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HomeMy WebLinkAbout02/10/2004 - Regular MeetingCITY OF NEWPORT BEACH City Council Minutes Regular Meeting February 10, 2004 - 7:00 p.m. - 4:00 p.m INDEX CLOSED SESSION - 6:00 p.m A. RECESSED AND RECONVENED AT 7:00 P.M. FOR REGULAR MEETING B. ROLL CALL Present: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Absent: None C. CLOSED SESSION REPORT - Mayor Ridgeway reported that the City Council met with, and gave direction to, their labor negotiators relative to the upcoming meet and confer process with the Marine Safety Officers Association, the Police Employees Association and the Association of Newport Beach Ocean Lifeguards. Mayor Ridgeway also reported that the City Council concluded its evaluation of the City Manager and requested that an ad hoc committee consisting of Mayor Ridgeway and Council Members Heffernan and )Webb meet with the City Manager to discuss modifications to his compensation and make a recommendation to the City Council at its meeting of February 24, 2004. D. PLEDGE OF ALLEGIANCE - Council Member Nichols E. INVOCATION - Reverend Dr. George R. Crisp, Christ Church by the Sea United Methodist F. PRESENTATIONS - None G. NOTICE TO THE PUBLIC H. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON- DISCUSSION ITEM): • Council Member Nichols stated that the raised easement at Dahlia Avenue and Coast Highway is causing some problems. He requested that a picture be provided on the City's website to show where the raised easements would be placed in Corona del Mar, so that the public would have the opportunity to comment on them. • Council Member Webb complimented the General Services Department on the sidewalk that was installed next to the Environmental Nature Volume 56 - Page 668 City of Newport Beach Regular Meeting February 10, 2004 Center. Council Member Webb requested that the City Attorney's office review Chapter 10.52, Abandoned and Wrecked Vehicles, of the Newport Beach Municipal Code and consider a recommendation that would provide the City with the ability to have such vehicles removed if they become a public nuisance. Council Member Bromberg announced that this year's Newport Beach Relay for Life would be taking place in May. It's a fundraising and awareness event that is sponsored by the American Cancer Society, and this will be the third year that the City of Newport Beach has participated. The event will take place at Newport Harbor High School during a 24 -hour period from May 14 to May 15, 2004. Council Member Bromberg stated that additional information can be obtained by contacting Stephanie Taylor with the American Cancer Society at 949- 56'7 -0611. • Council Member Rosansky thanked the West Newport Beach Homeowners Association for sponsoring the Water Quality Forum, which is being televised this month on Adelphia and Cox Communications on Wednesdays at 9:00 p.m. and Saturdays at 8:00 p.m. • Council Member Heffernan asked when the issue regarding the CalTrans relinquishment of Coast Highway in Corona del Mar would be agendized. City Manager Bludau stated that the item would be agendized for a City Council meeting in March. • Council Member Heffernan also asked when the Newport Coast Community Center matter would be agendized. City Manager Bludau reported that it would be agendized for the meeting of February 24, 2004. • Mayor Ridgeway announced that a public workshop on potential revisions to the City's Sign Code would be taking place on February 26, 2004, at 6:30 p.m., at the Central Library Friends Meeting Room. Additional information can be obtained by contacting Senior Planner Tamara Campbell at 949 - 644 -3200. I. CONSENT CALENDAR READING OFMINUTESIORDINANCES AND RESOLUTIONS 1. Item removed from the Consent Calendar by a member of the audience. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. CONTRACTS AND AGREEMENTS 3. PROFESSIONAL SERVICES AGREEMENT Volume 56 - Page 669 INDEX FOR LCP I C -3689 City of New -port Beach Regular Meeting February 10, 2004 INDEX Volume 56 - Page 670 BIOLOGICAL CONSULTANT. Approve the Professional Services LCP Biological Agreement (C -3689) with Merkel & Associates, Inc., for biological Consulting consulting services associated with the Local Coastal Program (LCP) Services certification process. (38/100 -2004) 4. PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM C -3075 AVERY ASSOCIATES, INC. FOR LABOR RELATIONS SERVICES. Labor Relations Approve and authorize the Mayor to execute a two -year agreement Services (C -3075) with monthly compensation of $4,750. (38/100 -2004) 5. PURCHASE OF 2004 JUNIOR LIFEGUARD PROGRAM C -3685 UNIFORMS. Award the 2004 Junior Lifeguard Program Uniform Junior Lifeguard contract (C -3685) to Hawaiian Island Creations for the total cost of Uniforms $144,977.63 (including tax). (38/100 -2004) 6. PLAYGROUND IMPROVEMENTS AT BONITA CREEK, C -3588 CHANNEL PLACE, SAN MIGUEL & GRANT HOWALD PARKS - Playground COMPLETION AND ACCEPTANCE OF CONTRACT NO. 3588. Improvements 1) Accept the work; 2) authorize the City Clerk to file a Notice of (38/100 -2004) Completion; 3) authorize the City Clerk to release the Labor & Materials bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and 4) release the Faithful Performance Bond one (1) year after Council acceptance. 7. Item removed from the Consent Calendar by Council Member Heffernan. 8. Item removed from the Consent Calendar by Council Member Bromberg. MISCELLANEOUS ACTIONS 9. DISTRICT 2 APPOINTMENT TO ENVIRONMENTAL QUALITY (100 -2004) AFFAIRS COMMITTEE. Confirm Council Member Rosansky's appointment of Ryan Dwight. 10. Item removed from the Consent Calendar by Council Member Nichols. 11. BUDGET AMENDMENT TO ACCEPT A CHECK FROM THE (100 -2004) FRIENDS OF THE NEWPORT BEACH LIBRARY AND APPROPRIATE FUNDS TO MAINTENANCE & OPERATIONS BUDGET ACCOUNT FOR FY 2003/04. Approve a Budget Amendment (BA -032) in the amount of $20,000. 12. Item removed from the Consent Calendar by Council Member Heffernan. S20. Item removed from the Consent Calendar by a member of the audience. S21. RESOLUTION NO. 2004 -12 — FEDERAL SUPPORT FOR THE (100 -2004) Volume 56 - Page 670 City of Newport Beach Regular Meeting February 10, 2004 INDEX NEWPORT BAY ECOSYSTEM RESTORATION PROJECT. Adopt Resolution No. 2004 -12 asking Congress to add funding for the Newport Bay Ecosystem Restoration Project into the FY'05 Federal Budget. Motion by Mayor Pro Tern Adams to approve the Consent Calendar, except for those items removed (1, 7, 8, 10, 12 and S20). The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None J. PUBLIC HEARINGS 13. APPEAL OF DETERMINATION THAT PROPERTY AT 1918 DOVER DRIVE IS A PUBLIC NUISANCE AND ORDER OF ABATEMENT. Deputy City Attorney Ohl stated that the staff report includes information on when the homeowners at 1918 Dover Drive were notified of the problems at their property. Photos and other supporting documentation is also included. He reported that Dr. Thomassen will not be in attendance at the current meeting and has asked for the matter to be continued to provide him the opportunity to bring the property into compliance. Deputy City Attorney Ohl stated that staff is not recommending that the matter be continued. He explained that the property owners have already had ample opportunity to bring the property into compliance and that the problem has been ongoing since September, 2003. Mayor Ridgeway asked the City Council if the request for a continuance should be granted. Council Member Webb stated that although Dr. Thomassen has reported that he is ill, he has continually asked for a continuance of the matter and has not made any effort to comply with the City's requests. Council Member Webb stated that it's just another delaying tactic on the part of Dr. Thomassen to postpone the matter. He recommended that the request for a continuance not be granted. Council Member Bromberg concurred with the statements made by Deputy City Attorney Ohl and Council Member Webb. He stated that it is unfair to the residents in the area to delay the matter any further. Motion by Council Member Webb to proceed with the Public Hearing at the current meeting. The motion carried by the following roll call vote: Volume 56 - Page 671 (100 -2004) i City of Newport Beach Regular Meeting February 10, 2004 INDEX Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Deputy City Attorney Ohl reported that after the matter was brought to the public's attention, Terry Debay and Bud Potter contacted the City and offered to assist Dr. Thomassen in cleaning up the property. The City has worked with both parties and it is hoped that within the next 30 to 45 days, the property can be brought to an acceptable condition. Deputy City Attorney Ohl recommended that the appeal be denied. Mayor Ridgeway opened the public hearing. Jim Hildreth asked why the matter is being opened for public comments when the City Council has already determined that the matter is not going to be continued. Terry Debay stated that "Go and Do Likewise" is a group of volunteers that believe in reaching out and touching neighbors. He complimented Bud Potter who puts the program together through church groups. Mr. Debay stated that the group plans to paint the house, obtain a dumpster for the trash and that they're excited for the opportunity to clean the place up and make it a place that the community can be proud of. Bud Potter, President, "Go and Do Likewise ", stated that his seven years of experience with gathering people together to reach out and touch people's lives has been very positive. He stated that his group is anxious for the opportunity and hopes that the City Council will allow them to do so. Tom Johnston wished the "Go and Do Likewise" group luck in accomplishing their goal. He stated that he's opposed to any further delays in remedying the problem at the property, noting that it's been occurring for decades and has even gotten worse since the last public hearing. Mr. Johnston listed some of the specific problems with the property. He spoke in support of the staff recommendation. Kurt Kalanz stated that he first noticed the problems at the property when he was seven years old. His mother contacted the City and a local news station, and told her son that he would see local government in action. Mr. Kalanz stated that he is now seventeen years old, and is still waiting to see any action taken on the property. He stated that Dr. Thomassen's right to surround himself in garbage ends where the rights of others begin. Mr. Kalanz asked the City Council to take action on the matter. Thomas Mushegain Jr. stated that the definition of garbage includes food waste, and that there's a difference between garbage and refuse. Volume 56 - Page 672 City of Newport Beach Regular Meeting February 10, 2004 INDEX Hearing no further testimony, Mayor Ridgeway closed the public hearing. Council Member Webb read from the Newport Beach Municipal Code on what constitutes a public nuisance, and stated that the Thomassen property easily falls within the conditions. Motion by Council Member Webb to deny the appeal and uphold the determination that the property is a public nuisance and order of abatement; adopt Resolution No. 2004 -13 ordering the owners of 1918 Dover Drive to abate public nuisance within 30 days; and direct staff to pursue abatement if owners fail to comply. Council Member Webb thanked Fire Chief Riley, Deputy City Attorney Ohl and Code & Water Quality Enforcement Division Manager Sinasek for their efforts. To Mr. Debay and Mr. Potter, he offered to pay for the dumpster, that would be needed, from his discretionary funds. Mr. Debay announced that the fist three Saturdays in March have been set aside for the cleanup. Council Member Heffernan asked what criteria the City will use to determine if the property is brought into compliance. City Attorney Burnham stated that the City will abate whatever nuisance remains after the 30 days has passed. He noted that the work planned by "Go and Do Likewise" will improve the property beyond the abatement order, but that the abatement order is still necessary. Council Member Webb stated that the staff report includes a list of the violations that need to be corrected. Council Member Heffernan asked what the abatement order allows the City to do. City Attorney Burnham stated that it has not been determined if it would allow the City the right to go onto the property, or if it would require action by the Superior Court. He noted, however, that staff is confident that "Go and Do Likewise" will be able to abate the nuisance. Council Member Heffernan asked what the City will do if Dr. Thomassen doesn't cooperate with the cleanup effort. City Attorney Burnham stated that the recommended action at the current meeting directs the City Attorney's office to take whatever action is deemed necessary and that the matter wouldn't need to be readdressed by the City Council. Council Member Rosansky asked if the process could include an injunction to insure that the City doesn't have to go through this same process again. Deputy City Attorney Ohl stated that an injunctive order is in place, but that the Superior Court requires personal service of the order on Dr. Thomassen. He stated that the City's previous attempts have failed. Deputy City Attorney Ohl stated that, if necessary, the City will seek a warrant to go onto the property and abate the warrant. If that effort fails, a second injunctive order would be sought or criminal penalties would be pursued. Council Member Rosansky suggested that the process server remain on the property until the order can be served. Volume 56 - Page 673 City of Newport Beach Regular Meeting February 10, 2004 Council Member Bromberg asked how long the order is good for and if the process would have to be started over again if, for example, after six months, the property returns to a public nuisance state. Deputy City Attorney Ohl stated that the process would have to be started over again. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None K. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES OF THE ADJOURNED REGULAR OR REGULAR MEETING OF JANUARY 27, 2004. Jim Hildreth referred to page 639 of the regular meeting minutes and what he said during Public Comments, and stated that some of his comments were left out and that the paragraph is confusing. He suggested that the videotapes of the City Council meetings be made a part of the City record. Motion by Mayor Pro Tern Adams to waive reading of subject minutes, approve as written and order filed. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 7. BIG CANYON RESERVOIR FLOATING COVER AND DISINFECTION SYSTEM — AWARD OF CONTRACT NO. 3037. Council Member Heffernan asked why the cost of the project increased from $5.5 million to $6.5 million. Additionally, he asked how the project is being funded. City Manager Bludau stated that the Environmental Protection Agency (EPA) grant is for $867,000 and that the rest of the money would come from utility reserves that have been set aside for the project. Council Member Heffernan confirmed that the money will not be coming from the general fund and that the City's share will be approximately $5.6 million. He further confirmed that the project is expected to be completed by the end of 2004. City Manager Bludau stated that the previous estimates for the project were perfected, based upon the specifications that went out to bid. Council Member Heffernan noted that the total cost also includes consultants that are employed by the City to oversee specific parts of the work. Volume 56 - Page 674 INDEX C -3037 Big Canyon Reservoir Floating Cover and Disinfection System (38/100 -2004) City of Newport Beach Regular Meeting February 10, 2004 Dolores Otting thanked Principal Civil Engineer Sinacori for his efforts on the project and, specifically, for the wall that was installed. She noted that a considerable amount of public outreach was sought and that the community should be proud. Jim Hildreth noted that Council Member Bromberg has previously stated that he doesn't drink the City's water. Mr. Hildreth stated that it would be reassuring to see him drink the water after the project is completed. Motion by Council Member Heffernan to 1) approve the plans and specifications; 2) award Contract No. 3037 to Banshee Construction Company of Colton, California for the Total Bid Price of $5,664,015, and authorize the Mayor and the City Clerk to execute the contract; 3) establish an amount of $450,000 to cover the cost of unforeseen work and estimated bonus for early completion; 4) approve a Professional Services Agreement with Tetra Tech, Inc. for Construction Support Services for a fee of $54,500; 5) approve a Professional Services Agreement with PBS &J for Construction Inspection Services for a fee of $229,108; 6) approve a Professional Services Agreement with Hilts Consulting Group, Inc. for Floating Cover Advisor Services for a fee of $84,000; 7) approve a Professional Services Agreement with URS Corporation for Geotechnical Services for a fee of $24,480; and 8) approve a Budget Amendment (BA -031) in the amount of $1,962,587 from Unappropriated Water Enterprise Fund Reserves and $17,300 from Grant Fund Contributions to Account No. 7503- C5500690 and increase revenue estimates in Account No. 500 -4841, EPA Grant. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None 8. CONTRACT EXTENSION FOR TREE TRIMMING SERVICES. Council Member Bromberg confirmed that the contract was not sent out to bid and that a ten -year contract is unusual. City Manager Bludau explained that the extension to the contract is at the request of West Coast Arborist and that the City was pleased with the price that they offered. He additionally explained that the City will often not go out to bid when extending a contract under the same terms and conditions. City Manager Bludau couldn't recall another ten -year service agreement that had been done, but noted that there are provisions for canceling the contract with West Coast Arborists. Council Member Rosansky confirmed that the existing contract is for ten - years, due to a five -year extension of the original five -year contract, and can be canceled by either party with thirty days notice. Volume 56 - Page 675 INDEX C -2966 Tree Trimming Services (38/100 -2004) City of Newport Beach Regular Meeting February 10, 2004 INDEX Mayor Ridgeway confirmed that the contract is for a fixed amount for ten years and that the Consumer Price Index (CPI) is not built in. Dolores Otting stated that the item never went out to bid. She explained that West Coast Arborists was used by the County, and that the other cities in the County started using them also. Ms. Otting further stated that the agreement with West Coast Arborists was supposed to include a provision that they were not to chip the tree trimmings in the streets, due to the noise, but that they are doing this and it should be considered when extending their contract. Brian Clarkson, FreeNewport.com, asked how much the contract is worth over the life of the contract. He stated that competitive bids should have been sought. Thomas Mushegain Jr. stated that the use of leaf blowers and the pickup of rubbish by franchised waste haulers can only occur in the City during certain hours. He stated that chippers also have to comply with City regulations. He offered alternatives to using chippers. Jim Hildreth stated that the problem with the chippers can be controlled by implementing and enforcing the laws that regulate noise. Mayor Bromberg interrupted the speaker and stated that the issue before the City Council is whether the contract with West Coast Arborists should be extended. City Attorney Burnham stated that if the speaker is addressing a provision of the contract, the testimony would be appropriate. Mr. Hildreth stated that the agreement should address the issue of noise. In response to the length of the contract with West Coast Arborists, General Services Director Niederhaus stated that he is aware of a trash contract that is automatically renewed. The contract with West Coast Arborists includes provisions for compliance with City codes. He further noted that chipping is done in the field to enable the trash trucks to maximize their load. He stated that it can only be done during certain hours and that the City has received no noise complaints regarding West Coast Arborists. Council Member Rosansky confirmed that the contract can be terminated with thirty days notice. He asked if the City could terminate its contract with West Coast Arborists, if it received a better proposal from another contractor. City Attorney Burnham responded in the affirmative. Council Member Rosansky asked if there was a particular reason why the contract wasn't put out to bid. General Services Director Niederhaus stated that the City stays aware of what other cities are paying and that Newport Beach has the lower rate in the County. City Manager Bludau added that West Coast Arborists has also maintained the quality in their service that the City expects. Council Member Heffernan asked if there's any legal requirements for Volume 56 - Page 676 City of Newport Beach Regular Meeting February 10, 2004 the City to go out to bid. City Attorney Burnham stated that the City is required to go out to bid for public improvement projects that exceed $30,000. City Manager Bludau added that the decision on such contracts are made by the City Council. Council Member Bromberg stated that approving a ten-year contract sends the wrong message, and that proposals from other contractors should have been received. He stated that unless the City receives other proposals, it won't know what other rates and services are available. Motion by Council Member Adams to approve an amendment to the current tree trimming contract with West Coast Arborists, Incorporated (C -2966) that would extend the term of the contract an additional ten years at the current rates. Mayor Ridgeway stated that "sole source" contracts are regularly renewed by the Orange County Sanitation District. He stated that it's done because the contractors are familiar with the work that needs to be done, their quality of work is good and the service is the best. Mayor Ridgeway stated that he can't imagine that the City would receive a better bid for tree trimming services. Council Member Bromberg stated that other contractors should be given the chance to be competitive. Council Member Heffernan agreed that it's difficult to test the market without going out to bid. The motion carried by the following roll call vote: Ayes: Rosansky, Adams, Webb, Nichols, Mayor Ridgeway Noes: Heffernan, Bromberg Abstain: None Absent: None 10. PURCHASE OF WARD "NO SMOKE" EXHAUST FILTRATION SYSTEMS FOR FIRE APPARATUS (PHASE 2). In response to an earlier question by Council Member Nichols, City Manager Bludau stated that the equipment is detached. Council Member Nichols confirmed that this means that it's a part of the mobile piece of equipment. Motion by Council Member Nichols to approve the purchase of five Ward "No Smoke" Exhaust Filtration Systems for fire apparatus. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Volume 56 - Page 677 INDEX (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 Absent: None 12. BUDGET ADJUSTMENT TO APPROPRIATE ADDITIONAL FUNDS FOR AN EXPANDED TRAFFIC ANALYSIS FOR THE GENERAL PLAN UPDATE. Council Member Heffernan stated that although the budget adjustment is small, it is part of the larger general plan update project. At Council Member Heffernan's request, City Manager Bludau reported that, so far, the City has budgeted $1.452 million for the general plan update. To date, $488,241 has been spent. An additional $153,000 has been spent on studies, which were also a part of the Local Coastal Program (LCP) project, and $166,000 has been spent on consultants for the general plan update. Lastly, City Manager Bludau reported that the expected completion date for the general plan update is December 2005. Motion by Council Member Bromberff to approve a Budget Amendment (BA -030) to appropriate $8,940 from the General Fund unappropriated reserves to pay for the additional traffic analysis of John Wayne Airport daily traffic volumes and inclusion of relevant data in the Newport Beach Traffic Model as part of the General Plan Update Technical Background Report and Environmental Impact Report. Council Member Nichols asked for the status of a previous traffic analysis that was supposed to have been done. He explained that it was intended to analyze some specific problem areas in the City. Mayor Ridgeway stated that the traffic analysis that Council Member Nichols is speaking of is a separate report and is intended to coordinate traffic phasing. City Manager Bludau added that a report on the analysis should be available in early March, 2004. Jim Hildreth stated that he heard that Newport Beach is considering installing cameras at some of the intersections. He asked if this analysis is a preamble to that. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None S20. RECOMMENDATION FROM ECONOMIC DEVELOPMENT COMMITTEE TO FILL EDC VACANCY. Motion by Council Member Brombere to fill the current EDC vacancy by appointing Jane Brown as the "Utility" representative. The motion carried by the following roll call vote: Volume 56 - Page 678 INDEX (100 -2004) (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 INDEX Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Ridgeway Noes: None Abstain: None Absent: None Mayor Ridgeway congratulated Jane Brown, who was in attendance at the meeting. L. PUBLIC COMMENTS Chris Gates stated that her home was designed by Andrew Goetz and is slightly different than how it was approved, but was protected by the variance because it was expected to close on November 6th. Late in October, however, she was served with a Stop Order and despite considerable contact with the City, has still been unable to close on the home. She stated that she has done everything that the City has requested and only wants to know what else is expected. Ed Gates continued with the comments made by Ms. Gates. He stated that new requests are continuously being made by the City, and that he has continued to comply with each of them. He stated that he is only asking what else needs to be done so that he can finish his home, and that he is prepared to do whatever the City asks. Mayor Ridgeway requested that the City Manager look into the matter as soon as possible. Council Member Heffernan asked if Mr. Goetz is still licensed to do business in the City. City Attorney Burnham stated that the City cannot take action against a license that has been issued by the State, but that the City did file a complaint with the licensing authority. He added that the initial analysis of the structure, indicated that it was built according to the plans submitted, but that it was later found out that it wasn't. He offered to provide a report to the City Council on the matter. Council Member Heffernan requested that it include information on the other plans that Mr. Goetz is working on. Robert Walchli stated that he heard that Mr. Goetz is not going to be prosecuted for his actions and that the homeowners at 202 Fernleaf are being allowed to do whatever they want to do. Additionally, Mr. Walchli referred to comments made at the previous City Council meeting and stated that it was not his intention to offend anyone, but that the issue of the right for freedom of speech has come up on several occasions at City Council meetings. Lastly, he stated that the council members shouldn't necessarily see themselves as policymakers, but as implementers of the desires of their constituents. He stated that, for the most part, the council members make good decisions and aren't afraid to change their opinions once all the facts have been weighed. City Attorney Burnham noted that he has followed up on the complaints from Mr. Walchli about 202 Fernleaf and has responded promptly on Volume 56 - Page 679 City of Newport Beach Regular Meeting February 10, 2004 each occasion. City Attorney Burnham reassured Mr. Walchli that the City is watching 202 Fernleaf very closely and has requested that the homeowners make some changes to the structure to insure that it complies with City codes. Dolores Otting referred to an incident that occurred at the Study Session earlier in the day, and stated that signs indicating that cell phones are not allowed in the Council Chambers should be installed. City Manager Bludau reported that a request to have the signs installed has already been made. Jim Hildreth referred to an article dated January 25, 2004, about a vehicle accident in San Jose and presented it to Council Member Nichols. He also referred to an article dated February 8, 2004, and expressed his surprise that residents on Balboa Island are having difficulties building taller homes. Thomas Mushegain Jr. stated that he sweeps the alley, street, sidewalk and gutters near his residence. He asked for the City Council's permission to pick up the trash on the beach that the skimmer misses and deposit it into the City bins. He stated that he would do this at no charge and that he respects Newport Beach. John Dowden stated that he wanted to make some comments regarding Item No. 19. Mayor Ridgeway pointed out that Public Comments are for non - agenda items only. M. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Status report — Newport Coast Advisory Committee (NCAC). Council Member Heffernan reported that the NCAC met on February 2, 2004, and recommended that the City Council proceed with a community center and that it be located at the corner of San Joaquin Hills Road and Newport Coast Drive. He also corrected a report in the newspaper that stated that he and Council Member Nichols voted on the recommendation, which they did not. He noted that the matter will be considered by the City Council at its meeting on February 24, 2004. Status report — Other Committee Activities. Council Member Heffernan reported that the Finance Committee met on February 9, 2004, and discussed the 2004105 budget, and procedures for wire transfers and electronic transfer of funds. He stated that the City's 2004/05 budget is expected to be flat, but that the actions of the State and the two bond measures before the voters could affect that. He noted that the City will budget to pay the California Public Employee Retirement System (CaIPERS) nearly $13.5 million. N. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT 14. PLANNING COMMISSION AGENDA FOR FEBRUARY 5, 2004. Volume 56 - Page 680 INDEX (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 Senior Planner Alford reported that both items on the Planning Commission agenda dealt with height limits. The first item was initiated by the City Council on January 13, 2004, and involved the modification of the exception for height limits for elevator shaft enclosures. He stated that the amendment will be agendized for the City Council meeting on February 24, 2004. The second item was a discussion item on the definition of grade and how the heights of buildings are measured. The Planning Commission concluded that a simpler, more straightforward system is needed, but wants concurrence by the City Council before staff time is spent on the matter. Jim Hildreth expressed his hope that the elevators are for hospitals and not private residences. O. CURRENT BUSINESS 15. RECOMMENDATION FROM ECONOMIC DEVELOPMENT COMMITTEE TO RESTRUCTURE COMMITTEE POSITIONS, AND TO FILL EDC VACANCY. Economic Development Program Manager Berger stated that the Economic Development Committee (EDC) is a 28- member committee appointed by the City Council. The restructuring recommendation helps to insure that the committee remains reflective of the needs of the City and the City Council. He stated that the specific changes are listed in the staff report. Additionally, the committee is recommending that Mike McNamara be appointed to the committee. Dolores Otting expressed her concern for replacing the Community Marketing position with a Medical Industry position. She explained that the City has no jurisdiction over Hoag Hospital, the State rehabilitation facilities or Mr. Goetz. She stated that adding the position will be misleading. Mayor Ridgeway stated that the Medical Industry position is related to the private medical office buildings in Fashion Island and around Hoag Hospital, and the expansion of the medical industry. Motion by Council Member Bromberg to adopt Resolution No. 2004- 14 amending Resolution No. 2001 -80, which revises the EDC membership structure; and fill current EDC vacancy by appointing Mike McNamara as the Public/Private Financing representative. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: None Volume 56 - Page 681 INDEX (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 16. NEWPORT HILLS/HARBOR VIEW NEIGHBORHOOD TRAFFIC MANAGEMENT PROGRAM — APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY -HORN AND ASSOCIATES. Public Works Director Badum stated that after discussions with the community associations and schools in the area, staff is recommending that the program be expanded to take a more comprehensive look at the neighborhood and possible traffic calming devices. He stated that proposals from three consultants were received and staff is recommending that an agreement with Kimley -Horn and Associates be approved. He noted that the program will also include several neighborhood workshops to determine what the issues are and what alternatives are available to mitigate those concerns. Mayor Pro Tem Adams asked if Herman Basmaciyan will actually work on the project. Public Works Director Badum stated that staff would desire to have his expertise and involvement in the project. Mayor Pro Tern Adams asked who the principal staff member from Kimley -Horn would be. Public Works Director Badum stated that he would find out. Council Member Nichols asked for a verbal sketch of the area that would be included in the program. Public Works Director Badum stated that the area is bounded by the Newport Hills streets and does not go across San Miguel Drive. He stated that it's essentially the residential Port streets. In response to Mayor Pro Tern Adams' earlier question, City Manager Bludau stated that the Project Manager from Kimley -Horn would be Serine Ciandella. Council Member Heffernan stated that he originally asked for a couple of speed bumps to be considered at a cost of $10,000, but that $100,000 ended up being budgeted for the project. He confirmed with Public Works Director Badum that the formal study has to be done before anything else can be done. Public Works Director Badum added that it's important to identify and prioritize the different alternatives and improvements. Council Member Heffernan expressed his concern with the cost of the study. City Manager Bludau stated that City Council policy requires that other measures be looked at before speed bumps are installed. Dolores Otting stated that she's a firm believer in the competitive bid process. Referring to the staff report, she asked why the City had to negotiate with Kimley -Horn after they were selected. She expressed her frustration that Kimley -Horn wouldn't have known the scope of services prior to submitting their proposal and why their proposal wouldn't have included the fee that they would charge. City Manager Bludau stated that State law precludes the City from following any other process. It does not allow the City to competitively bid for professional consulting services. Volume 56 - Page 682 INDEX C -3686 Traffic Management Program (38/100 -2004) City of Newport Beach Regular Meeting February 10, 2004 Mayor Ridgeway added that the scope of services are provided prior to requesting for proposals. Additionally, Public Works Director Badum noted that the State's requirement insures that the best possible designs are performed. He expressed his confidence that staff negotiates the appropriate work scope and the appropriate cost. Council Member Bromberg agreed with the reasons why professional consulting contracts don't go out to bid. He explained that the City doesn't want to get something second rate because it's at a lower rate, and the City must also follow the State law. Motion by Council Member Bromber¢ to approve a Professional Services Agreement (C -3686) with Kimley -Horn and Associates, of Orange, California, for preparing the Newport Hills/Harbor View Neighborhood Traffic Management Program (NTMP) at a contract price of $87,784; and Authorize the Mayor and City Clerk to execute the Agreement. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Mayor Ridgeway Noes: Nichols Abstain: None Absent: None 17. BIG CANYON CREEK RESTORATION PROJECT — PHASE II (WATER QUALITY IMPROVEMENT COMPONENTS). Assistant City Manager Kiff stated that the City is fortunate to be receiving an additional State grant in the amount of $200,000 for the water quality component of the project. He stated that the staff report includes the restoration alternative that is being pursued, and that it's been accepted by all the resources agencies and is a good concept. Council Member Webb stated that he heard a concern that the design may not have taken into consideration some of the impacts that a flood would have. He asked if a flood routing study was being done. Assistant City Manager Kiff reported that a third grant being sought from the State Coastal Conservancy would provide a component to study the flood control aspect. Motion by Council Member Webb to 1) direct staff to accept a grant from the State Water Resources Control Board (SWRCB) in the amount of $200,000 for the Big Canyon Restoration Project, Phase II (Water Quality Improvements); 2) authorize the City Manager to execute an existing Professional Services Agreement (C -3594) with Community Conservancy International (CCI) to reflect the $200,000 grant and a revised Scope of Work; 3) authorize the City Manager to include in the proposed 2004 -05 Capital Improvement Program a match in the amount of $30,000 to match the $200,000 grant; and 4) authorize the City Manager to make changes as necessary to the Phase II scope of work and Volume 56 - Page 683 INDEX C -3594 Big Canyon Creek Restoration Project (38/100 -2004) City of Newport Beach Regular Meeting February 10, 2004 INDEX budget provided that the terms and deliverables remain substantially similar to the document attached to the staff report. Council Member Nichols asked where the money would come from to do the job, noting the amount of money that is being spent on the planning. Assistant City Manager Kiff stated that the process to apply for grants requires that the planning has been done, and additionally noted that the City has been successful in obtaining grant money for the planning. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Mayor Ridgeway Noes: None Abstain: Nichols Absent: None Referring to Item No. S21, Mayor Ridgeway noted that he would be meeting with Congressman Cox on the dredging issue. 18. AMENDMENTS TO THE NEWPORT BEACH MUNICIPAL CODE REQUIRING USE OF FRANCHISED SOLID WASTE HAULERS FOR DEMOLITION ACTIVITIES. Motion by Council Member Webb to 1) introduce Ordinance No. 2004- 2 amending Section 15.02.035 pertaining to the Uniform Administrative Code; and 2) pass to second reading on February 24, 2004. The motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Bromberg 19. MARINAPARK RESORT AND COMMUNITY PLAN. City Attorney Burnham stated that in 1997, the State Lands Commission advised the City that the Marinapark parcel is on tidelands and that a permanent mobile home use would be inappropriate. The City Council commissioned a study, which concluded that a hotel use would provide the City with the highest economic return for the parcel. Two years later, a Request for Proposals (RFP) was submitted to anyone that would be interested in a redevelopment of the site. After an evaluation of the proposals, the City selected Sutherland Talla Hospitality (STH) as the entity that the City would work with. After documents were prepared and public input was received, STH submitted a final project description for a 110 -room resort. At that time, the City Council approved an agreement with STH and committed to put the project on the ballot in November of 2004. City Attorney Burnham reported that a Notice of Preparation for the Environmental Impact Report (EIR) was released in October of 2003 and a Notice of Completion for the Draft EIR will be Volume 56 - Page 684 (100 -2004) (100 -2004) City of Newport Beach Regular Meeting February 10, 2004 released in April of 2004. INDEX City Attorney Burnham stated that there will be public input opportunities at two City Council meetings, one to determine the best or most appropriate lease terms and conditions for the project if it goes forward, and another to consider a fiscal impact report. The Planning Commission will also be conducting public hearings and the Environmental Quality Citizens Advisory Committee (EQAC) will be reviewing the Draft EIR. City Attorney Burnham stated that after these opportunities, the project will be agendized for a City Council meeting, which provides another opportunity for public input. City Attorney Burnham stated that the vote would be to consider changes to the general plan designation for the site. The current designation is recreation and environmental open space, and the amendment would most likely change that to recreation and service /commercial. Council Member Heffernan stated that his concern is for the detail that will take place during the review process. He referred to the Koll project that went through a detailed analysis and then was turned down by the voters. City Attorney Burnham stated that the review process will be the same as it was for the Koll project, and that the Planning Commission and the City Council will look at the project, the site plan and all of the information that would normally be present for any general plan amendment. He stated that the difference will be that a fiscal impact report will be prepared and the lease terms and conditions will be reviewed, since the site is owned by the City. City Attorney Burnham stated that it was determined to put the project on the ballot because it is located on public property, is on a fairly large parcel on the bay and it exceeds the Greenlight threshold of 40,000 square feet. Council Member Heffernan asked what the next step would be if the voters approve the project. City Attorney Burnham stated that STH would then need to obtain a coastal development permit and a ground lease with the City. The City would also need to take action to close the mobile home park, which would include the approval of a relocation impact report. Council Member Heffernan asked if the project could be changed after the voters have voted on it. City Attorney Burnham stated that the vote would authorize the general plan to be amended to allow for a 110 -room resort. If STH wanted a smaller hotel, it would be up to the City Council to approve a ground lease for the project. Council Member Webb asked what would happen if the voters rejected the project. City Attorney Burnham stated that the general plan designation would remain the same and the City Council would then need to determine if the mobile home park should be closed. Council Member Webb asked if the City Council had that discretion, based on the advice of the State Lands Commission that a mobile home park on tidelands is inappropriate. City Attorney Burnham agreed that the mobile home park could not stay in perpetuity on the site, but that the City Council would still need to take action to close the park. The environmental document and the relocation impact report would provide the City Council with the necessary documentation. Volume 56 - Page 685 City of Newport Beach Regular Meeting February 10, 2004 INDEX Council Member Nichols asked if a new mobile home park lease could be renegotiated. City Attorney Burnham stated that the current use is not consistent with the current general plan designation. John Dowden expressed his appreciation for receiving the report at the current meeting, noting that the issue is confusing. He asked if the voters will be voting on the STH project or an amendment to the general plan. He confirmed with the City Attorney that the land use designation change would be to recreation and marine /commercial. Mr. Dowden asked if it was the State Lands Commission or the State Lands Commission staff that advised the City on the tidelands issue. He expressed his concern that the proposed project is being considered because it is expected to raise revenues for the City, and noted that the mobile home park provides the City with over $800,000 per year. He asked the City to seriously examine the financial aspects of the proposed project and to consider the possibility that the resort could fail. Mr. Dowden stated that the highest and best use of the site for the community would be a park. Philip Arst, Greenlight, stated that Greenlight believes that the voters should decide what is the highest and best use of the parcel, and that the public needs full information prior to casting their vote. He stated that there are some impediments to the dissemination of the information and noted the City's website, which expresses the City's viewpoint that the project would not need to be voted on if the general plan amendment is approved. He stated that the law is clear that this is a Greenlight election and that certain information needs to be provided. He listed this information as including a report on the fair market value of the ground lease for the project, the lease terms, who bears the liability and cost for relocating the mobile homes, who bears the responsibility of injuries that could occur at the resort, the guaranteed annual lease payment to be paid by the developer, and how the City Council would vote on the project. Mr. Arst stated that the project description on the City's website shows favoritism. City Attorney Burnham stated that Mr. Arst's questions and requests for information should be answered in the coming months. He stated that having a fair and unbiased description of the project on the website is a start at providing the information to the public that Mr. Arst is requesting. Mr. Arst stated that he hasn't seen it done for other projects and to be fair, space should be provided for the opposition. Mayor Ridgeway stated that Mr. Arst has misstated a number of facts, that the information he is asking for is in the staff report and that it is clear that Greenlight does not want to support the project. He stated that the information on the website is appropriate since the project is on public property. He assured Mr. Arst that the project will be given scrutiny and that the information requested will be provided. He hoped that Greenlight would cooperate with this effort. City Manager Bludau noted that the description of the project on the website is the same description that the EIR is being done on. Volume 56 - Page 686 City of Newport Beach Regular Meeting February 10, 2004 INDEX Steve Sutherland, STH, applicant for the project, stated that it is disturbing to hear someone state that the public should be provided with information on the project, and yet be upset when the City is providing the information. Mayor Ridgeway stated that Mr. Arst knows that in March of 2003, it was agreed to put the project out to the public for a vote. Steve Sutherland announced that his website, www.marinaparkresort.com, also has information on the project. Brian Clarkson asked if it will be clear to the voters if they're voting on a hotel versus a park, or if they're voting on a change to the land use designation. He agreed with Mr. Arst that possibly it would be fairer to provide website publicity for the alternatives to a resort, and stated that the idea of a park on the peninsula would be refreshing. City Attorney Burnham stated that the ballot language will describe the project and make it clear that it's an amendment to the general plan. He stated that the voters will be told that if the amendment is approved, it would allow a 110 -room resort to be constructed on the site. He stated that the park alternative is included in the environmental document, and that a traffic analysis would determine the trip counts for both a resort and a park. Council Member Bromberg stated that when he ran for City Council, he was originally a Greenlight candidate, but he moved away from the position after a closer review of Measure S. He stated that what caused him to change his position is that the Greenlight measure called for ballot box planning and showed a distrust for the City Council. He stated that Greenlight is now criticizing the City Council for letting the people vote and for putting the project description on the City's website as a way of informing the voters. Council Member Bromberg stated that an environmental impact report will be available and reviewed by a number of organizations, a number of open meetings will be conducted and all of the information needed by the voters will be provided. He expressed his frustration with the comments made by Mr. Arst, and assured the public that the information they need will be provided. Council Member Nichols stated that it was mentioned earlier that 40,000 square feet triggers a Greenlight vote, and that Mr. Arst is objecting to it not being a Greenlight vote because it doesn't allow Greenlight the opportunity to include a rebuttal statement in the pamphlet that is sent to the voters. Council Member Nichols stated that the City is taking the position that it is not a Greenlight vote. City Attorney Burnham stated that the decision to allow rebuttal arguments is one that the City Council is authorized to make, whether it's a Greenlight vote or not. Council Member Nichols asked who would provide the rebuttal argument if it were a Greenlight vote and who would provide it if it weren't. City Attorney Burnham stated that the Elections Code establishes the order for when more than one argument is submitted, against or in favor of a measure. He added that the Measure S guidelines would be looked at Volume 56 - Page 687 City of Newport Beach Regular Meeting February 10, 2004 again at a future Study Session. Additionally, City Attorney Burnham stated that the 40,000 square -foot threshold was included as a factor when determining that the issue should go to the voters. P. MOTION FOR RECONSIDERATION - None Q. ADJOURNMENT at 9:55 p.m The agenda for the Regular Meeting was posted on February 4, 2004, at 3:10 p.m on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. The supplemental agenda for the Regular Meeting was posted on February 6, 2004, at 1:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Seci ry Mayor ' Volume 56 - Page 688 INDEX City of Newport Beach Regular Meeting February 10, 2004 INDEX THIS PAGE LEFT BLANK INTENTIONALLY Volume 56 - Page 689