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CITY OF NEWPORT BEACH
City Council Minutes
Regular Meeting
February 23, 2016
Volume 62 - Page 575
I. ROLL CALL - 5:30 p.m.
Present: Council Member Peotter, Council Member Duffield, Council Member Selich, Council
Member Petros, Mayor Pro Tem Muldoon, Mayor Dixon
Absent: Council Member Curry (excused)
II. PUBLIC COMMENTS
Regarding Closed Session Items A.1 and A.2, Jim Mosher stated that it seems difficult to see how the
City could be at fault and expressed hope that Council will not vote to settle and, if Council does, he
requested that there be a public declaration as to why the City feels this would be in the public’s
interest. Regarding Closed Session Item A.3, he reported visiting the City Attorney’s Office hoping to
see the court order relative to the case and was surprised to see a new Deputy City Attorney since that
position was eliminated. He noted that the City did not have a copy of the judge’s order for public
review. Additionally, he believed that anyone who sues the City and partially prevails is entitled to
recover their costs. He suggested that the City pay this and be done with it.
City Attorney Harp announced that the City Council will adjourn to Closed Session to
discuss the items as listed in the Closed Session agenda and read the titles.
III. CLOSED SESSION - 5:35 p.m.
A. CONFERENCE WITH LEGAL COUNSEL
EXISTING LITIGATION
(Government Code § 54956.9(d)(1)): 3 matters
1. Maria Balbuena v. City of Newport Beach, et al.
Orange County Superior Court Case No. 30-2014-00724934-CU-PO-CJC
2. Rubendario Cabrera v. City of Newport Beach, et al.
Orange County Superior Court Case No. 30-2014-00726252-CU-PO-CJC
3. Kent Moore v. City of Newport Beach, et al.
Orange County Superior Court Case No. 30-2015-00769714-CU-WM-CJC
B. PUBLIC EMPLOYEE PERFORMANCE EVALUATION
(Government Code § 54957 (b)(1))
Title: Dave Kiff, City Manager
Aaron C. Harp, City Attorney
Leilani Brown, City Clerk
IV. RECESS
V. RECONVENED AT 7:00 P.M. FOR REGULAR MEETING
March 8, 2016
Agenda Item No. 1
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February 23, 2016
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VI. ROLL CALL
Present: Council Member Peotter, Council Member Duffield, Council Member Selich, Council
Member Petros, Mayor Pro Tem Muldoon, Mayor Dixon
Absent: Council Member Curry (excused)
VII. CLOSED SESSION REPORT - None
VIII. PLEDGE OF ALLEGIANCE - Council Member Duffield
IX. INVOCATION - Council Member Petros
X. NOTICE TO THE PUBLIC
XI. CITY COUNCIL ANNOUNCEMENTS (NON-DISCUSSION ITEMS)
Council Member Petros announced Movie Night at Sunset Ridge Park on March 4, 2016.
Additionally, he reported that he will be attending the Newport Shores Homeowners Association
meeting on March 5, 2016, and invited Council colleagues to attend.
Council Member Selich reported attending a Town Hall Meeting on Balboa Island at the Fire Station
and commented positively on the event. Items discussed included the Park Avenue Bridge, the
Seawall program, the Eelgrass Mitigation program, and dredging the Grand Canal and private docks.
He thanked staff for their presentations.
Mayor Pro Tem Muldoon stated that he was troubled to learn that C.W. Driver is failing to comply
with the City’s request for documents to assist with the Civic Center audit. He requested that staff
provide a written report on the status of the audit and include options to get C.W. Driver to comply.
Mayor Dixon commented on a recent Town Hall Meeting and thanked those who attended. She
announced that the next Town Hall Meeting will be held on March 14, 2016, at 6:30 p.m. at Marina
Park and encouraged the community to attend. Additionally, she announced the Centennial
Celebration of the Joan Irving Brandt Art Exhibit from February 16, 2016 through March 31, 2016 at
the Central Library. Mayor Dixon also announced that Teen Tech Week will be held from March 6,
2016 through the March 12, 2016 at the Central Library.
XII. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE
AGENDA
Authorization to send a letter to the South Coast AQMD requesting that the Governing
Board consider returning Rule 444’s language relating to beach fire rings to pre -July
2012 terminology (Peotter)
Motion by Council Member Peotter, seconded by Council Member Petros, place consideration
of sending a letter to the South Coast AQMD requesting that the Governing Board consider returning
Rule 444’s language relating to beach fire rings to pre -July 2012 terminology, on Council’s next
meeting agenda.
The motion carried by the following roll call vote:
Ayes: Council Member Peotter, Council Member Duffield, Council Member Petros, Mayor Pro Tem
Muldoon, Mayor Dixon
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Regular Meeting
February 23, 2016
Volume 62 - Page 577
Nays: Council Member Selich
Absent: Council Member Curry
XIII. PUBLIC COMMENTS ON CONSENT CALENDAR
Regarding Item No. 3 (Amendment to Newport Beach Municipal Code Chapter 11.03 Special Events),
Jim Mosher suggested that Council modify the Code in a different way. Regarding Item No. 5
(Integration of City Council Policy F-5 (Purchasing Authority for Goods and Materials) and F-20
(Contracts with Former City Employees) into City Council Policy F-14 (Authority to Contract)), he
expressed concern that the matter has not been reviewed by the Finance Committee. Regarding Item
No. 13 (Update on Water Use and Conservation Efforts January 2016), he believed that the City is not
paying for its use of the sewer system, it is failing to achieve a reduction in its use of water, and is
leaving private rate payers to pick up the slack.
City Manager Kiff clarified that most of the City’s water use involves the parks and community
centers, and noted that new parks have come on line and are being used by the general public. He
assured everyone that City employees are committed to drought awareness and water-use reduction.
In response to Council questions, Municipal Operations Director Murdoch reported that the City pays
for its use of water and provided a distinction between Water Fund charges and General Fund
charges. He added that the cost of the water is paid through the General Fund and that the City
contributes to the Water Fund from the General Fund for services provided by specific City staff. He
added that the City’s portion of water usage is very small in comparison to the entire City. He
reported that the State has extended regulations through October and commented on challenges in
terms of comparing summer water usage to winter water usage. Council Member Peotter suggested
that staff bring the matter back to Council in a future study session.
Mayor Dixon requested and received clarification from City Manager Kiff regarding Item No. 3 that
the intent is to allow a generic entity to have its special event program managed through a
Conditional Use Permit.
Regarding Item No. 5, City Attorney Harp explained the City’s approach relative to three different
Policies that would apply in order for the City to enter into a contract. He added that the
consolidation increases efficiency, provides ease of reference, and clarifies ambiguity.
XIV. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
1. Minutes for the February 9, 2016 Study Session and Regular Meeting [100-2015]
Waive reading of subject minutes, approve as amended, and order filed.
2. Reading of Ordinances
Waive reading in full of all ordinances under consideration, and direct the City Clerk to read by
title only.
ORDINANCE FOR INTRODUCTION
3. Amendment to Newport Beach Municipal Code Chapter 11.03 Special Events
a) Find that the adoption the amendment is not subject to the California Environmental Quality
Act (CEQA) pursuant to Section 153060(c)(2) and Section 15060(c)(3) of the CEQA Guidelines.
Alternatively, find the approval of this ordinance is not a project under CEQA Regulation
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Section 15061(b)(3) because it has no potential for causing a significant effect on the
environment; and
b) Introduce Ordinance No. 2016-4, An Ordinance of the City Council of the City of Newport
Beach, California, Amending Newport Beach Municipal Code Subsection 11.03.020(C) Relating
to Special Event Permits, and pass to second reading on March 8, 2016.
ORDINANCE FOR ADOPTION
4. Second Reading of Ordinance No. 2016-3 Relating to Residential Permit Parking Hours
on Margaret Drive and Adoption of Resolution No. 2016-36 [100-2015]
a) Conduct second reading and adopt Ordinance No. 2016-3, An Ordinance of the City Council of
the City of Newport Beach, California, Amending Subsection 12.68.060(B) of the Newport
Beach Municipal Code Regarding the Residential Parking Permit Program for Newport
Heights and Cliff Haven; and
b) Adopt Resolution No. 2016-36, A Resolution of the City Council of the City of Newport Beach,
California, Limiting the Parking of Vehicles on Certain Streets and Rescinding Resolution
No. 2015-36.
Council Member Petros recused himself from Item No. 4 because his residence is within
500-feet of this issue.
RESOLUTIONS FOR ADOPTION
5. Integration of City Council Policy F-5 (Purchasing Authority for Goods and Materials)
and F-20 (Contracts with Former City Employees) into City Council Policy F-14
(Authority to Contract) [100-2015]
Adopt Resolution No. 2016-32, A Resolution of the City Council of the City of Newport Beach,
California, Integrating City Council Policies F-5 and F-20 into City Council Policy F-14.
6. Resolution No. 2016-33: Adopting Goals and Priorities for 2016; Proposed Work Plan
[100-2015]
Adopt Resolution No. 2016-33, A Resolution of the City Council of the City of Newport Beach,
California, Adopting Goals and Priorities for Calendar Year 2016.
Council Member Duffield recused himself from Item No. 6 relative to the Mariners Mile
project due to financial reasons.
7. Adopt Resolution to Approve Projects for the 2017 Federal Transportation
Improvement Program (15R27, 15R20) [100-2015]
Adopt Resolution No. 2016-34, A Resolution of the City Council of the City of Newport Beach,
California, Certifying that the City has the Resources to Fund the Projects Submitted for Inclusion
in the 2017 Federal Transportation Improvement Program within Federal Fiscal Years 2016/17 –
2021/22 and Affirms its Commitment to Implement all Projects in the Program , affirming the
City’s intent to fund and allocate resources to implement the MacArthur Boulevard Pavement
Rehabilitation Project and the Park Avenue Bridge Replacement Project as part of the 2017 FTIP.
CONTRACTS AND AGREEMENTS
8. Newport Heights Alley Replacement - Approval of Professional Services Agreement
with TAIT & Associates, Inc. (C-7028) (15R18) [38/100-2015]
Approve a Professional Services Agreement (PSA) with TAIT & Associates, Inc. of Santa Ana,
California, for the Newport Heights Alley Replacement project at a not-to-exceed price of
$195,645.00, and authorize the Mayor and City Clerk to execute the Agreement.
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9. Lido Village Water Main Replacement - Approval of Professional Services Agreement
with Psomas Contract No. 7001-1 (16W14) [38/100-2015]
Approve the Professional Services Agreement (PSA) with Psomas, of Santa Ana, California, to
provide design services for the Lido Village Water Main Replacement project at a not-to-exceed
price of $140,480, and authorize the Mayor and City Clerk to execute the agreement.
10. Approval of Maintenance Repair Services Agreement with Newport Dredging Company,
Inc., DBA South Mooring Company (C-7029) [38/100-2015]
a) Approve a Maintenance Repair Services Agreement with Newport Dredging Company, Inc.,
DBA South Mooring Company for three (3) years and a total limit not to exceed $300,000.00,
and authorize the Mayor and City Clerk to sign the agreement;
b) Approve Budget Amendment No. 16BA-034 appropriating $100,000.00 from Tidelands
Maintenance Fund unappropriated fund balance to Account No. 10080802-851041 (Harbor
Resources Maintenance - Piers, Floats, Docks Moorings); and
c) Authorize agreement to be effective January 1, 2016 to allow for continuous service.
11. Professional Services Agreement with Kimley-Horn and Associates, Inc. for
Environmental Services for the Towers at Koll Center Newport Project Located at
4400 Von Karman Avenue (PA2015-024) (C-7030) [38/100-2015]
Approve the Professional Services Agreement, and authorize the Mayor and City Clerk to execute
the agreement.
MISCELLANEOUS
12. Planning Commission Agenda for the February 18, 2016 Meeting [100-2015]
Receive and file.
13. Update on Water Use and Conservation Efforts January 2016 [100-2015]
Receive and file.
14. City Support for a 50-Year Lease from the County of Orange for the Newport Beach Golf
Course [100-2015]
Authorize the Mayor to sign the letter and send it to the Orange County Board of Supervisors.
Motion by Mayor Pro Tem Muldoon, seconded by Council Member Peotter, to approve the
Consent Calendar; and noting the recusal by Council Member Petros on Item No. 4 and the recusal by
Council Member Duffield on Item No. 6.
The motion carried by the following roll call vote:
Ayes: Council Member Peotter, Council Member Duffield, Council Member Selich, Council
Member Petros, Mayor Pro Tem Muldoon, Mayor Dixon
Absent: Council Member Curry
XV. ITEMS REMOVED FROM THE CONSENT CALENDAR - None
XVI. PUBLIC COMMENTS ON NON-AGENDA ITEMS
Jim Mosher commented on an action previously taken by Council to exempt the City’s Arts
Commission from Council policy relative to fundraising. He suggested that Council formally update
the fundraising policy. He commented on the Parks, Beaches and Recreation Commission’s duties and
noted items that have not been reviewed by them but have been acted on by Council. Additionally, he
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discussed the purpose of the Environmental Quality Affairs Committee (EQAC) and noted that EQAC
has not been asked to participate in the preparation of notices for Environmental Impact Reports.
XVII. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES - None
XVIII. CURRENT BUSINESS
15. Park Avenue Bridge Replacement Project – Award of Construction Contract – Contract
No. 6155 (15R20) and Approval of Professional Services Agreement with Fountainhead
Consulting Corporation [38/100-2015]
Deputy Public Works Director Vukojevic provided a PowerPoint presentation to address the
request, the low bidder, project vicinity, existing conditions, new bridge structure, the temporary
bridge at Balboa Avenue, community involvement, next steps, the project team, project funding
and schedule, and recommendations.
Council Member Selich provided a brief history of the matter and congratulated staff for their
hard work. He noted the project is not costing the City anything.
Council Member Petros noted that this is a project that has been years in the making and
commended staff for their work on this. He thanked Council Member Selich for his leadership.
In response to Mayor Pro Tem Muldoon’s question, Deputy Public Works Director Vukojevic
explained how Federal funding works. He addressed the documentation process and the intensive
step-by-step guidelines.
Motion by Council Member Selich, seconded by Council Member Petros, to a) approve the
project plans and specifications; b) approve Budget Amendment No. 16BA-033 recognizing up to
$9,109,939.00 in federal funding from the Federal Highway Administration Highway Bridge
Program (prior year receipts of $451,270.45 plus future receipts of $8,658,668.55) and
appropriating an additional $4,690,139.00 to Account No. 13501-980000-15R20 for construction
and construction engineering management / inspection services; appropriating $50,000 from the
General Fund unappropriated fund balance to Park Avenue Bridge Replacement Project, Account
No. 01001927-980000-15R20 to augment funding for work items not eligible for Federal Funding;
and appropriating $50,000 from the Water Enterprise Capital Fund unappropriated fund balance
to Park Avenue Bridge Replacement Project, Account No. 70201932-980000-15R20 to include
funding for water system work items that may not be eligible for Federal Funding; c) conditionally
Award Contract No. 6155 to John S. Meek Company, Inc. of Gardena, California for the total base
bid amount of $6,326,030.00 and conditionally authorize the Mayor and the City Clerk to execute
the contract after additional Federal Funding has been secured; d) encumber a construction
contract contingency allocation of $632,000.00, (approximately 10% of the total bid), to cover
unforeseen conditions, work and quantities; and e) conditionally Approve a Professional Services
Agreement (PSA) with Fountainhead Consulting Corporation, at a not-to-exceed price of
$845,000.00, and conditionally authorize the Mayor and City Clerk to execute the Agreement after
additional Federal Funding has been secured.
Jeff Herdman commented positively on the process and commended City staff for their work.
Jim Mosher noted that the plans have not been made available for public review in the lobby and
addressed the project schedule. He expressed hope that the driving force behind completing the
project is not so an outgoing Council Member can drive on the bridge before leaving office.
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Public Works Director Webb noted that plans are kept at the Public Works counter at City Hall for
public review. Additionally, a set was provided for Council review on the table behind Council.
Council Member Selich took issue with Mr. Mosher’s statement, emphasizing that the driving
force behind every project is to get a contract awarded and the project completed as quickly and
efficiently as possible.
The motion carried by the following roll call vote:
Ayes: Council Member Peotter, Council Member Duffield, Council Member Selich, Council
Member Petros, Mayor Pro Tem Muldoon, Mayor Dixon
Absent: Council Member Curry
16. Cost Proposal for Televising Planning Commission Meetings [100-2015]
Assistant to the City Manager Finnigan summarized the matter and discussed costs associated
with televising Planning Commission meetings.
Nancy Skinner spoke in support of the matter and asked that Council approve it.
George Schroeder commented on the cable bill’s franchise fee going to the City and believed that it
is reasonable for the City to televise Planning Commission meetings for increased transparency.
He added that the City of Costa Mesa has televised their Planning Commission meetings for many
years, as has several surrounding cities.
Lorian Petry spoke in support of the matter, noting the importance of transparency. She
encouraged Council to approve the item.
Elizabeth Cook spoke in support of televising Planning Commission meetings so residents could
watch the meetings without attending them.
Jim Mosher noted that a considerable amount of correspondence was submitted supporting the
item. He believed that the value of televising Planning Commission meetings is high and the cost
is low, and believed that the City should implement the practice immediately. He suggested
creating a single, on-demand page on the City’s website with access to all videos that the City
produced. Further, he suggested making all audio recordings of City meetings available for public
review.
Tom Baker spoke in support of the item, believing it is a benefit to residents at a minimal cost.
City Manager Kiff reported that the cable franchise fee is a General Fund source of revenue to
compensate the City for a cable company’s use of the public right-of-way.
Council Member Selich spoke against the matter, believing that televising Planning Commission
meetings tend to politicize the Planning Commission and would result in decreased quality in
decision-making. He noted that the City is as transparent as it could be and believed that
televising Planning Commission meetings would act as an incentive for people to stay home
instead of attend the meetings.
Mayor Pro Tem Muldoon acknowledged receipt of correspondence regarding this matter and
expressed concerns with damages that the City could face by televising Planning Commission
meetings. He believed that the City’s liability should be minimized and spoke in opposition to this
item.
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Council Member Petros spoke in support of the item, noting he is a representative of the people of
Newport Beach and Planning Commissioners are appointees, and noted the importance of the
decisions rendered by the Planning Commission be available to the public. He commented on
other cities televising meetings and stated he has not found the practice to be detrimental to any
decisions made by decision-makers. He stated that there have been no issues of grand-standing or
increased liabilities as a result of televising and noted the importance of transparency.
Council Member Duffield commented on his experience on the Harbor Commission and stated that
he never found it necessary to televise them. He spoke in opposition to the item and commented
on the importance of participation at the meetings.
Mayor Dixon spoke in support of the item but suggested conducting a 12-month pilot program to
see if any issues arise. She encouraged people to attend Planning Commission meetings and noted
the importance of hearing the public’s voice.
In response to Council Member Peotter’s question, City Clerk Brown reported that Planning
Commission meeting audio recordings are currently on the City’s website and are there
permanently, beginning with the meeting in 2012. However, audio recordings for other boards,
commissions and committees are available for a certain amount of time.
Motion by Mayor Dixon, seconded by Council Member Petros, to begin televising Planning
Commission meetings on NBTV and make them available for viewing through the City website for
a 12-month trial period.
Substitute motion by Council Member Selich, seconded by Mayor Pro Tem Muldoon, to
not televise Planning Commission meetings.
The substitute motion carried by the following roll call vote:
Ayes: Council Member Peotter, Council Member Duffield, Council Member Selich, Mayor Pro
Tem Muldoon
Nays: Council Member Petros, Mayor Dixon
Absent: Council Member Curry
17. Amended and Restated Contracts for City Manager (C-7033), City Attorney (C-7034), and
City Clerk (C-7032) [38/100-2015]
City Manager Kiff, City Attorney Harp and City Clerk Brown recused themselves from this matter
and departed the Chambers.
Council Member Petros reported that Council spent a lot of time reviewing the activities of the
three Council appointees during the year and commented on the evaluation process. He
commented positively on the contracts generated, addressed PERS compensations, and reported
that it is being proposed to give them a modest increase.
Jim Mosher reported that the public is unaware of the goals set for each employee. He pointed out
a retroactive merit pay payment, commented on the expectations of the public, and took issue with
providing extra compensation after a service has been rendered.
Susan Cramer noted that pay rates are available on the City’s website.
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Motion by Council Member Petros, seconded by Council Member Selich, to a) adopt
Resolution No. 2016-35, A Resolution of the City Council of the City of Newport Beach, California,
Adopting Salary Ranges for the City Attorney and City Clerk ; b) approve and authorize the Mayor
to execute the Fourth Amended and Restated Employment Agreement between the City of
Newport Beach and City Manager Dave Kiff, subject to the terms and conditions approved by the
City Council; c) approve and authorize the Mayor to execute the Third Amended and Restated
Employment Agreement between the City of Newport Beach and City Attorney Aaron Harp,
subject to the terms and conditions approved by the City Council; and d) approve and authorize
the Mayor to execute the Third Amended and Restated Employment Agreement between the City
of Newport Beach and City Clerk Leilani Brown, subject to the terms and conditions approved by
the City Council.
Mayor Pro Tem Muldoon stated he will be voting “no” because he was not involved in the contract
negotiations.
The motion carried by the following roll call vote:
Ayes: Council Member Peotter, Council Member Duffield, Council Member Selich, Council
Member Petros, Mayor Dixon
Nays: Mayor Pro Tem Muldoon
Absent: Council Member Curry
XIX. MOTION FOR RECONSIDERATION - None
XX. ADJOURNMENT - 8:13 p.m.
The agenda was posted on the City's website and on the City Hall Electronic Bulletin Board
located in the entrance of the City Council Chambers at 100 Civic Center Drive on
February 18, 2016, at 4:00 p.m. The amended agenda was posted on the City's website and
on the City Hall Electronic Bulletin Board located in the entrance of the City Council
Chambers at 100 Civic Center Drive on February 19, 2016, at 9:30 a.m.
___________________________________________
Recording Secretary
___________________________________________
Mayor
_____________________________________
City Clerk
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