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HomeMy WebLinkAbout12 - Consulting Services for John Wayne AirportCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 12 April 8, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Homer Bludau, City Manager 9491644 -3000 or hbludau @city.newport- beach.ca.us SUBJECT: Contractual Agreement between the City and Thomas C. Edwards for Consulting Services Regarding John Wayne Airport Issues ISSUE: Does the City Council support the City Manager's recommendation to enter into a consulting agreement with Thomas C. Edwards for consulting services regarding John Wayne Airport issues? RECOMMENDATION: Approve the City Manager's recommendation to enter into the agreement and authorize the City Attorney to finalize a professional services contract which incorporates the attached scope of work and the financial considerations stated within this staff report. DISCUSSION: Background: One of the City Council's 12 top priorities for 2008 is to "minimize the adverse impacts of John Wayne Airport through the implementation of the City's Airport Policy." The City Council is pursuing issues on several fronts regarding efforts to minimize the adverse impacts of JWA. One such effort seeks to work more closely with the Corridor Cities of Anaheim, Costa Mesa, Orange, Santa Ana and Tustin to build political strength to increase our success at providing the infrastructure and means to transport Orange County air passengers to airports in other counties. Another effort will seek mechanisms to make the City's current veto power over JWA runway expansion even stronger. Given the importance of the JWA issue to the community, the City needs to maintain a steady dialogue with community groups and residents on this priority issue. With Bob Burnham no longer providing consulting services to the City on John Wayne Airport issues, the City Manager placed under consulting contract Richard Cox, who resides in Contractual Agreement with Thomas C. Edwards for Consulting Services Regarding John Wayne Airport Issues April 8, 2008 Page 2 Washington D.C. and has extensive expertise in FAA issues. The FAA is beginning the process of reconfiguring air space for airports throughout the nation, and there exists the need for someone who understands the thinking and organizational culture of the FAA to provide input into that and other FAA related issues. The City Manager believes there is also the need for someone to represent the City's position on JWA issues to the public on a regular basis and to work with community groups in identifying and understanding JWA issues that could have either positive or negative impacts on the community. Thomas C. Edwards is both a respected and experienced person when it comes to JWA issues. He played an important role in obtaining the 1985 JWA Settlement Agreement, and he was a strong advocate for protecting the community against JWA intrusions during his four years on the City Council from 1994 -1998. He possesses great credibility in the community regarding airport issues and knows and works well with community members who dedicate their time in following JWA issues. The scope of work for Mr. Edwards is contained in the proposed consulting attachment. The professional services contract with Thomas C. Edwards, Inc. has not been finalized due to time constraints, so the City Manager is recommending the Council approve the contract specifics and authorize the City Attorney to prepare the contract document, which you are approving through this requested action. The contract would run from April 1, 2008 through December 31, 2008, with a decision being made at that time as to whether to continue it. Mr. Edwards would be paid $5,000 per month for the first 25 hours of monthly work. The City Manager has approval authority for additional monthly hours at a rate of $300 per hour. Either party has the authority to cancel the agreement with a 30 -day written notice. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the Council considers the item). Submitted by: HOMER L. BLUDAU City Manager Attachments: Thomas C. Edwards Scope of Work Council Policy A -17, Newport Beach City Council Airport Policy Thomas C. Edwards, Inc. Consulting Responsibilities Regarding JWA Issues The following is a scope of work to support and assist the City Council and the City Manager in implementing the City's Airport Policy and, thereby, protecting Newport Beach residents from the impacts of commercial air carrier operations at John Wayne Airport. Background The scope of work is predicated on assisting the City Council and City Manager to implement the City's airport policy - City Policy A -17 and similar provisions of the voter approved General Plan. Council Policy A -17 recognizes that "... airport impacts are now, and will continue to be, the most significant threat to the quality of life of Newport Beach residents. This Council Policy also identifies the most important objectives and contains some aspects of strategies designed to achieve those objectives and how to keep residents informed of the issues and progress being made. The primary objectives of the Council Policy are to maintain and monitor the JWA Settlement Agreement; preventing any physical expansion of the airport (or extension of the existing runway), preserving the curfew and developing alternative transportation services for Orange County residents. The Council Policy identifies some aspects of an implementation strategy such as: seeking public agency support and working with the Corridor Cities and community groups. The Council Policy requires consistent monitoring of airport related issues and recommending strategies to promote the City's Airport Policy. The City Council has recently adopted as one of its top priorities for 2008 a priority. implementation plan that is intended to further the Council Policy during this calendar year. This scope of work is, for the most part, based on those recommendations with one or two additional tasks that the City Manager has a desire to pursue. Scope of Work The work scope, under the direction of the City Manager and with his ongoing input and the input of the City Council, is to do the following: 1. Attend meetings of and make presentations, when needed, to the Citizens Aviation Committee regarding matters of interest and to discuss implementation of the Council Airport Policy. 2. Meet with AWG and AirFair on a regular basis to explain what the City is doing to implement the Council Policy and to obtain input regarding objectives, strategies and the roles those groups are willing to play in partnership with the City in an ongoing effort to achieve our mutual objectives. 3. Schedule, attend and make a presentations (reviewed and approved by the City Manager) to community groups that include members who are most impacted by JWA operations such as the Eastbluff Community Association, Dover Shores, Balboa Island Improvement Association and the Peninsula Point Association. As part of this task, work with the City Council, City Manager and City staff to develop current information on the City's website pertaining to JWA. 4. Help the City Manager prepare one or more members of the City staff to assist in the public information and outreach effort and to perform other duties as directed by the City Manager. 5. Develop a detailed strategy to enhance the protection afforded by the Sphere's Agreement and present the strategy to the City Manager within 60 days after retention. Assist the City Manager in the implementation of that strategy. 6. Attend such other meetings, such as the meetings of the Corridor City Coalition, as the City Manager may direct. 7. Coordinate all of the foregoing with the other consultants retained by the City to assist the City Manager in implementing the Council Airport Policy. The following compensation shall be paid for the tasks described above: 1. The sum of $5,000.00 per month for the first 25 hours of work per month; 2. With the prior approval of the City Manager, the sum of $300 per hour for all work in excess of 25 hours per month. The term of the consultant agreement would be nine (9) months with either party having the right to terminate upon thirty (30) days written notice. 2 F.TVA NEWPORT BEACH CITY COUNCIL AIRPORT POLICY A. EXECUTIVE SUMMARY The City Council's primary objective is to protect Newport Beach residents from the impacts of commercial aircraft operations at and from John Wayne Airport (JWA). The City Council believes that the impacts related to JWA are now, and will continue to be, the most significant threat to the quality of life of Newport Beach residents. For the last 30 years, the City, and community groups concerned about adverse airport impacts, have developed and implemented strategies to control those impacts and these efforts, which have been supported by the County for the last 20 years, have made JWA one of the most "community friendly" airports in the nation. The City and community groups have achieved some success in controlling airport impacts by understanding, and working within, the complex legal, economic and political factors that are relevant to adverse airport impacts such as the type and level of aircraft operations. The purpose of this Policy, which is admittedly long and somewhat complex, is to provide elected and appointed officials with information and guidelines that will help ensure that decisions related to JWA serve the best interests of Newport Beach residents and enable, residents to better understand and provide input regarding those decisions. Recognizing that the City has no legal ability to directly regulate JWA operations, the City Council and community groups approved (in 1985), aggressively protected (in 1990), and then extended the term (in 2002) of the JWA Settlement Agreement. The JWA Settlement Agreement is the single most important vehicle for controlling adverse airport impacts. The City Council should pursue future Settlement Agreement amendments but only if the terms and conditions of the amendments don't facilitate any airport expansion, don't modify the curfew, don't adversely impact our resident's quality of life and are in the best long -term interests of Newport Beach residents most adversely impacted by airport operations. The City will continue to aggressively oppose any proposal or plan that could lead to development of a second air carrier runway or runway extension and. any plan or proposal that could lead to any modification of the existing noise -based curfew. The City will continue to work with, and support the efforts of, community groups and other cities impacted by JWA when those efforts are consistent or compatible with the airport strategies approved by the City Council. The City will also actively support any program or proposal that would 11 A -17 help serve Orange County's air transportation demand at facilities other than JWA. This Policy has been developed with input from the Citizens Aviation Committee (Aviation Committee) that was established by the City Council in 1979. Aviation Committee members have volunteered thousands of hours in developing and implementing City airport policies and strategies. The Aviation Committee is comprised of consists of residents of each Councilmanic District, many of whom are pilots or otherwise knowledgeable about airport or aviation issues, and the diversity of membership ensures relevant input from all geographic segments of the City. The City Council appreciates the good work of the Aviation Committee and will continue to rely on the Aviation Committee in developing and implementing airport policy. B. HISTORY Many residential communities in Newport Beach are located under or near the departure pattern of commercial, and some general aviation, aircraft operating out of JWA. The City has, since the mid- 1970's, developed and implemented strategies designed to minimize the adverse impacts - such as noise and traffic - of JWA on its residents and their quality of life. The City's initial efforts focused on involvement in "route authopty" proceedings conducted by the Civil Aviation Board and litigation chall nging County decisions that could increase the level or frequency of aircraft noise events. However, the City and community groups concerned about JWA such as the Airport Working Group (AWG) and Stop Polluting Our Newport (SPON) re- evaluated the litigation strategy after the Board of Supervisors (Board) approved the 1985 JWA Master Plan (Master Plan) because of changes in State and Federal law as well as the factors that impact air transportation demand in Orange County and the region. In 1985, the City, County, SPON and AWG entered into a stipulation and agreement (1985 Settlement Agreement) to resolve Federal Court litigation initiated by the County seeking judicial approval of the Master Plan. The 1985 Settlement Agreement required the Board to modify resolutions approving the Master Plan to reduce the size of the terminal and limit the number of parking spaces. The 1985 Settlement Agreement also: (a) established three "classes" of commercial aircraft (Class A, AA, and E) based on the noise generated by the aircraft (operating with known gross takeoff weights) at the departure noise monitoring stations; (b) limited the number of "average daily departures" (ADD) of Class A and AA departures before and after construction of a new terminal.to 73 ADD; (c) limited the number of passengers served each year at JWA (expressed in terms of "million annual passengers" or "MAP ") to 8.4 MAP after 2 A -17 construction of the new terminal; and (d) required the County to maintain the curfew then effect at JWA and enforce the General Aviation Noise Ordinance. Between 1985 and 2002, the County, City, SPON and AWG each collectively agreed, on seven separate occasions, to amend the 1985 Settlement Agreement. These amendments responded, among other things, to: (a) a new FAA Advisory Circular (AC 91 -53A) that established specific criteria for close -in and distant noise abatement departure procedures; (b) changes in the location and /or type of equipment used to monitor commercial air carrier noise levels on departure; (c) air cargo carrier requests for access; and (d) changes in passenger, facility and baggage security requirements brought about by the events of September 11, 2001. In 1990, Congress adopted the Airport Noise and Capacity Act (ANCA) which, in relevant part, requires FAA "review and approval of proposed noise or access restrictions" on Stage 3 aircraft. The City and County successfully lobbied Congress to "grandfather" (exempt from the FAA "review and approval" requirements of ANCA): (a) the 1985 Settlement Agreement; (b) amendments to the 1985 Settlement Agreement that do not adversely impact airport capacity or airport safety; and (c) the then current County noise "curfew' ordinance In August of 2000, the City Council asked the Board to consider extending the term of the 1985 Settlement Agreement. During the next two years, the City and County, with input from SPON and AWG, engaged in discussions regarding the appropriate terms and conditions of the extension. During this period, the City engaged in an extensive public information program with the assistance of other communities impacted by airport noise including Newport Beach, Costa Mesa, Orange, Santa Ana, Tustin and Anaheim (known collectively, together with Newport Beach, as the "Corridor Cities "). This process culminated in City, County, SPON and AWG approval of amendments to the 1985 Settlement Agreement (2002 Amendments - Exhibit A) that: (a) eliminated the "AA" class of aircraft; (b) increased the maximum number of noise regulated air carrier ADD from 73 to 85; (c) increased the maximum number of air cargo ADD from 2 to 4 (the County is authorized to allocate two air cargo ADD to air carriers pending requests for use of those ADD by air cargo carriers); (d) increased the service level limit from 8.4 to 10.3 MAP until January 1, 2011 and to 10.8 MAP on and after January 1, 2011 (with 500,000 seats allocated to regional jets); and (e) increased the maximum number of passenger loading bridges from 14 to 20. The 2002 Amendments also eliminated the floor area restrictions on the size of the terminal and the "cap" on public parking spaces. 3 A -17 City Council, SPON and AWG approval of the 2002 Amendments was contingent on receipt of a letter from the FAA confirming that the 2002 Amendments were consistent with ANCA, other relevant laws and regulations and grant assurances made by the County. In December 2002, the FAA sent a letter confirming compliance (FAA letter - Exhibit B). In January 2003, the Honorable Terry Hatter (the Federal District Court Judge who entered the stipulated judgment implementing the 1985 Settlement Agreement stipulation) also approved the stipulation of the parties implementing the 2002 Amendments. The 2002 Amendments allowed the County to offer additional air transportation service without any significant increase in noise impacts on Newport Beach residents. The flight and service level restrictions remain in effect at least until January 1, 2016 and provisions related to the curfew remain in effect until at least January 1, 2021. The FAA letter confirming the validity of the 2002 Amendments is a precedent for future amendments that do not adversely impact airport capacity or airport safety. C. LEGAL FRAMEWORK The strategies, actions and decisions of the City Council and community groups concerned about airport impacts must consider and respect the complex statutory and decisional law related to aircraft operations and airport regulations. The failure of the City Council or community groups to accurately inform Newport Beach residents about the legal framework could lead to unreasonable expectations and ill- advised decisions and /or. strategies. The following is a brief summary of some of the more important laws applicable to the control of aircraft operations and airports. 1. Noise Control. The U.S. Supreme Court has decided that the owner of an airport - the proprietor - is the only non - federal entity that can adopt regulations restricting the amount of noise that is generated by aircraft operations. A non - proprietor such as the City of Newport Beach has no authority to adopt ordinances or resolutions that regulate airport noise. In fact, ANCA severely constrains the right of the proprietor to regulate Stage 3 aircraft operations. ANCA states that any "noise or access' restriction on commercial aircraft operating today must be "reviewed and approved" by the FAA. The FAA review is based on an extensive proprietor funded study of the impacts of the proposed restriction. As of this date, the FAA has not approved any proposed Stage 3 aircraft noise or access restriction and the consensus of aviation attorneys is that the FAA would be hostile 4 A -17 to any such a restriction. The 1985 Settlement Agreement predated ANCA and was "grandfathered" from its provisions. The 2002 Amendments were not subject to FAA review and approval, as confirmed by the FAA letter, because they did not adversely impact airport capacity or airport safety. 2. Aircraft Operations & Airport Facilities. The FAA has exclusive jurisdiction over aircraft after takeoff and extensive authority over airport facilities. The FAA approves standard instrument and noise abatement departure procedures and has done so with respect to aircraft operations at JWA. The FAA also approves "airport layout plans' for each airport and has the authority to enforce regulations that promote and /or pertain to airfield and airport safety. While the proprietor retains the authority to decide the number and nature of certain facilities such as passenger loading bridges and aircraft tie - downs, the FAA has adopted, and has the discretion to enforce, numerous regulations governing airport facilities. Federal law preempts any local law purporting to regulate aircraft operations or airfield safety. 3. Interstate Commerce Clause. Commercial air carrier operations are considered interstate commerce and the Interstate Commerce Clause can be invoked to invalidate local laws or regulations that purport to control certain aspects of those operations. The courts will invalidate laws or agreements that are found to be "unreasonable restraints" on Interstate Commerce. D. POLICY - SUMMARY The following components comprise the City's airport policy: 1. Primary Objective 2. Considerations 3. JWA Settlement Agreement 4. JWA Facilities & Operations 5. Alternative Transportation Service 6. Public Agency Support and Participation 7. Community Involvement 8. Monitoring/ Recommendations 5 A -17 E. POLICY 1. Primary Objective The City Council's primary objective is to protect Newport Beach residents from the adverse impacts of commercial aircraft operations at and from John Wayne Airport (TWA). The City Council believes that airport impacts are now, and will continue to be, the most significant threat to the quality of life of Newport Beach residents. Accordingly, the City should develop, modify as necessary and aggressively implement strategies and action plans that are designed to achieve the primary objective. The strategies and plans must consider and respect the complex legal, political and economic factors relevant to airport operations and impacts. 2. Considerations The City's airport policy has, historically, been based on a thorough understanding and consideration of a wide range of factors that are relevant to airport operations and impacts. Factors relevant to airport operations and impacts include: a. State and Federal law; b. The attitudes, philosophy and regulations of the FAA; C. The state of the economy - national and regional; d. The economic condition of the air carrier industry; e. The regional demand for air transportation; f. Regional and sub - regional planning and transportation programs and policies; g. The decisions, philosophy and opinions of the Board of Supervisors and, to a lesser extent, other local, State and Federal representatives and officials; and h. The opinions and concerns of Orange County residents and business owners. The number of relevant factors and the complexity of the issues related to adverse airport impacts mean that no single approach or simple strategy will be successful in achieving the City's primary objective. The City will be able to achieve its primary objective only if its strategies and action plans reflect a thorough understanding and consideration of these factors - especially the legal framework applicable to airport and aircraft operations - and if its residents understand the inherent limitations on the 6 A -17 City's legal authority to regulate aircraft operations or airport service levels. 3. TWA Settlement Agreement The JWA Settlement Agreement is the primary vehicle by which the City exercises control over airport impacts. The operational and service level restrictions in the JWA Settlement Agreement remain in effect at least until January 1, 2016 and provisions related to the curfew remain in effect until at least January 1, 2021. The FAA letter confirming the validity of the 2002 Amendments is a precedent for future amendments that, like the 2002 Amendments, increase air transportation service without impacting airport capacity, airport safety or the quality of life of Newport Beach residents. The City Council shall pursue further amendments to adhere to the following fundamental principles with respect to the JWA Settlement Agreement and any modification or amendment under consideration: a. The City Council shall not consider or approve any agreement (including any amendment of the 2002 Amendments) that would or could result in any modification to the County's airport curfew ordinances. b. The City Council shall not consider or approve any agreement (including any amendment of the 2002 Amendments) that would or could lead to the construction of a second air carrier runway. C. The City Council should consider modifications to the Settlement Agreement only upon a determination, based on appropriate environmental documentation, that the modifications will not materially alter the quality of life, and are in the best long term interests, of Newport Beach residents most impacted by JWA. d. As a condition to any amendment of the 2002 Amendments or successor agreements, the City Council should obtain a favorable FAA determination that the proposed amendment or agreement is exempt from FAA review and approval on the basis that there is no adverse impact on airport capacity or airport safety and complies with other relevant federal laws and regulations. 4. TWA Facilities & Operations JWA has a single air carrier runway with air carrier, air cargo and general aviation facilities sharing approximately 500 acres. The City Council shall take any action necessary to ensure that no additional air carrier runway is constructed. The City Council shall also take any action necessary to 7 A -17 prevent any modification of the existing noise curfew that, generally speaking, prohibits certain departures from 10:00 p.m. to 7:00 a.m. (8:00 a.m. Sunday morning). The City should also support any plan or proposal that maintains, and oppose any plan or project that proposes any significant change to, the existing level of general aviation operations, the current level of general aviation support facilities or the General Aviation Noise Ordinance. Finally, the City shall take all steps necessary to preserve or enhance the existing remote monitoring system (RMS) and public disclosure of RMS readings and information. The City, through the Aviation Committee, will also continuously evaluate means and methods by which JWA impacts can be minimized including the analysis of changes in airport procedures and aviation related technological advancements to determine if feasible alternatives exist. In the event the City identifies feasible alternatives that could reduce adverse airport impacts the City shall take all reasonable actions necessary to implement the alternative(s). 5. Alternative Transportation Service The City Council recognizes that there is presently no feasible site for a second air carrier airport in Orange County and that residential and commercial development is likely to result in increased air transportation demand over time. Accordingly, the City Council should support opportunities to serve some Orange County air transportation demand at airports other than JWA including: a. Promoting circulation and transportation improvements from Orange County residential and business communities to outlying airports with capacity in excess of current operations levels such as Ontario Airport and San Bernardino International Airport. b. Supporting development of new or expanded air carrier facilities in locations that are, or could be with appropriate transportation links, convenient to Orange County residents. C. Supporting the development of new or expanded air cargo service and facilities that could increase the airfield or airspace capacity of existing passenger serving airports. d. Supporting regional and sub - regional plans and programs that are consistent with then current JWA operational and passenger service levels and provide potentially feasible means or mechanisms to serve some Orange County air transportation demand at facilities other than JWA. 8 A -17 6. Public Agency Support and Participation The City Council should continuously pursue support for each component of this Policy from other public agencies, especially those concerned about JWA impacts. A key component of any such initiative is the Corridor City coalition. The Corridor City coalition was a major force in Board approval of the 2002 Amendments. The Corridor City coalition was built on a foundation of mutual interest in JWA operations and regular meetings between members of the respective City Councils supported by interaction between city managers and /or city attorneys. The City should continue to arrange regular meetings of the Corridor City coalition to update members on any activity that could be relevant to Orange County air transportation or JWA operations. The City will participate, to the maximum extent possible, in local and regional planning processes that have a bearing on decisions regarding airport capacity, airport service and other relevant issues. Of particular importance is participation in the Southern California Association of Governments' (SCAG) development of the Regional Transportation Plan. The City Council and staff will also regularly meet and communicate with County, State and Federal elected or appointed officials regarding the actions that the officials can take (or oppose) that will help the City achieve its primary objective. 7. Communitv Involvement The City Council recognizes that any plan or strategy to control JWA impacts requires support and assistance from community-based groups concerned about airport impacts. These groups, such as the AWG, have volunteered thousands of hours pursuing strategies and plans designed to minimize airport impacts and were instrumental in past successes. The City Council welcomes, and will support, the efforts of any group or individual that is striving to achieve the City's primary objective, understands the legal, political and economic factors that are relevant to the control of airport impacts and seeks to achieve the City's primary objective in a manner that reflects full consideration and understanding of those factors. The City will communicate regularly with its residents relative to the key provisions of this Policy as well as local and regional activities that are relevant to this Policy. As part of this communication, Council members 9 A -17 and staff will regularly meet with the leaders and /or members of citizen - based organizations concerned about airport impacts. 8. Monitoring/ Recommendations The City Council is ultimately responsible to achieve the primary objective of this policy - to minirnize the impact of JWA operations on the quality of life of Newport Beach residents. The City Council shall designate the City Manager as the employee primarily responsible for coordinating the implementation of this Policy. The City Manager, personally or through one or more designees, shall implement this Policy including regular communications with residents, the leaders of community organizations and the Corridor Cities. The City Manager shall periodically report the status of implementation to the City Council and shall perform the following: a. Monitoring Settlement Agreement Compliance. The City Manager shall carefully and thoroughly monitor those aspects of airport operation relevant to the Settlement Agreement, including County enforcement of the General Aviation Noise Ordinance and provide the Aviation Committee and the City Council with periodic reports. b. Monitoring Regional Airport Plans /Programs. The City Manager should continuously monitor efforts or plans by any agency or entity to develop new airports, expand existing facilities or otherwise provide additional air or ground transportation service that could serve Orange County air transportation demand. C. Monitoring Regional Planning Agencies. Agencies such as SCAG have the authority to, and do, adopt plans and programs that materially impact airport planning, airport usage, airport development and access to airports. The City Manager should ensure that a City representative routinely attends all SLAG meetings that pertain to aviation and report all relevant activities to the City Council and the Aviation Committee. d. Monitoring State & Federal Legislative Sessions. State and Federal legislation - such as ANCA - have the potential to impact JWA and Orange County air transportation issues in a variety of ways. The City Manager should routinely monitor all proposed State legislation and, to the extent feasible, potentially relevant Federal legislation and notify the City Council and the Aviation Committee of any legislation that is relevant to the City's ability to protect its residents from impacts related to JWA operations. 10 A -17 e. Recommendations. The City Manager should continuously advise the City Council on actions that should be taken to implement this Policy in a manner consistent with the Fundamental Principles. The City Manager shall prepare and submit to the City Council for consideration at a noticed public meeting reports that explain the rationale for any recommendation. Adopted - February 14,1972 Amended - October 14,1975 Amended - November 27,1978 Amended - October 14,1980 Amended -July 27,1981 Amended - September 27,1982 Amended -March 14,1983 Amended - May 23,1985 Amended - December 9,1985 Amended - October 22,1990 Formerly B -1 and B -2 Adopted - December 13,1993 Amended - February 27,1995 Amended - March 22,1999 Amended -July 25, 2006 11 I X12- ��8�08 AGREEMENT WITH ATTORNEY THOMAS C. EDWARDS FOR CONSULTING AND LEGAL SERVICES This Agreement is made effective as of the day of April 2008, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City ") and THOMAS C. EDWARDS, ESQ. of Thomas Cole Edwards, Inc., a Professional Corporation, whose offices are located at 1235 N. Harbor Boulevard, Suite 200, Fullerton, California, 92832 ( "Consultant ") with reference to the following: RECITALS A. The City Council has determined that a top priority in 2008 is to implement the City's Airport Policy, known as Council Policy A -17. This policy states that its "primary objective is to protect Newport Beach residents from the adverse impacts of commercial aircraft operations at and from John Wayne Airport (JWA)." B. Consultant is a well- respected lawyer in the community with considerable experience and expertise in airport- related matters. C. The City desires to retain Consultant to assist the City Manager and City Council in implementing Council Policy A -17 and related provisions of the General Plan. D. City has solicited and received a proposal from Consultant, has reviewed the training and expertise of Consultant, and desires to retain Consultant to render the services described herein on the terms and conditions outlined herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: AGREEMENT 1. Services to Be Performed Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion, 2. Term The term of this Agreement shall commence on April 1, 2008 and shall expire on December 31, 2008, unless earlier terminated as provided below. 3. Compensation As consideration for the performance of the consulting and legal services described herein, City shall pay Consultant a monthly retainer fee of Five 1 Thousand Dollars $5,000.00 per calendar month during the term hereof. Such retainer fee shall constitute payment in full for the first twenty -five (25) hours of work provided by Consultant each month. Any consulting services provided by Consultant in excess of twenty -five (25) hours in any one month shall be paid at the rate of $300.00 per hour. A. Consultant shall submit a statement of hours worked, which shall include a brief description of the services performed and /or specific project involved, and the date and number of hours worked. City shall pay Consultant no later than thirty (30) days following the City Manager's approval of the statement. B. City shall reimburse Consultant for reasonable and actual documented business expenses incurred for the benefit of the City in the course of his engagement hereunder. Expense invoices and supporting documentation satisfactory to City shall be submitted on a monthly basis with respect to expenses incurred during the preceding month. 4. Termination This Agreement may be terminated at any time, with or without cause, by either party by giving 30 days prior written notice to the other party. Upon termination of this Agreement, the City shall pay to Consultant that portion of the compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 5. Confidentiality /AttorneV- Client Privilege All documents, including drafts, notes and communications that result from the services in this Agreement shall be kept confidential unless City authorizes in writing the release of such information.. To the extent that Consultant provides legal advice to the City and its staff pursuant to this Agreement, all applicable privileges, including the attorney - client and attorney work - product privileges, shall apply to render such communications protected from disclosure by state and /or federal law. 6. Independent Contractor Consultant understands and agrees that he is acting as an independent contractor in the performance of services hereunder, and nothing contained herein shall be deemed to create an employment relationship between Consultant and the City. Further, Consultant shall be solely responsible for the payment of all federal, state and local income taxes, social security taxes, and all other assessments, taxes, contributions or sums due with respect to Consultant as a result of or in connection with the services performed by Consultant hereunder. 6 L FA R 19 a Intecirated Contract This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto and all preliminary negotiations and agreements of any kind or nature are merged herein. Any modification of this Agreement will be effective only by written execution signed by both Consultant and City Manager. No Assignment This Agreement is for the personal services of Consultant and may not be assigned by Consultant, nor shall it be assignable by operation of law, without the prior written consent of City, which consent may be withheld in City's sole discretion. Compliance with All Laws Consultant shall at his own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: Robin L. Clauson, City Attorney ATTEST: Rv LaVonne Harkless, City Clerk Attachment: Exhibit A -- Scope of Work 3 CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Bludau, City Manager CONSULTANT THOMAS COLE EDWARDS, INC., A Professional Corporation By: Thomas C. Edwards, Attorney at Law Tax. ID. No. 95- 376 -5057