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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed May 12, 2015 Written Comment - Consent Calendar May 12, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(o)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 1. Minutes for the April 28, 2015 Regular Meeting The page numbers below refer to Volume 62 of the City's minutes. The passages in italics are from the draft with amended numbering. Suggested changes are shown in °*-^"' underline format. Page 280: Item XI, paragraph 1: "Council Member Petros reported that Hoag Hospital is the largest employer in Newport Beach and that Becker Becker's Hospital Review awarded Hoag Hospital as being among the 100 great hospitals in America this year. Additionally, Hoag Hospital received a maynat e Magnet designation by the American Nurses Credentialing Center and Health Grades named Hoag Hospital among America's 50 great hospitals and awarded it the Distinguished HespitaPs Hospital Award for Clinical Excellence. " [cf: Hoag News Page 283: Item XV, paragraph 1, last sentence: "Council Member Petros thanked Mr. Milner and reported that he will continue to avail make himself available to the group and provide his professional expertise." Page 285: Paragraph 2 from end: "Jim Mosher noted a previous Gebino'l Me—mb Planning Commissioner's concern relative to making a gift of public funds." Page 286: Item 16, paragraph 3: "George €er-ah Farah referenced an email he sent to Council." Page 288: line 2: "... and that their Marine AstiW Activities Permit will expire in May ... Page 288: Item 17, paragraph 4: "Pat Mahoney, President of West Coast ^ rber'°* Arborists Item 3. Uptown Newport Development Agreement Amendment As allowed by City Charter Section 412, before the second reading the Clerk may wish to correct the following typographic errors that were present in Ordinance No. 2015 -11 at its first reading: Page 2, last paragraph (Section 1.14): "On April 14, 2015, the City Council continued the consideration of the First Amendment to the April 28, 2015, City Council meeting." 2. Page 4, Section 4.3, sentence 2: "The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that anyone any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional." Although not a typographic error, it might further be noted that Section 4.5 seems duplicative of the second sentence of Section 4.6. May 12, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Item 4. Summary Vacation of Existing Sewer Easement at 1111 Dolphin Terrace At least in the printed copies of this item provided by the City Clerk, the Exhibit B to the proposed resolution is missing. Is it the same as the Attachment B to the staff report? It might further be noted that this property was the subject of a January 3, 2013, hearing before the Planning Commission. I do not recall any mention of the easterly easement at that time even though it now appears a portion of the structure was proposed to protrude over it. Instead, the primary issue at the Planning Commission hearing was the extent to which development is allowed to spill down the bluff face between Dolphin Terrace and Bayside Drive. In this case, the "predominant line of development' was essentially determined solely from above, which due to the steeper topography of this lot allowed pools, walls and accessory structures to be built at much lower elevations than on other lots. At the time, it was asserted that this would not be a problem because the added development was somehow screened by trees and would not be visible from Bayside Drive or the harbor. My observation has been that it is quite visible. Item 5. Resolution of Intention to Renew the Corona del Mar Business Improvement District and Levy Assessments in Fiscal Year 2015 -2016 I believe the Corona del Mar Business Improvement District is a well- intentioned idea and those who serve on its Board should be commended for their interest and service. However, I also believe that the intent of the Streets and Highways Code (see below) is that BID activities are supposed to be self- supporting efforts. I therefore find any City financial contributions to it, above the levy paid by the members served, is inappropriate. From the "Funding Requirements' section of the staff report, it appears that the cost to taxpayers of supporting this BID in FY 2015 -16 is expected to be approximately $81,000 ($20,000 cash contribution plus $61,000 City staff time). This is at least partially disclosed in Item 6 of the Annual Report (although a dollar amount is not assigned to the City staff time, which would seem to involve more than just the stated "bookkeeping services'). But it is not clear to me that this is an efficient way to provide the services and public improvements delivered. The new Council members should also know that this BID is not a voluntary civic organization. When it was created, the small number of proponents had the option of asking Council to choose a structure whose creation would require active approval by a majority of the proposed members (the 1994" section of the California Streets and Highways Code) or one whose creation could be prevented only by a majority protest (the 1989 law "). They chose the latter. Once created, all "members" within the district were forced to pay the levy, whether they wanted the district or not. Refusing membership was not an option. Although some continue to (now illegally) refuse to pay, a majority protest is required to force the Council to end the levy. May 12, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 Regarding the BID's Annual Report for FY 2014 -15, 1 feel its signature accomplishment, and largest single expenditure, the $50,000 for the MacArthur & PCH "Gateway Improvement," is seriously tainted by a conflict of interest issue. The project and project details have been relentlessly promoted by a Board member whose business (The Bungalow restaurant) most expects to be impacted by it, and in a way different from the other BID "members." In view of that disproportionate impact, and the general FPPC conflict -of- interest rules, I believe that Board member should have recused himself from all discussion and voting on the matter. Regarding the proposed budget for FY 2015 -16: It appears from the third line under "Source of Funds" that the BID expects to end the current year with a balance or "reserve" of $44,000. It also appears it plans to expend not only its income but also that entire reserve during the coming year, leaving it with no reserve at the end. With the surplus gone, unless new sources of revenue are found, it would seem that the operating budget in years beyond this one will have to be substantially smaller. 2. Under "Streetscape" it is surprising to see the BID has allocated nothing for its "Sidewalk Cleaning" program. Is it expecting the City to pay for that? 3. Under "Highway Decor" i "Banner Program ": I assume "Lite pole" was intended to read "Light pole "? 4. The intent of the next to last line "Bad Debt Expense' is not clear. Was there supposed to be an entry contributing to the "Total Uses of Funds "? Alternatively, as in the budget for the following agenda item (the Restaurant BID), should there have been a "Anticipated Member Assessment Delinquencies" entry under "Source of Funds "? Regarding the proposed resolution: 1. Contrary to what is stated in the opening "Whereas" paragraph, I believe the CdM BID was actually established in 1997 by Ordinance 97 -24. Regarding the "BID Budget Issues" discussed in the staff report. My greatest objection is to the two former City BIDS (in Balboa and Balboa Island) replaced in 2013 by self - declared "Merchants Associations" which apparently now have no membership rules and make no contributions of their own, yet each receive $40,000 per year of taxpayer money, apparently to spend essentially as they please, with no public oversight. Plus other benefits such as City - funded private sidewalk cleaning in Balboa Village. Not only does it seem unconscionable, out of all the City's business areas, to single out these two former BID areas for the City's largesse, but this arrangement seems grossly unfair to the remaining BIDs in which the members at least have to come up with the bulk of the money they spend for their own benefit. May 12, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 Item 6. Resolution of Intention to Renew the Newport Beach Restaurant Association Business Improvement District and Levy Assessments in Fiscal Year 2015 -2016 Please see my general comments on Item 5 (CdM BID renewal), many of which apply here. But this item has several features that distinguish it from the previous one: While physically improving and revitalizing a section of a city is a recognized purpose of the Streets and Highways code, the NBRA BID is an industry rather than a geographic district, and the propriety and logic of using that code to promote a particular industry is much less clear. 2. Even within the food service industry, all of which is taxed to pay for the NBRA BID, the activities of the BID, which consist almost exclusively of marketing, fail to substantially benefit many members. For example, "Restaurant Week," if successful at promoting dine -in experiences, would actually draw business away from those who produce take- out food. This problem has been recognized by the NBRA BID Board, which I believe is committed to revisiting who should be levied and who not (for example, exempting at least some the many currently - levied food service businesses, such as service station minimarts, that few would see as "restaurants "). But it remains to be addressed, and since I believe this is part of their Strategic Plan it is disappointing to see that resolution of the membership issue is not a prominent priority for the coming year called out in the Annual Report. 3. The amount of the taxpayer contribution to this effort is difficult to deduce from either the staff report or the Annual Report. Item 6 of the Annual Report indicates that in the coming year the NBRA BID expects to receive from the City a $20,000 cash contribution plus $15,000 of event grant funding. Although not disclosed there, the staff report suggests it also expects to receive bookkeeping services worth about $20,000 and an unknown amount of other City staff support. Since the proposed annual budget, unlike that for the CdM BID, has a $90,000 line item that includes "administration & accounting" one assumes they are proposing to pay a larger share of the administrative costs, but since it's mixed in with the fees paid to the marketing agency, it's hard to tell. The total amount of the costs expected to be borne by the City should be made clearer. Regarding the proposed resolution: 1. Contrary to what is stated in the opening "Whereas" paragraph, I believe the NBRA BID (technically the "Newport Beach Restaurant Improvement District ") was actually established in late 1995 by Ordinance 95 -55. 2. The proposed levy structure in Section 2 would seem to contain a logical flaw in having a rate "A" for all business with less the 11 employees and a rate "C" for all businesses with a license tax of $600 or more. Without knowing how the "license tax" is computed, it would seem possible for a business to have fewer than 11 employees but a tax of $600 or more, in which case it would be uncertain if rate "A" or "C" is intended. Although this May 12, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 situation may never arise in practice, it would seem wise to say that rate "A" applies to businesses with less than 11 employees AND a tax less than $600. Item 7. Bayview Heights Drainage Project - Approval of a Professional Services Agreement with RBF Consulting 1. For the public to better understand the City's contract award process it would have seemed helpful to disclose the name of the other bidder and how much they proposed to charge for the same design work. 2. It would also seem logical for approval of the contract to be on the May 26 agenda, so that it could be considered along with the "Cooperative Agreement" (Attachment C). 3. The new Council members may wish to review the staff report and video from November 12, 2014, in which it appeared that one of the impacted property owners (Buddy Cox of 2612 Mesa Drive) was trying to renege on what the City and the other property owner (Buck Johns of 2600 Mesa Drive) thought was a promise to contribute $50,000 each towards the present design effort. The expected $100,000 total was reduced to $50,000 total. Although the outgoing Council agreed to that, from the current staff report, it appears that Mr. Cox may now be out of the picture and 2612 Mesa Drive has a new owner? 4. The November staff report also said "Under the provisions of the [OCTA Measure M] grant, the design needs to be completed and the City must award the construction contract by June 30, 2015." Is that still a requirement, and is it still even possible? The three -year design contract being presented here (extending through June 30, 2018) would seem to envision a much more protracted schedule. When is the construction contract expected to be awarded and will the Measure M grant still be part of it? Item 8. Fire Station No. 6 Apparatus Bay Replacement Project - Approval of a Professional Services Agreement with STK Architecture 1. Although I'm not sure it was fully disclosed that when the new fire trucks were being specified and ordered it was fully disclosed that the fire station would need to be rebuilt to accommodate them, this seems like a worthy project, and staff's enthusiasm for it is admirable. However it also seems premature since the Capital Improvement Program list on which it is expected to appear has not yet been approved. Assuming the list and allocations will be what staff expects them to be seems to me to improperly tie the Council's hands when the list, in its entirety, has to be prioritized. For example, could the new engines be deployed differently, saving or deferring this cost? 2. Although the Scope of Services says power will be maintained to the living quarters, it is not clear if the design is required to be one in which the station will remain fully operable throughout the seven months of construction. Is that part of the plan? That is, will there be space available to park the trucks on -site or will they need to be relocated? May 12, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 Item 9. Approve the Professional Services Agreement for Potable Water Laboratory Services with Testamerica Laboratories, Inc. 1. As noted at the last Council meeting, the area on the City's website that formerly announced the City's Requests for Proposals, such as the one discussed here, and the results, seems to no longer be maintained. At least this one is not there. It would seem helpful if the website could tell the public where the RFPs are posted now. 2. The staff report is not entirely clear as to whether the City had previously contracted with Clinical Laboratory of San Bernardino for this same service, or had some other experience with them that was unsatisfactory. 3. Since Testamerica is already so much more expensive than Clinical Laboratory, it might have been helpful to explain why the five -year contract is for $325,000 when their estimated cost per year is reported as $60,000. Clinical Laboratory would have offered an entire additional year of testing, and then some, for the $25,000 difference. Item 10. Appointments to the Aviation Committee 1. It is good that appointees have been found for the two District 5 vacancies. 2. To the best of my knowledge the Aviation Committee is the only City Board, Commission or Committee with alternates, and one of the few with citizen members appointed for the life of the committee (the only other one I know of is the General Plan /Local Coastal Program Implementation Committee with Mike Toerge as a life member). 3. In the absence of any known by -laws, the relative roles of members and alternates, or what constitutes a quorum of the Aviation Committee, has never been entirely clear to me. My impression is that sometimes both show up, and sometime neither, and everyone present seems to vote. But then the Aviation Committee doesn't meet very often and votes on anything other than the minutes are rare. Item 11. Budget Amendment to Increase Revenue Estimates and Expenditure Appropriations for Private Surfing Classes and OASIS Fitness Center Personal Training Sessions It would have been good for the staff report to have provided a bit more detail on the private surf lesson program generating the roughly quarter- million dollars passing through the City's accounting system, including how much of the beach is used, and how much the public is charged to participate. I am not sure the privatizing of public areas is entirely good. And it seems odd to me that for use of so public an area, the public (through the City) retains only 20% of the revenue compared to 30% at OASIS. May 12, 2015, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 Item 12. Grant Industrial Waste Permit to J &J Marine Acquisition Company, LLC It might have been helpful for the staff report to more clearly identify the location of the applicant and to explain in layman's terms exactly what they are proposing to discharge into the City's (and County's) sewer system. Item 13. Set Public Hearing Date to Adopt Fiscal Year 2015 -16 Budget The setting of a hearing date for May 26, 2015, seems consistent with City Charter Sections 1102 -1104, however if the intent is to adopt the budget on that date, then the process seems unusually and improperly rushed to me. The Charter requires the budget to be submitted to the Council at least 35 days prior to July 1st (that is, by May 27), but it then assumes the initial submission will be will be reviewed and refined at a series of public meetings with adoption not required before June 30th The budget is a very complex document, and people have lives. I don't think either the Council or the public can be expected to completely digest it in a single Study Session on May 12th and be meaningfully prepared to commit to it on May 26th. Item 14. Request for Proposals for Tree Maintenance Services As mentioned in connection with Item 9, above, the Request for Proposals that is the subject of this item does not seem to be posted to the location on the City's website where the website says the City's Requests for Proposals are available for review (and possible action) by all.