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HomeMy WebLinkAbout00 - Public CommentsReceived After Agenda Printed Agenda Item No. Public Comments 11 -26 -13 November 26, 2013 City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosheKc-)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) STUDY SESSION Item 4. Visit Newport Beach, Inc. (VNB) and Newport Beach Tourism Business Improvement District (TBID) (Proposal to Renew, Extend the Term of, and Increase Assessments for the Newport Beach Tourism Business Improvement District and to Extend the Term of the Transient Occupancy Tax Agreement) As acknowledged on page 6 of their report, City staff seems to have at least partially prejudged the conclusion of this Study Session discussion by putting a "Resolution of Intention to Modify the Management District Plan" for the TBID, shortening the term by three months, as Item 10 on the Consent Calendar at the Regular Meeting. Note that on page 5 staff offers cogent arguments for not extending the term of the TBID by more than 5 years, and for not raising the TBID assessment from 2% to 3 %. Attachment A to the staff report provides a long list of California cities, six of which, in addition to Newport Beach, are in Orange County, that have some kind of TBID. That does not, however, at least in my mind, establish that TBID administration is a proper governmental function, especially when, as in Newport Beach, the fees involuntarily collected from the visitors are used not to improve the city for the benefit of the visitors, but rather to book future conference room stays at the member hotels. The latter seems a purely for - profit commercial sales function, which seems to me an inappropriate function both for a government (which Newport Beach claims to be) and for the non - profit organization with whom we contract to perform this "service" (which Visit Newport Beach claims to be). Due to the difficulty of monitoring where the TBID funds are going, and ensuring that they don't become commingled with others, it has been troubling from the start that the Council would choose Visit Newport Beach as the contractor for spending both the TOT/Visitor Service Fee and the TBID collections. The City's relationship with this organization has become even more difficult for the public to understand since the same Board that governs VNB announced the creation of the separate, but multi - tentacled "Newport Beach & Company." Although the names are used interchangeably, my understanding is the organizations are separate and I'm not sure the City even knows who it is contracting with. A similar, but older, confusion is that the City's agreement with VNB identifies VNB as the provider of the TBID administrative services, but VNB believes it can delegate oversight to a "TBID committee' consisting of the General Managers of the member hotels. It is unclear how, or by whom, this was sanctioned. If the Council finds it appropriate for the City to continue administering a conference room - booking function on behalf of the TBID members, I have to assume there are many companies with the competence to do that, and since some may be able to perform the service at a lower cost than VNB, the responsible thing would be to put out a Request for Proposals. November 26, 2013 Council agenda item comments - Jim Mosher Page 2 of 11 Finally, I see no reason for the City to consider extending its separate contract (C -4961) with VNB for spending the TOT /Visitor Service Fee prior to its previously agreed to expiration date of June 30, 2016. And when a new contract does need to be negotiated, it would be good to improve public accountability, perhaps by placing a Council member as a full voting member on the VNB Boar, for VNB has not been good about delivering the contractually required status and planning reports for review by the full Council. CLOSED SESSION Item A. Conference with Real Property Negotiators The identification of the subject properties by Assessor's Parcel Numbers, only, seems unnecessarily uninformative to the public. Examination of the City's on -line map reveals they are in fact the properties wrapping around the southern terminus of the harbor's Rivo Alto Channel, across the street from the old City Council Chamber, at the northwest corner of Newport Boulevard and 32"' Street. One assumes this closed session item has something to do with acquiring portions of those properties for street widening or other improvements, but, if so, a clearer agenda description, although not legally required, would have allowed better public comment on the merit of the project this is presumably related to. Item B. Conference with Real Property Negotiators According to Item 17 on the Regular Session agenda, the City wants to acquire this Southern California Edison lot at 1516 W. Balboa Blvd, adjacent to the present Las Arenas Park, to combine it into the new Marina Park project. That this needs to be discussed, again, in closed session seems curious since an agreement for the property's acquisition, including an already agreed to price, is included in the Item 17 staff report. Among the questions of interest to the public is probably if the acquisition by the City would in any way affect what appears to be the SCE facility on the other side of the property, at 1514 W. Balboa, or otherwise require SCE to relocate elsewhere, and if so, where? REGULAR MEETING Item 1. Minutes for the November 12, 2013 Study Session and Regular Meeting The passages in italics are from the draft minutes, with suggested changes shown in s••,',«out underline format. The page numbers refer to Volume 61. Page 338, paragraph 5: "Steven Barri6k Baric, General Counsel for the Newport Beach Dock Owners Association, ...." Page 338, paragraph 7: "Christine Daeger Kristine Thagard, attorney for Newport Beach Dock Owners Association, ..." Page 338, paragraph 8: "Patricia 9e4en Newton, mooring permittee, referenced the analysis she submitted..." November 26, 2013 Council agenda item comments - Jim Mosher Page 3 of 11 Page 339, paragraph 1: "Pete Pal ;ette Pallette commented on the expense of the Civic. Center..." Page 339, paragraph 2: "Stacy Klein Kline implored Council to allow the transfer of moorings." Page 339, paragraph 3: "Brian Rez%4an Ouzounian suggested giving half of the $80,000 back to the mooring owners..." Page 339, paragraph 5: "Harbor Resources Manager Miller addressed the request for more time to sell his a mooring and reported that..." Page 339, paragraph 8: "Council Member Gardner noted that a future Council can make changes, ..." Page 339, paragraph 9: "Council Member Petros agreed with applying residential rates to the Lido Isle Community Association/Yacht Club." Page 340, paragraph 1 under Item 3: "Recreation and Senior Services Director Detweiler introduced Recreation Supervisor Harmon who manages the Civic Center Community Reams Room." Page 341, line 2: "He expressed hoped hope that City Attorney Harp will not be advising Council on the matter." Page 344, paragraph 1: "Lynette Lynnette Short, California Department of Forestry and Fire Protection Employee employee, presented the Tree City Award to the City and the Year Growth Award for the City's street trees." Page 344, paragraph 2: "Mayor Curry reported participating in the Mayor's Forum in Vae Z Yeosu, South Korea, a Newport Beach Sister City." [note: City staff may wish to consider updating the City webpage listing our sister cities. I'm not sure how cities become sister cities of Newport Beach, but Yeosu is not currently mentioned.] Page 347, paragraph 1 under Item 17: "She suggested including a request that within three ( months months, VNB will return with..." Page 348, paragraph 2: "... more than 33% of revenue is coming from The Irvine Company (TIC) hetels, hotels: The Island Hotel and the Pelican Hill Hotel." Page 349, paragraph 4 under Item XVI: "... the area has been cemented sedimented and has approximately 1 -2 inches of water." Pages 349 -350, Item 18: As noted in the minutes, it would seem the random recusal process the City Attorney invoked in view of FPPC Regulation 18708 was necessary only for discussing and voting upon Ordinance No. 2013 -18 (amending the Cost Recovery Table to set a fee of $0 for appeals by Council members), assuming there was an underlying necessity to act upon such a change. An unfortunate result of the process was that while Council Members Hill, Henn and Daigle were prevented from voting on Ordinance No. 2013- 19 (moving the fee for Preferential Parking Permits to the Master Fee Schedule, and in the process changing it), a matter in which they had no disclosed conflict, Council Member Petros, who has previously said he owns property in a Preferential Parking District, was November 26, 2013 Council agenda item comments - Jim Mosher Page 4 of 11 allowed to vote on the ordinance affecting his property differently than the public in general. It seems likely the City Attorney should have allowed Hill, Henn and Daigle to vote on Ordinance No. 2013 -19, while advising Petros he had a conflict on it. Page 351: Paragraphs 5 and 4 from end (three places): "Paul DeRitte De Ridder ..." Page 356, paragraph 4: "Patrick Mahoney, President of West Coast 41rbef °'; Arborists ..." Page 358, paragraph 1 from end: "City Manager Kiff noted that Council has direct oversight over the City's budget so that Council has a more opportunity to review any modifications." Page 360, paragraph 3: "He reported reading all of the documents and none indicated how much the City is currently paying for in -house trash service." Page 360, paragraph 4: "Council Member Henn pointed out that it is stated clearly in the contract and pointed ou that "City approval" means City Council approval." Page 360, last paragraph: "Stephanie Barger noted that many of the City's ; esi en residents want to recycle ..." Page 361, paragraph 1: "John Ashton Del)4 of Lido Isle addressed the low bid ..." Page 361, paragraph 3: "John Spets Jon Spotts reported that South Africa and Pennsylvania are already recycling." Page 361, paragraph 4: "Nick Freiiok Froehlich. President of Harbor View Dads, spoke..." Page 362, paragraph 4 from end: "... he commented on a past Council meeting where Council directed staff to obtain Mr. Joe Sloan of Sloan Vasquez's opinion and that no information had been provided regarding same." Page 362, paragraph 3 from end: "Mayor Curry noted Mr. Vasquez Sloan was speaking in support of one of the bidders and was contacted but stated that, if he was not going to be paid, he was not going to do any analysis. Municipal Operations Director Harmon added that Mr. Vasquez Sloan did contact staff and expressed confidence that HF &H was qualified to make the findings that they made." Page 362, paragraph 2 from end: "Tom Baker addressed the cost of the current contract in the Newport Heights Coast area and wondered why it can be done cheaper under the proposed contract." Page 362, last paragraph: "Council Member Henn stated that there are approximately 30,000 households in the City that are charged the $3 recycling fee ..." Page 363, paragraph 2: "Director Harmon reported on the costs for trash service in Newport Coast and noted that it is $2 less than the current proposal and which includes the City's transfer station to offset costs." Note: considering the high percentage of misspelled names in the present draft minutes, it might be helpful for someone at the meetings to emphasize the importance of submitting speaker cards if people want their names spelled correctly in the minutes. In addition to the corrections suggested above, I was unable to verify, and am doubtful of the following: page 360: "Dr. Janette Ganard "; page 361: "Joe McAulkle "; page 362: "Moah Turrender," "Andrea Ayres'. November 26, 2013 Council agenda item comments - Jim Mosher Page 5 of 11 Item 3. Amendment to Newport Beach Municipal Code and Adoption of Resolution Related to Residential and Commercial Piers The proposed change to NBMC Section 17.60.060(E), as shown in redline on the third to last page of the staff report, continues to seem awkward, and fails to express what page 3 of the staff report says it is intended to express with the same clarity that it is expressed in the staff report. Since future readers will likely continue to stumble over Section 17.60.060(E), it would seem to profit from a more thorough rewrite. Is the suggested style necessary for this to be regarded as a retroactive "clarification" of existing language, rather than a change? 2. Has the reason for the proposed change to NBMC Section 17.35.020(B)(2) been explained to the City Council? Item 4. Repeal of the Inclusionary Housing Provisions Contained in the Newport Beach Municipal Code (PA2013 -221) Since the City's housing needs assessment is likely to change in the future, I think it would be prudent to hold the payment of the in -lieu fees in abeyance, rather than repealing the provisions entirely. Item 5. Adoption of Ordinance No. 2013 -18 Amending Newport Beach Municipal Code Section 3.36.030 As the City Manager's "Insider's Guide" notes, this agenda announcement gives little clue of what this ordinance is about. As the redlined version attached to the November 12 staff report indicates, it modifies the Cost Recovery chapter. The present staff report somewhat misleadingly says (in the Abstract) that it is "increasing cost - of- services percentage recovery for Junior Guard." As best I can tell it is decreasing the cost recovery percentage for residents from 100% to 82.1 % so that, despite an increase in the Master Fee Schedule, the dollars cost paid by residents will stay constant, at least of the present. It also makes an unexplained change to NBMC Section 3.36.30E (what that new language is intended to accomplish is baffling to me) and memorializes a $0 fee for appeals of certain matters by elected and appointed officials. It will be interesting to see how the latter matter is handled now that it is on the Consent Calendar. At the Nov. 12 City Council meeting, the City Attorney announced that all the Council members have a conflict on this (because their financial interest in it is different from that of the public in general), and FPPC rules allow at most four, selected at random, to vote on it. believe the rule is that those previously selected will be the ones voting again this time. November 26, 2013 Council agenda item comments - Jim Mosher Page 6 of 11 Item 10. Resolution No. 2013 -87 — A Resolution of Intention to Modify the Management District Plan of the Newport Beach Tourism Business Improvement District 1. It is not entirely clear from the copy of the California Streets and Highways Code attached to the Management District Plan (MDP) that Section 36636, which gives the Council the power to "modify the improvements and activities to be funded with the revenue derived from the levy of the assessments," gives it the power to modify the originally announced duration of the MDP. Assuming it does, it is also unclear how the shortened final fiscal year impacts VNB's obligation to prepare the annual report required by Section 36650, and how and when the Council will review it (note: the existing MDP suggests the plan was intended to run from May 1, 2009 through April 30, 2014, although the staff report seems to think the term ends on April 28, the fifth anniversary of the signing of the current contract with VNB for TBID administrative services) . 2. It is not entirely clear why staff is recommending a public "meeting" on December 10 and a separate "hearing" on January 14. The present meeting would seem to be the one at which the Resolution of Intention is being adopted, and it would seem to me that with proper publication of that resolution, the resolution actually modifying the MDP could be adopted at a hearing on December 10. 3. Assuming the Council moves forward with staff's recommendation to modify the MDP to terminate the District on January 31, 2014, it is also not clear the Clerk is being instructed to issue the notices necessary, pursuant to Sections 36660 (which references Section 36620), to effect the TBID's renewal with increased assessments and membership on February 1. The resolution attached to this staff report announces only that the TBID will terminate three months sooner than previously expected. 4. The City and VNB's mutual contractual obligations with regard to the TBID under contract C -4436 (which assumes a 2% rate) may also need to be revised. Item 14. Amendment No. 1 to the Professional Services Agreement with Basin Marine, Inc. for Balboa Yacht Basin Management 1. Although only indirectly related to this Agreement, I think the signage directing visitors (and residents) to the Balboa Yacht Basin is extremely poor. 2. 1 also think the Balboa Yacht Basin could be much better integrated with the adjacent public beaches on the publicly -owned land at Beacon Bay. 3. The staff report does not make clear why $70,000 for additional work is being offered to Basin Marine while the basic contract is being prepared to be put out for bid. Based on the stated cost for the first three years of management (evidently $246,588 at the time of the extension) compared to the $6,833 per month fixed fee, an additional $70,000 expenditure does not seem to have been included in earlier years. November 26, 2013 Council agenda item comments - Jim Mosher Page 7 of 11 Item 15. Lifeguard Headquarters Rehabilitation Project — Award of Contract It seems uncharacteristic of the City's usual accuracy that the lowest bid is 30% higher than the Engineer's verified estimate. Item 17. City's Acquisition of the Southern California Edison (SCE) Property at 1516 W. Balboa Avenue, Adjacent to Marina Park Since the price seems to be agreed to, the staff report fails to make clear why a closed session on this topic was required as Item 113 on the present agenda. Item 18. Amendment No. 1 to Professional Services Agreement with AndersonPenna Partners, Inc. for Staff Support Services 1. The staff report fails to explain why AndersonPenna was regarded as more qualified than the other 16 respondents. 2. The anticipated contract price of $200,000 per year for a single Public Works Inspector seems very high. According to page 232 of the FY14 Budget Detail, the cost to the City of a Senior Public Works Inspector (salary plus benefits) is $135,000 - $137,000. Is this a job where in- sourcing would be cheaper? Item 19. Amendment No. 1 to Professional Services Agreement with Urban Crossroads for Traffic Impact Analysis Services 1. Is the trip generation model that the City previously contracted with Urban Crossroads to develop generally available to, and usable by, other traffic engineers? 2. If so, why was Urban Crossroads selected for the General Plan Update work without putting the task out for bid by other qualified engineers? 3. However that may be, it is unclear how the proposed extension of the Agreement to June 30, 2016 is related to the proposed work on the General Plan Update, since the later is expected to go to voters in November 2014. 4. The Abstract to the staff report mentions additional traffic work Urban Crossroads will be performing in connection with the evaluating the impact of the Lido House Hotel. I can't find that in the contract. Will R. D. Olson be reimbursing the City the cost of this? Item 21. Contract Amendment No. Three between City and HF &H Consultants, LLC (HF &H) for Residential Solid Waste Transition and Contract Management Services 1. In addition to the previous arrangements with HF &H cited in the preamble to the present contract (C -5521, which was originally to evaluate the responses to the residential trash outsourcing Request for Proposals (RFP), and which commenced June 28, 2013), the November 26, 2013 Council agenda item comments - Jim Mosher Page 8 of 11 City had an earlier $99,500 contract (C -5047) with HF &H (Item 7 at the January 24, 2012 City Council meeting), and specifically with Mr. Ezzet, from January 24 - July 31, 2012, to evaluate the City's existing in -house trash service and compare it to other cities and private vendors, resulting in a report presented to the Council as Item 27 on November 27, 2012 and leading to Council's interest in exploring outsourcing. 2. Mr. Ezzet was also, under a contract I have been unable to identify but as directed by Council on November 27, intimately involved in the creation of the RFP, and was identified as such in the presentation he gave at the Council's February 26, 2013, Study Session. 3. In summary, Mr. Ezzet has guided the City not only in its decision as to whether exploring trash outsourcing is desirable, but also in preparing the RFP, in selecting a successful respondent, in writing the contract under which the respondent will be operating, and now in preparing the compliance standards and administering the contract for at least one year, all with outgoing Municipal Operations Director Harmon's much belated assurance that there is no need for Mr. Ezzet, or any employee of HF &H, to disclose financial interests by filing Form 700 Statements of Economic Interests, even though a City employee performing such functions would most certainly be required to. 4. Even without public knowledge of the outside factors that might be influencing the advice offered, it seems to me there is reason for concern when the City relies so heavily on a single outside entity for advice regarding a multimillion dollar commitment, especially when that advice points to a continuing need for the outside entity to remain involved. There seems something fundamentally wrong with the same entity that told us how to spend our money, now being paid to tell us if our money is well spent. Item 22. Approval of Side Letter Amending the 2012 -2014 Memorandum of Understanding between the City of Newport Beach and the Newport Beach Police Association (NBPA) If I understand the staff report correctly, the NBPA is retroactively reneging on a previously announced increase in their pension contributions that started in June (and a modest one, at that, since it was largely offset by a pay raise). Will they be given refunds? Item 23. Approval of Side Letter Extending the 2012 -2014 Memorandum of Understanding between the City of Newport Beach and the Newport Beach Firefighters Association (NBFA) to December 31, 2014 and Approval of Settlement Agreement It is very difficult for the public to follow the City's labor negotiations since the great bulk of the discussions, and one assumes explanations, take place in closed session. It looks like the Council is being asked to pay $200,000 in disputed benefits in return for the NBFA agreeing to pay the previously agreed to pension contributions for an additional six months? November 26, 2013 Council agenda item comments - Jim Mosher Page 9 of 11 Item 26. Human Services Grants for Fiscal Year 2013 -2014 1. City Council Policy A -12 appears to require staff to spend $25,000 on this program each year, whether there is a need, or not. As City staff so kindly pointed out to me after the most recent Finance Committee meeting, these grants were last approved, without discussion, by the City Council on its October 23, 2012 Consent Calendar. 2. As Attachment B indicates, the 2013 list of recipients is identical to the 2012 list, with the exception of the addition of the Boys & Girls Club of the Harbor Area, and the 2012 list was identical to that in 2011. In both cases the reports say grants were given to all who applied, with slight variations in the amounts granted. Given the extremely vague and loose criteria for eligibility, it seems improbable these are the only groups that could qualify. 3. It would seem tome that at some point the Council might want to revisit why this program was instituted, whether it is effective, whether $25,000 is still the appropriate amount, and if the program is desirable how it could be better advertised. Item 27.2014 Bowl Championship Series ( "BCS') National Championship Banners 1. The staff report cites as precedent the Council's May 25, 2010 approval (Item S16) of banners for a Barrett - Jackson Car Auction at the Orange County Fairgrounds. That does not seem to me like a very good precedent, since those banners advertised a purely commercial activity that was not even in Newport Beach, let alone sponsored by the City. If the Council wants the City's poles to be used to advertise commercial events, it should modify its Policy L -16 to reflect that. 2. In view of Study Session Item 4, which reveals (on pages 4 and 5 of that staff report) that Visit Newport Beach (VNB) receives $1.7 million each year in TBID taxes and another $3.6 million in general Transient Occupancy Tax, it seems ironic that the present staff report laments (bottom of page 1) that the local "BCS Host Committee, managed by Visit Newport Beach, Inc. "... "is working on a limited budget" and needs assistance with the $1,393 encroachment permit fee. Whether promoting the BCS is seen as a TBID or a "destination marketing" function, the fee presumably reflects real costs to the City and the suggested arrangement is, in effect, yet another contribution of public funds to VNB. Item 29. Annual Reporting on Development Impact Fees and Development Agreements At least as originally released and posted, the two reports (Exhibits A and B) appear to be missing the "attached Financial Report(s)" referred to in the text. November 26, 2013 Council agenda item comments - Jim Mosher Page 10 of 11 XV. Public Comments on Non - Agenda Items The Council's first meeting in December has, for the last several years, been used to "elect" a new Mayor and Mayor Pro Tern, a "tradition" that seems to have been instituted by City Council Policy A -1, originally adopted (5:2) in 1984, with the original version calling for the selection to take place at the last regular meeting in November. As noted at its adoption, this policy seems somewhat inconsistent with City Charter Section 404, which although it gives the Council the discretion to change the Mayor and Mayor Pro Tem at its pleasure, requires a selection only when new members are seated as the result of a municipal election (typically every two years). It might be noted that an examination of the City Clerk's records suggests Policy A -1, like many other Council policies, has been observed (or waived ?) only erratically, especially in its earliest years, with no "at pleasure" change of Mayor having occurred in 1985, 1987, 1991, 1993, or 1995. It is unclear why an annual changing of the guard has since become such an entrenched tradition, but it seems telling that the Councils in the first ten years following Policy A -l's adoption saw little need to follow it, and seemed happy with a Mayor and Mayor Pro Tern elected at the interval envisioned by the people. Perhaps later Councils, relying on staff or consulting only the Policy Manual, lost touch with the process the voters spelled out in the Charter? Item 32. Second Reading - Ordinance No. 2013 -25 Adopting the 2013 California Fire Code (Title 24 of the California Code of Regulations) with Local Amendments and Administrative Provisions, into Title 9 of the Newport Beach Municipal Code As noted in oral comments at the last City Council meeting, this ordinance will be erasing local modifications to the California Fire Code that were instituted to address problems associated with beach burning /fire rings. Although Assistant Chief Kitch says an international panel recommended weakening the basic language of that section as being largely unenforceable, local modifications that impose tighter restrictions are almost always permissible — and were the original reason for them (and for other local modifications, inadvertently deleted in 2010, restricting the materials that could be burned). In view of the following item (No. 33) on beach burning /fire rings it seems particularly hypocritical to delete the local modification to Section 307.1.1 without careful discussion. Item 33. Beach Burning /Fire Rings - Compliance with South Coast Air Quality Management District (AQMD) Rule 444 1. As the staff report seems to acknowledge, the new SCAQMD rule provides little rational guidance as to reducing health hazards from wood - burning fire rings, other than that they should not be operated on no -burn days. As I understand it, the SCAQMD has no problem with fire rings unless they are located on public beach sand. For example, relocating the fire rings at Big Corona to the asphalt surface of the parking lot, or to a dirt surface, or to private beach sand, would make them compliant with Rule 444. Likewise there is no restriction on how close the burning can be to residences, only that the rings November 26, 2013 Council agenda item comments - Jim Mosher Page 11 of 11 themselves be placed a certain distance apart. I also believe Rule 444 recognizes charcoal and lighter fluid (and, I assume, gasoline) as acceptable fuels for fire rings at any spacing and location, although that possibility does not seem to be part of City staff's recommendation. 2. The recommendation on page 6 of the staff report that the Council consider adopting an ordinance limiting the materials that can be burned in beach fire rings is doubly ironic on the present agenda. As noted above, the Council formerly adopted just such provisions in Ordinance 2009 -23, but inadvertently removed them just over a year later with its adoption of the 2010 Fire Code (Ordinance 2010 -24), much as the adoption of the 2013 Fire Code with the ordinance in Item 32 on the present agenda will delete the current local modifications giving the City authority over the smoke and emissions from fire rings and other recreational fires. 3. Given the historic rate at which permit requests from the City of Newport Beach move through the California Coastal Commission (CCC) process, it seems unrealistic to imagine that any plan endorsed by the Council at this late date will be approved and in place by March 1, 2014. This seems especially unlikely since the City recommendations appear to substantially limit an historic low -cost visitor serving amenity. Has CCC staff concurred with the City staff recommendations?