Loading...
HomeMy WebLinkAbout00 - Written CommentsFebruary 9, 2016, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 23, 2016 Special Meeting (Planning Session) and the January 26, 2016 Study Session and Regular Meeting The page numbers below refer to Volume 62 of the draft minutes. The passages in italics are from the draft with suggested changes shown in strikeout underline format. Page 538: Item 2, paragraph 2: “Tom Collister Callister, Community Emergency Response Team (CERT), distributed a handout … ” Page 539: paragraph 1: “City Manager Kiff commented on some of the budget challenges that the City faces and addressed various master plans, as well as the Facilities Planning module, the Harbor Master Plan, Unfunded Pension Liabilities, labor negotiations, and significant events factored into the City’s actuarial assumptions.” Page 540: paragraph 2: “Jim Mosher commented on the Harbor Area Management Plan versus the Harbor Master Plan, and suggested distinguishing them. He addressed revenue sources and asked for confirmation that 80% of the property tax comes from residential property taxes. Additionally, he commented on the budget not being on the City’s website, employees paying a greater share of the pension costs, asked regarding being offset by increases in take-home pay as a result of negotiations and MOUs, and regarding litigation expenses.” Page 540: paragraph 4: “City Manager Kiff reported that property taxes are paid by 80% of the by residents and 20% by commercial properties.” [actually, I believe the City Manager said it had risen to 82% residential] Page 545: paragraph 4 from end, sentence 2: “He stated that people that go around the system and are undercutting the City’s revenue and legitimate business owners.” Page 547: paragraph 2 from end, sentence 2: “He stated that the Costa Mesa Sanitary District reviews its General Manager’s annual goals in an open, public meeting and expressed the opinion that the City should do the same.” Page 553: paragraph 6: “Ross Van Helfrich McElfresh asked for confirmation that only the structure of the dock was to be rented, …” Page 553: paragraph 7: “Don Botenza Potenza, spoke in support of a lower rate, …” [?] Page 555: paragraph 3 from end, next to last sentence: “She indicated that this would be done by off-setting the three years of the sewer rate increase with a one-time credit to reduce the overall Municipal Service bill for one specific month.” Page 556: paragraph 3: “Barbara Stoken Stoveken expressed concern that the sewer rates will double in four years.” Received After Agenda Printed February 9, 2016 Written Comments February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 8 Page 556: paragraphs 6 to end of page: The paragraphs starting from “In response to Council Member Peotter’s question …” to end of page came between the first motion on page 557 (“Motion by Mayor Dixon, seconded by Council Member Petros, …”) and the vote on it – not before the motion as printed in the draft minutes. Page 556: paragraph 5 from end, sentences 2 and 3: “Council Member Curry expressed concerns that Council is giving away money over time to very various special interests and stated that the budget deficit will impact General Services, Public Safety, and City facilities. He addressed that the creation of structural deficits.” Page 557: paragraphs 4 and 5: The paragraphs beginning “Council Member Curry noted …” and “Mayor Pro Tem Muldoon commented …” came after the second motion, not before it as shown in the draft. Page 557: second motion: “Motion by Council Member Curry, seconded by Council Member Petros , to a) direct the City Clerk to tabulate the results of the protests received from property owners and customers and announce the findings; b) in the absence of a majority of protests, adopt the proposed rates and structure; and c) introduce Ordinance No. 2016-1, An Ordinance of the City Council of the City of Newport Beach, California, Amending Section 14.24.065 of Title 14 of the Newport Beach Municipal Code Pertaining to Sewer Use Charge, and pass to second reading on February 9, 2016 and d) b) adopt Resolution No. 2015-21, A Resolution of the City Council of the City of Newport Beach, California, Adopting New Sewer Service and Use and Consumption Rates Pursuant to Newport Beach Municipal Code Section 14.24.065.” note: the Mayor invited a motion and the City Attorney explained it would be on “parts c) and d) of the staff recommendation plus the resolution setting the new rates and structure,” however, it appears the resolution replaced part “c” of the staff recommendation (which became “b” in the draft minutes). The motion definitely did not include ordering the Clerk to announce the tabulation, since that result is reported on the previous page. Also, although Council Member Petros can be heard seconding the motion offered by the City Attorney, it is not clear from the video that any City Council member ever made the motion. Page 557: paragraph 2 from end, last sentence: “Additionally, he questioned the validity of the previous action since it was not listed on the agenda.” Page 558: paragraph 4 from end, last sentence: “he He asked that Southside be allowed to compete for this contract.” Page 559: substitute motion, line 2 from end: “… within 120 days or the contract reverts contract to MetroPro Towing, …” February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 8 Item 3. Adoption of Sewer Rate Adjustment (2nd Reading) If I were a Newport Beach sewer ratepayer (which I am not), I would suggest this is a poorly thought out measure. Having the rate table in the Municipal Code, as was done with water rates (and I am a Newport Beach residential water customer) in 2009 in Section 14.12.020 (“Water Rates Established”), is much cleaner and better. Ratepayers can see instantly the full approved schedule, when it was approved (in this case according the footnotes, most recently by Ord. 2009-29), and when a new Proposition 218 hearing would be required to increase the rates through adoption of a new ordinance amending the table (in this case, to increase the rate after FY2014). Relegating the rates to a “Fee Schedule” adopted by a Council resolution not only obscures all these matters, but I believe it deprives disgruntled ratepayers to stage a referendum challenging a subsequent rate increasing ordinance. Depriving citizens of a key mechanism they have for controlling government overreach does not seem like a wise thing to me. Moreover, the ordinance leaves unclear how the “Fee Schedule” it calls for relates to the City’s “Master Fee Schedule” – which is separately revised from time to time by Council Resolution. If the new sewer Fee Schedule is to be incorporated into the Master Fee Schedule, at least two problems might be noted: 1. What is currently posted as “2015 Fee Schedule-Adopted by Council on September 22, 2015” on the City website omits most of the pages of the previously adopted Master Fee Schedule, including the lines citing the sewer rates found in the Municipal Code. 2. The Master Fee Schedule normally says the rates in it are effective on a certain date. But this will not be the same as the date (January 1st) mandated in the proposed ordinance and echoed in the sewer rate “Fee Schedule” approved at the last Council meeting by Resolution 2016-21. As a result, the lines in the Master Fee Schedule listing municipal sewer rates will require at least as many notes as they do now citing the dates they apply and the authority for imposing them. So it seems to me that very little is accomplished administratively by putting the sewer rates in a difficult to find and verify (one never knows when a Council resolution has been overridden by a subsequent Council resolution) Fee Schedule. Putting them in an unchanging and prominent position in the Municipal Code (where one knows they cannot have been changed, and therefore are current) is much better. And the administrative burden of introducing and adopting a new ordinance every five years or so, is minimal (and arguably easier). Regarding the substance of the proposed rate increases, which will not go into effect until and unless an ordinance is adopted, several Council members referred to the fact that since 2009 the City had known of the need to increase municipal sewer rates. What they may not know is what the previous recommendation was, since to the best of my knowledge the City-mandated “Sewer Master Plan” (dated August 2010) has never been publicly posted. In the financial analysis, the City’s then consultant, AKM Consultant, concluded a 16% bump up in rates over two years, followed by CPI increases, would keep the sewer fund solvent, including all needed February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 8 infrastructure repairs, over 20 years (in an alternate scenario, which I don’t quite understand, a 35% bump up over five years, followed by CPI increases, would allow the repairs to be completed in 15 years). Since the 16% increase was not implemented, there is clearly some one-time catch-up to do for the five or six years of neglect, but there has not been much CPI since 2010, so it is difficult to understand why a 100% increase in perpetuity is needed when a 16% (plus CPI) increase in perpetuity was previously thought sufficient. Before approving an ordinance allowing a rate increase, the Council may wish to ask: what happened? There may well be an explanation, but the Council and the ratepayers deserve to hear it. I believe there was also some misunderstanding among Council members about the difference between the “fixed” and “variable” parts of the proposed sewer rate structure – some thinking the fixed portion paid for infrastructure and the variable part for operations. I don’t believe there actually is any such distinction. As I believe the Municipal Operations Director attempted to say, the two go “hand in hand.” They are inextricably linked and the breakdown into a fixed and variable rate is simply part of a very imperfect effort to equitably distribute the total cost (infrastructure plus operations) over the various users. Regarding that effort, if I were a ratepayer I would additionally question whether in the new consultant, HF&H’s proposed rate structure, the cost burden has been unfairly shifted from commercial and multifamily users to the single family residential customers whose water bill exaggerates their sewer use (because much goes to landscape irrigation, which does not use or impact the City sewer system). Since everyone pays the same “variable” rate based on their metered water use (the “commodity charge”), those residential customers who flush only a small amount into the sewer should be getting a break on their fixed charge. Instead, their fixed rate is going up, while that for nearly all the larger water meter users (the largest of whom probably meter their non-sewered water consumption for irrigation use separately) is going down. Again, there may be an explanation, but the Council and the ratepayers deserve to hear it. Item 4. Second Reading of Ordinance No. 2016-2 Relating to Official Police Tow Services The motion on February 9th consisted of four parts, one of which in the staff recommendation was a proposed five year contract with G&W Towing and MetroPro Towing. It is not at all clear that the ordinance being presented for second reading is the one introduced in the first part of the motion on February 9th. In particular, at that meeting staff distributed additional redlined corrections that modified the proposed ordinance’s effect on NBMC Section 5.15.080, including replacing the language about a five year term and an option for a five year extension with new language allowing the Council to set the term of the towing agreements. February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 8 The City Attorney explained that if the Council wanted to use its new power to change the term of the contract being proposed that night, the contract text would have to be revised. The video indicates Council Member Peotter’s substitute motion (approved by a majority of the Council) was to follow staff’s recommendation except with regard to the contract, in which he wanted to substitute Southside Towing for MetroPro (contingent upon Southside, within 120 days, demonstrating sufficient storage space), but “leave the term at 5 years.” The most straightforward interpretation of the motion approved by the Council is that it voted to introduce staff’s final redlined version of the ordinance, giving it the flexibility to select different terms in future agreements, and the remainder of staff’s recommendations, but in the contract being approved that night with G&W and Southside Towing to leave the term at five years. Yet contrary to this public direction given it by the Council, City staff has returned with a version of the ordinance in which the flexible term language has been deleted. In addition, with regard to cost of living adjustments, staff has arbitrarily replaced a reference to “the Los Angeles-Long Beach Area” in the ordinance as introduced with the words “Los Angeles-Riverside-Orange County, CA.” And although I mentioned in oral comment that the Bureau of Labor Statistics did not seem to have a “Los Angeles-Long Beach Area” index, no change was suggested at the meeting. Since Section 412 of the City Charter requires the text of an ordinance as introduced to become part of the record of meeting, and prohibits any change to it beyond correction of “correction of typographical or clerical errors,” the substitution of some other index is not an allowable change. Changing “Los Angeles-Long Beach Area” to “Los Angeles-Riverside-Orange County, CA.” is not a mere typographical or clerical correction because there is no evidence in the record that the Council has deemed the two phrases equivalent, and there is no mention in the staff report that a change has been made, or why. For both these reasons, the Council needs to reconsider and reintroduce this ordinance for a new first reading with the term and CPI language it wants. It might also be noted that at the January 26th meeting, while the Council was considering a contract with Southside Towing, the City Attorney made a curious comment to the effect that “technically they had to have the required storage space at the time of the RFP when whether they were qualified was determined.” This would seem to open the City to litigation if it is subsequently determined that Southside did not have the required space at that time and the Council awarded the contract to an unqualified bidder. Finally, in nearly any city in the United States, the service which is the subject of this proposed ordinance would be called a “police towing franchise,” and at least a part of the revenue it generates is listed in our own City budget as “Account 4662 -- Police Tow Franchise Fee.” In view of this, it appears to me that Chapter 5.15 was added to the Municipal Code in 1973 (with Ordinance 1503) by a Council ignorant of Article XIII of our City Charter, which at the time February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 8 imposed certain noticing requirements and restricted the Council to granting franchises by ordinance (again, for things like a cable TV franchise, this may have been regarded as important to preserve for residents the right to referendum). In 2010, the language of Article XIII was muddied by Measure V, which (in addition to 14 other unrelated changes to the Charter) inserted a phrase recommended to the Charter Update “Commission” in a “white paper” from the Revenue Division (even though the white paper concluded the then-existing system “worked”). The inserted phrase clearly gives the Council authority to bypass the previously Charter- required notice requirement, but since it is added to only one paragraph of Section 1301 it could be argued that the holding of a hearing (however noticed) and the granting of franchises by ordinance only is still required (as it is in many California cities). Item 6. City Council Policy F-9 (City Vehicle/Equipment Guidelines) This seems to be mainly a rearrangement of existing paragraphs. I might suggest even greater clarity of purpose might be achieved by replacing the “Schedule for Replacement” column heading with something more along the lines of “Expected Service Life” – to emphasize that replacement does not have to occur at that point. Item 7. Resolution Establishing Updated Guidelines for the Opening of Bids This item seems like it deals with the sorts of issues that would normally be addressed in the City Council Policy Manual. I would guess that the Policy Manual did not exist when the 1959 resolution that the proposed one replaces was adopted, and if the Council wished to incorporate this into the Manual I might hope it would address the City’s bidding procedures more generally than just for public works projects (the third-party Planet Bids web service which the City currently uses appears to handle bid requests from all departments) As it is, I find the guidance the resolution provides very vague. Specifically regarding the draft resolution: 1. “…pursuant to Section 1110 of the City Charter, …” : the cited section deals only with big ticket contracts. Is the resolution limited to those? Or is it intended to have a wider compass? 2. “Section 3: The City Council does hereby authorize the City Clerk to receive bids on public works or other contracts over the Internet, …” : it is not clear to me how the bidder’s bond deposit requirement of Charter Section 1110 is implemented if bids are delivered electronically. When submitted by mail, including a certified check is simple, but how is this done electronically? 3. “Section 4: That on or after the date of this Resolution, the City Council does hereby rescind Resolution No. 5036 in its entirety and adopts this Resolution establishing February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 7 of 8 updated guidelines for the opening of bids on public works contracts as that term is defined in Chapter 1.6 California Public Contract Code.” : a. The preceding section says at least part of the resolution applies to contracts other than public works ones. b. The term “public works contracts” is not defined in Chapter 1.6. It is defined in Chapter 1 (“Definitions”), specifically Section 1101. Regarding the staff report I have these comments: 1. A major problem with Planet Bids is that even if one registers most of the documents, including the text of City’s request for proposals becomes inaccessible the moment the bid due date arrives. As a result, after the fact the public cannot monitor most of what the City may have done, including what the bids were offered for. 2. “registering … also informs all of the interested parties of the final bid results” – I may not fully understand the system, but I have registered and I don’t recall ever having been informed of a bid result (perhaps because I indicated I was an interested party, but was not bidding?) – and in my observation the bid results are rarely posted. 3. “a set of plans and specifications is placed in the City Council Chamber for review by the City Council at the date of the contract award” : the Brown Act requires that any materials provided by an agency to its legislative body also be made available to the public at its meetings. If “a set of plans and specifications is” routinely “placed in the City Council Chamber for review by the City Council” I do not know where and was not aware the public was invited to review them as well. Item 9. Revised Effective Date to an Amendment of the Waste Disposal Agreement This seemed to me like a very bad idea when it was first presented to the Council in 2015 and it still seems to me like a terrible idea. Landfill space in Orange County is an extremely limited commodity that cannot be easily (if ever) replaced. Selling a perceived current excess of capacity for the importation of, and filling of those landfills with, outside waste prostitutes the County’s future and seems to me the height of shortsightedness. 15. Appointment of Finance Committee Members to Fill One-Year Terms This seems a terribly cozy system to me. Although as detailed in the staff report notices of “vacancies” are made to the public, there apparently are no true public vacancies and probably never will be. The appointees are selected by a completely secret process. February 9, 2016, Council Consent Calendar Comments - Jim Mosher Page 8 of 8 Item 17. Departures from John Wayne Airport, NextGen, Curved Paths, and Departure Climb Profiles Although I applaud the City Manager for his efforts to keep these issues alive, I doubt the City has the technical expertise to make much of an impact, or even to properly evaluate the existing data, and have no idea how much funding has been set aside for this purpose. It seemed striking to me that although the airport has been mentioned as the number one threat to the quality of life in the City, and it was at least some past Council’s number one priority, not a word I can recall was said about it at this Council’s January 23, 2016, Planning Session. The well-intentioned staff report for this item contains a number of minor technical errors that indicate a lack of adequate technical review: 1. On page 17-2, “What’s Flown Today” is STREL4, not STREL3/4. 2. In line 2 from the end on page 17-2, I believe City staff’s concern about the STREL waypoint in Metroplex is not that it had become a “fly-over” waypoint, but rather that it had become a “fly-by” – opposite to what is stated to Council. 3. On page 17-3, I believe the conventional abbreviation of “Magnetic Variation” is “MagVar” not “MagVr.” 4. On page 17-3, I do not believe the “ideal departure” path of Attachment B accurately depicts the current STREL or proposed Metroplex departure directions (all of which are identical over the area shown). a. Although it may seem a small point, neither the great circle nor the constant bearing path from TOING to STREL passes over Ruby Avenue on Balboa Island, as stated. Rather I believe it passes one block to the east, going directly over the center of the intersection of Diamond Avenue and Balboa Avenue. And all the proposed Metroplex departures are told to approach STREL at a true geographic heading of 187.00° which defines a very similar path, but missing TOING by about eight yards to the east. They, too, are being instructed to fly over Diamond Avenue, not Ruby. b. Rather than passing through the middle of the “narrows” where the Upper Bay opens into the Back Bay, as shown, all the proposed Metroplex departures actually turn (as does STREL4) roughly where the yellow line in Attachment A is shown turning over the Back Bay and skirt along the bluffs of Dover Shores. c. And on arrivals (as in Santa Ana wind conditions) they all go (as they do today) directly over the heart of Dover Shores on a radio-controlled approach path which is essentially the extension of the yellow line.