10/19/2022 Agreement GVS COURTq°
o: A Kevin Madok, CPA
-
�o ........ � Clerk of the Circuit Court& Comptroller Monroe County, Florida
�z cooN
DATE: December 16, 2022
TO: Beth Leto, Airports
Business Manager, KWIA
FROM: Liz Yongue, Deputy Clerk
SUBJECT: October 19th BOCC Meeting
The electronic copies of the following items are in OneDrive for your retrieval:
K1 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.
I am forwarding the recorded Avigation Easements to you through the courier. Should
you have any questions please feel free to contact me at(305) 292-3550.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY
500 Whitehead Street 3117 Overseas Highway 88770 Overseas Highway
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070
Address: Key West by the Sea
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"); and
WHEREAS, the County is the owner and operator of the Key West
International Airport (the "Airport"), situated in the City of Key West, County of Monroe,
State of Florida, and in close proximity to the Property; and
WHEREAS, the County desires to obtain and preserve for the use and
benefit of the public a right of free and unobstructed flight for aircraft landing upon, taking
off from, or maneuvering about the Airport; and
WHEREAS, the Property Owner has elected to participate in the Key West
International Airport's Noise Insulation Program (the "Program") and, as part of the
Program, the Property Owner has elected to obtain acoustical treatments and
improvements to the Property as more particularly described on Exhibit C attached hereto (the "Program Improvements"); said Program Improvements to be paid for by the
County at no cost to the Property Owner and in exchange for the granting to the County
of an avigation easement over, across and through the Property; and
WHEREAS, the County will enter into a construction contract with a general
contractor(the "Contractor") to provide the installation of the Program Improvements; and
WHEREAS, the Program is managed by the consultant team consisting of
a team manager and assistant manager, architect, mechanical / electrical engineer,
acoustician and construction manager selected by the County (the "Program Manager");
and
WHEREAS, the Property Owner and the County mutually desire to agree
to the terms upon which the Property Owner will participate in the Program and receive
the Program Improvements upon the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the terms, covenants and
conditions set forth herein, and other good and valuable consideration, the receipt and
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
1. Grant of Easement. Simultaneously with the execution of this
Agreement, the Property Owner executed and delivered to the County an avigation
easement (the "Easement") which Easement has been recorded in the public records of
Monroe County, Florida. The Easement remains in full force and effect and is hereby
ratified in all respects.
2. Program Policy Statements. Consistent with the Program and/or
Federal Aviation Administration Airport Improvement Program policies and procedures,
the Program Manager has developed a series of Program Policy Statements outlining
construction and eligibility restrictions. The Property Owner understands that prescribed
Program Improvements will be consistent with the Program Policy Statements provided
to the Property Owner by the Program Manager. A copy of the Program Policy
Statements is attached hereto as Exhibit A.
3. Payment of Program Improvements. The County agrees to pay for the
Program Improvements described in Exhibit C attached hereto. The Program
Improvements will be approved by the Property Owner and County, managed by the
Program Manager, and performed by the Contractor.
4. Impeding Competitive Bid Process. The Property Owner shall not
impede or interfere with the Contractor's ability to select between approved product
manufacturers and subcontractors in the preparation of bid submittals. To insure a
competitive bid environment, the Property Owner is prohibited from having any
discussion or communication with the Contractor in relation to the Program, the
contractor's bid, or this Agreement until after award of the construction contract by the
County. Failure of the Property Owner to comply with this provision shall, at the option
of the County in its sole discretion, result in disqualification from the Program and
cancellation of this Agreement.
5. Construction Contract. The County will award the contract for the
Program Improvements consistent with Federal and County competitive bidding policies
and procedures. The contract will require the Contractor to complete the Program
Improvements within a time period defined by the Program Manager.
6. Pre- & Post-Construction Responsibilities. The Property Owner shall
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
(3) Removing of all excessive furniture and belongings from the
condominium that will not fit in the "Designated Storage Space Area";
(4) Removing all window and door treatments (such as blinds,
drapes, plantation shutters, etc.) and storing them in the "Designated Storage Space
Area";
(5) Removing all electronic and dust-sensitive items from their
condominium or wrapping with protective poly before storing them in the "Designated
Storage Space Area";
(6) Removing all wall hangings (such as mirrors, pictures, hanging
shelves, etc.) and storing them in the "Designated Storage Space Area";
(7) Moving all small items and belongings into either the closets or
bathrooms as outlined in the "Designated Storage Space Sketch"
b. After completion of the NIP construction, the Property Owner shall
meet all Post-Construction requirements to include:
(1) Moving of all furniture and belongings stored in the
"Designated Storage Space Areas" back to their original positions in the condominium:
(2) Moving of any excessive furniture and belongings back into
the condominium;
(3) Re-installation of all wall treatments, door treatments and wall
hangings back to their original positions in the condominium.
c. In the event the Property Owner fails to perform any and all of the
above Pre-Construction responsibilities, the Property Owner shall be removed from NIP
participation and the Property Owner shall be liable to the County and/or Contractor for
any and all resulting damages and all direct and indirect costs related thereto.
d. In the event the Property Owner fails to perform any and all of the
above Post-Construction responsibilities, the Property Owner shall be liable to the County
and/or Contractor for any and all resulting damages and all direct and indirect costs
related thereto.
7. Impeding Construction. Once construction of the Program
Improvements begins, the Property Owner shall not impede construction or alter
construction schedules. In addition, the Property Owner shall prevent any and all tenants
that may occupy the Property during the construction of the Program Improvements from
impeding construction or altering construction schedules. In the event the Property
Owner or any tenant occupying the Property impedes construction or 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
8. Safe Working Environment. The Property Owner shall be responsible
for providing a safe working environment for the Program Manager, Contractor,
subcontractors, suppliers, and City, County, State and federal inspectors.
a. Throughout all phases of design and construction of the Program
Improvements, the Property Owner shall be responsible for:
(1) Providing a working environment that is free from potential
health risks, biohazard conditions, hazardous chemicals, obstacles, weapons of any kind
and/or explosives;
(2) Refraining from verbal abuse or profanity;
(3) Refraining from aggressive physical contact; and
(4) Insuring that all pets are completely secured and contained.
b. In the event the Property Owner fails to meet any of the foregoing
conditions, the Program process may, at the County's discretion, be temporarily
suspended at any time. In such event, the Program Manager shall notify the Property
Owner in writing, stating the corrective action(s) and/or condition(s) required to be
completed or performed by the Property Owner prior to the County resuming the Program
process.
c. In the event the Program process is not resumed due to the Property
Owner's failure to complete the corrective action(s) and/or condition(s) required by the
Program Manager, the Property Owner shall be liable to the County and/or Contractor for
any and all damages and all direct and indirect costs related thereto.
d. If the Program process is resumed, the Property Owner shall be
liable to the County and/or Contractor for any and all damages and all direct and indirect
costs related to or caused by the temporary suspension of the Program process.
9. Construction Delays. During the construction period, the Contractor
may experience unforeseen complications relating to the installation of the Program
Improvements. The construction contract shall provide that delays related to these
unforeseen complications are beyond the control of the Contractor and shall be excused
so that the time for completion may reasonably be extended. Construction schedules
may also be revised if there is a delay in awarding of the contract or if the Program
Improvements have to be re-bid in the event of lack of bidding contractors and/or failure
of the lowest responsive, responsible bidder to execute the contract, provide a payment
and performance bond or show proof of required insurance.
10. Changes to Scope of Work. The Program Manager reserves the right
to make changes to the plans and specifications and the Program Improvements, at its
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
11. Acceptance of Work. Upon completion of the Program Improvements,
the Program Manager shall inspect or cause the inspection of the Program Improvements
to determine if they were completed pursuant to the terms of the contract. The Program
Manager retains sole discretion and authority on program conformance and performance
issues as they relate to the Contractor, subcontractors, suppliers and acoustic designs.
The Property Owner is requested to attend the Substantial Completion Inspection and
provide input to the Construction Manager with respect to the identified punch-list items.
In addition, the Property Owner is welcome to attend the Final Inspection. In the event
the Property Owner elects to not attend the Substantial Completion and Final Inspections,
they release and surrender their ability to provide input to the Construction Manager with
respect to the acceptance of the Program Improvements. In the event there is a
disagreement between the Property Owner and the Program Manager as to a
conformance or performance issue, the Property Owner shall be required to submit the
discrepancy in writing to Monroe County (representative to be defined before the NIP
construction process) within 7 days of the inspection giving rise to the discrepancy.
Monroe County shall then make a determination as to the acceptability of the
conformance/performance issue and any remedial action that may need to be taken.
Monroe County shall be the final arbiter of any conformance/performance/issues. Failure
by the Property Owner to submit the written complaint within the time period specified
above shall thereafter foreclose the Property Owners right to file such complaint.
12. Termination of Agreement. The Property Owner understands that the
signing of this Agreement initiates both the BID and CONSTRUCTION PHASES of the
Program Improvements to be performed in accordance with the Program. Therefore, if
the Property Owner attempts to terminate this Agreement or otherwise impedes the
progress of the performance of the Program Improvements after the award of the
construction contract, the Property Owner will be liable to the County for any and all
damages and all direct and indirect costs caused thereby.
13. Warranties. The County does not represent or warrant the level of
noise reduction that the Property Owner will experience within the Property as a result of
the Program Improvements performed as part of the Program.
a. The County agrees that its contract with the Contractor will include
standard one (1) year warranties from the Contractor for all materials and workmanship.
Such one-year warranty period shall commence as of the time of the acceptance of the
work as provided for in Paragraph 9.
b. At the end of construction, the Program Manager will provide the
Property Owner with a Warranty & Final Closeout Package which will contain copies of
the warranty policies, product instructions, design documents and legal documents. As a
condition of receiving the Warranty & Final Closeout Package, the Property Owner 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
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;
(3) The Property Owner believes that service is required with
respect to product warranty issues, the advertised warranty period for the product has not
expired, and the manufacturer is currently conducting its business; and
(4) The Property Owner believes that service is required with
respect to product warranty issues, and the advertised warranty period for the product
has expired.
14. Pre-Existing Deficiencies. The Property Owner will be required to
sign Exhibit D (Deficiency Hold Harmless Agreement) which will impute all responsibility
and liability to the Property Owner for any and all present Pre-Existing Deficiencies at the
Property, whether seen or unseen.
15. Pre-Work Requirements. The Property Owner will be required to
complete any and all Pre-Work, as required by the NIP to successfully accommodate the
NIP acoustic modifications. The Property Owner will be required to complete all
designated Pre-Work items utilizing their own funds and per the required deadlines as
established by the NIP. In the event the Property Owner fails to complete the designated
Pre-Work items by the established NIP deadline, the Property Owner shall be removed
from NIP participation and the Property Owner shall be liable to the County and/or
Contractor for any and all resulting damages and all direct and indirect costs related
thereto.
16. City of Key West "Hard-Wired" Smoke Alarm Requirement. In
compliance with the City of Key West Fire Marshall and the City of Key West Building
Department construction permit issuance requirements, the Property Owner will be
required to install 120-volt"hard-wired"smoke alarms in their condominium in 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
Property Owner fails to install the designated "hard-wired" smoke alarms by the
established NIP deadline, the Property Owner shall be removed from NIP participation.
17. Suspension of Program Process. The Program process may be
temporarily suspended at any time during the design and/or construction phases upon
the discovery of Deficiencies due to their potential impact on the Program Improvements
and product warranties. The Program process will not resume until the Property Owner
has corrected all related problems to the satisfaction of the Program Manager. In the
event repairs are not completed in a timely manner, the Property Owner will be liable to
the County for any and all damages and all direct and indirect costs due to delay and/or
stoppages of the work.
18. Limitation on Alterations to the Property. The Property Owner agrees
not to make alterations, or to permit any tenant occupying any portion of the Property to
make alterations to the existing windows, doors and/or walls from the time of the Design
process until the construction of the Program Improvements have been completed.
Exceptions to this rule must be pre-approved in writing by the Program Manager. Failure
to adhere to this requirement may, at the option of the Program Manager in its sole
discretion, result in an immediate suspension of the construction of the Program
Improvements on the Property. The Property Owner will be liable to the County for all
direct and indirect costs associated with unapproved alterations and damages related
thereto.
19. Pre and Post-Construction Noise Testing Process. Pre- & post-
construction noise testing is a very important Program process that is designed to
measure and determine the actual achieved noise level reduction level at treated
properties. If selected by the Program Manager for pre- & post-construction noise testing,
the Property Owner agrees to provide access to their property for testing and agrees to
not to make alterations to the interior of their property (with the exception of repairs,of
Deficiencies) from the time of the pre-construction noise test to the post-construction
noise test. In an effort to 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 pre-construction noise test to the post-construction noise test. The
Property Owner understands that the failure to adhere to this requirement may result in
corruption of the noise testing data. Therefore, the Property Owner understands they may
be liable to the County for any direct and indirect noise testing costs in the event these
requirements are not met.
20. Cooperation. As reasonably requested, the Property Owner shall
cooperate with the Contractor, the Program Manager and Monroe County in the
performance of all phases of the Program Improvements including, but not limited to, the
removal and reinstallation of rugs, wall hangings and furniture as necessary.
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
22. Design and Bid Process Access. At scheduled times and/or upon
not less than twenty-four (24) hours advance notice (via NIP email and/or letter), the
Property Owner agrees to provide to the Program Manager, Contractor, subcontractors,
suppliers, City, County, State and federal inspectors and consultants access to the
Property to collect and develop all final design and bid documents. These visits could
include, but not be limited to, property survey, design survey, hazardous material
inspection, pre-noise testing and pre-bid visit. In the event the Property Owner fails to
provide access to the Property for all required NIP Design and Bid Process visits, the
Property Owner shall be removed from NIP participation.
23. Pre-Construction Access. The Property Owner agrees to provide
access to the Property forty-eight (48) hours prior to the scheduled start of NIP
construction. This short visit will provide the Program Manager with the ability to ensure
that the Property Owner has met all furniture storage responsibilities. Failure could result
in the suspension of the scheduled NIP construction and the Property Owner shall be
liable to the County and/or Contractor for any and all resulting damages and all direct and
indirect costs related thereto.
24. Pre and Post Construction Access. At scheduled times and/or upon
not less than twenty-four (24) hours advance notice (via NIP email and/or letter) and per
the established NIP construction schedule assignment, the Property Owner agrees to
provide to the Program Manager, Contractor, subcontractors, suppliers, City, County,
State and federal inspectors and consultants access to the Property to provide all required
NIP Pre-Construction and Post-Construction visits. These visits could include, but not be
limited to final measurement, pre-construction inspections, review of Designated Storage
Space requirements, post construction inspections and post-construction noise testing.
In the event the Property Owner fails to provide access for all required NIP Pre and Post
Construction visits, the Property Owner shall be removed from NIP participation and the
Property Owner shall be liable to the County and/or Contractor for any and all resulting
damages and all direct and indirect costs related thereto.
25. Construction Period Access. Upon award of NIP construction
contract, the Contractor will provide the Program Manager with their final construction
schedule, which will include the required number of calendar days to complete the NIP
construction in each of the participating condominiums. Based on this schedule, the
Program Manager will assign each Property Owner with a designated number of calendar
days in which construction will occur in their condominium. The Property Owner agrees
to relocate from their condominium for the entire assigned time period. In addition, the
Property Owner agrees not to re-enter their property for any reason during their assigned
construction period due to safety concerns and the potential to negatively impact the
Contractor. In the event the Property Owner fails to provide access for their assigned
construction time period, the Property Owner shall be removed from NIP 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
of a threat of an approaching hurricane and/or an actual hurricane event. Due to this
possibility, the Property Owner understands that delays may occur in addition to their
originally assigned construction time period, without any fault or cost to the Contractor
and Program Manager. Furthermore, the Property Owner agrees to relocate from their
condominium for all additional calendar days resulting from NIP construction work
stoppages due to a hurricane threat or event at no cost to the County, Contractor and/or
Program Manager. In the event the Property Owner fails to provide the required additional
access to their condominium due to hurricane-related work stoppages, the Property
Owner shall be removed from NIP participation and the Property Owner shall be liable to
the County and/or Contractor for any and all resulting damages and all direct and indirect
costs related thereto.
27. Discovery of Pre-Existing Deficiencies During Construction. In the
event the Contractor discovers pre-existing deficiencies at the Property during the NIP
construction process that negatively impact the installation of the NIP improvements, the
Property Owner agrees to immediately repair and remediate such deficiencies in an effort
to reduce any negative impact on the scheduled construction period. The Property Owner
understands that, depending on the timing of the pre-existing deficiency repair, the NIP
construction period may need to be extended, at no fault of the Program Manager or
Contractor.
28. Impact of Unforeseen KWBTS Building Conditions on Construction
Schedule. The Property Owner understands that unforeseen building conditions that may
arise during the NIP construction may have the potential to increase the original
scheduled duration of construction, which is not the fault of the Program Manager nor
Contractor. The Property Owner needs to plan for the "worst-case" possibility that the
originally-scheduled construction completion date may be delayed a few additional days
due to unforeseen building conditions that may arise and complicate the NIP construction.
29. Existing Window / Door Treatments, Shades and Blinds. The
Property Owner understands that, after the installation of new NIP acoustic window and
doors, the existing window and/or door treatments, shades and blinds may not be
compatible nor able to be re-installed due to size differences between the new and
existing windows and doors.
30. Existing Crown Molding. During the installation of the new acoustic
windows and doors, the NIP will be providing new "standard" replacement interior trim
and sills. The Property Owner understands that the NIP replacement trim will not match
custom and/or specialized crown molding patterns and/or custom window and door trim.
After the completion of the NIP modifications, the Property Owner will have the ability to
make modifications to the NIP interior trim at their own expense.
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
32. Title Examination. The Program Manager has obtained or will
obtain, at its sole cost and expense, an "Abstract of Title" to ensure that the Property title
is free from liens and/or title defects.
33. Cooperation in Clearing Title. Prior to the commencement of
construction of the Program Improvements, the Property Owner shall cooperate with the
County in order to (i) correct any title defects affecting the Property which are disclosed
by the "Abstract of Title" and in the sole determination of the County may serve to
invalidate the Easement, and (ii) secure the written consent of any and all mortgage
holders to the Property Owner's conveyance of the Easement to the County if the County
determines that it is necessary or desirable to do so (collectively, the "Title Matters"). If,
prior to the commencement of construction of the Program Improvements, the County, in
its sole discretion, determines that the Title Matters affecting the Property may invalidate
the Easement, this Agreement shall be null and void, and the Easement shall be
terminated.
34. Federal Assurance. As required by the Federal Aviation
Administration, the Property Owner agrees to the following provisions:
a. The Property Owner shall subject the construction work on the
project to such inspection and approval during the construction of the Program
Improvements and after completion of the Program Improvements as may reasonably be
requested by the Program Manager and/or Monroe County.
b. After final completion of the Program Improvements, the Property
Owner shall assume the responsibility for maintenance and operation of the items
installed, purchased or constructed under this Agreement. Neither the Federal Aviation
Administration nor the County bears any responsibility for maintenance and operation of
these items.
35. Reduction of Fresh Air Infiltration. The Property Owner will be
required to sign Exhibit E (Ventilation Hold Harmless Agreement) which imputes all
responsibility to the Property Owner for the proper maintenance of interior moisture and
humidity levels.
36. Salvage of Materials & Equipment. If the Property Owner desires to
retain any of the material or equipment removed from the Property as a result of the
Program Improvements, the Property Owner shall arrange for the salvage of said
materials and equipment directly with the Contractor at the Property Owner's sole risk
and expense. The County assumes no responsibility for the condition of the material,
equipment or surrounding surfaces as a result of the owner-requested salvage. The
Property Owner and the Contractor shall, prior to the commencement of construction,
agree upon and execute a document listing those items to be salvaged. In the absence
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
37. Property Insurance. During Program construction period, the
Contractor will provide builder's risk insurance for the Property. The Property Owner shall
have the option, at the Property Owner's sole cost and expense, to maintain a
homeowner's insurance policy for the duration of the construction of the Program
Improvements. The Property Owner understands that, following final completion, the
Contractor's builder's risk insurance will cease, and it is advisable for the Property Owner
to obtain insurance to cover any value added to the Property by the Program.
38. Timing and Effects of Construction. The Property Owner
understands that there is a chance that construction itself may exceed the Contractor's
original projected construction time period. The Property Owner also understands that the
construction may involve substantial inconvenience and could generate significant
quantities of dust and debris rendering portions of the Property uninhabitable for extended
periods of time.
39. Labor and Material Release. The Property Owner releases and
forever discharges any and all claims, suits and actions against the Program Manager;
the County and its officers, employees, agents, consultants; and contractors and
suppliers with respect to issues relating to the conformance of labor, materials and
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
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.
Property Owner Noise Insulation Agreement Page 11 of 28
44. Attachments. Attachments to this Agreement include the following,
which are incorporated into this Agreement by reference.
a. Exhibit A: Program Policy Statements.
b. Exhibit B: Legal Description of Property
c. Exhibit C: Program Improvements.
d. Exhibit D: Deficiency Hold Harmless Agreement
e. Exhibit E: Ventilation Hold Harmless Agreement
45. General Conditions.
a. Governing Law, Venue, Interpretation, Costs, and Fees.
(1) This Agreement shall be governed by and construed in
accordance with the Laws of the State of Florida applicable to contracts made and to be
performed entirely in the State.
(2) In the event that any cause of action or administrative
proceeding is instituted for the enforcement or interpretation of this Agreement, the
County and Property Owner agree that venue will lie in the appropriate court or before
the appropriate administrative body in Monroe County, Florida.
(3) The County and Property Owner agree that, in the event of
conflicting interpretations of the terms or a term of this Agreement by or between any of
them, the issue shall be submitted to mediation prior to the institution of any other
administrative or legal proceeding.
(4) The County and Property Owner agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative
to the enforcement or interpretation of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, court costs, investigative, and out-of-pocket
expenses, as an award against the non-prevailing party. Mediation proceedings initiated
and conducted pursuant to this Agreement shall be in accordance with the Florida Rules
of Civil Procedure and usual and customary procedures required by the circuit court of
Monroe County.
b. Binding Effect. The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of the County and Property Owner and
their respective legal representatives, successors, and assigns.
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
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.
f. Acceptance of Gifts, Grants, Assistance Funds, or Bequests. The
County and Property Owner agree that each shall be, and is, empowered to accept for
the benefit of any or all of them, gifts, grants, assistance funds, or bequests to be used
for the purposes of this Agreement.
g. Claims for Federal or State Aid. The County and Property Owner
agree that each shall be, and is, empowered to apply for, seek, and obtain federal and
state funds to further the purpose of this Agreement; provided that all applications,
requests, grant proposals, and funding solicitations by the Property Owner shall be
approved by the County prior to submission.
h. Adjudication of Disputes or Disagreements. The County and
Property Owner agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties. If
the issue or issues are still not resolved to the satisfaction of the parties, then any party
shall have the right to seek such relief or remedy as may be provided by this Agreement
or by Florida law.
i. Nondiscrimination. The parties agree that there will be no
discrimination against any person, and it is expressly understood that upon a
determination by a court of competent jurisdiction that discrimination has occurred, this
Agreement automatically terminates without any further action on the part of any party,
effective the date of the court order. The parties agree to comply with all Federal and
Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VII of the Civil Rights Act
of 1964 (PL 88-352), which 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
The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91 616), as amended, relating to nondiscrimination on the
basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, §§ 523
and 527 (42 USC §§ 690dd-3 and 290ee-3), as amended, relating to confidentiality of
alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42
USC §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC §§ 12101),
as amended from time to time, relating to nondiscrimination in employment on the basis
of disability; 10) Monroe County Code Chapter 14, Article II, which prohibits discrimination
on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation,
gender identity or expression, familial status or age; and 11) any other nondiscrimination
provisions in any federal or state statutes which may apply to the parties to, or the subject
matter of, this Agreement.
j. Cooperation. In the event any administrative or legal proceeding is
instituted against either party relating to the formation, execution, performance, or breach
of this Agreement, the County and Property Owner agree to participate, to the extent
required by the other party, in all proceedings, hearings, processes, meetings, and other
activities related to the substance of this Agreement or provision of the services under
this Agreement. The County and Property Owner specifically agree that no party to this
Agreement shall be required to enter into any arbitration proceedings related to this
Agreement or any Attachment or Addendum to this Agreement.
k. Books, Records, and Documents. The County and Property Owner
shall maintain books, records, and documents directly pertinent to performance under this
Agreement in accordance with generally accepted accounting principles consistently
applied. Each party to this Agreement or their authorized representatives shall have
reasonable and timely access to such records of each other party to this Agreement for
audit purposes during the term of the Agreement and for four years following the
termination of this Agreement.
I. Covenant of No Interest. The County and Property Owner covenant
that neither presently has any interest, and shall not acquire any interest, which would
conflict in any manner or degree with its performance under this Agreement, and that only
interest of each is to perform and receive benefits as recited in this Agreement.
m. Code of Ethics. The County agrees that the officers and employees
of the County recognize and will be required to comply with the standards of conduct
relating to public officers and employees as delineated in Section 112.313, Florida
Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business
with one's agency; unauthorized compensation; misuse of public position, conflicting
employment or contractual relationship; and disclosure or use of certain information.
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
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
the provisions of Chapter 119, Florida Statutes, and made or received by the County and
Property Owner in conjunction with this contract and related to contract performance. The
County shall have the right to unilaterally cancel this contract upon violation of this
provision by the Property Owner. Failure of the Property Owner to abide by the terms of
this provision shall be deemed a material breach of this contract and the County may
enforce the terms of this provision in the form of a court proceeding and shall, as a
prevailing party, be entitled to reimbursement of all attorney's fees and costs associated
with that proceeding. This provision shall survive any termination or expiration of the
contract.
The Property Owner is encouraged to consult with its advisors about
Florida Public Records Law in order to comply with this provision.
Pursuant to F.S. 119.0701 and the terms and conditions of this contract,
the Property Owner is required to:
(1) Keep and maintain public records that would be required by the
County to perform the service.
(2) Upon receipt from the County's custodian of records, provide the
County with a copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in this chapter
or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not disclosed except as
authorized by law for the duration of the contract term and following completion of the
contract if the Property Owner does not transfer the records to the County.
(4) Upon completion of the contract, transfer, at no cost, to the County
all public records in possession of the Property Owner or keep and maintain public
Property Owner Noise Insulation Agreement Page 15 of 28
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
this contract, contact the Custodian of Public Records, Brian Bradley at (305) 292-3470.
p. Non-Waiver of Immunity. Notwithstanding the provisions of Sec.
768.28, Florida Statutes, the participation of the County and Property Owner in this
Agreement and the acquisition of any commercial liability insurance coverage, self-
insurance coverage, or local government liability insurance pool coverage shall not be
deemed a waiver of immunity by the County to the extent of liability coverage, nor shall
any contract entered into by the County be required to contain any provision for waiver.
q. Privileges and Immunities. All of the privileges and immunities from
liability; exemptions from laws, ordinances, and rules; and pensions and relief, disability,
workers' compensation, and other benefits which apply to the activity of officers, agents,
volunteers, or employees of the County, when performing their respective functions under
this Agreement within the territorial limits of the County shall apply to the same degree
and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the County.
r. Legal Obligations and Responsibilities; Non-Delegation of
Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be
construed as, relieving any participating entity from any obligation or responsibility
imposed upon the entity by law except to the extent of actual and timely performance
thereof by any other participating entity, in which case the performance may be offered in
satisfaction of the obligation or responsibility. Further, this Agreement is not intended to,
nor shall it be construed as, authorizing the delegation of the constitutional or statutory
duties of the County, except to the extent permitted by the Florida constitution, state
statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida
Statutes.
s. Non-Reliance Non-Parties. No person or entity shall be entitled
to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce
any third-party claim or entitlement to or benefit of any service or program contemplated
hereunder, and the County and Property Owner agree that neither the County nor
Property Owner or any agent, officer, or employee of each shall have the authority to
Property Owner Noise Insulation Agreement Page 16 of 28
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 •
4
Signatur
Signature
Printed NarKe .-_-...-c\i- ‘.6_---
I Printed Name
(24-umAtliffalok. 3 0 KA (L 7.-°a Z
Si ature I
,eQ \ (Y rkAx`/1
to i Date
Printed Name
WITNESSES: PROPERTY OWNER: •
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
_tea
Cry^' !.
.,---
r
tJ
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: c: _ --9 =v
.41r `�f MAYOR / CHAIRMAN: ' •
A t
� ,� ,` .OK, CLERK >: ,
'.-'-----cr7 VA, fj2f)e>...____
4°or
."'" 'N aeputy ulerk Signature
P N E COUNTY TKO NEY
ZAilED AS I L
PEDRO J. ERCADO Date
ASSISTANT
Date / 2 Z-
Property Owner Noise Insulation Agreement Page 18 of 28
PROGRAM POLICY STATEMENTS
Exhibit A
To
Property Owner Noise Insulation Agreement
A. Air Conditioning: General Restrictions. While providing a new ductless "mini-split"
AC system to your condominium as a part of the Noise Insulation Program modifications,
the following limitations and restrictions will apply to all condominiums:
1. All condensing units will be installed on the balcony
2. All refrigerant lines (running from the balcony condensing unit) will be installed
consistent with KWBTS Board policy rules, maintaining a maximum height of 48
inches.
3. All condensate lines will be installed on the building exterior consistent with KWBTS
Board policy rules to ensure the highest level of consistency and building architectural
aesthetics.
4. All interior AC lines (refrigerant, condensate, electrical) and Energy Recovery
Ventilator (ERV) ducts will be housed in new vertical wall and corner pilasters which
will be constructed to match the quality of existing walls. The number and locations of
the new vertical wall and corner pilasters will differ depending on your unique
condominium floor plan and number of bedrooms. The NIP executive architect will
review this information with you at your NIP Design Review Meeting.
5. Only electrical service panels that are determined by the Program Manager to be
deficient will be replaced by the Program as a part of the Noise Insulation Program
modifications.
B. Window Sill Replacement. Due to the presence of asbestos, the NIP will provide a
new custom wood surround and sill instead of the existing gypsum board surround. Due
to this revised plan, existing custom sills (marble, granite, wood) will not be replaced. This
revision will be an improvement, while decreasing constriction costs and improving time
efficiencies.
C. Custom Crown Molding and Baseboards Restrictions
The new asbestos abatement requirements will restrict the ability to remove existing
custom trim and baseboard prior to construction (as originally assumed), which will not
allow sufficient time for the awarded general contractor to secure custom matched
replacement trim. Therefore, existing crown moldings, wall trim, and base, the contractor
will, instead, cut the existing wood trim flush to the face of the new pilaster or thru wall ac-
infill. At new pilaster locations and, if the thru wall ac infill abuts the existing baseboards,
the contractor will install a standard (3/4"x 5-1/2') painted wood trim to abut the existing
trim, rather than attempting to match the existing custom trim profiles and materials. After
the completion of the NIP construction, the property owner will 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
D. Door Threshold Heights. Due to stringent Florida hurricane impact and water
infiltration building codes, all new aluminum acoustical prime entry swinging doors and
sliding glass patio doors will have thresholds that are considerably higher (from the floor)
than existing door thresholds. These higher door thresholds are designed to provide
optimum protection to the interior of a condominium from water infiltration during a
hurricane.
E. KWBTS Asbestos Testing
As required by state and federal requirements, THC conducted asbestos testing on all
participating KWBTS condominiums in Buildings A, B and C during the November 2017
to April 2018 time period. This testing included collecting 7 to 9 samples at each
condominium to include gypsum board joint compound, window glazing, and exterior
window and door caulking. In addition, random exterior stucco samples were collected on
both the "walkway" and "courtyard / balcony" building elevations.
Depending on the laboratory analysis of these samples, the presence of asbestos
containing materials (ACM) have the potential to impact several areas of the NIP
construction process to include:
- window removal and acoustic window installation,
- door removal and acoustic door installation,
- removal of portable "through-wall" AC units and the infilling of openings,
- ceiling cuts required for installation of the ductless AC,
- wall cuts required for the installation of the ductless AC,
- construction of vertical wall pilasters required for installation of the ductless AC
system & ERV ducts,
- construction of closet soffit for installation of the ERV.
F. Asbestos Abatement Requirements
In the event any samples show a presence of asbestos containing material (ACM), the
awarded NIP contractor will be required to perform the following abatement requirements
during construction:
If samples show a presence of ACM < 1%
The NIP contractor will be required to comply with OSHA worker safety requirements to
include worker respirators, poly curtains in all areas where the surfaces are disturbed and
the use of HEPA vacuum cleaners in the areas where surfaces are chipped, cut and/or
sanded.
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
- Abatement and bagging of ACM (resulting from demolition process) by certified
asbestos abatement staff.
- Air sampling of containment areas and clearance of all areas by certified
asbestos abatement staff to allow access to containment areas by traditional
(non-abatement) workers.
- THC will be required to provide executive oversight of all ACM abatement
processes in all condominiums throughout the NIP construction process to
ensure proper compliance with federal and state abatement guidelines.
- The presence of ACM will have a significant impact on the NIP construction
process, lengthening the construction period and increasing the sequencing
and coordination requirements of contractor crews.
- Given the cost to provide required asbestos abatement procedures, the FAA
will require THC to develop a design and construction plan that minimizes the
disturbance of ACM to ensure the minimization of construction costs, duration,
and liability to the contractor and KWBTS property owners. This plan will result
in new property owner requirements and design restrictions which are outlined
below.
G. KWBTS BOARD Authority of Design Decisions. The KWBTS Board will have the
Authority to make several of the Program design decisions to include:
1. Acoustical Window and Door Material
2. Acoustical Window and Door Color and Hardware Finishes
3. Acoustical Window and Door Operational Styles
4. Interior Ductless "Mini-Split"AC System Installation Requirements
5. Interior Ductless "Mini-Split"AC System Interior Soffit Design and Placement
6. In-Filled Kitchen Prime Door Policy Treatment
Exhibit A-Property Owner Noise Insulation Agreement Page 21 of 28
LEGAL DESCRIPTION OF PROPERTY
Exhibit B
To
Homeowner Noise Insulation Agreement
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.
Exhibit B-Property Owner Noise Insulation Agreement Page 22 of 28
PROGRAM IMPROVEMENTS
Exhibit C
To
Homeowner Noise Insulation Agreement
This Exhibit C represents the Program Improvement package for an eligible home that
includes the Program Improvements developed by the Program Manager to reduce the
interior environment of a property by a minimum of five (5) decibels.
A typical Program Improvement package may include:
• Architectural Drawings
• Replacement Aluminum Acoustical Windows
• Replacement Aluminum Acoustical Swinging Prime Door(s)
• Replacement Aluminum Acoustical Sliding Glass Patio Door(s)
Exhibit C-Property Owner Noise Insulation Agreement Page 23 of 28
DEFICIENCY HOLD HARMLESS AGREEMENT
Exhibit D
To
Property Owner Noise Insulation Agreement
1. In partial consideration of the compensation to be paid on behalf of the County
and the Program for the Program Improvements to be made to the Property described in
the Agreement of even date herewith (the "Agreement") between the County and Property
Owner and to which this Exhibit D is attached, the undersigned, for and on behalf of the
undersigned and the heirs, personal representatives, successors, and assigns of the
undersigned, forever releases, remises, discharges, indemnifies and covenants not to sue,
institute claims against, or institute any proceedings against,the County, or any of its agents,
officers, employees, consultants and/or contractors concerning any and all claims,
demands, damages, actions or causes of action of whatsoever kind and nature on account
of bodily injuries or death, damage to the property, and the consequences thereof, and any
of the foregoing which may accrue to the undersigned or their respective heirs, personal
representatives, successors and assigns in connection with any and all Pre-Existing
Deficiencies (the "Deficiencies") against said County or any of its officers, agents,
employees, consultants and/or contractors to be legally liable.
2. The Property Owner understands and assumes full responsibility for the
Deficiencies present in the Property, whether visible to the Program Manager or unseen.
3. The Property Owner understands that the Deficiencies include any
deficiencies present in the Property at the time of execution of this Agreement which could
include, but not be limited to, code violations, structural damage, water/moisture damage,
hazardous materials, infestation and/or any issue that would negatively impact the
installation and performance of the Program Improvements.
4. If visible, the Property Owner understands that the Program Manager may
identify and document Deficiencies at any time throughout the Program process (including
design, bid and construction processes). If identified and documented, the Program
Manager will classify the observed Deficiencies as either"Minor" or "Severe".
5. The Property Owner assumes full responsibility for the worsening of any
documented Minor Deficiencies.
6. In the rare event "Severe" Deficiencies are identified during the design
process, the Property Owner agrees to complete necessary repairs to the Property, to the
acceptance of the Program Manager, as a precondition to the commencement of
construction of the Program Improvements. In the rare event that "Severe" Deficiencies
are uncovered during the construction period, the Property Owner agrees to complete
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
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:
v Signatur
7� 09 Signature
/� )✓teS rr C.p
Printed Na e ^1 L
120_0,QAMPrinted Name
' nature
<Th1 n(1 'AC %`QDkj_, Date
rinted Name
WITNESSES: PROPERTY OWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
WITNESSES: PROPERTY OWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
Exhibit D-Property Owner Noise Insulation Agreement Page 25 of 28
VENTILATION HOLD HARMLESS AGREEMENT
Exhibit E
To
Property Owner Noise Insulation Agreement
1. In partial consideration of the compensation to be paid on behalf of the County
and the Program for the Program Improvements to be made to the Property described in
the Agreement of even date herewith (the "Agreement") between the County and Property
Owner and to which this Exhibit E is attached, the undersigned, for and on behalf of the
undersigned and the heirs, personal representatives, successors, and assigns of the
undersigned,forever releases, remises, discharges, indemnifies and covenants not to sue,
institute claims against, or institute any proceedings against, the County, or any of its
agents, officers, employees, consultants and/or contractors concerning any and all
claims, demands, damages, actions or causes of action of whatsoever kind and nature
on account of bodily injuries or death, damage to the property and the consequences
thereof, and any of the foregoing which may accrue to the undersigned or their respective
heirs, personal representatives, successors and assigns in connection with any and all
Ventilation Deficiencies(the"Deficiencies") against said County or any of its officers, agents,
employees, consultants and/or contractors to be legally liable.
2. The Program Improvements may include the addition of acoustical windows
and doors, removal and infilling of "through-wall" portable air conditioner units and the
addition of a replacement ductless "mini-split" air conditioning system. Because these
modifications will result in a tighter interior environment due to the elimination of all
passive inside / outside air leakage that was naturally occurring in all openings, the
Program will also include the addition of a energy recovery ventilation (ERV) unit which
will provide an adequate exchange of inside /outside air to the condominium as required
by building code.
3. Given the tightened interior environment of the treated condominium, the
Property Owner agrees to assume full responsibility for the proper operation of the new
Program ductless AC system and energy recovery ventilation (ERV) unit to avoid the
potential for mold and moisture problems, especially during periods when the
condominium is closed and uninhabited.
4. Due to FAA eligibility limitations, the Program will not be providing bathroom
exhaust fan treatments. Since bathroom tubs and/or showers are a source of moisture
generation in the interior environment of a condominium, the Property Owner agrees to
assume full responsibility for ensuring that all bathrooms have an operable bathroom
exhaust fan capable of properly exhausting bathroom moisture to the exterior of the
building. It should also be noted that the original KWBTS condominiums were constructed
with a small wall vent that was designed to allow the passive exhaust of 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
was discovered the KWBTS buildings lack a solid central building exhaust shaft. Due to
this existing condition, these original wall vents (if still present) have the potential to
provide a pathway for unwanted air, smoke and/or gases into the condominium interior.
The Property Owner agrees to assume full responsibility for the sealing of original wall
vents in all bathrooms and for any and all negative impacts that may result if left untreated.
5. It is clearly a building code violation to duct laundry dryer exhaust to the
KWBTS central exhaust shaft. In the event a Property Owner has incorrectly ducted their
laundry dryer vent to the KWBTS central building exhaust shafts, they agree to correct
this deficiency by properly exhausting their laundry dryer exhaust in an alternative method
that meets current building code, at their cost before the initiation of the Program
construction process. Furthermore, the Property Owner agrees to assume any and all
liability related to the improper ducting of their laundry dryer exhaust.
6. The Property Owner understands that the Program Improvements will not
address kitchen and bathroom ventilation and/or excessive interior humidity levels
generated by the Property Owner within the interior of the condominium. The Property
Owner understands and assumes full responsibility for maintenance of interior moisture
and humidity levels. The Property Owner agrees to assume full responsibility for any
occurrence, reoccurrence or worsening of moisture problems and/or interior humidity
levels in the Property. In addition, the Property Owner agrees to assume full responsibility
for the maintenance and operation of the NIP venting modifications after completion of
the Program Improvements.
7. The undersigned acknowledge and agree that all of the release, hold
harmless and indemnity provisions set forth in Paragraph 1 of this Exhibit E apply to
injuries, deaths, or damages sustained in connection with or as a result of any and all
interior ventilation deficiencies arising after the addition of the Program Improvements
including, but not limited to, high humidity, mold, mildew,-and/or lack of proper exhaust
ventilation. The provisions of this Exhibit E shall survive the termination or expiration of
the Property Owner Noise Insulation Agreement.
8. The undersigned hereby agree that the terms and provisions of this Exhibit
E shall be binding upon and inure to the benefit of the undersigned and their respective
heirs, personal representatives, successors and assigns.
WITNESSES: PROPERTY WNER:
Signat e �~
Signature
P—Oger- /. A?e r-r - ✓`i'Lo
Printed Napefe C(-(-
t o e ,OrN Printed Name
Si nature 1 QJ`L�
\O Y �j
/. ' Date C�
Printed Name
Exhibit E-Property Owner Noise Insulation Agreement Page 27 of 28
WITNESSES: PROPERTY OWNER:
c l� ,(a c
Sig ature
t/ �LE_E y, It-r./'1/) L C"�C Signatu
Printed Name �llrl\
Printed Name
Signature 3 t/\ /p zo Date r
Printed Name
WITNESSES: PROPERTY OWNER:
Signature
Signature
Printed Name
Printed Name
Signature
Date
Printed Name
Exhibit E-Property Owner Noise Insulation Agreement Page 28 of 28
Prepared By and Return To:
Heather P. Faubert
NIP Assistant Project Manager Doc#2400135 Bk#3204 Pg#1129
THC, Inc.
Recorded 12/9/2022 1:14 PM Page 1 of 4
3300 Breckinridge Blvd., Suite 200 Deed Doc Stamp S0.00
Duluth, GA 30096 Filed and Recorded in Official Records of
MONROE COUNTY KEVI i MADOK,CPA
AVIGATION EASEMENT
Key West International Airport
Noise Insulation Program
THIS EASEMENT AGREEMENT is entered into this 3°day of M 1,c ct
20'2-21<-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."
RECITALS:
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:
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.
also identified as street address: "2601 S. Roosevelt Blvd., Unit C211
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#C211) Page 1 of 4
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
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:
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#C211) Page 2 of 4
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
of any other breach of the same or any other provision of this Agreement. This Agreement
may be amended only by written instrument executed by the parties in interest at the
time of the modification. In the event that any one or more covenant, condition or
provision contained herein is held invalid, void or illegal by any court of competent
jurisdiction, the same shall be deemed severable from the remainder of this Agreement
and shall in no way affect, impair or invalidate any other provision hereof so long as the
remaining provisions do not materially alter the rights and obligations of the parties. If
such condition, covenant or other provision shall be deemed invalid due to this scope or
breadth, such covenant, condition or other provision shall be deemed valid to the extent
of the scope or breadth permitted by law.
8. In the event the Airport shall be subdivided into more than one parcel, or the Airport or 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#C211) Page 3 of 4
This Easement Agreement is executed as of the date first above written.
PR P RTY OWNER:
PR OWNER:
Sign the Signature
Printed Name Printed Name�
Date Date
STATE OF FVcM oa
COUNTY OF 4 'k0c)V.1"),
Subscribed and sworn to(or affirmed) before me, by means of El/physical presence orEonline notarization,
on 1i\ncih a)IZlin— (date) by d \\\ \2'e\e(
(name of affiant). He/She is personally known to me or has produced
(type of identification) as identification.
oar N Notary Public State of Florida `�ai
: 4 Jessica L WallaceArlmirit
v^ ° My Commission HH 127202
''.,..,,,, Expires 05/21/2025
NOTARY PUBLIC
_MONROE COUNTY BOARD OF COUNTY COMMISSIONERS:
ie -- =aGO 0 , MAYOR / CHAIRMAN:
.ilk a' .t_� : .;
• .. 0i, DOK, CLERK
0 -s-'-'-'7'-.etlisl r - 4.
"075,......... *
NNi 0
As Deputy Cleik Signature
loJ it 1202Z
Date
7OEOU7 <)PEDRO J. ERCADO
ASSIS
Date Z E_
Key West International Airport NIP—Avigation Easement(Unit#C211) Page 4 of 4