Loading...
HomeMy WebLinkAbout00 - Written CommentsRecieved After Agenda Printed June 27, 2017 Written Comments June 27, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the June 13, 2017 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are from the draft minutes with suggested corrections shown in strikeout underline format. Page 301: Item 14, paragraph 3, sentence 1: "In response to Council Member Council Member Peotter's question, Budget Manager Giangrande explained that the checklist attached to the staff report was prepare prepared in March 2017 using incorrect methodology..." Page 301: paragraph 2 from end: "City Attorney City Attorney Harp explained the process for handling the six items of )1viE1h, potential conflicts of interest." Page 303: first full paragraph: "In response to Council Member Peotter's question, Finance Director/Treasurer Matusiewicz explained the OCSD grant had already been received and the City need to fulfill its obligation." [It is unclear from the draft minutes if "OCSD" was a reference to the Orange County Sheriff's Department, the Sanitation District, or something else. And as with much of the minutes (both draft and final), this sentence seems to assume readers possess a mystical ability to guess what "obligation" (or other thing) was being discussed. Lacking such powers, I neither know nor can recall what was said. And I would venture that in a year or two, even he speakers will have difficulty remembering. It is fortunate the meetings are preserved on video.] Item 3. Ordinance No. 2017-10 Amending the Permit Process for Electric Vehicle Charging Stations Like many of the ordinances the Council is asked to adopt, this one is less well drafted than it might be. 1. Rather than simply citing AB 1236 from 2015, it would have seemed helpful to mention the state code it added (Gov. Code Section 65850.7) so the ordinance could be compared to the newly adopted state requirements without additional detective work. 2. The fourth Whereas on page 3-4 refers to consultation with the Municipal Operations Director. Since the ordinance seems more of a planning and public works matter, the reason for and significance of this declaration is unclear to me. 3. Proposed NBMC Section 15.19.030 pointlessly introduces a definition of "Common interest development" that is used nowhere except in the definition of "Association." Without acknowledgement, both these definitions appear to be copied from the California Civil Code- (Sections 4080 and 4100), and within the ordinance, the word "Association" is in turn used nowhere other than in the proposed new NBMC Section June 27, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 3 15.19.060.G, where the internal definition (of Sec. 15.19.030.A) is ignored and the reader is instead referred directly to Civil Code Section 4080 — eliminating, it would seem to me, the need for any internal definition at all. 4. In the proposed new Section 15.19.040, the last word of "National Electrical Manufacturers Association" (NEMA) should be capitalized. 5. The proposed new Section 15.090.050 appears intended to impose duties on the Building Division or Chief Building Official, but if that is the intent, it is improperly indicated only in the section title. Per NBMC Section 1.08.020, the section titles have no legal significance. 6. Proposed Subsection 15.18.060.D appears to refer to conditions that might be required to mitigate or avoid "as defined." I am completely unable to decipher what is defined or where. 7. The intent of the last sentence of Subsection 15.18.060.D is equally obscure. It calls a statement of reasons for rejecting "the potential feasible alternative," when the previous sentence said there were no feasible methods. Possibly "the potential" was meant to read "any potentially," but even then it makes little sense, and adds little or nothing to what precedes it. 8. As in much of the NBMC, the word "shall" is used with careless impropriety at numerous places in the proposed text. Under such circumstances, California courts have long had trouble interpreting what the word is intended to signify; that is, whether it is being used to state a mandatory requirement, a non-binding guideline, a directive or something else (see, for example, Kabran v. Sharp Memorial Hospital, 2 Cal. 5th 330 at 338 and following). NBMC Subsection 1.08.110.D assures readers of the Newport Beach Municipal Code that "shall" is "mandatory." But to truly be mandatory, it must be used in the sense of "has a duty to," and as such requires the identification of the actor responsible for performing the prescribed action and clear consequences for that actor should he or she fail to perform the duty imposed. Using "shall" merely to make routine legal pronouncements sound more officious, without imposing a duty on anyone, diminishes the word's force and makes its purpose uncertain in those instances where the City really intends to impose a mandatory duty on a specified actor. As examples, in the first instance of "shall" on page 3-5, "Routine operation and maintenance or like -kind replacements of electric vehicle charging stations shall does not require a permit' presumably states what was intended in plain English, without abusing the word, In the second use, on page 3-6, "All electric vehicle charging station systems shall must meet applicable health and safety standards and requirements imposed by the state and the California Fire Code, as adopted and amended by the City' would, it seems to me, be better. June 27, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 3 Item 5. Irvine Avenue Pavement & Median Rehabilitation Project - Notice of Completion for Contract No. 5869 The landscaping looks a bit sparse at the moment, but it is great to see a City project completed at less than the bid price, and in less than the contractually allowed time! Item 6. MacArthur Boulevard Pavement Rehabilitation - Notice of Completion for Contract No. 5870 Did the unexpected delamination of the previous surface (cited on page 6-2 as leading to most of the cost overrun on the present contract) indicate the earlier job was defective? If so, will that affect future awards to that contactor, whoever it was? Item 7. Agreement Between Orange County Water District and City of Newport Beach Regarding Distribution and Sale of Green Acres Project Water The staff report is less than a model of clarity as to what agreement, if any, may currently be in effect, and how this agreement differs from it. Page 7-2 says the 10 -year agreement entered into in 1991 somehow ended after 15 years, in 2006 and is currently in an "expired" status. Yet Clause H of the new agreement, on page 7-5, indicates one purpose of the new agreement is to terminate an existing one. Considering the general wisdom in government of having written agreements, it seems odd this enterprise may have been conducted for 10 or 11 years without one. Whatever those circumstances, it would have seemed helpful to indicate if signing on to this agreement will result in an instant change in pricing, as well as to highlight any changed terms beyond the few mentioned at the bottom of page 7-2.