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HomeMy WebLinkAboutC-4038 - PSA for Airport Policy Consulting ServicesPROFESSIONAL SERVICES AGREEMENT WITH THOMAS COLE EDWARDS, INC. FOR AIRPORT POLICY CONSULTING SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this 15t day of May, 2011 by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and THOMAS COLE EDWARDS, INC., a California corporation ( "Consultant "), whose address is 1235 N. Harbor Boulevard, Suite 200, Fullerton, CA 92832 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. The City Council has continuously determined that a top priority for the City is to implement the City's Airport Policy, known as Council Policy A -17. This policy states that is primary objective is to protect Newport Beach residents from adverse impacts of commercial aircraft operations at and from John Wayne Airport. C. City requires professional consultant services in implementing the City's Airport Policy ( "Project "). D. Consultant has contracted with the City since April 1, 2008 for airport consulting services. The City desires to continue to retain Consultant for additional services needed for the Project. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Thomas Cole Edwards. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on April 30, 2012 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.2 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.3 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Seventy Thousand Dollars and no /100 ($70,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. Thomas Cole Edwards, Inc. Page 2 4.3 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 4.3.1 The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. 4.3.2 Approved reproduction charges. 4.3.3 Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Click here to enter text.to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. City Manager Dave Kiff or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 7.1 In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable; provide access to, and upon request Thomas Cole Edwards, Inc. Page 3 of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this Thomas Cole Edwards, Inc. Page 4 indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE 14.1 Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. 14.2 Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of Thomas Cole Edwards, Inc. Page 5 performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 14.2.1 Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. 14.3 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 14.4 Coverage Requirements 14.4.1 Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. 14.4.1.1 Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) prior to such change. 14.4.1.2 Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 14.4.2 General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1;000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. 14.4.3 Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 14.4.4 Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed Thomas Cole Edwards, Inc. Page 6 in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. 14.5 Other Insurance Provisions or Requirements. 14.5.1 The policies are to contain, or be endorsed to contain, the following provisions 14.5.1.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. 14.5.1.2 Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 14.5.1.3 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 14.5.1.4 Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 14.6 Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. 14.7 Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Thomas Cole Edwards, Inc. Page 7 Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers; employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with Thomas Cole Edwards, Inc. Page 8 respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project 24. CONFLICTS OF INTEREST 24.1 The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. Thomas Cole Edwards, Inc. Page 9 25. NOTICES 25.1 All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Dave Kiff, City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949- 644 -3300 Fax: 949- 644 -3020 25.2 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Thomas C. Edwards Thomas Cole Edwards, Inc. 1235 N. Harbor Boulevard, Suite 200 Fullerton, CA 92832 Phone: 714 - 871 -1132 Fax: 714 - 871 -5620 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non- defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Thomas Cole Edwards, Inc. Page 10 27.2 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Compliance With all Laws Consultant shall at its 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 addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.2 Waiver A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.3 Integrated 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 whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.4 Conflicts or Inconsistencies In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.5 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. Thomas Cole Edwards, Inc. Page 11 28.6 Amendments This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.7 Severabilitv If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.8 Controlling Law And Venue The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 28.9 Equal Opportunity Employment Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 28.10 No Attorney's Fees In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 28.11 Counterparts This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Thomas Cole Edwards, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OFT E CITY ATTORNEY Date: 41 0211 V By:_ David t Hunt y City Attorney ATTEST: I�'1 Date: By: 9Qf ,,>a Y/ Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: C'. 1L/1 Dave XW City Manager CONSULTANT THOMAS COLE EDWARDS California corporation Date: % /I;.. / By: Thomas Co (E President/ CFO Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates document2 04.18.2011 Thomas Cole Edwards, Inc. Page 13 Exhibit A Thomas Cole Edwards, Inc. Scope of Work and Billing Rates 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 determined that one of its top priorities is the implementation of its Airport Policy. This scope of work is, for the most part, based on those recommendations with any additional tasks that the City Manager and /or the City Council may 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, SPON and AirFair on a regular basis to explain what the City is doing to implement the Council Policy and to obtain their 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. 14 3. Schedule, attend and make a presentations to community groups regarding the City's Airport Policy, impacts of JWA operations on the community; provide information concerning forces that affect operations at JWA including but not limited to the FAA. As part of this task, work with the City Council, City Manager and City staff to develop current information pertaining to JWA. 4. Interact with the JWA Airport Administrator and monitor the existing Settlement Agreement affecting JWA; 5. Monitor events of the FAA as well as State and Federal Legislation that impact JWA; 6. Provide information as requested to municipalities and interested parties concerning JWA; 7. Attend such other meetings, such as the meetings of the Corridor City Coalition, as the City Manager may direct; 8. Coordinate all of the foregoing with the other consultants retained by the City to assist the City Manager in implementing the Council Airport Policy; 9. Assist the City Manager in reaching out for public agency support and participation as it pertains to the implementation of the City s Airport Policy and support for the JWA Settlement Agreement; 10. Explore the possibilities for Alternative Transportation Services and work with regional planning bodies, as directed by the City Manager that impact operations at JWA; 11. Develop, refine and assist the City in implementing a strategic plan for extending the existing Settlement Agreement; 12. Undertake such other services as may be directed from time to time by the City Manager. Billing Rates 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. The sum of $300 per hour for all work in excess of 25 hours per month. iN1 06116/2011 13:28 Daniels Head Insurance (FAM388396107 P.002fOO2 Iaeal A� CERNIFB'.gATE OF LIALA�'.LL.O1 11 I.CV.a7C1"'k e'i V.CE R054 06 -16r� 2.011 THIS CERTIFICATEIS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES' NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATEOF INSURANCE. DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),- AUTHORIZED REPRESENTATIVE OR PRODUCER; AND THE CERTIFICATE HOLDER. IMPORTANT: It the certificate holder is an ADDITIONALINSURED,the policy(ies).. must be endorsed. If SUBROGATIONIS WAIVED, subject to the terms and conditions of the policy, certain policies may: require.an.andorsement. A:statemenfon this certificate does not Donfer rights to the certificate holder in lieu of such endorsements). PRODUCER DANIELS -HEAD INS AGENCY INC/PHS 185890 P:(8'66)467-8730 F;(877)905-04S7 CONTACT NAME: PHONE ' "`a; ,q ° —('BG )457 -9730 l9os -o4s.I PO BOX 33015 A TONIO TX 78265 ADDRESS: PRODUCERSAN CUSTOMERIDn: INSURERIS) AFFORDING COVERAGEI NAICc INSURED INSURER A: Ha2:tfort Casualt Ins 01/01/2012 ;PA� INSU ER e r 2,000,000 STEARMAN PRICE & KOORSTAD INSURER C: 3 300, LIDO 1235 N HARBOR BLVD STE 200 INSURER D: FULLERTON CA 92832 X NSURER E $ 2,000,000 'SURE F GENERAL AGGREGATE' PRODUCTS - COMPMP AGG 14, 000, 000 COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH. RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OFSUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. W R TYPF DF lIJSYlRgNDE I - S VN➢ oucy- NUAIsER � IMMIDD/YYW! IMM/D ➢l/YW. ] LIMITS A GF /JERnL [IAe:LJY CONMEROW. G!iNERAL LIABILITY CLAIMS -MADE O OCCUR General Liab X 72 SBA UVO815 03-/Dl/2011 01/01/2012 EACH OCCURRENCE 2,000,000 DAMA `ETG�i' Ii- - -'... PREMISES -IEa e:vra�ce 3 300, LIDO MED'EXP IArry�t.e wl I6 10,000 X PERSONAL &ADV'INJURY $ 2,000,000 GENERAL AGGREGATE' PRODUCTS - COMPMP AGG 14, 000, 000 'L AGGR_�GgT_IE UMR A�gam POLICY u PBOi I••I PER: LOC .3 4,000, 000 A AUT0630BB£ LIABILITY ANYAUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS 72 SBA UV0 815 01/01/2011 ' '01/01/2012 COOMBINE 1SINGLE4IMR .'2,000,000 - 6 BODILY INJURY Vu P¢O'Gnl BODILY INJURY IP¢nrcoid¢nD a X PROPERTY DAMAGE IP¢pOCNdenD X 3 UMaltE 1AB EXCE R LOLCCIUM0. SMA EACH OCCURRENCE .3 AGGREGATE I S DEDUCTIBLE RETENTION G 0 WOBREFS COMPENSATION. AND fMPLOYfAS'LWffiUTY ANY PROPRIETORNARTHER,EXECUTIVEr� OFFICER/MEMBERE%CLUOEO] Lam) IM -,iiin ry In A'Hj it ym, di mribcundcr DESCRIPTION OF.OPERATONS btlG6v NTA D ' \ \\ RISK MANAGER ''E.L. O.STATU. OTH OPY. LIMITS EA. EL E CH ACCIDENT 3 TE EIL ISEASE- EA EMP.COY c' S DISEASE -POULY uMrr 1 3 DESCRIPTION OFOPJJDITlONS/ LOWTlONS/ VE HICW S/ AVV cA ACORD .107. ABdhkaal Remorks 5ch¢du1¢, Mmam.p,ACG b.,,1 d/ Certificate holder is an Additional Insured per the Business Liability Coverage Form SS0008, attached to this policy. A Business Liability Waiver of Subrogation applies to the-certificate holder per form SS1215, Waiver of Subrogation, attached to this policy. CERTIFICATE HOLDER CANCELLATION M 19BB -2009 ACORD CORPORATION. Allrights- reserved. ACORO 25 (2009/091 The ACORD name and, logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF „NOTICE' "WILL BE The City of Newport Beach DELIVERED IN ACCORDANCE WITH THE POLICYTROVISIONS. AUTHOR/>F^REPAESENTATIYE 1235 N HARBOR BLVD STE 200 FULLERTON, CA. 92832 M 19BB -2009 ACORD CORPORATION. Allrights- reserved. ACORO 25 (2009/091 The ACORD name and, logo are registered marks of ACORD Lf0 38 PROFESSIONAL SERVICES AGREEMENT WITH THOMAS COLE EDWARDS, INC. FOR AIRPORT POLICY CONSULTING SERVICES This Agreement is made effective as of the 13th day of April 2010, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City ") and Thomas Cole Edwards, Inc., a Professional Corporation ( "Consultant "), 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 continuously determined that a top priority for the City 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. B. The City requires professional consultant services in implementing City's Airport Policy ( "Project "). C. On April 1, 2008, City and Consultant entered into a Professional Services Agreement, for Airport Policy Consulting services. On January 1, 2009, the City entered into an amendment to the Agreement to clarify services in the Agreement and prior amendment, to extend the term of the Agreement to December 31, 2009 and to increase the total compensation. The Term of this agreement has since expired. D. City desires to retain consultant for additional professional services needed for project. E. City and consultant mutually desire to enter a new Agreement, hereinafter referred to as "Agreement" as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM �� The term of this Agreement shall commence on the above written date, and shall terminate on the 30 day of April, 2010, unless terminated earlier as set forth herein. 2. 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. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Seventy Thousand Dollars and no /100 ($70,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be E limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated THOMAS EDWARDS to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. DAVID KIFF shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such 3 materials in a timely manner so as not to cause delays in Consultant's work schedule. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 51 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' AM Best "A" rated category (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage a for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be perfor in nne tion wth, ��hii ($ iio the minimum am n of "'� v r�d0Haars; E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. VA G. Additional Insurance. Consultant shall also procure and maintain; at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other parry. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 0 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is M intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David Kiff City Manager's Office City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 Phone: 949 - 644 -3300 Fax: 949 - 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Thomas C. Edwards Thomas Cole Edwards, Inc. 1235 N. Harbor Boulevard, Suite 200 Fullerton, CA 92832 10 Phone: 714- 871 -1132 Fax: 714- 871 - 5620 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non- defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its 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 addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach 11 of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED 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 whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color; national origin, handicap, ancestry, sex or age. WN! IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY akAm� �— Leonie Mulvihill, Acting City Attorney 6t ` XIt u ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation By: Keith D. Curry, Mayor CONSULTA By: Tho ' . E$wards President/ CFO Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates 13 Exhibit A Thomas Cole Edwards, Inc. Scope of Work and Billing Rates 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 determined that one of its top priorities is the implementation of its Airport Policy. This scope of work is, for the most part, based on those recommendations with any additional tasks that the City Manager and /or the City Council may 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, SPON and AirFair on a regular basis to explain what the City is doing to implement the Council Policy and to obtain their 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. i[l 3. Schedule, attend and make a presentations to community groups regarding the City's Airport Policy, impacts of JWA operations on the community; provide information concerning forces that affect operations at JWA including but not limited to the FAA. As part of this task; work with the City Council, City Manager and City staff to develop current information pertaining to JWA. 4. Interact with the JWA Airport Administrator and monitor the existing Settlement Agreement affecting JWA; 5. Monitor events of the FAA as well as State and Federal Legislation that impact JWA; 6. Provide information as requested to municipalities and interested parties concerning JWA; 7. Attend such other meetings, such as the meetings of the Corridor City Coalition, as the City Manager may direct; 8. Coordinate all of the foregoing with the other consultants retained by the City to assist the City Manager in implementing the Council Airport Policy; 9. Assist the City Manager in reaching out for public agency support and participation as it pertains to the implementation of the City's Airport Policy and support for the JWA Settlement Agreement; 10. Explore the possibilities for Alternative Transportation Services and work with regional planning bodies, as directed by the City Manager that impact operations at JWA; 11. Develop, refine and assist the City in implementing a strategic plan for extending the existing Settlement Agreement; 12. Undertake such other services as may be directed from time to time by the City Manager. Billing Rates 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. The sum of $300 per hour for all work in excess of 25 hours per month. 15 CITY OF NEWPORT BEAC CITY COUNCIL STAFF REPORT )ZJ7,y dm April 13, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, City Manager 949/644 -3000 or dkiff @newportbeachca.gov SUBJECT: Recommendation to Renew the Professional Services Agreement with Thomas Cole Edwards, Inc. for Professional Consulting Services for Airport Issues ISSUE: Does the City Council agree that the professional services provided by Thomas Cole Edwards, Inc. in 2009 pertaining to airport issues has been valuable and should be renewed? RECOMMENDATION: Approve the Professional Services Agreement with Thomas Cole Edwards, Inc. under the same terms and conditions as agreed upon in 2008. DISCUSSION: Background: On December 9, 2008, the City Council voted unanimously to renew its Professional Services Agreement with Thomas Cole Edwards, Inc. pertaining to the Council's desire to further communication within and outside the community in regards to John Wayne Airport (JWA) and airport issues. This Agreement was based on the stated City Council priority for 2008 to "minimize the adverse affects of John Wayne Airport through implementation of the City's airport policy." Over the past year Tom Edwards has been very involved in attending and making presentations at Airport Working Group (AWG) and AirFair meetings, as well as homeowners association and interest group meetings. He has worked with the City Manager and JWA Airport Director in assessing actions which might reduce JWA impacts within the community. He has been an asset with assisting the City Manager with strategic thinking in terms of implementing the City Council's airport policy. Recommendation to Renew Professional Services Ayreement with Thomas C. Edwards April 13, 2010 Page 2 The Agreement proposed would be under the same conditions as the 2009 amended contract.` Under the terms, the consultant would continue to receive $5,000 per month for -the first twenty -five hours of work provided each month. Excess hours would be at the rate of $300 per hour and require approval by the City Manager. Most months the consultant was paid for additional hours ranging from five to twelve hours; based on the City Manager's authorization. The City Manager believes the 2009 amended contract with Mr. Edwards resulted in improved communication with the community regarding JWA issues and also resulted in greater direct attention being given to JWA issues. Since it is likely that the implementation of the Council's airport policy will continue to be a high priority, the City Manager recommends the approval of a new contract. 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 )Ot DAVID A. KIF City Manager Attachment Professional Services Agreement 01 PROFESSIONAL SERVICES AGREEMENT WITH THOMAS COLE EDWARDS, INC. FOR AIRPORT POLICY CONSULTING SERVICES This Agreement is made effective as of the 13th day of April 2010, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City ") and Thomas Cole Edwards, Inc., a Professional Corporation ( "Consultant'), 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 continuously determined that a top priority for the City 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. B. The City requires professional consultant services in implementing City's Airport Policy ( "Project'). C. On April 1, 2008, City and Consultant entered into a Professional Services Agreement, for Airport Policy Consulting services. On January 1, 2009, the City entered into an amendment to the Agreement to clarify services in the Agreement and prior amendment, to extend the term of the Agreement to December 31, 2009 and to increase the total compensation. The Term of this agreement has since expired. D. City desires to retain consultant for additional professional services needed for project. E. City and consultant mutually desire to enter a new Agreement, hereinafter referred to as "Agreement' as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of April, 2010, unless terminated earlier as set forth herein. 2. 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 3 City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand- delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Seventy Thousand Dollars and no /100 ($70,000:00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be 2 tI limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated THOMAS EDWARDS to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. DAVID KIFF shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such 3 5 materials in a timely manner so as not to cause delays in Consultant's work schedule. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 4 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during 5 the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' AM Best "A" rated category (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage 6 2 for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. 7 vl G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy, which shall result in changing the control of Consultant.. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 8 10 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant.under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is a intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David Kiff City Manager's Office City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 Phone: 949- 644 -3300 Fax: 949 -644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Thomas C. Edwards Thomas Cole Edwards, Inc. 1235 N. Harbor Boulevard, Suite 200 Fullerton, CA 92832 10 )I Phone: 714- 871 -1132 Fax: 714 -871- 5620 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq. ). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its 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 addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach 11 13 of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 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 whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney, 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 12 Ala IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY B. W Leonie Mulvihill, 1 Acting City Attorney ATTEST: In Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation In Keith D. Curry, Mayor CONSULTANT: Thomas C. Edwards President/ CFO Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates 13 15 :"M:Iffi1 Thomas Cole Edwards, Inc. Scope of Work and Billing Rates 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 determined that one of its top priorities is the implementation of its Airport Policy. This scope of work is, for the most part, based on those recommendations with any additional tasks that the City Manager and /or the City Council may 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, SPON and AirFair on a regular basis to explain what the City is doing to implement the Council Policy and to obtain their 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. 14 119 3. Schedule, attend and make a presentations to community groups regarding the City's Airport Policy, impacts of JWA operations on the community; provide information concerning forces that affect operations at JWA including but not limited to the FAA. As part of this task, work with the City Council, City Manager and City staff to develop current information pertaining to JWA. 4. Interact with the JWA Airport Administrator and monitor the existing Settlement Agreement affecting JWA; 5. Monitor events of the FAA as well as State and Federal Legislation that impact JWA; 6. Provide information as requested to municipalities and interested parties concerning JWA; 7. Attend such other meetings, such as the meetings of the Corridor City Coalition, as the City Manager may direct; 8. Coordinate all of the foregoing with the other consultants retained by the City to assist the City Manager in implementing the Council Airport Policy; 9. Assist the City Manager in reaching out for public agency support and participation as it pertains to the implementation of the City's Airport Policy and support for the JWA Settlement Agreement; 10. Explore the possibilities for Alternative Transportation Services and work with regional planning bodies, as directed by the City Manager that impact operations at JWA; 11. Develop, refine and assist the City in implementing a strategic plan for extending the existing Settlement Agreement; 12. Undertake such other services as may be directed from time to time by the City Manager. Billing Rates 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. The sum of $300 per hour for all work in excess of 25 hours per month. 15 I (�,Ft,ip�', 4 cR pr.�n,nm C , ,310 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY DATE: April 12, 2010 TO: Leilani Brown, City Clerk FROM: Leonie Mulvihill, Acting City Attornei�A Office of the City Attorney MATTER: April 13, 2010 Council Agenda Item. 10 RE: Thomas Edwards PSA TOE �Y In �a Attached hereto, is a replacement for the first page of the Professional Services Agreement, page 3 of this agenda item. Please substitute this page as it was noticed there was an error in the term of the agreement. The correct term of the agreement should be through April 30, 2011. -"w cc: Dave Kiff, City Manager BrownL from LM 04.12. 10 re EdwardsT Replace 1' Page PROFESSIONAL SERVICES AGREEMENT WITH THOMAS COLE EDWARDS, INC. FOR AIRPORT POLICY CONSULTING SERVICES This Agreement is made effective as of the 13th day of April 2010, by and between the CITY OF NEWPORT BEACH, a Charter City and Municipal Corporation ( "City ") and Thomas Cole Edwards, Inc., a Professional Corporation ( "Consultant'), 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 continuously determined that a top priority for the City 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. B. The City requires professional consultant services in implementing City's Airport Policy ( "Project'). C. On April 1, 2008, City and Consultant entered into a Professional Services Agreement, for Airport Policy Consulting services. On January 1, 2009, the City entered into an amendment to the Agreement to clarify services in the Agreement and prior amendment, to extend the term of the Agreement to December 31, 2009 and to increase the total compensation. The Term of this agreement has since expired. D. City desires to retain consultant for additional professional services needed for project. E. City and consultant mutually desire to enter a new Agreement, hereinafter referred to as "Agreement" as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of April, 2011, unless terminated earlier as set forth herein. 2. 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 0 f -`k)ye AMENDMENT TO AGREEMENT WITH ATTORNEY THOMAS C. EDWARDS FOR CONSULTING AND LEGAL SERVICES This Amendment is made effective as of the 1st day of January, 2009, 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 2009 is to continue 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 and has served in this position since April 1, 2008 pursuant to that certain "Agreement with Attorney Thomas C. Edwards for Consulting and Legal Services" entered into effective April 1, 2008 (the "Agreement's and this Amendment is an extension of the current Agreement to December 31, 2009. C. The City desires to continue with its retention of the 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 utilized the services of the Consultant since April 1, 2008 pursuant to the Agreement and desires to continue 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 Services to Be Performed Consultant shall diligently perform all the services described in the attachment titled "Thomas C. Edwards Consulting Scope of Work." 2. Terre The term of this Agreement shall commence on January 1, 2009 and shall expire on December 31, 2009, unless earlier terminated. Except as amended by this 9 0 extension of the Agreement, all of the terms, covenants and conditions of that certain Agreement of April 1, 2008, shall control. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: By: '—C. — City Attorney ATTEST: By: off. I luv-/ City Clerk F:WSers%cat%shamd'Ag)dhipi)Em lvy ntEOwartk 01.01.09,Ooc CITY OF NEWPORT BEACH A Municip f Corporation gy. o. ' ity Manager CONSULTANT THOMAS COLE EDWARDS, INC., A Professional Corporation M Thomas C. Edwards, Attomey at Law E 0 Thomas C. Edwards Consulting Scope of Work 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 continually emphasized that the implementation of the City's Airport Policy is one of its top priorities. 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 0 0 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. Attend such other meetings, such as the meetings of the Corridor City Coalition, as the City Manager may direct. 6. 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 twelve (12) months with either party having the right to terminate upon thirty (30) days written notice. U 0 • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT F,, C, u 210018 Agenda I�m Info. 9 December 9, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Managers Office Homer Bludau, City Manager 949/644 -3000 or hbludau @city.newport- beach.ca.us SUBJECT: Recommendation to Renew the Professional Services Agreement with Attorney Thomas C. Edwards Regarding Airport Issues Consulting Under the Same Conditions of the Current Contract For the 2009 Year ISSUE: Does the City Council agree that the professional services provided by Attorney •Thomas C. Edwards in 2008 pertaining to airport issues has been valuable and should be renewed? RECOMMENDATION: Authorize the City Manager to enter into a new agreement with Thomas C. Edwards under the same conditions, but for the complete year. DISCUSSION: Background: In March 2008, the City Council voted unanimously to enter into a professional services agreement with Tom Edwards pertaining to the Council's desire to further communication within and outside the community in regards to John Wayne Airport (JWA) and airport issues. This contract was based on the stated City Council priority for 2008 to "minimize the adverse affects of John Wayne Airport through implementation of the City's airport policy." Over the past year Tom Edwards has been very involved in attending and making presentations at Airport Working Group (AWG) and AirFair meetings, as well as homeowners association and interest group meetings. He has worked with the City •Manager and JWA Airport Director in assessing actions which might reduce JWA impacts within the community. He has assisted with the "Go Local" grant application ReAknendation to Renew Proh sionat SerOm Aament with Thomas C. Edwards December 9, 2008 Page 2 submitted to OCTA and completed to the satisfaction of OCTA. He has been an asset • with assisting the City Manager with strategic thinking in terms of implementing the City Council's airport policy. The contract being proposed for renewal would be under the same conditions as the 2008 contract with the exception of the term, which is being proposed for the complete year. Under the terms, the consultant would continue to receive $5,000 per month for the first twenty-five hours of work provided each month. Excess hours would be at the rate of $300 per hour and require approval by the City Manager. Most months the consultant was paid for additional hours ranging from five to twelve hours, based on the City Manager's authorization. The City Manager believes the 2008 contract with Mr. Edwards resulted in improved communication with the community regarding JWA issues and also resulted in greater direct attention being given to JWA issues. Since lt is likely that the implementation of the Council's airport policy will continue to be a high priority, the City Manager recommends the approval of a new contract. 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. B DAU City Manager Attachment Professional Services Agreement U 0 0 AMENDMENT TO AGREEMENT WITH • ATTORNEY THOMAS C. EDWARDS FOR CONSULTING AND LEGAL SERVICES This Amendment is made effective as of the 1st day of January, 2009, 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 2009 is to continue 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 and has served in this position since April 1, 2008 pursuant to that certain "Agreement with Attorney Thomas C. Edwards for Consulting and Legal Services" entered into effective April 1, 2008 • (the "Agreement) and this Amendment is an extension of the current Agreement to December 31, 2009. C. The City desires to continue with its retention of the 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 utilized the services of the Consultant since April 1, 2008 pursuant to the Agreement and desires to continue 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 Services to Be Performed Consultant shall diligently perform all the services described in the attachment tided "Thomas C. Edwards Consulting Scope of Work." 2. Term • The term of this Agreement shall commence on January 1, 2009 and shall expire on December 31, 2009, unless earlier terminated. Except as amended by this FA 0 0 extension of the Agreement, all of the terms, covenants and conditions of that certain Agreement of April 1, 2008, shall control. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: City Attorney ATTEST: By: City Clerk F :wswstKWwm"VJogWn,F+orTwadmrds 01.o1.0e.doc 2 CITY OF NEWPORT BEACH A Municipal Corporation By; City Manager CONSULTANT THOMAS COLE EDWARDS, INC., A Professional Corporation 0 Thomas C. Edwards, Anomey at Law • • • M 0 0 • Thomas C. Edwards Consulting Scope of Work 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 -] 7 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 continually emphasized that the implementation of the City's Airport Policy is one of its top priorities. 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 S- 0 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. Attend such other meetings, such as the meetings of the Corridor City Coalition, as the City Manager may direct. 6. 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 twelve (12) months with either party having the right to terminate upon thirty (30) days written notice. 2 • ►l 0 0 (2 _q0 U AGREEMENT WITH ATTORNEY THOMAS C. EDWARDS FOR CONSULTING AND LEGAL SERVICES This Agreement is made effective as of the 1 S{ 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 INCORPORATED, 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 similar provisions of the voter - approved General Plan as well as to provide legal advice related to airport- related issues. 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 IP 0 0 described herein, City shall pay Consultant a monthly retainer fee of Five 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 /Attomev- 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 attomey - 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. 2 7. Integrated 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. 8. 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. 9. 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 addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: By: Robin L. Clauson, City Attorney;:, V r lY1. $ N u� ATTEST: Y LaVonne Harkless, City Clerk F:\users\cat\shared\Ag\dbigi\EmploymentEdwards 04-10-08.doc 3 CITY OF NEWPORT BEACH A Municl al Corporation By: Homer Bluda , City Manager THOMAS COLE EDWARDS, Incorporated, a Professional Corporation, By Thomas C. Edwards, Attorney at Law (TAX IrNO,,�3.765 By: Thomas C. Edwards, Esq. THOMAS COLE EDWARDS, INC. A PROFESSIONAL CORPORATION 1235 NORTH HARBOR BOULEVARD. SUITE 200 FULLERTON, CALIFORNIA 92532-1349 TELEPHONE M41 671 -1132 FAX 47I4) 87I -5620 March 18, 2008 Mr. Homer Bludau Hand Delivered City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA Re: Scope of Work/Proposal: Airport Dear Homer: Enclosed please find the work scope proposal you requested after our meeting on Thursday March 13, 2008. If you have any questions or which to discuss the contents do not hesitate to contact me. I will make myself available at your convenience. Very truly yours, THOMAS COLE EDWARDS, INC. A PROFESSIONAL. CORPORATION By TH A8 EDWARDS Attorney at Law 0 Work Scope Proposal 0 The following is a proposed scope of work to support and assist the City Manager and Council 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. Introduction The proposed scope of work is predicated on assisting the City Manager and City Council 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 City Manager recommendations that are intended to achieve implementation of the Council Policy. This scope of work in this proposal is, for the most part, based on those recommendations with one or two additional tasks that the City Manager has indicated a desire to pursue. Scope of Work I am proposing to, under the direction of the City Manager and with his ongoing input, to do the following: 1. ` A tend meetings of and make presentations to the Citizens Aviation Committee regarding the 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 1 objectives, strategies and the role those groups are willing to play in the ongoing effort to achieve our mutual objectives. 3. Schedule, attend and make a presentation (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 Manager and City staff to develop 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. I am proposing the following compensation 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 ter�r rinate upon thirty (30) days written notice. y_1`Y1 Thom s'L . Edwards L`fd 3 s rxE cm counca • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT . 4 . . J j 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 949/644 -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: OMER L. BLUDAU City Manager Attachments: Thomas C. Edwards Scope of Work Council Policy A -17, Newport Beach City Council Airport Policy • 0 • 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 0 0 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. • A -17 • 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 (TWA). 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 TWA 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 1 0 0 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 Councihnanic 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 authority" proceedings conducted by the Civil Aviation Board and litigation challenging 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 0 E 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. 1n 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 Aria, 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. i 0 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 U 5 0 E. POLICY 1. Primary Objective • A -17 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 QWA). 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 K 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 0 0 A -17 • City's legal authority to regulate aircraft operations or airport service levels. 3. TINA 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 0 0 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 Boise 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 • `J 6. Public Agency Support and Participation E A -17 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' (SLAG) 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. Community 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 0 0 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 minimize 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 SLAG 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 SCAG 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 0 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