HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
August 13, 2019
Written Comments
August 13, 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 23, 2019 City Council Meeting
The passages shown in italics below are from the draft minutes with suggested corrections
indicated in str°mutunderline format. The page numbers refer to Volume 64.
Page 153, first paragraph: "Mayor Dixon indicated penalties for recycling violations in New
York are very strict."
Page 154, end of first bullet under "Mayor Dixon": "..., and the Corona del Mar Branch Library
and Fire Station grand opening"
Page 154, last lines: "City Attorney Harp and Community Development Director Jurjis ...
confirmed the ordinance does not prohibit Saturday construction, but imposes noise limits."
As this statement indicates, there seems to have been some confusion at the July 23
meeting as to whether the noise part of the new ordinance' applicable to "high density
areas" should be called a "ban" on Saturday construction, or merely new Saturday "noise
restrictions"? Although the relevant part of Ordinance No. 2019-9 (including as amended) is
technically a noise ordinance, in updating the Planning Commission about it on July 18 (see
draft minutes for PC Item No. 5), Community Development Director Jurjis himself had
referred to it as "the ordinance prohibiting construction on Saturday' and the noise
restrictions it imposes are identical to the longstanding citywide noise restrictions on
Sundays which are widely perceived as a Sunday construction ban. It is probably accurate
to describe both of these as "noise restrictions that effectively ban most construction
activity." Both are as applicable to do-it-yourselfers as to commercial operators.
Page 157, paragraph 4: "' ur4eyoLorian Petry discussed the Aviation Committee meeting
she attended on July 22, 2019, and voiced her concerns regarding the contract with Mr.
Edwards."
Page 159, paragraph 2: "Discussion ensued between Council and Mr. Sherwin relative to how
TOT is calculated, the difference between Newport Beach & Co. (NB&Co) and Visit Newport
Beach (AFBV VNB , receiving financial reports from both companies, ... and if NB&Co and NB1�
VNB services are still needed, ..." [without this correction, the "NBV" abbreviation is both odd
and inconsistent with the one used in the motion that follows, as well as throughout the staff
report for this item]
' The new law is Ordinance No. 2019-9, scheduled to become effective August 12, but still awaiting online
codification in NBMC Sec. 10.28.040, and now amended with opt -out provisions by Ordinance No. 2019-
11, adopted as Item 3 on July 23, but not effective until August 22.
August 13, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 6
Item 3. Resolution No. 2019-72: Approval and Award of Professional
Services Agreement with Avenu Insights and Analytics, LLC
("Avenu/MuniServices") for Sales and Use Tax Auditing and Analysis
I had the impression the City had relied, for a number of years, on HdL for sales tax information
and forecasts (C-5274 - PSA for Sales and Use Tax Analysis and Appeals). That contract,
originally awarded in 2012 appears to have been extended to September, then on June 28
rolled back to end on June 30. Is there anything the Council or public should know about this
recent change of plans, which isn't explained in the staff report? Was staff anticipating the
Council would rubberstamp the present item and HdL's further services would not be needed?
That said, I am pleased to see the statement in the staff report (page 3-3) that "In accordance
with procedures for the procurement of professional services, staff unsealed the fee proposals
from both proposers." The City's General Plan Update Steering Committee (what ever
happened to that?) was told in some detail that once they had rated the qualifications of the
respondents to an RFP (why would RFQ's be different?), it was the City's practice to open the
price envelope for only the highest rank respondent, and only if a "reasonable" fee couldn't be
negotiated would they unseal the price for the next highest ranked firm. That seemed like an
extremely strange and illogical system, for it would seem that once the technical rankings have
been decided, the price proposals of all the firms become an important decision factor:
especially given that rankings are not infallible, the Council (rather than the staff), just like a
private consumer, may wish to go with a less -highly -ranked firm if they offer substantial cost
savings. In the present case, the staff report claims the highest ranked firm also offered the lost
cost, avoiding the need for such judgments.
But see Item 7 on the current agenda, where the relative costs of using various similarly -ranked
vendors for a roadwork design project are not revealed to the Council (or public).
That said,
The agreement (page 3-5) does not conform with the statement in the staff report
Abstract (and Recommendation part b) that it is "a one-year agreement ... with the
option to extend for an additional four years, in one year increments."
2. Provision 1 ("Term") says "The term of this Agreement shall commence on the Effective
Date, and shall terminate on June 30, 2024." That is clearly the statement of a five-year
term. One would not guess from that it is actually 1 year with options to renew. Nor is the
Adobe Reader search function able to find anything to that effect.
3. Aside from the $6,000 yearly fee for accessing their Clearview software platform, the
compensation due to Avenu Insights also seems more something that is "understood"
between the parties than spelled out in the agreement. For example, at the start of the
Schedule of Billing Rates (Exhibit B, page 3-22), "Sales Tax ... Forecasting services" is
indicated as something that will be billed on a contingency basis (based on recoveries
achieved using leads developed by the vendor). It is very hard to see how a sales tax
forecast can be billed on a contingency basis. That would seem to fall under "Additional
August 13, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 6
Consulting Services" (although I notice it is also listed as something to be provided by
the Clearview software).
Finally, I am pleased to see the vendor is willing to accept a lower contingency percentage as
the size of the recoveries increases. That is commendably different from the Tom Edwards
airport consulting agreement debated at the July 23 Council meeting, in which the vendor is
paid a higher rate for extra hours than for standard ones.
Item 5. Bayview Heights Drainage Project - Notice of Completion for
Contract No. 7109-1 (15X11)
I don't recall if the Council (and public) have seen renderings of what the finished project was
intended to look like.
Is the floor of the "vegetated detention basin" indeed supposed to be vegetated? If so, with
what?
During this past spring it appears to have functioned mostly as a concrete -walled pond and
mudflat.
Item 9. Amendment No. One to Agreement with Rainbow Disposal Co.,
Inc. dba Rainbow Environmental Services (Rainbow) for Beach
Container Refuse Collection Service
The statement at the end of the staff report (bottom of page 9-2) that "It should be noted that no
changes are being made to the contracted billing rates" is mystifying.
This is "Amendment One" and the billing rates shown in Exhibit B (page 9-9) are quite different
from those in the existing contract C-4709. Not only are there (as explained in the staff reports)
different numbers of bins in different areas at different times, but even where the number of bins
is constant, there appear to be very slightly different summer and non -summer rates, all of
which are higher than they originally were. Presumably much of this is due to CPI increases,
and the staff report is trying to say the cost per bin emptying has increased only by that amount.
Item 11. Wastewater Flow Agreement with Costa Mesa Sanitary
District
The Council should be aware the CMSD Board of Directors heard a presentation about these
properties as Item C.8 at their February 12, 2019, study session ("see" audio starting at 12:10
and minutes).
The item was presented by former CNBZ Municipal Operations Co -Director George Murdoch.'
2 CNB = City of Newport Beach
August 13, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 6
The CMSD Board was led to believe CMSD and CNB staff had been discussing annexation of
these properties (for CMSD sewer service purposes, only) for more than a year (previously,
annexation of the entire CNB sewer operation by CMSD had been considered, briefly, as an
alternative to a rate increase).
According to the CMSD staff report, after public outreach in March, the Council and Board were
expected to endorse the annexation in April with the item going to LAFCO as early as May and
being completed by September.
Such an annexation would avoid the need for the Flow Agreement and continued exchange of
funds between the agencies.
Since none of this is discussed in the current CNB staff report, there has apparently been a
change of plan.
Regarding the "Funding Requirements" it would have seemed helpful to indicate how much
sewer revenue was actually collected from these properties in FY19 so the Council (and public)
could see how that compares to the roughly $20,000 paid to CMSD.
In that connection, Mr. Murdoch said that of the properties shaded blue on Mesa Drive (in
Exhibit A of the draft agreement, CNB staff report attachment, page 11-10), the City receives
revenue from, and pays CMSD, only for 2148 Mesa (the rightmost one of the set on the left).
The other six properties, through some anomaly of history, have been allowed to connect to the
CMSD system without reimbursement from the City and CMSD has been unable to assess the
owners because their properties (like all those being discussed here) are outside the CMSD
service district. In other words, six of the Mesa Drive properties (apparently originally on
septic tanks) have been enjoying free sewer service for many decades (see the caption
explaining this in Mr. Murdoch's Exhibit G from his February presentation to the CMSD Board).
Is something going to be done to correct this situation?
Under the new agreement, it would appear CNB is agreeing to pay CMSD their full rate for
these properties. Does CNB plan to pass this charge on to the property owners? Or will it be
paid out of the general fund? One might guess these six estate owners (like the Mesa Drive
estate owners already within the CMSD service boundary) could afford the $94 dollars a year.
Also regarding the CNB staff report, it is very difficult to tell which parts of the discussion on
page 11-2 refer to the expired agreement (for example, the "20 -year term") and which parts
refer to the proposed new agreement (for example, the references to "Exhibits A and B"). It
would have seemed helpful to highlight how the new agreement differs from the old.
3 George, who is now an East Orange County Water District Director, was apparently hired by the City
under a pre-existing on-call consulting agreement with Richard Brady & Associates (C-8169-1, since
expired on July 30, unless it's been extended) — thereby evading the Policy F-14 requirement for Council
approval of contracts with firms employing (at the time of contract?) people who have worked for the City
within the last five years.
August 13, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 6
Regarding the proposed new agreement (Attachment A starting on page 11-3):
1. In the first "WHEREAS," I suspect "retailer'' may have been intended to read
"residentiaf' or else "residential" was inadvertently omitted from the list of uses' (it might
also be noted that although CMSD provides wastewater services to all the uses stated, it
provides solid waste collection only to small residential units with curbside service
through a contract with CR&R similar to that the City has).
2. 1 believe the statement in the third "WHEREAS" that one of the purposes of the 1991
amendment (C-2100) was to "modify the number of properties served by CMSD" is
misleading.
a. Although the 1991 amendment has attached to it an "Exhibit "A"" with a notation
that it is "revised 9/1991," it does not appear to change the properties from those
delineated in 1979 and I can find no reference to this graphically -revised exhibit
in the amendment.
b. What the 1991 amendment did add to the agreement was an "Exhibit "B"" related
to the division of fees and responsibilities in an area of West Newport Mesa
which seems to involve a set of properties on the north side of West 16th Street,
along the Newport Beach — Costa Mesa border, which is also, apparently, in that
area the boundary of the CMSD service area. As in the Back Bay, some of these
are (or were at the time of the 1991 amendment) CNB ratepayers whose
wastewater flows into CMSD sewers, but others are of the opposite kind:
properties in the CMSD service area that flow into the CNB system.
c. To the extent the 1991 "Exhibit "B"" and the related paragraph of
explanation remains relevant, it seems important this understanding be
carried forward into the new agreement, but I can find no evidence that it is
(it is not within the boundary area to which the new agreement applies).
3. 1 believe the statement in the fourth "WHEREAS" that "the 1991 Amendment expired in
August, 2009" is incorrect.
a. The 1979 agreement is dated August 9, 1979, and clearly states it had a term of
20 years.
b. The 1991 amendment appears to have been concerned primarily with adjusting
the rate structure to match that charged by CMSD rather than being an
independent amount adjusted by CPI. It expressly states that no other terms are
being modified.
c. It therefore appears that the previous agreement expired on August 9, 1999 (not
2009), and that the City has been paying without any written agreement for the
last 20 years.
d. An expiration in 1999 is also what George Murdoch believed. See the CMSD
February 12, 2019, minutes, page 2, as well as the CMSD staff report: "The
4 1 don't personally understand why the uses are listed. I would omit the entire list.
August 13, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 6
agreement expired nearly twenty years ago on August 9, 1999, but CMSD and
City officials have agreed to a "gentlemen" agreement where the City would
continue paying the capacity fees to CMSD."
4. Section 7.4 refers to an "annual invoice period" without clearly what the "period" is. It
is evidently a July 1 to June 30 fiscal year.
5. In Exhibit A ("Sewer Service Boundary," on page 11-10), the two southernmost
properties shaded in blue on Tradewinds Lane (near lower left corner of the exhibit) —
1815 and 1821 Tradewinds — are not listed in Exhibit B ("Parcels Receiving Sewer
Services").
a. Mr. Murdoch's Exhibit B from his February 12 presentation to the CMSD Board
suggested field studies had shown these properties do not flow into the CMSD
system. That would suggest the new agreement's Exhibit B is correct and Exhibit
A is wrong.
b. I don't know if subsequent studies have reached a different conclusion, but it
would seem Exhibit A and Exhibit B of the agreement should be consistent.
Received After Agenda Printed
August 13, 2019
Item No. SS3
August 13, 2019, Study Session Item SS3 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 SS3. 2019 Water Rate Study
I am pleased to see staff has provided their PowerPoint for public (and Council) review prior to
the meeting.
Regarding the description of the water system (page SS3-8), it is an interesting factoid that
according to the City's "Demographics and Statistics" page, the land area of Newport Beach is
15,238 acres. So the City's annual water delivery of 15,000 acre-feet would be enough to fill
that land to a depth of 1 foot (although the City does not supply water to the entire area, so if
one thinks of just the area served with City -supplied water, it would be filled a bit deeper).
In that same vein of trying to make things understandable, I think Newport Beach residents
would understand their water consumption better if the City changed its water billing unit
(specified in NBMC Sec. 14.12.020 and appearing on the slides starting with SS3-20) from
"HFC" (100 cubic feet = 748 gallons) to 1,000 gallons" as used throughout most of the
American Water Works Association Manual M1 (on setting rates). It is only slightly larger, and
when speaking of water, I think most people will feel they can relate to gallons purchased much
more easily than to HFC (a cube of water 4.64 feet on a side), and hence are more likely to be
either amazed or pleased with their use.
I would similarly advocate for a more "honest" rate structure, more in concert with the
Proposition 218 ideal of the government charging exactly what it costs to provide a service (see,
especially, California Constitution, Article XIIID, Sec. 6(b)). I believe the fixed costs of
maintaining the water delivery infrastructure in the absence of any water usage should be
allocated in some way rationally related to the amount of infrastructure needed to accommodate
each ratepayer. The true additional costs incurred when actually delivering water through the
system (including pumping, chemicals, etc.) should then be shared equally with all consumers
based on gallons purchased with a pass-through of the commodity costs paid by the City for
purchasing water (as allowed by California Government Code Section 53756).
Such a system would appear to be inherently "drought proof" (the necessary infrastructure
maintenance costs would be collected even in the total absence of water use), would require
only modest reserves (just enough to cushion uneven years of infrastructure maintenance
needs), and avoid problems of the sort highlighted on slide SS3-14 where the cost of
purchasing water increased 75% in 5 years without corresponding adjustments in rates.
In my view, the reason for any deviations from such a system should be clearly explained.
Although it doesn't leap out to me from the slides, I believe we do deviate and I understood from
the Finance Committee meetings that we purposely undercharge for infrastructure (the "fixed
charge") and overcharge for usage (the per HCF "variable" rate), thinking this will promote
conservation -- but leaving the City in a pickle when usage goes down and not enough dollars
are being collected to maintain the aging pipes and pumps.
I am not at all sure that is the best decision.
RECEIVED AFTER AGENDA PRINTED
AUGUST 13, 2019
AGENDA ITEM NOS. IV.B, 14 & 16
From: Ruth Kobayashi
To: Debt - City Council
Subject: City Council Meeting August 13, 2019 Consideration
Date: Friday, August 9, 2019 3:45:06 PM
Dear City Council Members,
Respectfully, I request that you consider the following input on the agenda for Tuesday's City
Council Meeting:
IV A: Martin v Boise Brief -please join the amicus in this case. Overturning of this decision
could have a positive impact on cities by enabling them to enforce certain laws that impact
public nuisances and quality of life.
XIV: Consent Calendar Item 14: Community Program Grants:
Please tie the approval of this grant application to cease bringing at risk individuals
whom are not Newport residents -per the document attached to the agenda) to OLQA-
100 feet from two schools. CdM middle and high school and the surrounding residential
neighborhood continues to be impacted by at risk people wandering and loitering near
residents and students. Standard practice by groups that place shelters is not to be in such
proximity to schools and this program in it's current state (virtually a part time day
shelter) puts minors at risk. The City is a willing participant in putting students at risk by
funding the program. The program can certainly reach people in need by reaching out at
locations that do not create a magnet right next to two schools of over 2000 students.
XVII Public Hearings Item 16: Vivante Project:
As you consider approval for this project, please have the appropriate staff require the
construction traffic monitored for safety of neighboring residents, particularly at the major
traffic signals during the morning hours when CdM students and parents are driving to
school. As you recall, the construction of the Irvine Co apartments adjacent to this project
posed significant risk due to the large trucks running red lights and left turn signals at the
corner of Jamboree and San Joaquin. Ideally, having large trucks avoiding this intersection
and the down hill grade of Jamboree approaching San Joaquin could mitigate much of this
danger to students.
Thank you for the important work that you do for our community. I am grateful for each and
every one of you.
Sincerely,
Ruth
Digital Enthusiast
Sent from my Wad