0 Printed Name MO-01—r24y� IL Printed Name 06 U) W AW < Signature LO LDate Printed Name ............... .................. .......... ...... WITNESSES: PROPERTY OWNER: Q M A z Le W sianj a Signat S 11 '�i—1 e W -�j�. A W—0-44 W Printed NaFfie eoL Jo 0 Printed Name W z Signs Ire 3: 0 Date Printed Name ................... ...... ........... W CL ......................... ......- ............. ...... 0 W WITNESSES: PROPERTY OWNER: CL E Signature Signature Printed Name Printed—Name Signature Date Printed Name ............ ......................... ........—.-................. .......................... ................—­­­-----......-—----------- Page 25 of28 �xhibi D-Property Owner Noise Insulation Agreement Packet Pg. 3094 K.1.y 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 gxhr,bft E is attached, the undersigned, for and on behalf of the undersigned and the heirs, personal representatives, successors, and assigns of the U) 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 06 claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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 (BIV) unit to avoid the CL 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 CU 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3095 K.1.y 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 n_ 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 U) 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any W occurrence, reoccurrence or worsening of moisture problems and/or interior humidityLO It- 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. ' 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. WITNESSES:._ �_.... �........ _ .-.. ........ CL PROPERTY OWNER: CL Signature Signature Printed Ala e Printed Name Sip Lure »l ., A/C- C! AA Date rinted Same _p _ ......-_ . p .... ...._ Page�27.o�f. 28 ExhibitE-Proer Ow n A Packet Pg. 3096 K.1.y .......—.�.�... .._._.. ....._ ._.._ ...._ ..... ..�.. ........_ PROPERTY O. . ...... WITNESSES: WNE x Signature �. ..�......._ i ure Printed Na e .+ ......... Printed Name Signature �. ��. ZL LL t Cil CL L ? Date nted Name _..,_ _. .......... _.,_ .,m_ _......._... ........... WITNESSES: PROPERTY OWNER: CL Signatu _mna a�re�� si Printed N e d� LO f Printed NameI ?/ Wr Date �a Printed Name ....... ._...._ ...,.- ...._..�.._� cis E .._ _ - _ — ....._ ._ Owner Noise Insulation Agreement _ Exhibit E-Property _ greement Page 28 of 28 Packet Pg. 3097 =Add�ress: 05 ,,,,,,,,,,,,,,,,, garty PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit E` attached hereto (the "Property"); andCL WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 LO WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor(the "Contractor") to provide the installation of the Program Improvements; and >_ WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: PITIT.er Owner Noiselnsulation.A._ ...�.... .......��._....... ............. ......_ ro _ .�. p ty ITITne Agreement Page I of 28 Packet Pg. 3098 K.1.z 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. Pro ram 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. U) 4. Impeding Competitive Bid Process. The Property Owner shall not LO 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 LO 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 meet all responsibilities and requirements pertaining to both pre-construction and post- CL construction: a. Prior to the start of NIP construction, the Property Owner shall meet all Pre-Construction requirements to include: E (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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. Property Owner Noise Insulation Agreement _ __. .. ..,.... Page 2 of 28 Packet Pg. 3099 K.1.z (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 U) bathrooms as outlined in the "Designated Storage Space Sketch" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 LO 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. ImpeJina Construction. Once construction of the Program Improvements begins, the Property Owner shall not impede construction or alter construction schedules. In addition, the Property Owner shall prevent any and all tenants that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. ... ............._...................m ..........._..................... ...................... ......_ _.__... _ ... Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3100 K.1.z 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 chernicals, 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 foregoingod conditions, the Program process may, at the County's discretion, be temporarily U) suspended at any time. In such event, the Program Manager shall notify the Property LO 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 LO 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. Chan es to Scope, of Work. The Program Manager reserves the right to make changes to the plans and specifications and the Program Improvements, at its sole discretion, at any time during the Program process, provided such changes do not reduce the scope or quality of the Program Improvements described in Exhibit C and such changes are necessitated by the discovery of hidden conditions not readily detectable during normal property inspection procedures. Owner Noise Insulation ITIT __ _ - _ p ty Own mmITIT Property � - - ion Agreement Page 4 of 28 Packet Pg. 3101 K.1.z 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 U) 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO above shall thereafter foreclose the Property Owners right to file such complaint. i 1 Z Termination of Agreement. The Property Owner understands that the signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the W Program Improvements to be performed in accordance with the Program. Therefore, if LO 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 CL 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 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. _ ...rop..._erty ne. .r Noise.......... Insul ......_ .......... ....... ........ .. ....... .... Page S o 28 P m Owation Agreement g f Packet Pg. 3102 K.1.z c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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. LO 14. Pre-Existin 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. The Pro ert Owner will be required to complete all esi nated Pre-Work items utilizing their own funds and per the re uired deadlines a 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 CL thereto. 1& City of Key West "Hard-Wired" Smoke Alarm lie uirement. 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 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 withiin the condominium where NIP modification work will occur, to avoid any potential impedance to the NIP construction process. In the event the Property Owner Noise Insulation - --_. p ty tion Agreement Page 6 of 28 Packet Pg. 3103 K.1.z 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 Pro ram 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 Pro pert 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 od 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Te3tinq Process. Pre- & post- LO 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 noise test. In an effort to ensure consistent noise data collection,test to the ost- onstructgn Deficiencies from the time of the re-construction nog Ilection, the Property Owner also agrees to preserve the interior layout of furniture, floor coverings and window treatments from the time of the re-construction noise test to thepost-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 CL requirements are not met. CL 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. 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. Pra.IT owner NaLSe. ...._.�_... ............... _ .............� .. . . ............. Property Insulation Agreement Page 7 of 28 Packet Pg. 3104 K.1.z 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 E 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. od U) 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 LO 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 LO 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 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 ........-�,,, ____. .... _ 8 Page_ ..... Property Owner Noise Insulation Agreementof 28 Packet Pg. 3105 K.1.z 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. Discover of Pre-Existin Deficiencies During Construction. In the _ event the Contractor discovers pre-existing deficiencies at the Property during the NIP E 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 od construction period may need to be extended, at no fault of the Program Manager or LO 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 originalLO 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 acousticCL 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. 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. ... ._..........._ ............_ ............_­­­­........ Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 3106 K.1.z 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 W Administration, the Property Owner agrees to the following provisions: 06 U) a. The Property Owner shall subject the construction work on the LO 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. LO 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 t= (Ventilation Hold Harmless Agreement) which imputes all responsibility to the Property Owner for the proper maintenance of interior moisture and humidity levels. 0 36. Salvage of Materials & E ui ment. If the Property Owner desires to CL 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 CL 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 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. .. _ .. ..................._ _..._............_ ........ ..... Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 3107 K.1.z 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. Timinq 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Property. In the event the Property Owner sells, conveys or LO 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. 43. Authority to Execute On Behalf Of Count . 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 17t" 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. ........... ..m ... . ... ... Property Owner Noise Insulation Agreement g f Page 28 Packet Pg. 3108 K.1.z 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 n_ e. Exhibit E: Ventilation Hold Harmless Agreement 45. General Conditions. U) a. Governing Law Venue Inter retation Costs end Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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 W the appropriate administrative body in Monroe County, Florida. LO (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. 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 _ mmm ........... ..................._ Property Owner Noise Insulation Agreement _ Page�12..0. f_ 28 Packet Pg. 3109 K.1.z 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. Autthorit r. 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 A re ent. 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. U) f. Acceptance of Gifts, Grants, Assistance Funds„. or Regis. 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 od for the purposes of this Agreement. U) g. Claims for Federal or State Aid. The County and Property Owner LO 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. LO h. Adjudication of Dis utes 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 prohibits 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), 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) �..............� ..... ...... Property Owner Noise Insulation Agreement .._ _ .... Page 13 of 28 Packet Pg. 3110 K.1.z 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other U) activities related to the substance of this Agreement or provision of the services underLO 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 "O 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. n. No Solicitation/Pa went. 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 Property Owner Noi........ _....�.......... ....... ..�. .....— ....._ Noise Insulation Agreement Page 14 of'28 Packet Pg. 3111 K.1.z firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 W prevailing party, be entitled to reimbursement of all attorney's fees and costs associated LO 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 _... ... ._....................... _........_. . .w......._...._., . ..... "Pa....e 28..._ Property Owner Noise Insulation Agreement g Is®f Packet Pg. 3112 K.1.z 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. M p, Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and Property Owner in this LO 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 W any contract entered into by the County be required to contain any provision for waiver. LO q. Prvile es 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 Resoonsibilitie 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance �y INon-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 . ....._ _ ........._. .. ....... ........_ Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 3113 K.1.z 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 Personai 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may LO 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 LO of any provision of this Agreement. .............. ............ ........................._ .__m ....... ... ......... Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 3114 K.1.z IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. WITNESSES: PROPERTY OWNER: Signature gnature UP Printed NanfeLML w" Printed Name �.er: /( fv9Ai� �CvoCt�6(e S f' w Signature Si nature "°'' ' Date � ,� 1z U) Printed Name 0 ...................... _ ......... CL od U) W'TIVESSES: PROPERTY OWNER: LO w°a etcsre Signature LO Pr�Jnted Name _ Printed Name Signature Date Printed Name ........ ................,...,.. .............. ................ MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: CL (Seal) MAYOR / CHAIRMAN.. CL Attest: KEVIN MADOK, CLERK By: As Deputy Clerk Signature MUE COUN TT N� P VI - � E � .w-, w , ... ...... .. ............... PEDRO .MERCADO Date A a1 Dated _....... ....... �. Property Owner Noise Insulation Agreement Page 18 of 28 Packet Pg. 3115 K.1.z 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 LO 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 Re lacement. 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 0 revision will be an improvement, while decreasing constriction costs and improving time efficiencies. CL C. Custom Crown Molding and Baseboards Restrictions CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. _.�� - _� - _.�.._...._..� ..... ........___.� Exhibit A -Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 3116 K.1.z 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. K'WBT,S 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 od construction process to include: - window removal and acoustic window installation, LO - 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, LO - 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. If sarn les 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. Exhibit A -Property Owner Noise Insulation Agreement -mmIT -,...., WW..-Page 20 of 28 Packet Pg. 3117 K.1.z 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 U) and coordination requirements of contractor crews. Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. LO G. KWBTS BOARD Authority of Desi n 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 CL 5. Interior Ductless "Mini-Split" AC System Interior Soffit Design and Placement 6. In-Filled Kitchen Prime Door Policy Treatment c� .. . Exhibit A—_ Agreement Owner Noise Insulation g reement Page 21 of 28 Packet Pg. 3118 K.1.z LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 405-B, Gulfstream Tower, in 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, Florida. U) od U) . ...... _... _._... ........ Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 3119 K.1.z 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) LO CL . .......... _ � _ _._._ Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3120 K.1.z 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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. LO 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. c� 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. ............ _. _. _. ........ Exhibit D-Property Owner Noise Insulation Agreement g f Page 24 0 28 Packet Pg. 3121 K.1.z 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 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. ... ......... .. __ ..........._.... ....... WITNESSES: PROPERTY OWNER: si 'nature o ems- Signature CL Printed Name Tinted Name /yf Signature I Date Tin ed Na e ..... ........ ..... ....................... _......._ ....... ..., .........._ LO IITNESSES: PROPERTY OWNER: . � i ature Signature � w f '' Ct Pdrted Name Printed Name Signature Date Printed Name CL ............. ............_.... WITNESSES: PROPERTY OWNER: Signature cis Signature Printed Name Printed Name Signature Date Printed Name Exhibit D Property Owner Noise Insulation Agre ement Page 25 of 28 Packet Pg. 3122 K.1.z 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 € 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature U) on account of bodily injuries or death, damage to the property and the consequencesLO 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. LO 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it .. ........ .... ........._ _ ........_ ._.�. Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3123 K.1.z 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any W occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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. LO 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. ... .........-...... WITNESSES: _.. PROPERTY OWNER: si ture 4�gniature U w 10 � / r PTS Print d Na e Printed Name I , ►"� Signature,(/� . 2 Date Pont , d ........ ............._ Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 3124 K.1.z b ......ITNESSES: .....�. m....... ..._....... _ PROP 0�..._.. _W_ . .._ ..... .. WNER: u � 'S" ature a Signature Pr ed Name Printed Name M Signature LL Date _ Printed Name _. W_............. _.. _ ......... ...... ............. W ............ ._... ES: PROPERTY OWNER: < WITNESSES: CL Signature 06 Signature U) W Printed Name LO Printed Name Signature Date LO Printed Name E .......... ....... _._. ............ ........ Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28 Packet Pg. 3125 K.1.aa L ess: Key West y the Sea No.: B611 e(s): Rosenl`e d PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 V- V- WHEREAS, the Property Owner has elected to participate in the Key West International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor(the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein, NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: ---- _._.... _....... ...... Property Owner Noise Insulation Agreement Page 1 of 28 Packet Pg. 3126 K.1.aa 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. U) 3. Payment of Program Improvements. The County agrees to pay for the Program Improvements described in Exhibit C attached hereto. The Program CL Improvements will be approved by the Property Owner and County, managed by the od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Bid Process. The Property Owner shall not LO 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, theIt- 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- & Past-Construction Responsibilities, The Property Owner shall meet all responsibilities and requirements pertaining to both pre-construction and postCL - 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. ........ ........ _. .._ ._ .......... _ . Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 3127 K.1.aa (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. _... ... ....... ... _. .. ._._. ....... Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3128 K.1.aa 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. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 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. ... ........ ._.._.. _..�..,. _ ...... ... Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3129 K.1.aa 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO above shall thereafter foreclose the Property Owners right to file such complaint. 12. Termination of Acireement. The Property Owner understands that the signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the W Program Improvements to be performed in accordance with the Program. Therefore, if It- 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 CL 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 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. ......... ......._ ._._........... ........ .........._... ........� Property Owner Noise Insulation Agreement Page S of 28 Packet Pg. 3130 K.1.aa c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; V_ (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 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 Ike uirements. 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 re uired 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. Cit of Key West "Hard-Wired" Smoke Alarm Ike uirement. 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 accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Property PropeLty 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 Noise Insulation Agreement Page 6 of 28 Packet Pg. 3131 K.1.aa 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. Sus ensign 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 od U) 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 LO It- 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to the ost-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. 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. _. _. _........... ............ Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 3132 K.1.aa 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 E 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. od 24. Pre and Post Construction Access. At scheduled times and/or upon W not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per LO 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 beIt- 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 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 _ Property.._... —_ .....- ....... _. ........ - —. Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 3133 K.1.aa 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. Discove of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP U) construction period may need to be extended, at no fault of the Program Manager or LO 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 CL 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. 31. Communication Re uiements. 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. Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 3134 K.1.aa 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 U) terminated. 34. Federal Assurance. As required by the Federal Aviation T- od Administration, the Property Owner agrees to the following provisions: U) a. The Property Owner shall subject the construction work on the LO 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. T- 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 & E ui ment. If the Property Owner desires to CL 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 CL 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 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. Property Owner Noise Insulation .... .........IT.-. _IT_ .. ... •_......._. ...M. p ty Agreement Page 10 of 28 Packet Pg. 3135 K.1.aa 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. 3& Timina 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. U) 39. tabor 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Bale of Property. In the event the Property Owner sells, conveys or V- 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. 43. Authority to Execute On Behalf Of Count . 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 17t" 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. .... .._ .......n Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 3136 K.1.aa 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. U) a. Governinq Law Venue Interpretation, Costs and Fees. T_ (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. Bindiin. Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Property Owner and their respective legal representatives, successors, and assigns. c. Severability. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement Property Owner Noise Ins...... ...... -------....... - p ty Insulation Agreement Page 12 of 28 Packet Pg. 3137 K.1.aa 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. Auto. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement. This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) f. Accetanc of Gifts, Grants, Assistance Funds, or Beets. 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 od for the purposes of this Agreement. U) LO 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 prohibits 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), 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) .., -Page 13 of 2 Property Owner Noise Insulation Agreement �. ....8 8 Packet Pg. 3138 K.1.aa 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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 0 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. 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 .... . _ ......... _.........._ _. ............. ._ Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 3139 K.1.aa firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 e ..... �. ___..... .. Prop .._. _.... _....�. ty Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3140 K.1.aa 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 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. U) If the Property Owner has questions regarding the application of Chapter CL 119, Florida Statutes, to the Property Owner's duty to provide public records relating to 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. M p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. Privile es 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 w 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance �y 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 ..._._. _._. ......................._. ............................. _............... ..... Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 3141 K.1.aa 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, �e 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 Packet Pg. 3142 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. ............................ ......-..........____............... WITNESPEY PROPERTY OWNER: Signature Y/Lj r4l# 64RUS gnat VX Printed Name k U_ Printed Name signature A iz2— Date z &*u`7 U) Printed Name < 0 ............................ ........... CL U) .................. ....................... W LO W" PROPERTY Sign 6re Signature Cl"rff$4 Printed Name Printed Name M z Signature Date 0 Printed Name W z .................. ...... 3: 0 .......... .................... .......... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 (Seal) MAYOR CHAIRMAN: W CL Attest- KEVIN MADOK, CLERK E By: As Deputy ClerkSignature OE OUNTY 0 rED ............. PE 0 Date X ............ ...... ........... ................... ... . ......... .a......_ ...... Property Owner Noise Insulation Agreement Page 18 of28 I Packet Pg. 3143 K.1.aa 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 It- 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 Re lacement. 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. CL C. Custom Crown Moldin 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. ___.-....._ ...... .......... .... _ _ __.......... Exhibit A -Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 3144 K.1.aa 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. KP'RT S 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 od containing materials (ACM) have the potential to impact several areas of the NIP U) construction process to include: LO - 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°r' 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. 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. Exhibit A -Property Owner Noise I -IT� -ITITITITITITIT� -_... _. ,.._.. p ty Insulation Agreement Page 20 of 28 Packet Pg. 3145 K.1.aa - 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 E and coordination requirements of contractor crews. Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the W disturbance of ACM to ensure the minimization of construction costs, duration, LO 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 Authorily 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 CL 5. Interior Ductless "Mini-Split" AC System Interior Soffit Design and Placement 6. In-Filled Kitchen Prime Door Policy Treatment c� _..... .... ..................-. ....._ Exhibit A -Property Owner Noise Insulation Agreement Page 21 of 28 Packet Pg. 3146 K.1.aa LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 611-B, Gulfstream Tower, in 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, Florida. U) od U) Exhibit B-Property Owner Noise Insulation Agreement ent Page 22 of 28 Packet Pg. 3147 K.1.aa 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CL ................ .._._.�................_ ............ ..... Exhibit C Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3148 K.1.aa 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 3149 K.1.aa 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. WITN DES: PROPERTY OWNER. Signature Sa natur 0 CL Printed Name Printed Name I/ww L , t Signature ILO I ✓� t'a, Date Printed Wme ........... _.,.._ .... ......._._ ............ WIT 5 S: PROPERTY OW 2 Sign re Sig _..._ �T l�f r1 nature Printed Name I7 �J Printed Name S�ignlature 2> al 7--- _ Date Printed Name .... ....... .................. _......., WITNESSES: PROPERTY OWNER: CL Signature U Signature Printed Name ........ ..... Printed Name Signature Date Printed Name ....... ........ .. ......... _. 0 ...._ _.. Exhibit D Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 3150 K.1.aa 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it _. .. .......... _.. ....... Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3151 K.1.aa 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. U) 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 06 Owner understands and assumes full responsibility for maintenance of interior moisture U) and humidity levels. The Property Owner agrees to assume full responsibility for any LO 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. ... ........ ..—............... WITWe ': PROPERTY OWNER: CL Sing Sign re cs Printed Name SS Printed Name ' f Sinatrare I ....... Date Printed Name Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 3152 ................... .......... ........-......... ....... WITN PROPERTY OW Signalre Signature Printed Name /* Printed Name ............... So vdtare LL Date Printiid'Narne ..........--................................. .......................-..............---------------- z ................................--..............--........ U) WITNESSES: PROPERTY OWNER: < 0 CL Signature -Signature -"' U) LU Printed Name LO Printed Name .......... Signature ........... Date Printed Name ............................. ............................ z LU 2 LU LU W 0 LU z 3: 0 LU CL 0 W CL E . ...... .......................... ... Ex -Property Owner Noise Insulation Agreement Page 28 of 28 I Packet Pg. 3153 K.1.ab Address: Key West � the Sea Unit No.: C 115 Name(s): Hill PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal �- corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 LO V- WHEREAS, the Property Owner has elected to participate in the Key West U International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: ...... Property Owner Noise Insulation Agreement _ .......,2. Page 1 of 28 Packet Pg. 3154 K.1.ab 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. U) 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 od Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Bid Process. The Property Owner shall not LO 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 LO contractor's bid, or this Agreement until after award of the construction contract by the V_ 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. ........... _. ................... _. . Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 3155 K.1.ab (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" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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 LO the condominium; U (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. _....._.. __ _ ..... Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3156 K.1.ab 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 U) (4) Insuring that all pets are completely secured and contained. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 LO Owner's failure to complete the corrective action(s) and/or condition(s) required by the U 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 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. - ....................... ........... .................._.. Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3157 K.1.ab 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 �e 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W Program Improvements to be performed in accordance with the Program. Therefore, if LO It- the Property Owner attempts to terminate this Agreement or otherwise impedes the V_ 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 CL 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 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. __ ........... _ _ _ ...... ....... Property Owner Noise Insulation Agreement Page 5 of 28 Packet Pg. 3158 K.1.ab c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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. LO 14. Pre-Existing Deficiencies. The Property Owner will be required to V_ 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 re uired 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 CL 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 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 Noise Insulation Agreement Page 6 of 28 Packet Pg. 3159 K.1.ab 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 CL _ not to make alterations, or to permit any tenant occupying any portion of the Property to U) 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 od to adhere to this requirement may, at the option of the Program Manager in its sole U) 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Testing Process. Pre- & postLO - construction noise testing is a very important Program process that is designed to V_ 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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. 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. Property Owner Noise Insulation Agreement ---. _ ... ....._ Page Packet Pg. 3160 K.1.ab 22. Desi n 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 �e 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. od U) 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 LO 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 LO limited to final measurement, pre-construction inspections, review of Designated Storage V_ 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 CL 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 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 Property Owner Noise g ....... u_ .... .........._ ....... _..... se Insulation A reement Page 8 of 28 Packet Pg. 3161 K.1.ab 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. Discove of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP Z 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP U) construction period may need to be extended, at no fault of the Program Manager or LO Contractor. 28. Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may W arise during the NIP construction may have the potential to increase the original LO It- 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 U 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 CL 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. 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. Property Owner Noise Insulation ........m ... � ....- -..� ........ ........Pro p _ - Agreement Page 9 of 28 Packet Pg. 3162 K.1.ab 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. Coo eration 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 U) terminated. 34. Federal Assurance. As required by the Federal Aviation 06 Administration, the Property Owner agrees to the following provisions: U) a. The Property Owner shall subject the construction work on the LO 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. LO b. After final completion of the Program Improvements, the Property Owner shall assume the responsibility for maintenance and operation of the items U 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 & E ui merit. If the Property Owner desires to CL 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 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. Property Noise Insulation ........... _.__ ...... ........ . Page 10 o 28 p ty ulation Agreement S' .f Packet Pg. 3163 K.1.ab 37. IProoerty 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. 3& Timina 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Property. In the event the Property Owner sells, conveys or LO 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 U 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. 43. Authority to Execute On Behalf Of Count . 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. Property ..._..-_. ......._.... _...,........ .....-..... ..... p Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 3164 K.1.ab 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. U) a. Governin- Law Venue Interpretation, Costs and Fees. (1) This Agreement shall be governed by and construed inod accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO i (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. LO T_ U (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. Bindinq Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Property Owner and their respective legal representatives, successors, and assigns. c. Severabil ty. 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 Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 3165 K.1.ab shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. d. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of A re�erne . 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. U) f. Acce� t arks 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 06 for the purposes of this Agreement. U) LO 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. LO U 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 0 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 prohibits 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), 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) __----- ............._. ....... .... ........ Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 3166 K.1.ab 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 Vill 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other U) activities related to the substance of this Agreement or provision of the services under LO 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. LO k. Books, Records, and Documents. The County and Property Owner It- T- shall maintain books, records, and documents directly pertinent to performance under this U 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 0 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. 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 Property Owner Noise Insulation Agreement Page 14 of 28 Packet Pg. 3167 K.1.ab firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to 06 the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 LO with that proceeding. This provision shall survive any termination or expiration of the U 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 _...... . _.._.._................... Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3168 K.1.ab 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 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. U) 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 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-"Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. LO It- V_ U 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�g tons and Responsibilities, Now a� 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 _................... .-,. _.. ............. Property Owner Noise Insulation Agreement S f Page 28 Packet Pg. 3169 K.1.ab 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 Persongi 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 U) Agreement. v. Execution in Counterparts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 LO of any provision of this Agreement. U .. . ... ................... ....._. ...... Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 3170 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. ............................... ....................... .................... WITNESSES: PROPERTY OWNER: '74 signature, 0 at= Signature M (10 Printed Nan�e RINQ I— - 0 U- Printed Name 00 /A nature �i� i nature ..................... Date z :�-7 (n L� < Printed Name 0 ......................................... CL ............................................. (n W WITNESSES: PROPERTY OWNER: LO '-7A-1 4 1 '4 Signature 61 5-0&� )4jj 7 >- Signature Lot-, Printed Na LO 15IJ .......... C-"e Printed Name U IAJ 1'8& nk@v W z at 2 ure W Date W olec, Printed Name W ........... ................... z 3: 0 ............... ........... ..... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 (Seal) MAYOR CHAIRMAN: w CL Attest: KEVIN MADOK, CLERK E By: As Deputy Clerk Signature M OE 00 P ED A PEDRO �MERCADO, Date -------------............................................. ................Page ..... ................. Property Owner Noise Insulation Agreement Page 18 of 28 1 Packet Pg. 3171 K.1.ab 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 LO 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 U 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. CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. Exhibit A -Property Owner Noise Insulation Agreement_ _._......._.-.. ...... Page 19 of 28 Packet Pg. 3172 K.1.ab 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 Testis 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 od U) construction process to include: - window removal and acoustic window installation, LO - 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, LO - construction of vertical wall pilasters required for installation of the ductless AC U 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. 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. ... —� ITIT_ ..... ExhibitA-Property Owner Noise Insulation Agreement Page 20 of 2...8 Packet Pg. 3173 K.1.ab 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 U) and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the W disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. LO U G. KWBTS BOARD Authority of Desi n 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 Packet Pg. 3174 K.1.ab LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 115-C, Coral Bay Gardens, in 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, Florida. od U) U . ....... ........ .........._ Exhibit mm _ ....... ... ......_ .. .._. _._. _it B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 3175 K.1.ab 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 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) LO U CL Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3176 K.1.ab 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 U) 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and anyLO 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. LO It- 2. The Property Owner understands and assumes full responsibility for the U 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. Exhibit D-Pro Property ........ ................_ .... ... p ty Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 3177 K.1.ab 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 O 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 O 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. .._.... ..... . ..... ................_ ............. ..._ WITNESSES: PROPERTY OWNER: Si nature Signature CL Printed Name/ Printed Name i nature. .� � 'O Date Printed Name ................ ..._.._....... ..._._............ _.._., ...._ ........ _. LO WITNESSES: PROPERTY OWNER: z ._ Signature Signature Pt,nted Na 5 �t . A I L L Printed Name r l0 2_2 0 .. . �! ,nature 1 Date 1 Printed Name CL ._..._ .... .......--- .. ....._- WITNESSES: PROPERTY OWNER: Signature _m. —••• Signature Printed Name Printed Name Signature Date Printed Name Exhibit D-Property Owner Noise Insulation Agreement g f_8 Page 25 0 28 Packet Pg. 3178 K.1.ab 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 CL 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequencesLO 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. LO It- 2. The Program Improvements may include the addition of acoustical windows U 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it _... .......... ........... ....................... _ ..__ Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3179 K.1.ab 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any W occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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. LO 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 U 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 0 heirs, personal representatives, successors and assigns. WITNESSES: _.._ PROPERTY- _.. _....__. OWNER: 44 Signetur Signature � Ph to d Na (SA I A-K� LIL . Printed Name Si n'�ture �'� , Date Printed Name ................. ............ �., _.. Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 3180 ................................——..... .................... WITNESSES: PROPERTY OWNERSignature �-� Signature L 0 -W�Ai,�t,d a,m—e� 7- 'S U Nk1.-3 W , 0 L L t1, Printed Name 4 It nature 71 Date Printed Name .......... z .......................... WITNESSES: PROPERTY OWNER: U)< 0 CL (D Signature 06 Signature U) W inted Name LO Printed Name Signature Date LO Printed Name .................. .............................. U z W 2 W W W 0 W z 3: 0 W CL 0 E ............................. ............. Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28 1 Packet Pg. 3181 Address: Ke "est 11 111 Sea K.1.ac Unit No.: C211 Name(s): Keeler PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B, attached hereto (the "Property"); andCL WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 V- V- WHEREAS, the Property Owner has elected to participate in the Key West U International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: _._._ .. m.. _.....� ...� ...... ...._._.�..�._ .. ........... Property Owner Noise Insulation Agreement Page I of2 8 Packet Pg. 3182 K.1.ac 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 Polic 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 Improvement 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. od 4, Impeding Competitive Bid Process. The Property Owner shall not LO 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 It- contractor's bid, or this Agreement until after award of the construction contract by the N County. Failure of the Property Owner to comply with this provision shall, at the option U 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. �...._..� _._.... ........ ........... ....... Property Owner Noise Insulation Agreement Page 2 of 28 Packet Pg. 3183 K.1.ac (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 U) bathrooms as outlined in the "Designated Storage Space Sketch" b. After completion of the NIP construction, the Property Owner shallod meet all Post-Construction requirements to include: W LO (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; N (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. - ......................... ......_............ Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3184 K.1.ac 8. Safe Workina 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 od conditions, the Program process may, at the County's discretion, be temporarily U) suspended at any time. In such event, the Program Manager shall notify the Property LO 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 V- Owner's failure to complete the corrective action(s) and/or condition(s) required by the N 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 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. ......... ............ _......._. _._ Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3185 K.1.ac 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 U) 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. 06 Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W Program Improvements to be performed in accordance with the Program. Therefore, if It- It- the Property Owner attempts to terminate this Agreement or otherwise impedes the N 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 CL 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 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. ....... _.. f28 S og e ... Property Owner Noise Insulation Agreement Pa Packet Pg. 3186 K.1.ac c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 N 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. The Property Owner will be re uired to complete all designated Pre-Work items utilizinq 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 Re uirement. 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 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 __Ow _ ..._._........ ... .......__.. Property Owner Noise Insulation Agreement Page 6 of 28 Packet Pg. 3187 K.1.ac 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. Sus ensi,on of Pro ram 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 theProperty. 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 od W 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. % 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 U 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 re-construction noise test to the ost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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 CL requirements are not met. CL 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. 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. � ., PropertyOwner Noise Insulation Agreement Page 7 of 28 Packet Pg. 3188 K.1.ac 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. od U) 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 LO 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 CL 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 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 �. . __ ...... . Property Owner Noise Insulation Agreement - Page 8 of 28 Packet Pg. 3189 K.1.ac 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. Discove of Pre-Existing Deficiencies During Construction. In the _ event the Contractor discovers pre-existing deficiencies at the Property during the NIP Z 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP U) construction period may need to be extended, at no fault of the Program Manager or LO Contractor. 28. Impact of Unforeseen KWBTS Building Conditions on Construction Schedule. The Property Owner understands that unforeseen building conditions that may W 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 N Contractor. The Property Owner needs to plan for the "worst-case" possibility that the U 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 Moldinq., During the installation of the new acousticCL 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. 31. Communication IPe uiements. 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. ........... ....... _ _ .......... Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 3190 K.1.ac 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. Coo eration 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 V_ Administration, the Property Owner agrees to the following provisions: od a. The Property Owner shall subject the construction work on the LO It- 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 N Owner shall assume the responsibility for maintenance and operation of the items U 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 F' (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 & E ui rnent. If the Property Owner desires to CL 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 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. _.__._..._ _ W. ............_............... ....... Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 3191 K.1.ac 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, Timinq 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Bale of Prope . In the event the Property Owner sells, conveys or V- otherwise transfers title to the Property before the completion of all phases of the Program V- process, the Property Owner hereby agrees to provide the buyer with a copy of this U 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. 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 17t" 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. ..... ............._..... Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 3192 K.1.ac 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. U) a. Governing Law Venue Inter retation Costs and Fees. (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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 W the appropriate administrative body in Monroe County, Florida. It- It- N U (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. c. Severabilit . 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 ........ Pro er Owne ...�... ...............�...... .... _....— .._.�_ . p ty r Noise Insulation Agreement Page 12 of 28 Packet Pg. 3193 K.1.ac 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. Authodt . 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 rem ement. 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. M f. Acce Lance of Gifts, Grants, Assistance Funds, or Bests. 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 od for the purposes of this Agreement. U) g. Claims for Federal or State Aid. The County and Property Owner LO 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. N h. d`udi�on of Dispu es or Disagreements. The County and U 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 prohibits 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), 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) _ ._._. ..... .._ PropertyOwner Noise Insulation Agreement Page 13 of 28 Packet Pg. 3194 K.1.ac 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other W activities related to the substance of this Agreement or provision of the services under LO 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, IRecords� and Documents. The County and Property Owner shall maintain books, records, and documents directly pertinent to performance under this U 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. n. No Solicitation/Pa ment. 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 _ ....._.......... _._.............. � ..... f28 14 0 e .. Property Owner Noise Insulation Agreement Page Packet Pg. 3195 K.1.ac firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. Public Records Compliance. Property Owner must comply with _ Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Z 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 od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) 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 LO 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 W 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 N 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 _.._� ... _ _ ......... ... ......._ ._._._._.— Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3196 K.1.ac 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 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. U) 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 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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 W any contract entered into by the County be required to contain any provision for waiver. N U 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-1 ele ag ,tio, 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 _ ...� _. .... ......._ ........ .. . _..... Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 3197 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. ............ ......................................................................................... WITNESSES: PROPERTY OWN AN 1A .............— Signatury Signature M Printed Nae U- Printed Name 0 jl �� a t u re 5—ate z o CA "o U) Printed Name 0 ................................... ...... CL od U) ........... .......... ............... ......................... W WITNESSES: PROPERTY OWNER: LO Signature ...... W Signature .. ...... ....... Printed Name CN Printed Name U z W Signature W W Date W 0 Printed Name W z ....................... .......... 3: 0 ............ ............. ......................... MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 W (Seal) MAYOR CHAIRMAN: CL Attest: KEVIN MADOK, CLERK E By: As Deputy Clerk Signature 02N E COUNTY0 NEY P7 EE 0 PEDSO J. Date EACADO ----A-$S1STANT 00 ..............................——-------— .... 0 t ................ Property Owner Noise Insulation Agreement Page 18 of28 I Packet Pg. 3198 K.1.ac 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 U 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 Re lacernen . 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 0 revision will be an improvement, while decreasing constriction costs and improving time efficiencies. CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. .... . _ .... ......_. _._. Exhibit A -Property Owner Noise Insulation Agreement Page 19 of 28 Packet Pg. 3199 K.1.ac 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. KWIBTS Asbestos Testin 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 06 U) construction process to include: - window removal and acoustic window installation, LO - 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 U 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. 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. E _. ... ........... _ ..._......_ ....__ .............�._._._....� xhibit A -Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 3200 K.1.ac - 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 U) and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAA od will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. U G. KWBTS BOARD Authorily 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 P Exhibit A Property Owner Noise Insulation Agreement age 21 of 28_....,. Packet Pg. 3201 K.1.ac LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 211-C, Coral Bay Gardens, in 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, Florida. od U) U ..............Pa e 22 0..._ —. Exhibit B Property Owner Noise Insulation Agreement g f 28 Packet Pg. 3202 K.1.ac 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: U) • Architectural Drawings 06 • Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CN U CL ....... ....... ........... Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28 Packet Pg. 3203 K.1.ac 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 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, 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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 U 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. ......... ...... __.... ._ ........ .... Exhibit D-Property Owner Noise Insulation Agreement Page 24 of 28 Packet Pg. 3204 K.1.ac 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 O 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 Q 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. ._... ......... ........ _..._...._.._ WITNESSES: PROPERTY OWNER: r -�ni Signatur _........ \V Signature CL Loo Printed N 1 l- �L�✓� Printed Name atureJ mZ� LO W ." Date ranted Name .........._. WITNESSES: .......... _....��......... ....PROPERTY OWNER: CN U Signature Signature . _ Printed Name Printed Name �- Signature Date >- Printed Name CL WITNESSES: ..... _ . ��PROPERTY OWNER: CL Signature Signature Printed Name .._ -W Printed Name Signature Date ._ ........ Printed Name _............... .. ...... _ ........._._,_„_ Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 3205 K.1.ac 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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 U 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it ............... __ ......._ ..._ ... �. Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3206 K.1.ac 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 od W and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO levels in the Property. In addition, the Property Owner agrees to assume full responsibility i 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 U 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 0 heirs, personal representatives, successors and assigns. CL WITNESSES: ..... _.....� _.�._._._. CL PROPERTYkWNER, ._ ........ _� : S'dgnatu e Signature q tinted Na a •,C (� ^ Printed Name Si mature �..... ° -C_,, `" t � Date rinted Naas ,� .�._ ..... .....�._..�.�..._..w..._.... ....... ......,_ Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 3207 ........... ................. - ------- WITNESSES: PROPERTY OWNER- ------------ Signatu Printed Name Printed 14-a—me Signature U- Date Printed Name .......................... ....... ...... z ........... ........ ........................................................ U) WITNESSES: PROPERTY OWNER: < 0 CL (D Signature 06 Signature U) W Printed Name LO Printed Name Signature Date Printed Name CN .......... ................ ............... U z W 2 W W W 0 W z 3: 0 W 0- 0 E ............... ............ .........................Exhibit E-Property Owner Noise Insulation Agreement Page 28 of28 I Packet Pg. 3208 Address: Kev West by the ` " ea K.1.ad Unit No.: C219 Name(s): Epstein PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal . corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, and more particularly described on Exhibit attached hereto (the "Property"); and WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, U) State of Florida, and in close proximity to the Property; andLO 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 V- WHEREAS, the Property Owner has elected to participate in the Key West N International Airport's Noise Insulation Program (the "Program") and, as part of the Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor (the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: ....... .... _ ............. .........--........................... Property Owner Noise Insulation Agreement Page I of 28 Packet Pg. 3209 K.1.ad 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 Im rovements. The County agrees to pay for the < Program Improvements described in Exhibit G attached hereto. The Program Improvements will be approved by the Property Owner and County, managed by the Program Manager, and performed by the Contractor. od 4. Impeding Competitive Sid Process. The Property Owner shall not LO impede or interfere with the Contractor's ability to select between approved product It I 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 U 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 meet all responsibilities and requirements pertaining to both pre-construction and post- CL 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. _ ... Property Owner Noise Insulation Agreement Page gof .,...... 28 Packet Pg. 3210 K.1.ad (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 U) bathrooms as outlined in the "Designated Storage Space Sketch" T_ b. After completion of the NIP construction, the Property Owner shall od meet all Post-Construction requirements to include: W LO (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; U (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 alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. .........._.... ........._..._ ....�_. Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3211 K.1.ad 8. Safe Workinq 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 foregoingod conditions, the Program process may, at the County's discretion, be temporarily U) suspended at any time. In such event, the Program Manager shall notify the Property LO 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 U 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 Dela s. 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 E 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 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. - Property Owner Noise Insulation Agreement _. Page 4 of 28 Packet Pg. 3212 K.1.ad 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 U) 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO 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 W Program Improvements to be performed in accordance with the Program. Therefore, if It- the Property Owner attempts to terminate this Agreement or otherwise impedes the N 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 CL 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 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. Property Owner Noise Insulation Agreement Page 5 of 28 Packet Pg. 3213 K.1.ad c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 N 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 Re uirements. 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 re u,uired to complete all designated Pre-Work items utilizing their own funds and per the re uired 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. 1& Citv of Kev West "Hard-Wired" Smoke Alarm Re uirement. 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 accordance with all applicable codes and regulations by the required deadline as established by the NIP. The ProDertv 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 an otential impedance to the NIP construction progess. In the event the .. .._ .... ._..._ ........._.�. _ _....................._ Pro . .._... perty Owner Noise Insulation Agreement g f Page 6 0 28 Packet Pg. 3214 K.1.ad 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 l ro ert . 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 od 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 LO 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 U 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to_the 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 CL requirements are not met. CL 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. 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. Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 3215 K.1.ad 22. Desicin 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 �e 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. od 24. Pre and Post Construction Access. At scheduled times and/or upon W not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per LO 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 N Space requirements, post construction inspections and post-construction noise testing. U 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 0 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 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 Doe 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 .M.... ............... ........ ........ ...... Property Owner Noise Insulation Agreement Page 8 of 28 Packet Pg. 3216 K.1.ad 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. Discole of Pre-Existn 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 od construction period may need to be extended, at no fault of the Program Manager or LO 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 U 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. Existin Crown Moldin During the installation of the new acousticCL 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. 31. Communication Re uirements. 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. _... ._....�__ ..... .. __. ........`_ e Property Owner Noise Insulation Agreement Pa 9 0f 28IT...g Packet Pg. 3217 K.1.ad 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 CleadD_q 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 E terminated. 34. Federal Assurance. As required by the Federal Aviation Administration, the Property Owner agrees to the following provisions: od a. The Property Owner shall subject the construction work on the LO It- project to such inspection and approval during the construction of the Program It- 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 U 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, 0 36. Salva a 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 CL 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 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. ....... _ ......... Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 3218 K.1.ad 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. U) 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 od 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 LO limit the warranties for materials and workmanship contained in the contract with the V- general contractor. 40. Sale of Pro erty. In the event the Property Owner sells, conveys or otherwise transfers title to the Property before the completion of all phases of the Program V- process, the Property Owner hereby agrees to provide the buyer with a copy of this U 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. 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 17t" 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. _® ....uu.... ._ ........ - Property Owner Noise Insulation Agreement Page I I of 28 Packet Pg. 3219 K.1.ad 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. U) a. Governing-Law Venue Interpretation, Costs and Fees. CL (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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. N U (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. c. Severa ility;. 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 _ _ Property Owner Noise Insulation Agreement Page .......�. 12 of 28 Packet Pg. 3220 K.1.ad 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. Authorit Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Property Owner action, as may be required by law. e. Duration of Agreement.- This Agreement shall commence upon the execution of this Agreement, subsequent to execution by the Property Owner and by the County and shall remain in effect for a period reasonably required to effect the Program Improvements (the "Term"), except as may be sooner terminated in accordance with the provisions of this Agreement. U) 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 od for the purposes of this Agreement. U) LO 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 W approved by the County prior to submission. N U h. Adjudication of !Dimes utes or Disa reements. 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 prohibits 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), 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) ___......... _........ .......� ......._ Property Owner Noise Insulation Agreement Page 13 of 28 Packet Pg. 3221 K.1.ad 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other U) activities related to the substance of this Agreement or provision of the services under LO 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 U 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. 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 _..� ....._.. .._._. ..._._. _ _.. 14 Page Property Owner Noise Insulation Agreement Pa of 28 Packet Pg. 3222 K.1.ad firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 W 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 i 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 ...._._..Property Owner Noise Insulation A _.. _.. greement Page 15 of 28 Packet Pg. 3223 K.1.ad 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 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. U) 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 06 this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and Property Owner in this LO 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 W 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 U 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 Obli ations and Responsibilities Gaon-L el gation 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, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. s. Non-Reliance by 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 Property ......... �. p ty Owner Noise Insulation Agreement g f Page 28 Packet Pg. 3224 K.1.ad 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 LiabilLtV. 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 Cour7ter arts. This Agreement may be executed in any od number of counterparts, each of which shall be regarded as an original, all of which taken U) together shall constitute one and the same instrument and any of the parties hereto may LO execute this Agreement by signing any such counterpart. w. Section Headin s. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such W section headings are not a part of this Agreement and will not be used in the interpretation CN of any provision of this Agreement. U .. Property Noise Insulation Agreement 17 g Pa e ero p �, of 28 Packet Pg. 3225 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. --..... ....................... ........ WITNESSES: PROPERTY OWNER: Signature ...... Signature M .S ®rinted Name Printed Zrn-e Signature Date z a: U) Printed Name < 0 ............. ............... .......................... ............... .................... ................................................ U) W WITNESSES: PROPERTY OWNER: LO Signature ....... Signature .......... Printed Name CN Printed Name U z W 2 Signature W Date W W 0 Printed Name W .............. ............................. ................--------------- z 3: 0 ................. .................................. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 (Seal) MAYOR CHAIRMAN: W CL Attest: KEVIN MADOK, CLERK E By: As Deputy Clerk Signature 71,1 U ���YA RN OF-00 PTIVED A RM Prwo MEF;dA-DO A Date .......... z 'z-L Data-- ...................... Property Owner Noise Insulation Agreement Page 18 of I Packet Pg. 3226 K.1.ad PROGRAM POLICY STATEMENTS Exhibit A To Property Owner Noise Insulation Agreement A. Air Conditionin : 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. od 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 U 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 Re lacement. 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 0 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. ..........._. _.._._.� ......... _ . Exhibit A -Property Owner Noise Insulation Agreement Page 19 0J`28 Packet Pg. 3227 K.1.ad 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 U) 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 od construction process to include: - window removal and acoustic window installation, LO - 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 U 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. 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. ........- ...._._ �.........._.-... ..... ............- Exhibit A -Property Owner Noise Insulation Agreement Page 20 of 28 Packet Pg. 3228 K.1.ad 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 od will require THC to develop a design and construction plan that minimizes the W disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. N U G. KWBTS BOARD Authori 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 Packet Pg. 3229 K.1.ad LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 219-C, Coral Bay Gardens, in 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, Florida. U) od U) U m............... ....... Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28 Packet Pg. 3230 K.1.ad 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 06 0 Replacement Aluminum Acoustical Windows W LO • Replacement Aluminum Acoustical Swinging Prime Door(s) 0 Replacement Aluminum Acoustical Sliding Glass Patio Door(s) CN U CL ty Exhibit C Pro er Owner No..... ... p Noise Insulation Agreement Page 23 of 28 Packet Pg. 3231 K.1.ad 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 U) 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and anyLO 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 U 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. Exhabit D-Pro -..... ....— ..._ ..._.,. __.___ ..PQ...e 24 0 28....... -"'Property Owner Noise Insulation Agreement g f Packet Pg. 3232 K.1.ad 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 Deficiencies and/or all negative impacts that later result after the addition of the Program Improvements. The provisions of this Exhibit O 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. _ ............... .._....... .. . WITNESSES: PROPERTY OWNER: CL Signature ...... P-4 R-t(. SignatureCL /U /�/� Printed Name Printed Name U) SA natureLO U1rr Date Printed)Name ._ .... _.,.,..._ __. ........ _.. ........_.. .........._ _..... _......_...._. WITNESSES: PROPERTY OWNER: CN U Signature Signature Printed Name Printed Name Signature Date 0 Printed Name CL _ . .. .... WITNESSES ...... ._ .... ....._.. __. _._..... .............. PROPERTY OWNER. Signature Signature Printed Name ........ _..... Printed Name Signature ....�� ............ Date Printed Name _ ................ ...._....... ............. ........... . Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28 Packet Pg. 3233 K.1.ad 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 U) 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature U) on account of bodily injuries or death, damage to the property and the consequencesLO 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 U 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it Exhibit E-Property Owner Noise Insulation Agreement Page 26 of 28 Packet Pg. 3234 K.1.ad 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 od and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO levels in the Property. In addition, the Property Owner agrees to assume full responsibility i 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 U 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 0 heirs, personal representatives, successors and assigns. WITNESSES: .......-. _..._ PROPERTY O�WNER.4*7 .._._._ .......�.. Signature . Signature tinted Name Printed Name Signature "Sign Date Printed Name Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28 Packet Pg. 3235 K.1.ad . WITNESSES _ _. ..._ PROPERTY O.WNER: Signature Signature Printed Name Printed Name Signature LL Date Printed Name ........, .............. ..............................._. _---._ .... _..........�... ._.... . ....... WITNESSES: PROPERTY OWNER: U) CL Signature Signature U) Printed Name LO Printed Name i Signature W Date Printed Name cN _�..............m....... ..... U CL CL c5 ..... _ _ ._... ......... .....,_ _................ Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28 Packet Pg. 3236 Address: Ke West$ the Sea Mae Unit No.: C317S Name(s): You y aii PROPERTY OWNER NOISE INSULATION AGREEMENT KEY WEST INTERNATIONAL AIRPORT, MONROE COUNTY THIS NOISE INSULATION AGREEMENT (this "Agreement") is made and effective the date last below written by and between MONROE COUNTY, a municipal corporation organized and existing under the laws of the State of Florida (the "County"), and the undersigned (the "Property Owner"). WITNESSETH: WHEREAS, the Property Owner is the sole record owner in fee simple of certain real property located in the City of Key West, County of Monroe, State of Florida, < and more particularly described on Exhibit B attached hereto (the "Property"); and CL WHEREAS, the County is the owner and operator of the Key West od International Airport (the "Airport"), situated in the City of Key West, County of Monroe, W State of Florida, and in close proximity to the Property; and LO 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 V- 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 U Program, the Property Owner has elected to obtain acoustical treatments and improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the County at no cost to the Property Owner and in exchange for the granting to the County of an avigation easement over, across and through the Property; and WHEREAS, the County will enter into a construction contract with a general contractor(the "Contractor") to provide the installation of the Program Improvements; and WHEREAS, the Program is managed by the consultant team consisting of a team manager and assistant manager, architect, mechanical / electrical engineer, acoustician and construction manager selected by the County (the "Program Manager"); .. and WHEREAS, the Property Owner and the County mutually desire to agree to the terms upon which the Property Owner will participate in the Program and receive the Program Improvements upon the terms and conditions provided herein; NOW, THEREFORE, in consideration of the terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Property Owner and the County hereby agree as follows: ...... ....... ........ Property Owner Noise Insulation Agreement Page 1 of 28 Packet Pg. 3237 K.1.ae 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. Pro ram Policv 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 �e Statements is attached hereto as Exhibit A. 3. Pa ment of Pro ram 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 06 Program Manager, and performed by the Contractor. U) 4. Impeding Competitive Bid Process. The Property Owner shall not LO 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 U 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 meet all 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 space in sketch) for the Contractor. When doing so, the Property Owner will have the ability to utilize the complete "floor to ceiling" space. Property O ....- _._ ...._ ..._. .._. .......... _... Noise Insulation Agreement Page 2 of 28 wner Packet Pg. 3238 K.1.ae (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" T_ b. After completion of the NIP construction, the Property Owner shall od U) meet all Post-Construction requirements to include: LO (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; M (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 CL related thereto. CL 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 tenantsCU that may occupy the Property during the construction of the Program Improvements from impeding construction or altering construction schedules. In the event the Property Owner or any tenant occupying the Property impedes construction or alters the construction schedule, the Property Owner shall be liable to the Contractor and the County for any damages and all direct and indirect costs related thereto. ....... _._. ._..........................._....._. Property Owner Noise Insulation Agreement Page 3 of 28 Packet Pg. 3239 K.1.ae 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. V- V- b. In the event the Property Owner fails to meet any of the foregoing od conditions, the Program process may, at the County's discretion, be temporarily W suspended at any time. In such event, the Program Manager shall notify the Property LO 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 M 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 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 " fork. The Program Manager reserves the right to make changes to the plans and specifications and the Program Improvements, at its sole discretion, at any time during the Program process, provided such changes do not reduce the scope or quality of the Program Improvements described in Ex,hib f C and such changes are necessitated by the discovery of hidden conditions not readily detectable during normal property inspection procedures. v ........... _ _ ._._. _.. .................._ _. . Property Owner Noise Insulation Agreement Page 4 of 28 Packet Pg. 3240 K.1.ae 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 U) 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. od Monroe County shall be the final arbiter of any conformance/performance/issues. Failure U) by the Property Owner to submit the written complaint within the time period specified LO above shall thereafter foreclose the Property Owners right to file such complaint. 12. Termination of A reement. 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 0 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 theCL 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 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. ................ ............. _.______.-......_ _....... Property Owner Noise Insulation Agreement Page S of 28 Packet Pg. 3241 K.1.ae c. In the event of a warranty claim, the Property Owner shall be solely responsible for contacting the Contractor (or product manufacturer) directly to coordinate any required warranty service and agrees to look solely to the Contractor (or product manufacturer) for fulfillment and resolution of all warranty issues. It should be noted that warranty claims do not include product failures resulting from a lack of maintenance, product damage resulting from misuse and/or product operation failures due to lack of cleaning, as these are all the sole responsibility of the Property Owner. (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 U) general contractor has expired; V_ (3) The Property Owner believes that service is required with od respect to product warranty issues, the advertised warranty period for the product has not W expired, and the manufacturer is currently conducting its business; and LO (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 U and liability to the Property Owner for any and all present Pre-Existing Deficiencies at the Property, whether seen or unseen. 15. Pre-Work Pe uirements. 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 re wired to complete all designated Pre-Work items utilizing their own funds and per the re used deadlines as established by the NIP. In the event the Property Owner fails to complete the designated 0 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 KeyWest "Hard-Wired,, Smoke Alarm Requirement In compliance with the City of Key West Fire Marshall and the City of Key West Building U CU Department construction permit issuance requirements, the Property Owner will be required to install 120-volt"hard-wired" smoke alarms in their condominium in accordance with all applicable codes and regulations by the required deadline as established by the NIP. The Pro ert 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 Noise In ...... ...... .. ........ -_ ____ ..._. .................�. ...............—. sulation Agreement Page 6 of 28 Packet Pg. 3242 K.1.ae 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 Pro ert . The Property Owner agrees _ not to make alterations, or to permit any tenant occupying any portion of the Property to U) 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 od to adhere to this requirement may, at the option of the Program Manager in its sole U) 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 LO direct and indirect costs associated with unapproved alterations and damages related thereto. 19. Pre and Post-Construction Noise Testin 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 U 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 re-construction noise test to thepost-construction noise test. In an effort to ensure 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 re-construction noise test to thepost-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. 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. - - Property Owner Noise Insulation Agreement Page 7 of 28 Packet Pg. 3243 K.1.ae 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 U) 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. od U) 24. Pre and Post Construction Access. At scheduled times and/or upon LO 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. U 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 0 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 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 _. ....._ ._ .......... _..... .............. f 28..8 0g e ... Property Owner Noise Insulation Agreement Pa Packet Pg. 3244 K.1.ae 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. Discover of Pre-Existing Deficiencies During Construction. In the event the Contractor discovers pre-existing deficiencies at the Property during the NIP U) 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 od understands that, depending on the timing of the pre-existing deficiency repair, the NIP W construction period may need to be extended, at no fault of the Program Manager or LO 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 U 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. 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. ........... .. ..................... _............._ _...._...._...... ...... �. Property Owner Noise Insulation Agreement Page 9 of 28 Packet Pg. 3245 K.1.ae 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 U) terminated. 34. Federal Assurance. As required by the Federal Aviation T_ od Administration, the Property Owner agrees to the following provisions: U) a. The Property Owner shall subject the construction work on the LO 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 U 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 & E ui ment. If the Property Owner desires to retain any of the material or equipment removed from the Property as a result of the CL 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 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. ...._._._. ..._ . ....__ ..... Property Owner Noise Insulation Agreement Page 10 of 28 Packet Pg. 3246 K.1.ae 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 �e quantities of dust and debris rendering portions of the Property uninhabitable for extended periods of time. U) 39. labor and Material Release. The Property Owner releases and forever discharges any and all claims, suits and actions against the Program Manager; 06 the County and its officers, employees, agents, consultants; and contractors and U) suppliers with respect to issues relating to the conformance of labor, materials and LO 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. Sale of Proprtr. 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 U 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. 43. Authority to Execute On Behalf Of Count . 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 171h 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. _......................... ........ _ ............... Property Owner Noise Insulation Agreement Page 11 of 28 Packet Pg. 3247 K.1.ae 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. U) a. Governing Law Venue Interpretation, Costs and Fees. (1) This Agreement shall be governed by and construed in od accordance with the Laws of the State of Florida applicable to contracts made and to be U) performed entirely in the State. LO (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 U 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. c. Severab� 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 - .. .... .... Property Owner Noise Insulation Agreement Page 12 of 28 Packet Pg. 3248 K.1.ae 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. Authorily. 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 A re�ement. 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. U) f. Acceptance of Gifts, Grants, Assistance Funds, or Be uest . 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 06 for the purposes of this Agreement. W LO 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. V- M h. Adjudication, of (Disputes or Disagreements. The County and U 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 prohibits 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), 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) Property Owner Noise Insulation Agreement Page 13 of 28..... Packet Pg. 3249 K.1.ae 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. U) 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 od required by the other party, in all proceedings, hearings, processes, meetings, and other U) activities related to the substance of this Agreement or provision of the services under LO 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 U 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. n. No Solicitation/Pa ment. 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 ..._m.............. _ ...... ............ .. ......... _ I o e Property Owner Noise Insulation Agreement Page f 28 Packet Pg. 3250 K.1.ae firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Property Owner agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. o. Public Access. The County and Property Owner shall allow and permit reasonable access to, and inspection of, all documents, papers, letters, or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Property Owner in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by the Property Owner. 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, letters or other "public record" materials in its possession or under its control subject to od the provisions of Chapter 119, Florida Statutes, and made or received by the County and U) Property Owner in conjunction with this contract and related to contract performance. The LO 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 ............... ........ . .._ ................._ Property Owner Noise Insulation Agreement Page 15 of 28 Packet Pg. 3251 K.1.ae 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 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. U) 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 od this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470. U) p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. LO 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. Priv and Immunities. All of the privileges and immunities from Uileges liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, volunteers, or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. r. Legal Obligations and Responsibilities, Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or 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 by 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 er ITITITOwn _.. ...._ ..._....... Pro _.........__ Property Owner Noise Insulation Agreement Page 16 of 28 Packet Pg. 3252 K.1.ae 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 U) Agreement. v. Execution lin Counterparts. This Agreement may be executed in any 06 number of counterparts, each of which shall be regarded as an original, all of which taken W together shall constitute one and the same instrument and any of the parties hereto may LO 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 V- of any provision of this Agreement. U _............_ ...... ....... _._............... .._ _..... ._.....m Property Owner Noise Insulation Agreement Page 17 of 28 Packet Pg. 3253 IN WITNESS WHEREOF, the Property Owner and the County have executed this Agreement as of the day and year first above written. .......................... .................. WITNESSES: PROPERTY OWNER: Signature ignatur Printed N me Printed Name S nature ( ,c Date _ z U) ranted Name 0 CL U) ............. ........ W LO WITNESSES: PROPERTY OWNER: Signature Signature Printed Name ....... ...... Printed Name U z W Signature ............. 2 W Date W W Printed Name 0 W ............................................................................... z 3: ...........................­­.__....­................... 0 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: W CL 0 (Seal) MAYOR CHAIRMAN: W CL Attest: KEVIN MADOK, CLERK E By: As Deputy Clerk Signature ("OuNw R vou"''" - AAO, ED AS Yro'/' T T AAP�CIOROJ. �IRICA Date� ............ 79 / z7zzi6?........ ............................. mm Property Owner Noise Insulation Agreement Page 18 of28 I Packet Pg. 3254 K.1.ae 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 06 inches. 3. All condensate lines will be installed on the building exterior consistent with KWBTS W Board policy rules to ensure the highest level of consistency and building architectural LO 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 U 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. CL 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 (314"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 have the option to replace the installed trim with other custom trim to match the existing materials and profiles. Exhibit A -Property Owner Noise Insulation Agree _.._ ..� ....._ -ITITITITITITITmm� Agreement Page 19 of 28 Packet Pg. 3255 K.1.ae D. Door Threshold Heigh . 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 H both the "walkway" and "courtyard / balcony" building elevations. Depending on the laboratory analysis of these samples, the presence of asbestos od containing materials (ACM) have the potential to impact several areas of the NIP M construction process to include: LO - 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 Re uireme t 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 sam ples show a p resence of ACM < 1% CL 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. 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. Exhibit A -Property Owner Noise Insulatio n Agreement Page 20 of 28 Packet Pg. 3256 K.1.ae - 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 U) and coordination requirements of contractor crews. - Given the cost to provide required asbestos abatement procedures, the FAAod will require THC to develop a design and construction plan that minimizes the U) disturbance of ACM to ensure the minimization of construction costs, duration, LO 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. U 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 c� .. Exhibit A -Property Owner Noise Insulation Agree .. _. .... ......_ Agreement Page 21 of 28 Packet Pg. 3257 K.1.ae LEGAL DESCRIPTION OF PROPERTY Exhibit B To Homeowner Noise Insulation Agreement Unit No. 317-S, Coral Bay Gardens, in 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, Florida. U) 06 U) U .. Exhibat B-Property Owner Noise Insulatio n Agreement Page 22 of 28 Packet Pg. 3258 K.1.ae 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: U) • Architectural Drawings 06 U) • Replacement Aluminum Acoustical Windows LO o Replacement Aluminum Acoustical Swinging Prime Door(s) • Replacement Aluminum Acoustical Sliding Glass Patio Door(s) U CL CL Exhibit C-Property wner ..... _._. .._..._._..Noise Insulation....... O n Agreement Page 23 of 28 Packet Pg. 3259 K.1.ae 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, od demands, damages, actions or causes of action of whatsoever kind and nature on account W of bodily injuries or death, damage to the property, and the consequences thereof, and any LO 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 necessary repairs to the Property, to the acceptance of the Program Manager to minimize any delay or stoppages of work. p Insulation Agreement _.. Page 24 o 28..a Exhibit D-Pro Property Noise �....._..... ty g ment g f Packet Pg. 3260 K.1.ae 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 Deficiencies and/or all negative impacts that later result after the addition of the Program Improvements. The provisions of this 'Exhibit O 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. _...... ._.._�..�... .....�.... .�...... WITNESSES: PROPERTY OWNER. fi t� U) Signature Y Asignatr� CL Printed Na Printed Name LhQ� LO ature qige Date Printed Name WITNESSES: ..• PROPERTY N ... ........ OWNER: M U Signature Signature Printed Name Printed Name 11 Signature Date Printed Name CL WITNESSES"""" PROPERTY OWNER._..__..._ Signature --- Signature Printed Name Printed Name Signature Date Printed Name _ _ _ ._..... _._......,_ ................ Page Exhibit D-'Property Owner Noise Insulation Agreement_ p ty g Bement 25 of 28 Packet Pg. 3261 K.1.ae 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 od claims, demands, damages, actions or causes of action of whatsoever kind and nature W on account of bodily injuries or death, damage to the property and the consequences LO 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 CL 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 CU 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 bathroom moisture in a central building exhaust shaft. During the Program design survey process it Exhibit� .��.�...... ......._-.�. _.........�... . f28 26 0g e E-Property Owner Noise Insulation Agreement Pa Packet Pg. 3262 K.1.ae 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. U) 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 06 Owner understands and assumes full responsibility for maintenance of interior moisture U) and humidity levels. The Property Owner agrees to assume full responsibility for any occurrence, reoccurrence or worsening of moisture problems and/or interior humidity LO 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 Exhthft E apply to U 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 Exh ba,t _E shall be binding upon and inure to the benefit of the undersigned and their respective heirs, personal representatives, successors and assigns. CL WITNESSES: ....__ .._ _ . .. PROPERTY OWNER: SiCL nature ell / t 4 nur Printed ama Printed Name Jinature 2—Z>2sZ) w *Date Printed Name Exhibit E-Property Owner Noise Insulation Agreement g f Page 27 0 28 Packet Pg. 3263 K.1.ae . ...............—......_. ......... ........ ....... _._. . WITNESSES: PROPERTY OWNER: Signature - - Signature Printed Name ..... Printed Name M Signature LL Date Printed Name _....... ....... ...... _........... _...... .............. -- ._.._._-.... -..... _ WITNESSES: PROPERTY OWNER. (n CL Signature Signature U) Printed Name uO Printed Name Signature Date Printed Name ....... ..... _._._-... .... ...._.�._. ..... ........ cn t3 CL CL c� _ ........... Exhibit E-Property Owner Noise Insulation Agreement _ Page 28 of 28 Packet Pg. 3264 K.1.af KWBTS Noise Insulation Program(Final Phase) Address Unit# Name 1 Key West by the Sea A101 Barber 2 Key West by the Sea A201 Halpern 3 Key West by the Sea A208 Marion 4 Key West by the Sea A401 Domonique Sellier 5 Key West by the Sea A603 Schmitt 6 Key West by the Sea A605 Onderdonk 7 Key West by the Sea B105 Sellier 8 Key West by the Sea B208 Halpin 9 Key West by the Sea B307 Stout 10 Key West by the Sea B309 Woolsey 11 Key West by the Sea B405 Fogarty 12 Key West by the Sea B611 Rosenfeld 13 Key West by the Sea C115 Hill 14 Key West by the Sea C211 Keeler 15 Key West by the Sea C219 Epstein 16 Key West by the Sea C317S Youngsman U) od U) LO 0 MA c� Packet Pg. 3265