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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED SEPTEMBER 26, 2017 September 26, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the September 12, 2017 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in s*.�, out underline format. The page numbers refer to Volume 63. Page 355: Item XVI, next to last paragraph: "Bernie Svalstad, President of the Newport Beach L°. r. 4 Historical Society, announced that they are looking for people to provide an oral history or artifacts to the Society and announced their upcoming 50th Anniversary event on September 22, 2017, at the Balboa Pavilion." Page 357: paragraph 1 after first motion, sentence 2: "She noted that the City does not require smaller businesses to use Clean.Compressed Natural Gas (CNG) vehicles; ..." Item 4. Amendment to Newport Beach Municipal Code 14.24.065 (2nd Reading) and Resolution Adopting Sewer Rates There has been much misreporting in the press of what the Council did regarding sewer rates at its September 12 meeting (former agenda Item 25). Since no such approval was noticed in the agenda, the Council could not have tentatively approved sewer rate increases. What the Council did was determine there was no majority property owner protest to a hypothetical rate increase of a certain size, and introduced an ordinance saying future sewer rates would be specified by resolution, rather than in the Municipal Code. The Council received a staff proposal, but it did not approve what the actual future rates to be set by resolution would be. The "Funding Requirements" section of the present staff report (page 4-1) continues that confusion by indicating the second reading of the ordinance will increase rates to customers. Again, it is the possible future resolutions, not the ordinance, that will modify rates (adoption of the ordinance actually leaves rates in limbo until a resolution is adopted). And in fact (and it seems odd the staff report doesn't mention this) one of the key rates proposed to be now set by Resolution No. 2017-61 is lower than the possible rate that has been reported as "approved" on September 12 — namely, Resolution No. 2017-61's per unit "use charge" of $0.51 per HCF for 2022 and beyond is about 6% lower than the $0.54 per HCF shown in the Proposition 2018 notice (the number against which there was no majority protest). As to the wisdom of removing the rates from the municipal code and relegating them to a separate resolution, I personally see no good reason for that. It might be noted that whether set by ordinance or resolution, the current rates can always be reported (as they, and other fees, currently are) in the City's "Schedule of Rents, Fines and Fees," or "Master Fee Schedule," or whatever we want to call it. But in the event of any discrepancy, doubt or error in the Schedule, it seems better that the readily -accessible and carefully -maintained code established by the September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 8 ordinance be the authoritative reference, rather than an obscure resolution of uncertain currency. Moreover, under the proposed scheme, the rates are not being placed directly in the Schedule (itself set by resolution), but rather by a separate resolution that is hopefully reflected and copied correctly into the Fee Schedule resolution. However, nothing in the proposed ordinance or resolution mentions the SRFF/MFS, or directs staff to update it. Better, it would seem to me, a separate ordinance (since they are better advertised and tracked) than a separate resolution. But if it is the City's intention that utility rates be moved to resolutions, then it seems to me the municipal code should remain, or become, the primary high level policy document enunciating the principles used to formulate the rates found in the resolutions. And in that regard, the present ordinance falls far short. It fails to explain the principle that the rates found in the resolution are intended to match the reasonable costs to the City of providing and maintaining the sewer system, that the use charge is intended to defray the flow-related portion of that cost, or that sewer only customers are intended to be charged the same rate as the City's water customers, using an assumed similar flow. Instead, it makes it sound like the Council is free to adopt resolutions with completely arbitrary rates in each category. Regarding the proposed Resolution No. 2017-61, 1 remain unenlightened as to the intended implementation of the declaration that new rates go into effect on January 1 of each year: the utility billing cycles are not necessarily aligned to that date, nor is January 1 water usage data available for most meters (since it is known only on the dates the meters are read). I would guess the rates are intended to apply either to the first billing cycle including January 1, or to the first billing cycle following January 1, but I don't know which. There similarly appears to be a problem with the couple of months lapse between the October 26, 2017, effective date of Ordinance 2017-15 and the January 1, 2018, effective date of Resolution No. 2017-61. During that time the old rate structure in the municipal code will have been repealed, but the new structure staff and the public are told to look for in the resolution specifies no rates effective during that time (or, at least, does not accurately reflect what it calls the "current" structure with its surcharges and per dwelling unit charges). Shouldn't the ordinance say the code amendment is intended to be effective on January 1, 2018, but not before? Finally, isn't the title at the top of Exhibit "A" to the proposed resolution (staff report page 4-12) supposed to read "(Per Resolution 2017-61)" rather than "(Per Resolution 2017 -XX)"? Item 5. Proposed Revisions to Mooring Specifications - Harbor Commission Recommendation One hopes the terminology of this proposal will be more familiar to those considering moorings than it is to landlubbers. In particular, the description on staff report page 5-2 of the transition from "top chain" to "bottom chain" occurring at the floating buoy is difficult to reconcile with this diagram and text of the "Parts of a Mooring" from Willard and Sons explaining what those terms seem to mean to mariners in Massachusetts (showing a light "top chain" descending from the buoy to the harbor floor, and a heavier "bottom chain," lying on the harbor floor and connecting the top chain to the weight). The meaning of a "sand -line" mooring is likewise unclear to me. September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 8 Apparently the term refers to a system consisting of two mooring weights on the harbor floor, with the connection (chain?) to the second weight pulled up out of the muck by means of a line permanently connected to the tackle connected to the single buoy above the first weight. More generally, this item illustrates the difficulties that tend to appear when the Municipal Code anticipates policy details will be filled in through Council resolutions. The staff report (page 5-3) tells us "Newport Beach Municipal Code Section 17.25.020(J) states that "specifications for the size of chains required on moorings and weights of moorings shall be adopted by resolution of the City Council,"" and both the staff report and proposed resolution suggest this is an update of existing specifications. But neither the staff report nor the resolution indicate where those existing specifications are to be found, or what resolution the proposed one will be superseding. And although the September 13, 2017, presentation to the Harbor Commission showed an earlier set of specifications being redlined to create the September 2017 ones, I have searched in vain in the Clerk's Laserfiche archive to find the Council resolution by which those earlier specifications were adopted. Instead, the redlined specifications seen on September 13 seem to be part of a larger set of mooring rules developed by the Harbor Resources Manager and presented as Attachment 1 to the Council's 2010 MOU with the County for mooring management (Item 14 at June 22, 2010, meeting). And while those specifications, despite the directive in the Municipal Code, never seem to have been adopted by resolution, I did find Resolution No. 9969 (from January 26, 1981) which created a Joint Powers Agreement with the County for "Offshore & Onshore Mooring Administration" (referred to in the 2010 staff report). To the best of my knowledge, that resolution (whatever the 1981 Agreement said) has never been repealed — but we choose to regard the Agreement as "expired" or "terminated" by some other means. This casualness makes it very difficult for the public to know which resolutions are the current ones on a topic, and which are "expired" or superseded. Regarding "Exhibit 1" to the proposed resolution: 1. It is unclear if the table on page 5-7 is a complete list of all the discrete mooring "lengths" leased by the City. If it is not, then it needs to indicate something like "the minimum mooring weight and chain sizes for a mooring of any length is as listed in the table below on the first line for which the stated mooring length equals or exceeds the length in question" (if that is what is intended). 2. The table on page 5-8 lists minimum line diameters and maximum line lengths for boats of various lengths. It does not appear to specify anything for boats under 18' or over 70'. Is this an oversight (particularly for the latter, since the previous table indicates mooring lengths can easily exceed 70')? 3. The table on page 5-9 lists onshore mooring specifications for three boat lengths. Similar to the problem with the table on page 5-7, it is not immediately obvious how the page 5-9 table is supposed to be applied to boats of any length other than the three lengths listed, or if boats outside the range of 12' to 18' are allowed on these moorings at all. September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 8 4. It was more evident in the redlined version presented to the Harbor Commission, but item 5 in the numbered list preceding the table on page 5-9 formerly required offshore buoys to be of a design approved by the City. Given the importance assigned to the "tube style" buoy for offshore moorings, it is surprising the City would not want to retain any veto power at all over the style of the onshore mooring buoys. Was this an oversight? Item 6. Resolution No. 2017-63 Relating to the FAA's Implementation of NextGen at John Wayne Airport Before commenting on the substance of the present staff report (largely copied from the City's JWA webpage), I would like to note that it, like the present written comments, contains a number of hyperlinks for which the destination URL's are not separately spelled out, and hence are functional only when clicked. That clickable functionality will likely be lost when archived to the otherwise very useful "Document Search" portion of the City's Open Data portal, as hyperlinks seem rarely to work in documents retrieved from it (unless stored as monolithic, non - searchable PDF's). City staff may wish to be aware that since January 1, 2016, California Government Code Section 6253.10 has required that anything a local agency calls "open data" must, among many other qualities, retain "the data definitions and structure present when the data was compiled." That arguably requires the City to keep the links functional in the archived documents. Regarding the substance of the staff report, my first observation is that "FUNDING REQUIREMENTS: Not applicable" (page 6-1) does not seem realistic because the report recommends the Council "Adopt Resolution 2017-63" and one of the many actions the resolution endorses (in Section 7, staff report page 6-10, and the one action picked up by local news reports) is a commitment that "The City shall embark on an update to the 2008 ARTS Study (JWA/OC Airport - Departure Noise Impact Analysis) in cooperation with the Aviation Committee, the County and resident groups to further understand noise changes following Metroplex." The original study by ASRC Research and Technology, authorized as Item 15 on July 10, 2007, apparently cost City taxpayers $88,456. So one has to expect updating it, which is just one of many proposed actions, would cost something. Regarding the "ARTS Study," it is also a bit disturbing that the results of that 2007 expense, which were apparently presented only to the Aviation Committee and not to the full Council, do not appear to be archived on the City website. AirFair has what appear to be the PowerPoint slides presented to the Aviation Committee, but I am unable to find the report itself (the City's own on-line archives of Aviation Committee materials being spotty at best). Further regarding the "ARTS Study," it might be noted that additional work has been done on the noise impacts of different departure procedures and it would seem prudent for the City to build on those rather than starting over. In particular, Appendix C ("Noise Analysis Technical Report") to the 2014 Draft Environmental Impact Report #617, prepared in connection with the Settlement Agreement extension, contains a good deal of information on this subject. That includes, starting on page 68 of the 269 page PDF, charts showing the range/scatter (as opposed to average) of the noise readings at each monitor, the noise footprints of various kinds September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 8 of aircraft (pages 70-71), and a table (page 74 of the PDF = p. 56 of the report) showing the minutes per day the planes interfere with people's ability to converse at each station (45 minutes a day outdoors in Eastbluff, 78 minutes a day on Anniversary Lane). Additional comments: 1. The City's webpages regarding JWA remain somewhat disorganized and difficult to navigate, including the confusingly different ways in which the same or similar pages can be located. a. For example, the staff report indicates City staff is promoting a new program to forward citizen complaints about NextGen to the FAA. However, what seems to be the City's main JWA webpage does not appear to mention this, and instead unhelpfully tells those with concerns about NextGen Aircraft Noise: "For more information on the FAA, visit its website faa.gov." b. The webpages for the Aviation Committee are similarly disconnected from the other airport pages. c. Finding the actual current version of the all-important Settlement Agreement, or its detailed terms, is even more challenging. d. And no links are provided to significant citizens groups such as SPON, AWG and AirFair. 2. In addition to the actions recommended in the resolution it would seem somewhat useful to encourage the County to add the actual decibel readings to the noise monitor icons on the JWA's online flight -tracking display. That is certainly technology feasible, since SFO displays them using the same vendor and otherwise identical online display. Indeed, not showing the instantaneous noise readings seems the exception rather than the rule. Even little Santa Monica Airport has them, and LAX, using a different vendor, adds the interesting feature (which you see when you click on a noise monitor) of showing the full single -event noise analysis of each "event," displaying the start time, end time, peak dB and duration. 3. It would also seem useful to encourage the Supervisors to adopt a "Fly Quiet Program" such as that at SFO which, through a combination of public recognition (and embarrassment), encourages air carriers to voluntarily institute better noise abatement procedures. This includes reporting not just quarterly averages (as at JWA), but monitoring and publicly reporting individual flights that exceed typical noise levels. 4. In extending the ARTS or other studies of noise impacts, it would seem useful to implement portable noise monitoring to verify that the actual on -the -ground truth in Newport Beach is as the models predict. Otherwise we have little certainty about the expected effect of small changes in flight track or altitude. 5. It would seem useful, and easy, to publicize the time of the once -a -day Frontier Airbus 320 NEO departure, so the public could gain a better sense of whether it is really different. September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 8 6. The City would also seem to want to be closely monitoring JWA's in -progress "General Aviation Improvement Program," some versions of which, by reconfiguring the layout of facilities at JWA, would be expected to increase the number of small jet overflights of Newport Beach at the expense of flights by the small propeller -driven planes that Newport has historically seen as keeping a cap on jet activity. 7. While much is said about departures, I have seen nothing about jet arrivals over Newport Beach on those rare days with offshore winds. They can occur as late as 11:00 p.m. at night, and their noise levels are unregulated by the Settlement Agreement. Their flight tracks historically followed a straightline extension of the runway, coming in over Lido Isle and the heart of Dover Shores. Is NextGen the same? Could the path be improved? And could noise performance be improved by using "continuous descent"? Or does NextGen already do that? Item 7. Annual Concrete Replacement Program: FY17 - Notice of Completion for Contract No. 7009-1 (17R06) I seem to recall seeing, within the last year, a few ADA ramps being constructed in Dover Shores by what appeared to be City crews, and am curious whether the City has found that more cost effective than contracting out the work (as here)? In that regard, ADA ramps were long missing on the east side of Irvine Avenue at Francisco Drive and I believe that after completion of this contract they may still be missing. If so, one wonders why (they have, if I am recalling correctly, been added at Francisco and Tradewinds)? The staff report (on page 7-2) mentions $37,913.63 of change orders some portion of which was for "construction of an Urban Runoff Capture System at the Newport Aquatic Center, which was at the request of the Water Quality/Coastal Tidelands Council Sub -Committee." Without questioning the value of the expense, it has to be observed that the WQ/CT Committee is a body whose role is strictly limited to advising the City Council, and since the City Charter limits the Council to interacting with City staff through the City Manager, one has to wonder what authority WQ/CT, or a sub -committee of it, has to direct staff to conduct work in excess of Council -approved contracts (or any work, for that matter). Item 9. 2017-2018 Playground Improvement Project - Award of Construction Contract No. 8494- 1 (18P01) This commendable effort is presumably part of a larger vision to periodically refurbish all the City's playgrounds. However, neither the project description in the approved 2017-2018 Capital Improvement Program budget, nor in the present staff report that explains how the set of playgrounds to be refurbished this year was selected, or what the estimated cycle time is to get to all the parks. Do we have a written plan somewhere? September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 7 of 8 Item 10. Approval and Award of Agreement to Streetlight Restoration Specialists, Inc. for Streetlight Pole Painting Services I seem to recall seeing streetlight poles on Civic Center Drive being painted, and assumed that was something being done by the Irvine Company or a business owner's association at their expense. The staff report does not explain why the City has installed 500 poles that require the added expense of periodic painting, where they are located other than Newport Center and why we think special poles are needed in those locations (whatever they are). Item 11. Approval of Amendment No. One to Agreement with Emilio Ramirez dba RAMCO General Engineering Contractors for As -Needed General Building Maintenance and Repair Services Athough the staff report is not clear about this, it would appear the two original contracts (C- 8287-1 and C-8288-2) were approved by City Manager on November 18, 2016, under the belief that City Council authorization was not required because they were individually just at the Manager's $120,000 contracting authority. The California Constitution contains a restriction in Article XI, Sec. 10(a) that "A local government body may not grant extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or pay a claim under an agreement made without authority of law." And the staff report clearly explains that Council approval is being requested to pay invoices for services already performed by Mr. Ramirez and in excess of the amount authorized by the contract. While it seems honorable to honor expectations of payment for services ordered by City employees, it would seem to me that to assure itself it is not violating the California Constitution, the Council might want a clearer explanation of what clear "authority of law" City employees relied upon to make the promises of payment beyond the amounts authorized in what the public believed to be the contract. Although Section 421 of our City Charter appears to authorize the Council to allow informal, unwritten contracting by City employees, that does not seem like good policy. In resolving the present matter, the case of Katsura v. City of San Buenaventura, 155 Cal.App.4th 104 (2007) seems quite relevant, involving, as it does, a city with an identical charter provision, and relying, in part, on an earlier case involving the City of Newport Beach. In that case the court found the city did not have to pay, but as best I can tell did not answer the equally important question of whether the city could pay (as is being requested here) without the payment being regarded as an improper gift of public funds. Is there something in contract C-8288-2 that allowed staff, without prior approval, to authorize work in excess of the stated contract amount? September 26, 2017, Council Consent Calendar Comments - Jim Mosher Page 8 of 8 Item 12. Contract with Former City Employee, Michelle Caldwell Although the staff report mentions "Ms. Caldwell is currently working under a TEA initiated September 28, 2016," it might have been helpful to note that Temporary Employment Agreement also required Council approval as Item 10 at the September 27, 2016, meeting One has to wonder if the expectation that the shortage of dispatchers will be resolved in the upcoming contract year is any more realistic than it was a year ago. One might also wonder why the proposed rate of compensation is $0.28 per hour less than it was a year ago. Beyond that, my questions regarding Item 10 from a year ago remain of interest to me, and, for the most part, remain unanswered in the present staff report. Item 14. Appointment of Board Member and Alternate Board Member to the Metro Cities Fire Authority Since there seems to be an unwritten understanding that the City never makes mistakes, it comes as no great surprise that the staff report makes no mention of the fact that the Council took erroneous action on an identically -titled Item 20 at its September 12, 2017, meeting. That erroneous action was to "Appoint the Assistant City Manager as the voting member and the Fire Chief as the Alternate." Apparently the Fire Chief is not currently eligible to serve on the Metro Cities Board. The corrected action, now, is to "Appoint the Assistant City Manager as the voting member and the Deputy City Manager as the Alternate."