HomeMy WebLinkAboutC-3424 - MOU Regarding Preparation of an Environmental Impact Report (EIR) (regarding John Wayne Airport (JWA) Settlement AgreementAttachment A
cY)
Memorandum of Understanding
Regarding Preparation
Of An
Environmental Impact Report
The County of Orange ("County"), as the owner and operator of John Wayne Airport ("JWA"),
the City of Newport Beach, a charter city and municipal corporation ("City"), Stop Polluting Our
Newport Corporation, a California tax exempt corporation ("SPON"), and the Airport Working
Group of Orange County, Inc., a California tax exempt corporation (`"AWG") (each individually
referred to as a "party," collectively referred to herein,as the "Parties") have entered into this
Memorandum of Understanding ("MOU") effective
The purpose of this MOU is to allow the Parties to define procedures and protocols they agree to
follow with respect to the preparation of an Environmental Impact Report ("EIR") pursuant to
the requirements of the Califomia Environmental Quality Act ("CEQA") (Pub. Resources Code,
§21000 et seq.) and State CEQA Guidelines (Cal. Code R.egs., tit. 14, § 15000 et seq.), which will
study the environmental implications of the Project, as defined in Section 1.7, infra. The Project,
in part, would constitute the second extension of the stipulation that settled litigation in County of
Orange v. Air California, et al. (U.S.D.C., C.D. Cal., Case No,CV-85-1542 TJH (Mcx) (1985))
("Action") and imposed certain restrictions on the development and operation of JWA. The
MOU is made, in part, in light of the following recitals:
1.0 RECITALS
1.1 In November 1985, the Parties, by their respective counsel of record, entered into
a stipulation to settle the Action between the Parties concerning the proposed expansion of JWA
("the 1985 Settlement Agreement"). On December 15, 1985, the United States District Court
entered a final judgment pursuant to the 1985 Settlement Agreement settling the Action
(`Judgment"). Under the terms of the 1985.Settlement Agreement, the Court retained
jurisdiction to enforce the terms of the 1985 Settlement Agreement.
1.2 On May 22, 2001, the County Board of Supervisors (`Board") approved a
Memorandum of Understanding between the County and City pursuant to which the County
would act as lead agency for the preparation of an EIR that would support the amendment and
extension of the 1985 Settlement Agreement.
1.3 After substantial negotiations between the Parties, the results of which were
evaluated in a certified EIR, th.e Parties executed a stipulation in February 2003 to modify the
Judgment ("2003 Amended Stipulation"). The term of the 2003 Amended Stipulation is through
December 31, 2015. Notwithstanding the foregoing, however, the Parties agree that none of the
operational or facility limits contained in the 2003 Amended Stipulation will expire at the end of
the 2003 Amended Stipulation's term, absent affirmative action by the Board to alter those limits
that is taken inaccordance with CEQA and other applicable laws.
Page 1 of 14
Attachment A
1.4 On or about February 25, 2003, the United States District Court accepted the 2003
Amended Stipulation and modified the Judgment to conform to the terms contained in the 2003
Amended Stipulation ("Modified Judgment"). The Modified Judgment allows for, in part: (I) a
maximum of 85 Class A Average Daily Departures ("ADDs") for passenger commercial air
carrier service; (2) a maximum of four Class A ADDS for commercial cargo service; (3) 10.8
million annual passengers ("MAP"); and (4) 20 passenger loading bridges. (Sec 2003 Amended
Stipulation, 11139-41. Relatedly, the definitional provisions provided in the 2003 Amended
Stipulation at 1118-35 govern the interpretation of this MOU, to the extent applicable.)
1.5 The Modified Judgment constituted "a subsequent amendment to an airport noise
or access agreement or restriction in effect on November 5, 1990" (49 U.S.C. § 47524), and was
found by the Federal Aviation Administration (`FAA") in 2003 to "not reduce or limit aircraft
operations or affect aircraft safety." Therefore, the 2003 Amended Stipulation and Modified
Judgment were "grandfathered" under the Airport Noise and Capacity Act of 1990.
1.6 The Parties are presently discussing the possibility of further extending and
amending the terms of the 1985 Settlement Agreement, as modified by the 2003 Amended
Stipulation. For purposes of this MOU, this proposal is referred to as the "Proposed Amended
Stipulation." To permit the Parties to fully consider the Proposed Amended Stipulation, evaluate
the environmental consequences, if any, and benefits of the Proposed Amended Stipulation, and
to facilitate the ability of other interested parties, including airport users and other affected
communities, to provide input, the Parties have agreed to work cooperatively in the preparation
of the appropriate CEQA documentation. The Parties do not anticipate the need for "major
federal action" to implement the Proposed Amended Stipulation; therefore, the Parties do not
believe that any federal agency will be required to prepare an environmental analysis under the
National Environmental Policy Act of 1969, as amended ("NEPA").
1.7 For purposes of CEQA, the proposed "Project" is the Proposed Amended
Stipulation. More specifically, the Project that shall be studied in the CEQA Documents (as that
term is defined in Section 5.1, in ra) contemplated by Section 5.0, infra, is as follows:
A. Term: The tern of the Proposed Amended Stipulation between the Parties shall
be extended to December 31, 2030. All Parties acknowledge and agree that the inclusion
of a "tern," shall in no way limit the ability of the Parties to enter into a subsequent
stipulation to amend/modify the Judgment and that the inclusion of a "term" does not
result in the automatic termination of the curfew at the endof the "term."
B. Curfew: The existing curfew regulations and hours of operation for JWA, as
contained in Sections 2-1-30.1 through 2-1-39 of the County's Codified Ordinances and
paragraph 4 at page 62 of Board Resolution 85-255 (February 26, 1985), shall remain in
effect until at least December 31, 2035.
C. MAP Limitation: Until December 31, 2020, JWA shall serve no more than 10.8
MAP in any Plan Year (see 2003 Amended Stipulation, ¶1,129-30). Beginning January 1,
2021 through December 31, 2025, JWA shall serve no more than 11.8 MAP. If TWA
serves more than 11.21 MAP in any Plan Year from January 1, 2021 through December
31, 2025, beginning January 1, 2026 through December 31, 2030, JWA shall serve no
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Page 2 of 14
Attachment A
more than 12.5 MA.1'. If JWA serves no more than 11.21 MAP in any Plan Year from
January 1, 2021 through December 31, 2025, beginning January 1, 2026 through
December 31, 2030, JWA shall serve no more than 12.2 MAP.
D. Regulated ADD Limitation: Until December 31, 2020, there shall be a
maximum of eighty-five (85) Commercial Air Carrier Class A ADDs and four (4)
Commercial Cargo Air Carrier Class A ADDs serving JWA for a combined total
maximum of eighty-nine (89) Class A ADDs. (A maximum of two (2) of the (4)
Commercial Cargo Class A ADDs may be allocated by the County to Commercial Air
Carriers for any Plan Year in which the demand for such flights by Commercial Cargo
Air Carriers is less than four (4) ADDS). Beginning January I, 2021 through December
31, 2030, there shall be a maximum of ninety-five (95) Commercial Air Carrier Class A
ADDs and four (4) Commercial Cargo Air Carrier Class A ADDS serving JWA for a
combined total maximum of ninety-nine (99) Class A ADDs. (A maximum of two (2) of
the (4) Commercial Cargo Class A ADDs may be allocated by the County to Commercial
Air Carriers for any Plan Year in which the demand for such flights by Commercial
Cargo Air Carriers is less than four (4) ADDS).
E. Passenger Loading Bridges: Until December 31, 2020, there shall be a
maximum of twenty (20) passenger loading bridges at JWA. Beginning January 1, 2021
through December 31, 2030, there shall be no limit on the number of passenger loading
bridges at JWA.
The objectives of the Project are enumerated in "Exhibit A" to this MOU. Additionally,
at a minimum, the altematives to the Project outlined in the attached "Exhibit B" to this MOU, as
well as the CEQA-mandated "no project" alternative, shall be considered and analyzed in the
EIR to an equal level of detail as the Project. In accordance with the discretion afforded to the
County under CEQA, the County is free to consider other alternatives and mitigation measures
that feasibly avoid, mitigate, or minimize the Project's significant enviromnental impacts, if any.
1.8 The CEQA Guidelines authorize the City and County to enter into a cooperative
agreement, such as this MOU, to define the roles and responsibilities of each agency in assessing
the enviromnental impacts of the Project.
1.9 The Parties cannot presently predict the precise period of time which will be
required to prepare, consider and circulate the CEQA Documents (as that term is defined in
Section 5.1, infra) contemplated by this MOU. However, the Parties acknowledge that it is an
objective of all Parties to proceed expeditiously to consideration of the Project by the Newport
Beach City Council and by the County's, AWG's, and SPON's respective Boards, and the
Parties acknowledge their mutual intent to use their respective best efforts to proceed
expeditiously with the preparation of CEQA Documents that meet all of the procedural and
substantive requirements of CEQA.
1.10 The execution of this MOU by the County is not to be construed as an "approval"
of the Project, as that term is defined for purposes of CEQA. As indicated above, and despite the
execution of this MOU, the County is retaining the full discretion to adopt an alternative, impose
Page 3 of 14
Attachment A
mitigation measures, or disapprove the Project altogether once the requisite CEQA review is
completed. Again, the fundamental purpose of this MOU is to define the Project to be subject to
review based upon a mutually agreeable project description, and to provide the procedures and
mechanisms by which CEQA review for the Project will be conducted; at all times, such review
efforts shall comply with all applicable CEQA mandates.
NOW, THEREFORE, the Parties agree as follows:
2.0 Parties' Roles. As the proprietor of JWA, the County will act as "lead agency"
and the City will be a "responsible agency" in the preparation of the CEQA Documents (as that
term is defined in Section 5.1, infra) contemplated by this MOU for the Project. As provided in
this MOU, the County will consult with, and consider input from the City, SPON and AWG on
issues related to the preparation of the CEQA Documents. However, the County will have the
ultimate and final responsibility for the preparation of the CEQA Documents and any related
management of, and directions to any consultants assisting in the preparation of the CEQA
Documents as described further in Section 5.2, infra.
3.0 Representatives. The Parties have each designated Representatives (who are the
names listed in Sections 10.1-10.4, infra) to act on their behalf in performing the duties required
by this MOU ("Designated Representatives").
4.0 Consultants.
4.1 Retention of Consultants.
The County may retain experts, professionals, consultants, and subconsultants
("Consultant(s)"), to provide information, in the form of studies, reports and analysis, or
otherwise assist in the preparation of the CEQA Documents (as that term is defined in Section
5.1, infra). Each Consultant shall be bound by a scope of work prepared by the County, after
consultation with the Designated Representatives. The County will select the Consultant(s) to
assist in the preparation of the CEQA Documents to the extent it deems such action necessary or
desirable, after consultation with the Designated Representatives. Any final decision regarding
the identity of Consultant(s) selected, and the terms of the scope of work for each such
Consultant, will be within the sole discretion of the County.
4.2 Payment of Preparation Costs for CEQA Documents.
4.2.1 The cost of all work (including all fees, charges and costs) performed and
work product produced by the Consultants, other than attorneys, on the CEQA Documents (as
that term is defined in Section 5.1, infra) shall be the equal responsibility of the City and County.
Within ten (10) days after approval of this MOU by the Parties, the City will deposit the sum of
$100,000.00 to a segregated account with JWA. JWA will withdraw amounts equal to fifty
percent (50%) of the costs for the CEQA Documents from the segregated account as payments
are made. JWA will provide a statement to the City every thirty (30) days thereafter of amounts
withdrawn from the segregated account, showing charges made during the preceding monthly
period and the fifty percent (50%) withdrawn from the account, and the City will, within ten (10)
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Page 4 of 14
Ana
days, replenish the deposit account by whatever amount is necessary to return the account to a
credit balance of S100,000,00. Upon certification of the EIR, or upon termination of this MOU
under Section 9.0, and the payment of all outstanding obligations incurred by the County, the
balance of funds on deposit shall be refunded to the City. Only the costs of work performed and
work product produced by the Consultants to study and analyze the Project, and alternatives
thereto (as defined in Section 1.7, supra) shall be the responsibility of the City. Each party to this
MOU shall be responsible for all costs and expenses related to work perfoiuied by their own
employees, attorneys or professionals that the party has retained on its own.
5.0 Document Preparation. The following principles shall apply to the preparation of
the EIR and related CEQA documents:
5.1 As the lead agency, the County shall be responsible for preparing all appropriate
"CEQA Documents," including, but not limited to, Initial Study(ies); Notice(s) of Preparation;
Notice(s) of Availability and Completion; screencheck, draft, recirculated, and/or final EIRs, and
supporting technical studies/reports; the Mitigation Monitoring and Reporting Plan; CEQA
Findings; and, related environmental analysis and approval documents.
5.2 Although this MOU provides mechanisms for a collaborative approach to the
analysis of the Project's environmental impacts pursuant to CEQA, neither the City, SPON or
AWG has the authority or right to interfere with the County's exercise of its discretion and
judgment in assessing the Project's and the alternatives' environmental impacts in the CEQA
Documents.
6.0 Confidentiality. To the extent consistent with the California Public Records Act
(Gov. Code, §6250 et seq.), CEQA, and any process of law, all drafts of documents including,
but not limited to, draft CEQA Documents prepared under this MOU will be maintained as
confidential.
Therefore, during preparation of the CEQA Documents, the Parties, and their Designated
Representatives, as set forth herein, will not cause or permit pre -circulation draft materials to be
provided to any person not directly responsible for some aspect of the preparation and review
process for the specific CEQA Document(s) at issue, or whose review of any such materials is
not necessary and appropriate to completion and consideration of the Project. Generally
speaking, pre -circulation draft materials may be provided to each party's Council or Board,
employees, attorneys or professionals that the party has retained or designated as a representative
to the process to advance its interests, as well as the Consultants. Prior to providing any pre -
circulation documents to any person who is not a Designated Representative, as provided herein,
the party providing the information shall have the person execute an agreement whereby the
person agrees to be bound by the confidentiality provisions set forth in this section of this MOU.
If any party to this MOU receives a Public Records Act request or other process of law
requesting or demanding any such pre -circulation disclosure of draft materials, that party will.
immediately provide copies of any such request or process to the other Parties and promptly
consult with the other Parties prior to taking any action or responding to such a request or
demand.
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Page 5 of 14
Attachment A
7.0 Coordination Between the Parties. The Designated Representatives of the Parties shall
conduct weekly meetings, as necessary, on a mutually agreeable day to review CEQA
Documents that have been prepared, discuss issues related to those documents, report on the
status of document preparation, and report on meetings with interested parties or discuss other
issues related to the CEQA process/documents.
7.1 The Parties shall each use their best efforts to promptly review all documents and
be prepared to discuss issues related to each document within ten (10) working days after receipt
of the pre -circulation draft document(s).
7.2 The Parties shall share any non -privileged information relevant to the Project,
including all studies, reports and draft environmental documents previously prepared by any
party regarding TWA. In addition, each party shall, upon request, provide the other Parties with a
copy of any non -privileged study, report or analysis that is reasonably related to the preparation
of the CEQA Documents under this MOU. If available, the study, report or analysis shall be
provided in the most convenient form for use (computer disk or e-mail) by the County or its
Consultants, except that no party shall be required to incur any expense associated with
converting the document to the "most convenient form."
8.0 Litigation Defense and Indemnification, and Waiver.
8.1 In the event any litigation is initiated against any one of the Parties to this MOU
on any matter related to the MOU or its implementation, including, but not limited to, the
defense of an action challenging any procedural or substantive aspect of the County's
environmental process and subsequent approvals, the City will, within thirty (30) days of its
receipt of any invoice or statement provided to it by the County, reimburse the County for any
customary and reasonable fees, costs, or other expenses incurred by the County in the defense of
any such action. In the event that litigation is initiated, the County shall, after consultation with
the City, have the absolute right to retain legal counsel of its choosing, subject to the caveat that
such legal counsel's fees, costs and other expenses shall be customary and reasonable for the
type of service(s) provided. The City shall indemnify the County until all legal proceedings have
been concluded, and this obligation continues even if the County's approvals are not validated in
the judicial proceeding(s).
8.2 The City shall also indemnify SPON and AWG in the event that litigation is
pursued by a third party against all Parties to this MOU challenging the County's environmental
approval for the Project. However, the City's indemnification responsibilities shall only extend
to the payment of legal fees, costs, and other expenses incurred for joint representation of all
Parties; in other words, the City shall indemnify SPON and AWG to the extent that the County,
City, SPON and AWG are represented jointly by a single law firm selected by the County in
accordance with Section 8.1. In no event shall the City be responsible for indemnifying SPON
and/or AWG if: (i) AWG and/or SPON elect to pursue retention of individual legal counsel; or
(ii) a conflict arises between the County, City, SPON and/or AWG, thereby necessitating the
retention of separate counsel for SPON and/or AWG. In either case, the City shall not be
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Attachment A
responsible for indemnifying AWG and/or SPON and the City's indemnification responsihilities
shall extend solely to the County in accordance with Section 8.1.
8.3 The City, SPON and AWG waive any right to pursue litigation against the County
and/or the City, or one another, arising from any set of facts, circumstances, or actions related to
this MOU and the CEQA Documents prepared under the MOU. The Parties also agree that the
Proposed Amended Stipulation shall include a provision that specifically includes a waiver of
any right to pursue litigation arising from any set of facts, circumstances, or actions related to the
Project/Proposed Amended Stipulation.
8.4 The Parties expressly agree that the City's, SPON's and AWG's obligations,
waivers and commitments set forth in Sections 8.1, 8.2 and 8.3 shalt have no force and effect
until the City approves and executes an Amended Stipulation. In the event that the City fails to
execute an Amended Stipulation: (i) the City shall have no obligation to indemnify and defend
the County, SPON or AWG pursuant to Sections 8.1 and 8.2; and, (ii) the City, SPON, and
AWG will retain the ability to pursue litigation against the County contrary to the requirements
of Section 8.3.
8.5 In any litigation contemplated pursuant to Sections 8.1 and 8.2, the County agrees
to make reasonable efforts to select a law firm that, absent a conflict of interest that would
prohibit joint representation, will represent the Parties named in the lawsuit.
8.6 Within five calendar days of receipt, any party hereto shall provide written
notification to the other Parties of receipt of any claims, administrative actions, or legal actions
with respect to any of the matters described in this MOU, including but not limited to the
adequacy of the CEQA Documents. At that time and absent the existence of a conflict of interest,
the Parties shall establish procedures for the sharing of information and cooperate in the defense
of such actions brought by any third parties with respect to any of the matters covered in this
MOU.
9.0 Termination.
9.1 In the event that a party fails or refuses to perform any of the provisions of this
MOU at the time and in the manner required, that party shall be deemed in default in the
performance of this MOU. If such default is not cured within a period of fifteen (15) calendar
days, or if more than fifteen (15) calendar days are reasonably required to cure the default and
the defaulting party fails to give adequate assurance of due performance within fifteen (15)
calendar days after receipt of written notice of default, specifying the nature of such default and
the steps necessary to cure such default, the non -defaulting party may terminate the MOU by
giving to the defaulting party written notice thereof
9.2 The County will provide in its contracts with any Consultants or other
professionals retained to assist in the preparation of the CEQA Documents a provision which
allows the County to terminate, without cause, any obligations for payment of work not
performed as of the date the termination notice is received by the Consultant. However, no
notice of termination will relieve either the County or City of its obligations under Section 4.2 of
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Page 7 of 14
Attachment A
this MOU in respect to work perfonned prior to the effective date of notice of termination issued
by the City or County.
10.0 Notices. Notices of all meetings related to the MOU, any copies of documents prepared
pursuant to this MOU, and any other notices permitted by this MOU shall be given as follows:
10.1 To the City of Newport Beach:
David Kiff
City Manager
3300 Newport Boulevard
Newport Beach, California 92663
Telephone: (949) 644-3000
Facsimile: (949) 644-3020
Email: dkiff@newportbeachca.gov
newportbeachca.gov
and
Aaron Harp
City Attorney
3300 Newport Boulevard
Newport Beach, California 92663
Telephone: (949) 644-3131
Facsimile: (949) 644-3139
Email: aharp(&city.newport-beach.ca.us
10.2 To the County of Orange
Alan Murphy
Airport Director
John Wayne Airport
3160 Airway Avenue
Costa Mesa, California 92626
Telephone: (949) 252-5183
Facsimile: (949) 252-5178
Email: amurphy@ocair.com
and
Lori Ballance
Gatzke Dillon & Ballance LLP
2762 Gateway Road
Carlsbad, California 92009
Telephone: (760) 431-9501
Facsimile: (760) 431-9512
Email: lballance@gdandb.com
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Page 8 of 14
Attachment A
and
Paul Albarian
Deputy County Counsel
John Wayne Airport
3160 Airway Avenue
Costa Mesa, California 92626
Telephone: (949) 252-5280
Facsimile: (949) 252-5044
Email: palbarian(ocair.com
10.3 To the Airport Working Group:
Barbara Lichman
Buchalter Nemer
18400 Von Karman Avenue
Suite 800
Irvine, California 92612
Telephone: (949) 224-6292
Facsimile: (949) 720-0182
Email: blichman(aibuchalter.com
10.4 To Stop Polluting Our Newport:
Jean Watt
4 Harbor Island
Newport Beach, California 92660
Telephone: (949) 673-8164
Email: jwatt4 a@aol.com
and
Steven M. Taber
Taber Law Group PC
P.O. Box 60036
Irvine, California 92602
Telephone: (949) 735-8217
Facsimile: (714) 707-4282
Email: staber(citaberlaw.com
11.0 General Provisions.
11.1 Entire Agreement — No Implied Warranties or Guarantees.
This MOU contains the entire agreement of the Parties in regards to this MOU
and supersedes all discussions, agreements or representations made by any party prior to
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Page 9 et 14
Attachment A
execution of this MOU by the Parties, Except as expressly and explicitly provided in this MOU,
the Parties have not made any warranties or guarantees in respect of any manner addressed in, or
related to, this MOU. The Parties also hereto acknowledge and agree that the recitals set forth
above are true and correct and incorporated into the operative requirements of this MOU.
11.2 No Third Party Beneficiaries.
The Parties shall not be responsible for the acts or omissions of the other. No
party shall have the authority to speak for, represent, or obligate another party in any way
without the prior written authority from such other party. No person or entity that is not a party
to this MOU may claim any rights in this MOU as a third party beneficiary, or otherwise.
11.3 AmendmeniSignatures/FurtherActs.
The terms of this MOU shall not be modified in any way except by a writing
signed by the Parties. This MOU may be executed in counterparts, and shall be effective as a
complete agreement upon being executed by all signatories, notwithstanding that all signatures
may not appear in a single document. The Parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary, or desirable to carry out the provisions
of this MOU.
In the event that the Project, as that term is defined in Section 1.7, supra, is
substantially modified -- as mutually decided by the Parties — prior to execution of the Proposed
Amended Stipulation, the Parties shall meet and confer, and assess whether to modify the terms
of the MOU. While the amendment process is pending, the terms of Section 4.2, supra, shall be
temporarily suspended, but shall be re -imposed if an amended MOU is executed by the Parties.
11.4 Controlling Law and Venue.
The laws of the State of California shall govern this MOU and all matters relating
to it and any action brought relating to this MOU shall be adjudicated in a court of competent
jurisdiction in the County of Orange.
11.5 Severability.
If any term or portion of this MOU is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU shall
continue in full force and effect.
[SIGNATURES ON FOLLOWING PAGES'
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Page 10 of 14
WHEREFORE, the County, the City, AWG and SPON approve this MOU as indicated
by the signatures of their authorized representatives below.
COUNTY OF ORANGE
, Chair of the Board of Supervisors
APPROVED AS TO FORM:
Pa�iil Albarian, Deputy County Counsel
CITY OF NEWPORT BEACH,
A Municipal Corporation
Dave' 'f,
City Manager for the City of Newport Beach
ATTEST:
Leilani Brown, City Clerk
APP • 1 VED AS TO FORM:
n C. Harp, City Att,�"e
FACSIMILE SIGNATURE AUTHORIZED
PER G.C. SEC, 25103, RESO 79-1535
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIR OF THE BOARD
A:TE5r:
CLERK OF THE BOARD OF SUPERVISO
ORANGE COUNTY, CALIFORNIA
11
AIRPORT WORKING GROUP
To
Y
ourv. President
APPROVED AS TO FORM:
STOP POLLUTING OUR NEWPORT
Marko Popovich, President
APPROVED AS TO FORM:
Steven Taber
[END SIGNATURES]
12
AIRPORT WORKING GROUP
Tony Khoury, President
APPROVED AS TO FORM:
Barbara Lichman
STOP POLLUTING OUR NEWPORT
Marko Popovich, Presiflent
APPROVED AS TO FORM:
Steven Taber
[END SIGNATURES]
12
Attachment A
Exhibit A
1. To modify some existing restrictions on aircraft operations at John Wayne Airport in order to
provide increased air transportation opportunities to the air traveling public using the Airport
without adversely affecting aircraft safety, recognizing that aviation noise management is crucial to
continued increases in JWA's capacity.
2. To reasonably protect the environmental interests and concerns of persons residing in the vicinity of
the JWA, including their concerns regarding "quality of life" issues arising from the operation of
JWA, including but not limited noise and traffic.
3. To preserve, protect and continue to implement the important restrictions established by the 1985
Settlement Agreement, which were "grandfathered" under the Airport Noise and Capacity Act of
1990 and reflect and accommodate historical policy decisions of the Orange County Board of
Supervisors regarding the appropriate point of balance between the competing interests of the air
transportation and aviation community and local residents living in the vicinity of the Airport.
4. To provide a reasonable level of certainty to: surrounding local communities; airport users
(particularly scheduled commercial users); and the air traveling public regarding the level of
permitted aviation activity at JWA for a defined future period of time,
5. To consider revisions to the regulatory operational restrictions at JWA in light of the current aviation
environment, the current needs of the affected communities, and industry interests represented at
JWA.
Page 13 of 14
Attachment A
Exhibit 8
Principal Restrictions
Proposed
Project
Alternative A
Alternative B
Alternative C
Term
Through December 31, 2030
Through December 31, 2030
Through December 31, 2030
Not Applicable
Curfew
Through December 31, 2035
Through December 31, 2035
Through December 31, 2035
Through December 31, 2020
Annual Passenger Limit
(number of million annual
passengers (MAP))
1/1/2016-12/31/2020
10.8 MAP
10.8 MAP 10.8 MAP
16.9 MAP
1/1/2021-12/31/2025
11.8 MAP
11,4 MAP 13.0 MAP
16.9 MAP
1/1/2026-12/31/2030
12.2 or 12.5 MAP*
12,8 MAP 15.0 MAP
16.9 MAP
Passenger Flights
(number of Class A ADDs for
passenger service)
1/1/2016-12/31/2020
85 Cass A ADDs
107 Class A ADDS (+22)
100 Class A ADDS (+15)
228 Class A ADDS (+143)
1/1/2021-12/31/2025
95 Cass A ADDs (+10)
120 Class A ADDs (+13)
110 Class A ADDS (+10)
228 Class A ADDs (+0)
1/1/2026-12/31/2030
95 Cass A ADDs
135 Cass A ADDs (+15)
115 Class A ADDs (+5)
228 Class A ADDs (+0)
Cargo Flights
(number of Class A ADDS for
all -cargo service)
1/1/2016-12/31/2030
4 Class A ADDs
4 Cass A ADDS i 4 Class A ADDs
4 Class A ADDs
Passenger loading Bridges
1/1/2016-12/31/2020
20
20
20
No Limit
1/1/2021-12/31/2030
No Limit
No Limit
No Limit No Limit
Table Notes:
AlternativeA was delineated based on information contained in the FAA's "APO Terminal Area Forecast Detail Report" (doted January 2013).
Alternative 8 was delineated based on input from JWA's commercial air service providers,
Alternative C was delineated based on the physical capacity of JWA's airfield.
* Trigger for capacity increase to 12.5 MAP: air carriers must be within 5 percent of 11.8 MAP (Le., 11.21 MAP) in any one year during the January 1,
2021 through December 31, 2025 time frame.
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Page 14 of 14
ORANGE COUNTY BOARD OF SUPERVISORS
MINUTE ORDER
April 16, 2013
Submitting Agency/Department: JOHN WAYNE AIRPORT
Approve Memorandum of Understanding with City of Newport Beach, Airport Working Group and Stop Polluting Our
Newport for funding and preparation of Environmental Impact Report; and make California Environmental Quality Act
findings - District 2
The following is action taken by the Board of Supervisors:
APPROVED AS RECOMMENDED t OTHER 0
Unanimous I (I) NGUYEN: Y (2) MOORLACH: Y (3) SPITZER: Y (4) NELSON: Y (5) BATES: Y
Vote Key: Y-Yes; N=No; A=Abstain; X-=Excused; B.O. =Board Order
Documents accompanying this matter;
O Resolution(s)
Oq.. Ordinances(s)
Contract(s)
Item No. 23
Special Notes:
Copies sent to: JWAIAlan Murphy
J WA/Airport Commission
I certify that the foregoing is a true and correct copy of the
by the Board of Supervisors , Orange County, State of Cal
Susan Novak, Clerk of the Board
ute Order adopted
AGENDA STAFF REPORT
APR
MEETING DATE:
LEGAL ENTITY TAKING ACTION:
BOARD OF SUPERVISORS DISTRICT(S):
SUBMITTING AGENCY/DEPARTMENT:
DEPARTMENT CONTACT PERSON(S):
04/16/13
Board of Supervisors
2
John Wayne Airport (Approved)
Alan L. Murphy (949) 252-5183
SUBJECT: JWA Settlement Agreement - Proposed MOU Regarding Preparation of an EIR
Agenda Item
ASR Control 13-000400
f+1
CEO CONCUR COUNTY COUNSEL REVIEW
Concur Approved Agreement to Form
Budgeted: N/A
CLERK OF THE BOARD
Discussion
3 Votes Board Majority
Current Year Cost: N/A Annual Cost: N/A
Staffing Impact: No # of Positions:
Current Fiscal Year Revenue: N/A
Funding Source: N/A
Sole Source: N/A
Prior Board Action: May 22, 2001, Item S56B, Approve MOU with Newport Beach for funding and
preparation of environmental documentation.
RECOMMENDED ACTION(S):
Find that the subject activity is not a project within the meaning of CEQA Guidelines Section
15378 and is therefore not subject to review under CEQA.
2. Approve and authorize the Chair of the Board of Supervisors to execute the attached
Memorandum of Understanding regarding the preparation of an Environmental Impact
Report.
SUMMARY:
Authorize approval and execution of a Memorandum of Understanding (MOU) between the City of
Newport Beach (City), Airport Working Group (AWG), and Stop Polluting Our Newport (SPON) for
funding and preparation of an Environmental Impact Report (EIR).
BACKGROUND INFORMATION:
On December 13, 1985, the County of Orange, City of Newport Beach (City), Airport Working Group of
Orange County (AWG) and Stop Polluting Our Newport (SPON) (the signators or settling parties) filed a
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Stipulation for Entry of Final Judgment by Certain Settling Parties with the United States District Court,
Central District of California, in the County of Orange v. Air California, et at litigation. The overriding
purposes of the 1985 Stipulation were to: (i) find the Environmental Impact Report 508/Environmenta
Impact Statement legally adequate under the California Environmental Quality Act, the National
Environmental Policy Act and all implementing regulations; and (ii) provide for the enforcement of
certain provisions in the 1985 Stipulation relating to the development and operation of John Wayne
Airport, Orange County (JWA) through December 31, 2005. The 1985 Stipulation included an anti -
litigation provision and an agreement that the City and County would jointly defend EIR 508/EIS. On
December 18, 1985,.the Court entered a final judgment in the action, confirming the stipulation of the
settling parties. This stipulation is what has commonly become known as the "1985 Settlement
Agreement."
In August 1990, consistent with all of the relevant Board actions, including the 1985 Settlement
Agreement, the Board approved and adopted the Phase 2 Commercial Airline Access Plan and Regulation
(Phase 2 Access Plan) to govern the operation of JWA during the period from 1990 through 2005.
In 2003, the original four signators approved a series of amendments to the 1985 Settlement Agreement
that allowed for additional facilities and operational capacity and continued to provide environmental
protections for the local community for an additional 10 years (through December 31, 2015). The 2003
amendments to the Settlement Agreement were implemented through amendments to the Phase 2 Access
Plan and the term of the Access Plan was also extended through 2015.
Beginning in early 2012, the settling parties began negotiating a possible extension of the 1985 Settlement
Agreement beyond its current expiration in 2015 in order to, once again, continue the County's historical
protection of the environmental interests and concerns of the community while providing capacit.,
increases at JWA. The City, AWG and SPON have proposed an agreement that defines key provisions
for possible future amendments to the 1985 Settlement Agreement. Key provisions of the Amended
Stipulation proposed by the City, AWG and SPON are as follows:
Term: The term between the parties would be extended to December 31, 2030.
Curfew: The existing curfew regulations and hours of operation for JWA would remain in effect
until at least December 31, 2035.
MAP Limitation: Until December 31, 2020, JWA could serve no more than 10.8 Million Annual
Passengers (MAP) in any Plan Year. Beginning January 1, 2021 through December 31, 2025,
JWA could serve no more than 11.8 MAP. If JWA serves more than 11.21 MAP in any Plan
Year from January 1, 2021 through December 31, 2025, beginning January 1, 2026 through
December 31, 2030, JWA could serve no more than 12.5 MAP. If JWA serves no more than
11.21 MAP in any Plan Year from January 1, 2021 through December 31, 2025, beginning
January 1, 2026 through December 31, 2030, JWA could serve no more than 12,2 MAP.
Regulated Average Daily Departure (ADD) Limitation: Until December 31, 2020, there would
be a maximum of 85 Commercial Air Carrier Class A ADDs and 4 Commercial Cargo Air Carrier
Class A ADDS serving JWA for a combined total maximum of 89 Class A ADDs. (A maximum of
2 of the 4 Commercial Cargo Class A ADDs could be allocated by the County to Commercial Air
Carriers for any Plan Year in which the demand for such flights by Commercial Cargo Ai
Carriers is less than 4 ADDS). Beginning January 1, 2021 through December 31, 2030, there
would be a maximum of 95 Commercial Air Carrier Class A ADDs and 4 Commercial Cargo Air
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Carrier Class A ADDs serving JWA for a combined total maximum of 99 Class A ADDs. (A
maximum of 2 of the 4 Commercial Cargo Class A ADDs may be allocated by the County to
Commercial Air Carriers for any Plan Year in which the demand for such flights by Commercial
Cargo Air Carriers is less than 4 ADDS).
Commercial Loading Bridge Limitation: Until December 31, 2020, there would be a maximum
of 20 loading bridges at JWA. Beginning January 1, 2021 there would be no loading bridge
limitations.
In addition to the agreement proposed by the City, AWG and SPON, three project alternatives as well as
the CEQA mandated "no project" alternative will be considered and analyzed in the EIR. to the same level
of detail as the proposed agreement.
The purpose of the MOU is to allow the parties to enter into a cooperative agreement that defines: (i) the
roles and responsibilities of each party in assessing the environmental impacts of the Proposed Project and
its alternatives; (ii) the procedures and protocols the parties agree to follow with respect to the County's
preparation of an Environmental Impact Report (EIR) pursuant to the requirements of the California
Environmental Quality Act (CEQA) (Pub. Resources Code, §21000 et seq.) and State CEQA Guidelines
(Cal. Code Regs., tit. 14, §15000 et seq.; (iii) the funding mechanism for CEQA document preparation
that would ultimately support the possible amendment and extension of the 1985 Settlement Agreement;
and (iv) the litigation defense and indemnification responsibilities and a waiver of litigation by the parties
to the MOU.
As the proprietor of JWA, the County will act as "lead agency" and the City will be a "responsible
agency" in the preparation of the CEQA Documents contemplated by the MOU for the Project. As
provided in the MOU, the County will consult with, and consider input from the City, AWG and SPON
on issues related to the preparation of the CEQA Documents. However, the County will have the ultimate
and final responsibility for the preparation of the CEQA Documents and any related management of, and
directions to, any consultants assisting in the preparation of those documents,
The cost of all work (including all fees, charges and costs) performed by the Consultants, other than
attorneys, on the CEQA Documents will be the equal responsibility of the City and County, Each party to
the MOU will be responsible for all costs and expenses related to work performed by its own employees,
attorneys or professionals.
In the event litigation is initiated against any one of the parties to the MOU on any matter related to the
MOU or its implementation that is associated with an Amended Stipulation that has been approved by
City, including, but not limited to, the defense of an action challenging any procedural or substantive
aspect of the County's environmental process and subsequent approvals, the City will be required to
reimburse the County for any customary and reasonable fees, costs, or other expenses incurred by the
County in the defense of any such action, In the event that litigation is initiated, the County, after
consultation with the City, will have the right to retain legal counsel of its absolute choosing, subject to
the caveat that such legal counsel's fees, costs and other expenses shall be customary and reasonable for
the type of service(s) provided. The City must indemnify the County until all legal proceedings have
been concluded, and this obligation continues even if the County's approvals are not validated in the
judicial proceeding(s).
The parties also agree to waive any right to pursue litigation against the County and/or the City, or one
another, arising from any set of facts, circumstances, or actions related to this MOU and the CEQA
Documents prepared under the MOU that are associated with an Amended Stipulation that has been
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approved by City. The parties also agree that the Proposed Amended Stipulation will include a provision
that specifically includes a waiver of any right to pursue litigation arising from any set of facts,
circumstances, or actions related to the Project/Proposed Amended Stipulation.
The approval and execution of the MOU by the County is not to he construed as an "approval" of the
Project, as that term is defined for purposes of CEQA. As indicated above, and despite the possible
execution and approval of the MOU, the County is retaining the full discretion to adopt an alternative,
impose mitigation measures, or disapprove the Project altogether once the requisite CEQA review is
completed.
CEQA COMPLIANCE:
This action is not a project within the meaning of CEQA Guidelines Section 15378 and is therefore
exempt from CEQA since it will not result in any direct or indirect physical change in the environment
and does not involve an irrevocable commitment of resources by the County to the activity since this is a
proposed MOU regarding preparation of an EIR. It is therefore exempt from CEQA. Any future action
that constitutes a project will be reviewed for compliance with CEQA.
FINANCIAL IMPACT:
N/A
STAFFING IMPACT:
N/A
ATTACHMENT(S):
Attachment A: Memorandum of Understanding Regarding Preparation of an Environmental Impact
Report
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