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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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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 $300 per hour for all work in excess of 25 hours per month.
iN1
06116/2011 13:28 Daniels Head Insurance
(FAM388396107 P.002fOO2
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A� CERNIFB'.gATE OF LIALA�'.LL.O1 11 I.CV.a7C1"'k e'i V.CE R054
06 -16r� 2.011
THIS CERTIFICATEIS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES' NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATEOF INSURANCE. DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),- AUTHORIZED
REPRESENTATIVE OR PRODUCER; AND THE CERTIFICATE HOLDER.
IMPORTANT: It the certificate holder is an ADDITIONALINSURED,the policy(ies).. must be endorsed. If SUBROGATIONIS WAIVED, subject to
the terms and conditions of the policy, certain policies may: require.an.andorsement. A:statemenfon this certificate does not Donfer rights to the
certificate holder in lieu of such endorsements).
PRODUCER
DANIELS -HEAD INS AGENCY INC/PHS
185890 P:(8'66)467-8730 F;(877)905-04S7
CONTACT
NAME:
PHONE
' "`a; ,q ° —('BG )457 -9730 l9os -o4s.I
PO BOX 33015
A TONIO TX 78265
ADDRESS:
PRODUCERSAN
CUSTOMERIDn:
INSURERIS) AFFORDING COVERAGEI
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INSURED
INSURER A: Ha2:tfort Casualt Ins
01/01/2012
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2,000,000
STEARMAN PRICE & KOORSTAD
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3 300, LIDO
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INSURER D:
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$ 2,000,000
'SURE F
GENERAL AGGREGATE'
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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.
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01/01/2012
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01/01/2011
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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
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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
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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.
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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
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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
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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
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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. •
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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
•
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