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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED WRITTEN COMMENTS MARCH 28, 2017 March 28, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(cDyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the March 14, 2017 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are from the draft minutes with suggested corrections shown in strut underline format. Page 215: paragraph 2 from end: "Public Works Director Webb continued the presentation, outlining Fecal Indicator Bacteria (FIB) TMDL, fresh water concern for Selenium selenium, trash and debris, ..." Page 216: paragraph 3: "Nancy Gardner discussed the impact of sea level rise in the Upper Newport Bay and suggested light layer dr-ecigi g in order- to hu building up the habitat by adding light layers of dredged materials." Page 217: Item SS5, paragraph 3: "In response to Council Member Peotter's question, Public Works Director Webb discussed the Lido Islefi,.e statin Fire Station rebuild." [The video shows it was referred to as the "Lido Fire Station." To the best of my knowledge, there is no fire station on Lido Isle.] Page 217: paragraph 4 from end, sentence 3: "Council Member Dixon discussed meetings with residents and noted that diSGuc ions discussion about extending the bike path was premature." Page 217: paragraph 3 from end: "Public Works Director Webb Gentinueel concluded the PowerPoint presentation on transportation funding." Page 217: paragraph 2 from end: The minutes say "Prior to Public Works Director Webb discussing Grand Canal dredging and seawall extensions, Council Member Herdman recused himself due to real property interests." However, they fail to indicate either that the discussion of Grand Canal dredging and seawall extensions actually took place, or that Council Member Herdman returned to the dais. Page 218: between paragraphs 3 & 4: The video, at around 1:35:48, shows Council Member Herdman asking the Public Works Director about the funds allocated for the General Plan Update. No acknowledgement of that exchange appears to exist in the draft minutes. I don't know how many other omissions there may be. Page 222: Item XVI, paragraph 3, sentence 2: "Public Works Director Webb reported that funds were identified for improvements once the study IAS is completed." Item 3. Harbor Mooring Regulation Modifications As stated at the February 28 City Council Study Session, I am adamantly opposed to the idea of placing control over decisions regarding the future possession of public property in private hands, which is what the proposed sanctioning of private transfer of mooring permits does. March 28, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 This was brought particularly home to me by the discussion at the most recent Harbor Commission meeting about establishing a mooring field for 6 to 10 boats in the ocean off Big Corona State Beach. In that case, the issue is not clouded by the Mooring Association's claims of historical practice, "lost equity" and "takings" if the transfer rules were to change. Setting aside the question of whether the ocean off Big Corona is sheltered enough to allow year-round mooring, the water is clearly, at present, public water equally open to all. Yet under our proposed rules, the City would presumably give 6 to 10 luck winners each a patch of water in which to deploy their mooring tackle and which they are free to call their own. For payment of a small annual rent, that patch of water is automatically theirs and their family and heirs' forever. Should anyone else want to use one of these 6 to 10 patches of "public" water, they have to negotiate with one of the private "owners," who is then apparently free to set whatever price and terms they want on it. In this way, the 6 to 10 "owners" not only profit from the future "sale" of the "public" water (note: the transfer fee goes to the City but the profit goes to the private "owner"), but they could, for example, and for all I know, decide to refuse to ever sell to blacks and chinese, or anything else they like. None of this sounds right to me. Although not part of the present action, another important aspect of this issue is the proper rent to charge for use of such public waters. Much has been said about the difficulty of assigning a "fair market" number based on uses in other harbors because each harbor is unique. However, I notice on page 3-4 of the staff report that the City itself is apparently successful at finding temporary renters of moorings in Newport Harbor at an average rate of $21.50 per night, or $7,847.50 per year. That would seem to me to represent a fair market value. And while I appreciate that there are annual costs associated with maintaining the mooring tackle, it makes me wonder, as a California taxpayer, if the $1,417.20 per year being charged of permanent renters (per page 3-3) is really a competitive charge for use of my water (or conversely, why temporary renters are being charged so much more). In any event, the present recommendation is to adopt the changes to Title 17 of the Municipal Code shown in Attachment A. In my view, Title 17, like much of the Municipal Code, is generally a mess. But I have these specific comments based on a very incomplete reading (and limited understanding) of the proposed ordinance (I suspect a more careful reading would yield more substantive suggestions -- and while I write this, I see still more redlines have been posted that do not seem to be in the version I'm reading): Page 3-7: subsections 1." and "2.": It is good to see that for consistency with the style of all the other definitions, someone has changed the wording of the definitions from "shall refer to" to "shall mean." It might be noted, however, that in this context the word "shall" adds no meaning, and "shall mean" could be changed to "means" in all the definitions. Page 3-8: subsection "B": The reference to "the effective date of this chapter" should be replaced with the actual date intended (May 11, 2017 (?)). Not only does the proposed language require readers to guess, but if the chapter is amended multiple times it may become impossible to know which "effective date" is intended. A similar problem exists in the following long paragraph with its reference to "the time of enactment of the ordinance codified in this section." Technically it would seem it is the March 28, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 present Ordinance No. 2017-7 that for the immediate future will be codified in that section. But it seems unlikely the original intent was for the date to change each time Section 17.60.040 is re-enacted. More substantively, it is not clear how the limit of two permits per permittee in "B" is intended to apply to such entities as the Balboa Island Yacht Club, the Kerckhoff Marine Laboratories and American Legion Post 291, which are listed as acceptable permittees under 'T' on page 3-10, but not under "Exceptions" on page 3-8. Page 3-9: subsection "3": In "A mooring permit may be held by, or transferred to, only the following persons:", the word "persons" should probably be deleted, as it seems many of the acceptable entities listed are not persons. Page 3-10: subsection "g": As on page 3-8, this again refers to "the effective date of the ordinance codified in this section." Page 3-15: subsection 7": Was "to sub -permittees" intended to read "as sub -permittees"? Page 3-17: subsection "b": Does this mean mooring permittees are required to submit to dye tab testing? I thought we had heard the Harbor Patrol could ask, but had no authority to require it. Item 5. Investment Policy Update As indicated in the staff report, the California Government Code provides guidelines for the investment of money by local agencies. 2. The City's policy has been to limit investments to a subset of those allowed by the Government Code, and sometimes impose additional restrictions on them. 3. The principal change requested here involves the policy regarding mutual funds. a. Government Code Section 53601 (1) and its predecessors have for many years allowed investment in a range of mutual funds whose investments are themselves restricted to the options allowed to a local agency. b. Policy F-1 has restricted the City's investment in mutual funds to that subset of mutual funds known as "Money Market Mutual Funds" as defined in Section 53601 (1) and has added, to Section 53601(1)'s condition that no more than 20% of the City's total portfolio can be invested in these, the additional condition that no more than 10% be invested in any one of them (see the crossed out text at the top of staff report page 5-19 — a restriction that the Government Code imposes only on non -money-market mutual funds). c. The present request is to expand the City's investment options to all mutual funds allowed by Subsection 53601(1). d. This is accomplished by inserting into Policy F-1 the underlined text on staff report pages 5-17 and 5-18, which is a garbled and very poorly drafted rewrite of portions of Subsection 53601(1). March 28, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 i. In particular, in two places it says "and that meet either of the following criteria:" followed by what appears to be a list of three criteria, two of which seem to be "either-or" and one of which seems to add an "and." In addition, in the second such list, the third "criterion" (imposing a 20% limit on that subset of investments) seems redundant with the 20% condition imposed on the total of all mutual fund investments in the following clause. iii. It is impossible, at least for me, to tell from this new language if Newport Beach wants to continue to impose the "no more than 10% in any one fund" rule on Money Market Mutual Funds (something the Government Code does not, apparently allowing the full 20% to be in a single MMMF). e. If the City's intent is to change to the most relaxed policy on mutual fund investments allowed by the Government Code, then rather than attempting to restate what is already carefully stated there, I would suggest simply saying: "n) Mutual Funds, as allowed by California Government Code Section 53601(1)." f. That Code already includes the definitions of money market and non -money- market funds, the overall 20% restriction, the restriction to 10% in any one non - money -market -only fund and all the other restrictions in staff's suggested text. Trying to restate the Government Code without changing its meaning only creates confusion. g. If it is the City's intention to retain the City's existing restriction to no more than 10% in any one Money Market Mutual Fund, this could accomplished by carrying forward the present language: "n) Mutual Funds, as allowed by California Government Code Section 53601(1), provided no more than 10% of the City's total portfolio is invested in any one fund." It might be further noted that contrary to what Chandler Asset Management assured the Finance Committee on February 16, the existing restrictions on Money Market Mutual Funds found in the crossed out text at the bottom of staff report page 5-18 (that they "(1) are "no-load" (meaning no commission or fee shall be charged on purchases or sales of shares); (2) have a constant net asset value per share of $1.00") may be special City restrictions. They have no immediately apparent counterparts in the Government Code. For instance, Government Code Subsection 53601(1)(5) excludes commissions from the purchase price in computing percent of portfolio, but it does not say commissions cannot be charged. Indeed, it appears to anticipate commissions will be charged. If it is the City's intention to retain those crossed out policies (as well as the no more than 10% in one fund rule), I would suggest they be explicitly retained. It seems unsafe to assume (as Chandler asserted) that everything that has been crossed out is magically included in the Government Code. March 28, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 If the Council declines to accept the above suggestions, I would at least suggest that on staff report page 5-18, for the sake of clarity, the two clauses labeled "3)" be stricken, and clause "iii" be refined to read (if that is the Council's intent): "iii. No more than 20% of the total portfolio may be invested in these securities, and no more than 10% in any one fund that is not of type ii." Item 6. Accept $75,562 from California Division of Boating and Waterways Boating Infrastructure Grant and Approve Budget Amendment for Central Avenue Public Pier and Plaza Improvements (17H12) City staff certainly deserves congratulations for finding grant funding. That said, it would have seemed helpful to remind the Council and the public of the total cost of the project, so the amounts received can be understood in perspective. It would also have beer helpful to indicate (without having to read the entire contract) if acceptance of the DBW grant imposes any conditions on the project that it would not otherwise have. Item 7. Streetlight LED Retrofit - Notice of Completion of Contract No. 6427 (Project No. 16V11) It seems interesting that neither this close-out report nor the report to the Council at time of the contract award (Item 15 on May 10, 2016) provides any clear indication of where the work was performed. Unlike earlier phases of the LED retrofit, was it not confined to a limited geographic area? If not, how were the locations worked on selected? Item 9. Approve Agreement with Trane U.S. Inc. for Civic Center HVAC Maintenance It seems strange this item doesn't mention an earlier Consent Calendar Item 11 (entitled "Approve Agreement with Climatec, LLC for Civic Center HVAC Control System Maintenance and Repair") approved at the February 14 meeting. Apparently there are different parts to the Civic Center HVAC maintained by different vendors, the previous roughly $40,000 per year being in addition to the present $61,237 per year. It seems a bit imprudent, in both cases, to be permanently locked into a particular vendor, but are these two, together, the total cost? Or are there still more parts? March 28, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Item 11. General Plan Annual Status Report Including Housing Element Report (PA2007-195) It appears the Council last received a General Plan Status Report as Item 12 on the March 22, 2016, consent calendar (see the PA2007-195 case log for earlier presentations). Comparison with earlier years, shows that much of these always interesting reports is the same from year to year. I understand from the Planning Commission presentation that in future years an effort will be made to highlight the parts that are new, so decision makers can more expeditiously locate the new information. The announcement on page 11-2 of the staff report about the completion of Implementation Programs 10.1 and 10.2, which will apparently soon allow the public and decision makers to see the currently built status of areas of the city relative to the General Plan development limits, is exciting news, and I look forward to seeing that. Strangely, the report provided to the state on the status of those programs (staff report page 11-44) appears pretty much the same as it was a Vear ago.