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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 22, 2019 Consent Calendar Comments October 22, 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 September 24, 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 220, paragraph 4: "Bill Ashmore discussed the reasons he believed there were protesters in front of the Council Chambers tonight, believed their signs were corporate -generated, questioned why they are protesting when they knew their homes were located across from industrial areas, ..." Page 221, paragraph 2: "Christine Nunez ... believed some of the issues the City is facing are due to issues at Satre Share Our Selves (SOS)." Page 222, Item 12, paragraph 1: "Community Development Director Jurjis reported the item is to allow the transfer of development rights in the Coastal Zone, similar to what is allowed in the ► ec-al Coastal Xan Zoning Code, ..." (see video at 3:00:00) Item 3. Resolution No. 2019-92: Initiation of Zoning Code and LCP Amendments Related to the Abatement of Nonconforming Signs (PA2019-184) Although the Local Coastal Program Implementation Plan (Title 21 of the Newport Beach Municipal Code) generally duplicates the Zoning Code (Title 20), it is interesting that the sign provisions are different and in different sections. Section 21.30.065 prohibits only pole and roof signs (after the end of the October 27, 2020, abatement period), while Section 20.42.070 prohibits a wider range of sign types. As indicated at the September 24 study session, I think the heritage sign program (NBMC Sec. 20.42.180), which creates exceptions, needs to be better publicized. To the best of my knowledge the only signs to have been given the designation are those considered in Item 2 at the Planning Commission's December 3, 2015, meeting. In addition, although Section 21.30.065.E of the LCP recognizes the possibility of a heritage sign exception, Title 21 does not anywhere explain how that designation is obtained for purposes of Title 21. Oct. 22, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Item 4. Approval of Amendment No. Three to Janitorial Services Agreement with Quality Commercial Cleaning, Inc. for Sidewalk Steam Cleaning (C-6303) While it is good to see City staff's interest in cleaning public sidewalks in certain parts of the city, it is unclear from the report how those in other parts of the city, including commercial areas not on the list, are cleaned, if ever. Item 5. 16th Street Water Pump Station Upgrades and Backup Generator (18W13) — Approval of Professional Services Agreement with Dudek Inc., Contract No. 7693-1 Although the technical scores of the five respondents are shown, it would have been good to see their price proposals, as well. Item 6. Approval of Amendment No. Three to Maintenance/Repair Services Agreement with Park West Landscape Maintenance, Inc. for Landscape Maintenance of Medians and Roadsides (C-5959) I have noticed a significant amount of cracking in the public sidewalk on the north side of PCH from Bayside Drive to Jamboree and beyond (part of my route from my home to the City Hall, and an area Park West services). Does staff attribute this to natural subsidence? Or could part of the problem be the habit of landscaping vehicles to park partially or wholly on the sidewalk? If so, could they be encouraged to adopt different practices that would avoid the damage? Item 8. Amendment No. One to a Professional Services Agreement with Sagecrest Planning and Environmental for Consulting Services This seems to be a bit of a backdoor contract. The firm was evidently originally selected and awarded the contract for a smaller amount at the department level in April, using a process not explained in the staff report. Now, after six months, the Council is being asked to triple the amount of the award, without competition, and without even an explanation of what services the firm has performed and how much has been spent to date. Before doing such a thing, it would be comforting to know the City has received satisfactory service and the rates are competitive. Oct. 22, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 7 Item 9. Proposed Amendments to the Non -Exclusive Franchise Agreement for Commercial Solid Waste Handling Services to Comply with AB 341, AB 1826, and CALGreen As a general comment, this item is part of the City's effort to meet State -mandated percentages for diversion of waste from landfills. Increasing diversion percentages does not ensure the demand on landfills will be reduced if the total volume of waste increases even faster than the diversion percentages. I believe California has separate targets that address that problem more directly by capping the pounds of landfilled waste produced per capita each year. It would be good to know how Newport Beach is doing on that, and if staying within those levels will require additional regulation. Regarding the staff report, it might have been helpful to provide the eight comments it says were received in response to the September 20 Hauler Letter reproduced in Attachment A. As to the proposed agreement, I have these comments on the very few pieces of it I have looked at: Page 9-10: The City seems to be stuck with an awkward title in calling this an agreement "for Commercial Solid Waste and Divertible Materials Handling Services," from which terms such as "Commercial Solid Waste" are generated. a. The word "commercial" seems intended to refer to the hauler's operation rather than to the kind of waste collected, for the franchisees appear entitled to collect waste from sources that would not be considered "commercial" or producing "commercial waste" (including multi -family residences, government buildings and perhaps even single family homes with a special need to have something picked up?). 2. Page 9-10: 1 like the practice of highlighting defined words and terms by printing them with initial capital letters, but it has its problems: a. "Commercial Solid Waste" continues to be shown as a defined term in the title and in many other places even though its definition has been deleted on page 9- 79. b. Similarly, the definition of "Biomass Conversion" has been deleted on page 9-78, but it continues to be used in the definition of "Transformation" on page 9-23. The definition of "Commercial Solid Waste Handling Services" has been deleted on page 9-79, but it continues to be used in the definition of "Franchise" on page 9-18. The definition of "Engineered Feedstock" has been deleted on page on page 9- 82, but it continues to be used on pages 9-17 and 9-18. It was probably intended to be replaced by the newly -defined term "Bioengineered Feedstock." e. "CalGreen" is used in the agreement title, but it is not defined and one has to go to page 9-38 (Section 15A) to find out what it refers to. Oct. 22, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 7 f. Conversely, I would not be surprised if there are defined terms that are not used in the agreement. For example, the proposed initialism 11POTW's" (page 9-13), for the oddly -spelled "publically"-owned treatment works, does not seem to be used. g. It is also difficult to tell if long capitalized phrases, such as "Food Scrap Processing Facility" are intended as a single defined term or a series of separately defined words. 3. Page 9-11: "J. Pursuant to this Agreement, City desires to authorize Franchisee to provide those non-exclusive commercial services for collection, transportation, delivery, and disposal of Municipal Solid Waste and/or collection, transportation, processing and diversion serWGec for of recyclable materials, food scraps, green waste, wood waste, and construction and demolition debris as requested in Franchisee's application and for which Franchisee has demonstrated capability." 4. Page 9-11: "M. As part of its adoption of Ordinance No. 2017-16, the City entered into a number of nonexclusive franchise agreements with allowing solid waste haulers that serve c-emmerc-ial bushoeceee to operate in the City." [weren't some authorized to serve other than "commercial businesses"?] 5. Page 9-11: "N. The Parties enter into this Amended and Restated Agreement to incorporate enhanced procedures for compliance with Assembly Bills 341 and 1826." [weren't some procedures already provided?] 6. Page 9-15: The term ""Commercial Premises" no longer seems apt. It has been expanded to include things that are clearly not "commercial." Item 10. Professional Services Agreement with William B. Conners for Hearing Officer Services It would have been good to show the three cost proposals mentioned in the staff report, if for no other reason, to see how widely they vary. It is not as if they are state secrets. Mr. Conners' proposal is visible on page 10-17, and the others will become a matter of public record as the contracts with them are approved (if they, indeed, agree to sign at the previously proposed price). I find it interesting that in his statement of qualifications on page 10-22, Mr. Connors says that in his 25 years as Assistant and then full Monterey City Attorney, one of his duties was to "Advise public on inquiries regarding City codes and laws." My understanding is that in Newport Beach, the City Attorney's Office regards it as distinctly not their duty to provide any advice to the public, and that those who want to discover their interpretation of the laws can do so only by filing a suit and reading the reply brief. The Monterey method seems more cost effective and citizen -friendly to me. I hope we move toward it. Oct. 22, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 7 Item 11. Cultural Arts Grants FY 2019-20 I believe the Council Policy underlying these grants, 1-10, would benefit from some revision/clarification. The $40,000 quoted in the staff report has indeed been a "City Grant" budget line item for a number of years (Item 01060603 821006 on page 264 of the 474 page 2020 Budget Detail PDF). However, the connection of that to Policy 1-10 is unclear since the amount stated in it has be $55,000 since a number was first specified in 1988. Moreover, the policy has always been called "Financial Support for Culture and Arts" and it refers to a Reserve Fund from which the $55,000 is apparently expected to be expended each year (with at least equal matching from the community) for "for specific cultural or artistic planning, promotion and/or construction projects." It is not entirely clear what fraction of the $55,000 is supposed to go to outside arts organizations as "grants," or how the $40,000 relates to the policy. It is also not completely clear what the intended purpose of the grants is. For example, are they intended to provide ongoing City funding to outside organizations that may have adequate other sources of funding (the Film Festival comes to mind)? Or are they intended to encourage start- ups that might not be able to get off the ground without City help? In this regard, it might be noted that as with many government programs, a number the awards are being recommended to be given to repeat applicants who may have come to view City funding as an entitlement. Item 12. Annual Review of Visit Newport Beach Audited Financial Statements and Expenditure Report The staff report for this item is extremely brief and devoid of any guidance as to what the Council (or public) should be looking for in reviewing the attachments. It is also disappointing, since the 2011 agreement provides the City with two representatives on the VNB Board and Executive Committee (a Council appointee with full voting power and a non-voting City Manager representative), that we have no independent opinion or guidance from them. For those trying to fill in the gaps, finding the agreement referred to in the staff report is made especially challenging by the Clerk's habit of adding to agreements new pages in front of existing pages in the online files, instead of after them, and thereby changing the numbers of all older pages. "[T]he City's agreement with Visit Newport Beach (VNB), originally entered on September 27, 2011" (referred to in the opening sentence of the staff report) is apparently contract C-4961 ("Agreement for Tourism Promotion, Branding and Marketing Services"), currently starting at page 1212 of a 1369 page file. An Amendment No. One from January 28, 2014, can be found on page 741 of that same file, and an Amendment No. Two from August 5, 2015 (mentioned in the staff report), on page 647. It is an agreement for various services to be provided in return for being given a fraction of the City's total Transient Occupancy Tax collection. [Note: previous Oct. 22, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 7 audits and management letters may be found posted to this file, such as at its current start, but it is not clear any of these have been publicly reviewed by the Council.] VNB has a separate agreement, C-4436, for managing the Tourism Business Improvement District, using funds that are not supposed to be comingled with the other. That contract from July 1, 2009, can be found starting on page 446 of a separate 487 page file. It also has a January 29, 2014, Amendment No. One currently starting on page 337. That agreement does not appear to have any mandatory reporting requirements, although it does allow for inspection of the books. The larger Newport Beach & Company organization appears to have additional agreements which the City may or may not be aware of that may overlap or conflict with these. For example, the City's Newport Beach TV contract and arrangements with the City's Newport Beach Restaurant Business Improvement District as well as with other business organizations (which is confusing since VNB's Scope of Services under C-4961 already includes "[t]he preparation of ... marketing materials and information that inform prospective tourists and visitors of the recreational activities, cultural assets, shopping and dining opportunities, night-time stay opportunities, and natural beauty of Newport Beach"). The requirements in C-4961 from 2011 precipitating the current item are: and "6. d) Audited Financial Statements. By September 30th of each year, VNB shall submit to the City audited financial statements for its most recently ended fiscal year, including any management letter associated with the audited financial statements. The City Council shall review the audited financial statements and management letter." "6. e) Expenditure Report. By September 30th of each year, VNB shall submit an expenditure report which shall be certified by VNB and a Certified Public Accountant to the effect that the funds received pursuant to this Agreement were expended in accordance with this Agreement in the previous fiscal year for purposes authorized by this Agreement. This report shall include reasonable detail in support of the certification, including expenditures for or contributions to special events and not-for-profit organizations in Newport Beach." As best I can tell, in the eight years since that agreement was reached, this may be the second public Fall review of the audited financial statements (the last may have been part of Item 17 on November 12, 2013). It may be the first public review of an annual expenditure report It seems of interest that in addition to those reporting requirements, the 2011 agreement (C- 4961) extracted promises from VNB for better internal financial controls (Section 7 of the agreement), yet eight years later the auditor is still observing deficiencies in them in its Management Letter (Attachment B, starting on page 12-28). Among the deficiencies noted was a failure to document the conclusions of the Compensation Committee. That might have helped to explain how they arrived at CEO Gary Sherwin's annual compensation of around $358,394 (for 7/1/2017-6/30/2018 as shown on page 17 of the VNB Oct. 22, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 7 2017 IRS return, and not, I would guess, including travel and entertainment reimbursements). Considering the additional "perks" travel executives enjoy, it seems strange to pay this person more than the City Manager for managing an organization much smaller in terms of both budget and personnel. Specific comments: 1. The expenditure report (Attachment C) is particularly difficult to follow since: a. Without clear explanation, the list is apparently intended to itemize just the "TOT" portion of VNB's expenses, and not the "TBID" part — yet the "Total 2018 Expenditures" (apparently a typo for "2019") of $5,524,627 shown on page 12-36 don't match the audited TOT expenses of $5,411,444 shown on page 12-26. b. Nearly half of all the VNB TOT expenditures ($2,480,081) are shown going to "NB&Co" with no further public explanation of how they are spent. Thus one might see the VNB or NB&Co logo sponsoring many activities other than the two listed under Note A on page 12-36 without knowing how much or where the money came from (see, for example, VNB's recognition as a "Premier Sponsor" of the Film Festival). 2. The possible comingling of funds is particularly worrisome in connection with such things as the "Group Booking Incentive" program (see page 12-17) in which VNB funds (hopefully TBID rather than TOT) are used to pay participating hotels for guests' stays. 3. In his announcements at the October 8 City Council meeting (see Volume 64 - Page 216 of the draft minutes in the current agenda packet), the Mayor Pro Tem mentioned "the Visit Newport Beach Annual Dinner on October 17, 2019." 1 am unable to tell from the Expenditure Report if TOT dollars were used to pay for the dinner or if it was funded by tickets purchased by attendees.