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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED JULY 23, 2019 CONSENT CALENDAR COMMENTS July 23, 2019, 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 July 9, 2019 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in cr°�4, �ut underline format. The page numbers refer to Volume 64. Page 145, first bullet: "Read an email from Larry Fort Mueller Fortmuller with the Red Cross ..." (see 2013 award page) Page 149, last paragraph before Item XIII: "Mayor Pro Tem O'Neill indic-te indicated the transit center is owned by The Irvine Company, ..." Item 3. Ordinance No. 2019-11: Adoption of an Ordinance to Allow Homeowners' Associations to Opt Out of Saturday Construction Noise Restrictions and Temporary Construction Signage Requirements I commented fairly extensively on this proposed ordinance when it was introduced as Item 3 on the July 9, 2019, consent calendar. I continue to feel the earlier -adopted Ordinance No. 2019-9 (becoming effective on August 12), which precipitated the perceived need for this new ordinance, unnecessarily combined solutions for two separate and distinct desires of the community: some community members wanting a ban on Saturday construction noise, and others wanting a requirement to post project contact information at any worksite already requiring a construction fence. This signage is intended to be displayed at all times, not just Saturdays, and to address concerns not limited to noise. Confusingly, Ordinance No. 2019-9 inserted the same map of areas to which the regulations apply at two different places in the Municipal Code, and referred to it by the same terminology. The present ordinance, if adopted, will compound these problems by: Even more inextricably linking together the noise and signage regulations by cross- referencing the code sections in such a way that (according to staff's reading of rather confusing ordinance text) a Council resolution can change one map only if it makes the same change to the other. That is, it offers an opportunity to opt out, but makes it impossible to opt out of the Saturday noise regulation without at the same time opting out of the (largely unrelated) signage requirement. 2. Assigning a role to "Homeowners' Associations" which are defined in a way that does not seem to match the powers staff assumes HOA boards over the properties within their (possibly self -declared) geographic range. July 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 6 In addition, while the City received a June 9 request from the Newport Shores Community Association Board to opt out of the Saturday noise ban, it appears there are other areas of the City, not presently designated by Ordinance No. 2019-9 that might want to opt in to one or both of the new regulations, and the proposed new ordinance provides no mechanism to expand the area of either. In particular, in their correspondence to the Council, the Board of the Corona del Mar Residents Association (which, although long identified on a City map as a "Master Association" holding sway over 24 others is a voluntary membership chamber -like organization) was more cautious than the Newport Shores Board and actually polled their members to find out what they wanted. In their admittedly small and possibly selective sample they found overwhelming support for both programs even in areas with true rule -setting HOA's outside Ordinance No. 2019-9's range. And I would submit that not even the Newport Shores Board (whose powers outside managing the shared recreation facility have not been clearly explained) may know if the rank and file residents in that area want to opt out of the requirement to post contact information on construction fences. Their June 4 agenda shows only a discussion of "Opposition to City Ordinance Changes Banning Saturday Construction" — with no hint of a discussion of a position on the signage requirement — and their June 9 letter says it represents the Board's views without benefit of actual input from other residents. In short, I believe this "correcting" ordinance should not be adopted in its present form, as it may not achieve the wishes of even the residents in Newport Shores. Instead, I believe the territories to which the noise and signage regulations apply should be made independent of each other, and whatever ranges the Council initially feels are appropriate, there should be a mechanism to opt in as well as to opt out. Alternatively, and perhaps better, the entire proposition should be rethought so that single rules that make sense City-wide can be adopted. Item 4. Ordinance No. 2019-12: Adoption of an Ordinance Amending a Development Agreement for Hoag Memorial Hospital Presbyterian (PA2018-024) This item may come as a surprise to many, since the Council has been widely reported, in the media and by itself, as having "approved" an agreement with Hoag Hospital at its July 9 meeting. This item makes clear that what happened on July 9 was that the Council introduced an ordinance proposing to approve an agreement. Although it had previously been reviewed by the Planning Commission, a notice of the ordinance's introduction was then published in the classified section of the Daily Pilot a copy of the proposed ordinance duly posted for public review. In theory, the public has had its chance to review the proposal and should be presenting its concerns at this meeting, where the Council conducts a "second reading" and considers the ordinance for possible adoption. July 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 6 It seems unfortunate the media and Council members trumpeted the agreement attached to the ordinance as having been "approved" on July 9. The absence of any mention of the very important fact that the approval was a tentative one awaiting ratification at the present meeting shortcircuited the process, eliminating the incentive interested members of the public were supposed to have to study the agreement for two weeks and bring their thoughts and possible changes to the Council for consideration before it took final action. The effective elimination of this pause for public review (by creating a sense final had already been taken when an ordinance was merely introduced for consideration) is always unfortunate. This case is no exception since the public has received mixed messages as to what was being proposed. The public had initially been told, and the staff report continues to give the impression, that in addition to the conditions Hoag had previously agreed to in connection with the existing Development Agreement, it would now agree, for the next 10 years, to provide $300,000 per year to be spent on homeless services recommended by the City's Homeless Task Force. That would be a bit strange since the Task Force, by the terms of its creation, is a transitory body, scheduled to be disbanded no later than the end of 2020. It was unclear how they could make recommendations for the remaining eight years of the new Agreement, especially as circumstances could easily change and new providers might emerge who would be more effective than the previously -recommended ones. The proposed Agreement as actually presented on July 9 is equally strange, for instead of allowing the City to use the annual payments for homeless services of the City's choosing, it requires them to be given "to one or more non-profit community partner(s) to operate a homeless shelter, as recommended by the Newport Beach Homeless Task Force and approved by the City Council." This presupposes that before it disbands next year, the Task Force will have both designated a shelter to serve the City and identified the groups that should operate it for the following eight years. And it appears to give the Council no discretion to select an operator, now or in the future, other than the one recommended by the Task Force. It is unclear that the first decision will be made in next eighteen months, or why it is desirable to lock in on a Task Force designated operator without a possibility of change in the future. The Agreement also strongly implies the shelter being referred to is one that will be built by the City and not an existing shelter, or one built by some other agency. This may or may not be the recommendation of the Task Force. In short, the language of the proposed Agreement seems unnecessarily inflexible. Item 5. Resolution No. 2019-71: Amending the Scope of the Business Improvement District Ad Hoc Committee and Changing the Name to the Ad Hoc Committee on Local Business Advancement The proposed new committee name seems extremely leading, implying that city governments have an obligation to perform a chamber of commerce like function. July 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 6 It is also impossible to tell from the amended scope if the references to "merchants associations" is confined to the two associations cited in the last "Whereas" on staff report page 5-3, or if the committee will now be considering options for the City to support all merchant associations that currently exist (such as the Mariners Mile one) or that might arise in the future. As to the staff report, the statement on page 5-2 that "The City Council approved disestablishment of [the Balboa Village BID and the Marine Avenue BID] on May 28, 2013. Thereafter, the local business owners in Balboa Village and on Balboa Island banded together to form non-profit merchant associations. A condition of the approved disestablishment included City funding support of $40, 000 to each of the newly formed merchant associations for five years." is a bit misleading. The new associations were incorporated by Scott Palmer (who the City had previously contracted with to administer all four 1989 BID's), and since there were no rules for membership and no dues involved, it was unclear who the new members were. In addition, there was never any formal Council commitment to provide $40,000 per year for five years — at least not in the sense of an action item publicly noticed on a Council agenda. The so-called "condition" of disestablishment is instead inferred by staff from comments made by isolated Council members at study sessions or suggestions by the City Manager. The City Manager actually suggested $50,000 per year (see Item 12, May 14, 2013) even though the City's "matching" grants to the organizations prior to disestablishment had been in the range $10,000 to $14,000 — making it very attractive to disestablish even though I think the City had been picking up Scott Palmer's contact cost prior to that (see, for example, C -3983(B) - PSA for Business Improvement District (BID) Administration Services): continued employment for Scott and more money to spend without any need for assessments or public meetings. Item 8. Amendment No. 3 to Professional Services Agreement for Airport Consulting Services What is good about this: 1. Mr. Edwards has not asked for a raise in the 11 years he has been contracting with the City. a. The present proposal to agree to pay $5,000 per month for 25 hours of work at $200 per hour, plus $300 per hour for any requested additional work, is identical to the agreement negotiated by former City Manager Homer Bludau (original contract C-4038, presented to the Council as Item 12 on April 8, 2008). b. However, the amount of $300 per hour "overtime" may have crept up over the years so that what was for a number of years a $70,000 per year not to exceed amount has crept up to $85,000 per year ($10,000 more than the last time the Council saw this in 2018 despite the report saying "Staff believes the workload will lessen slightly this yea►"). What is not so good about this: July 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 6 Although such arrangements seem rare in Newport Beach, contracting with former City Council members creates the perception that attaining that essentially volunteer status opens the door for better -paid employment with the City in the future. Rightly or wrongly, the public may reasonably assume that in approving this the current Council members will see similar opportunities for themselves.' a. During his four years on the Council from 1994-1998 (the last as Mayor), Mr. Edwards received a total of a little under $44,000 (averaging $11,000 per year, understood at the time as reimbursement for expenses incurred as a result of his volunteer service). He now receives much more than that total each year for what one assumes is far fewer hours of effort. b. The staff report seems to imply that the new contract limit of $272,500 will be the total Mr. Edwards has received for his community outreach services to the City since 2008. This is not the case, for as the recitals in the present contract indicate (staff report page 8-3), it is only for the period May 23, 2017, through July 23, 2020. Mr. Edwards's total post -Council compensation is much higher when one adds in the prior contracts, most, but not all, of which were presented to the Council for approval. The contract amounts from April 2008 through May 2017 probably total around $647,500 for a total of around $920,000. 2. The City's contracting practices remain sloppy and non -transparent. a. At the July 9 meeting, as Item 11, we had the spectacle of the Council feeling an obligation to make good on staff's "award" of previously -completed services exceeding the dollar limit of staff's authority to award on a weed abatement and storm debris removal contract. It appears we may have some of the same thing here: i. The staff report fails to mention that Mr. Edwards' most recent Council - approved contract (C-7071-2), as approved with Item 15 on May 22, 2018, expired on May 23, 2019, or why this is "Amendment No. 3" rather than "Amendment No. 2." It is Amendment No. 3 because on April 16 (see recital C on staff report page 8-3), the City Manager, without consulting the Council, extended the expiration date to August 1 and increased the compensation limit by $37,500, presumably to cover the two extra months of June and July (for which the normal pay would be $10,000) plus a possible $27,500 of extra work in May, June and July (approximately 90 hours of "overtime" at his ' In recent memory, we have the still -current $48,500 arrangement with former Council Member and Mayor Pro Tem Tony Petros (C-8020-2, approved as Item 7 on January 22, 2019) for "public outreach, regulatory agency processing and permitting and assist with various project management tasks" in connection with the proposed bridges at Superior and PCH. July 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 6 $300 per hour). This is difficult to square with the statement in the staff report that his "overtime" averages 10 hours per month.2 iii. The public has no easy way to learn, nor does the staff report explain, what the current funding status of Mr. Edwards' contract is. In other words: Does it currently, on did it on April 16, contain a surplus of unspent money from extra services that were budgeted for but not previously expended? Was the April 16 increase intended to pay for possible future services, or was it intended to cover previously -authorized activities that exceeded the dollar limit that had been set by the Council? iv. In general, when asking for a renewal or extension, it would be good to say how much has actually been spent or encumbered to date. b. The Council is being asked to approve the present extension without even being shown the Scope of Services staff is seeking with the contract. 3. It is has never been explained why Mr. Edwards is uniquely qualified to provide the services requested, or why they could not be supplied as well or better by someone else at a lower cost. Despite this lack of justification, this seems to have been presented annually on the consent calendar as an obviously "sole source" contract with no conceivable alternatives. a. At the time the contract was originally approved in 2008, the anticipated dollar amount was large enough that the then -current City Council Policy F-14 required a Request for Qualifications to at least three qualified consultants — something that never seems to have happened, despite the contract morphing into a continuing commitment approaching $1 million. b. The current version of Policy F-14 continues to call for a qualifications -based selection process, but leaves the details to an "Administrative Procedures Manual" developed by the City Manager. To the best of my knowledge, that manual is not publicly posted, and has most likely never been reviewed by the City Council. Item 10. Required Council Reporting: Fiscal Year 2018-19 Annual Discretionary Grant Report and the Grants and Donations Report for the Quarter Ending June 30, 2019 Council member Avery is to be commended for not spending the funny money placed at his fingertips. He is the only Council member honoring the people's expectation in their Charter that the people's money will be spent only by collective action of the Council as a whole taken at a public meeting, and not on the private whim of individual Council members. 2 An earlier City Manager approved increase over the Council approved limit occurred in connection with C-6098 in 2016 -- that time a $17,500 increase without extending the term.