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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA APRIL 23, 2019 April 23, 2019, City 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 April 9, 2019 City Council Meeting The approval of the minutes is normally a routine matter, relegated, as here, to the Consent Calendar, where items, we are told, "are considered to be routine," with assurances that "Council Members have received detailed staff reports on each of the items recommending an action." In the present Item 1, we find instead what seems to be a proposal for the Council to approve an unannounced and unexplained, yet radical, change to the traditional content of the minutes. What formerly looked like this (see Volume 64 - Page 70): XV11. PUBLIC COMMENTS ON NON -AGENDA ITEMS Andy Corley expressed concerns with speeding traffic on Cliff Drive_ Denys Oberman discussed an ongoing encroachment issue on her property, involving City staff and her neighbor, and requested Council direct staff to have the encroaching wall removed. Peggy Falmer thanked Council for oonsidering implementing a time limit on construction projects, suggested using condition surveys prior to issuing permits, provided a handout regarding a 1960 landslide, and requested an extensive geological study be conducted along the bluffs. will now, and in the future, look like this (per the proposed Volume 64 — Page 79): XL'II. PUBLIC CO---M--MEItiTS ON NON -AGENDA ITEMS The fallowing individuals spoke during Public Comments on Non -Agenda Items= Susan Skinner, Ron Yea, Ryan Farsai, Luke Dxu, Marko Popovich, and Denys Oberman - 2: 53.- 3 0 berman_3:53:30 (see. video for further detaiis) with, incidentally, no indication of where or how the video can be viewed, nor any immutable promise that the video will even be preserved. Although the existence of the videos provides a definitive record of what took place at the Council meetings, the written minutes provide an index to what the videos contain. Even for those with the time to tediously wade through the videos in search of the content, the proposed omission of the content of public comments from the written minutes will make the archive of future Council meeting videos unsearchable, at least as to what public comment on what topics they contain, on both agenda and non -agenda items. I urge the Council to reject Item 1 as presented and direct the Clerk to return with a proper version of the minutes for April 9, 2019, providing the full record of what happened at the meeting, as required by the City Charter, and not relying on readers having the time and ability to view a separate video. April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 8 If the April 9, 2019, minutes were to be accepted as presented, the following corrections indicated in s*.�, out underline format to the passages shown below in italics are suggested. The page numbers refer to Volume 64. Page 74, Item SS2: "Mayor Dixon introduced Leticia Clark, District Director, Public Affairs and Government Relations, South Orange County Community Colle_pe District, who accepted the proclamation on behalf of her organization." [Without identifying a particular community college district, it is impossible to know which of the several she accepted the proclamation for. Ms. Clark is evidently an employee of the South OC College District, as well as a Tustin City Council member.] Page 74, Item SSS: The origin of the abbreviation "JGLG" ("Junior Guard Life Guards"??), used in four places, is not obvious. It does not seem related to the words used in the text. And although technically "Junior Lifeguards," the normal abbreviation for the program seems to be "NBJG" (Newport Beach Junior Guards). Page 74, Item SS5, paragraph 2: "Discussion ensued between City staff, jGL representative Newport Beach Junior Lifeguard Foundation Chair Graham Harvey, and Council regarding three site proposals, building on stilts, expanding the existing parking lot, the process of hiring an architect, ..." [The video shows only one NBJG Foundation representative speaking.] Page 76, last bullet under "Council Member Herdman": "Recognized Officer Tony Lim Yim for his work with the local homeless community." Pages 77-78: Items 1 and 7 on the Consent Calendar include actions stated as "amended." The minutes do not explain how they came to be amended, or by whom. Page 80, first motion: This, too, says the adopted resolution was amended, but the minutes do not say in what way or at whose suggestion. Page 80, second motion: This refers to approval of the locations recommended by the City Arts Commission for the ten sculptures approved for Phase IV of the Civic Center sculpture exhibition. The proposal submitted on behalf of the CAC (actually prepared by Arts OC) suggested locations for only eight (see last slide of PPT). No locations were suggested for the two last-minute substitutions (the "START" sign and the walking stick figure, very similar to the stick figure already in the park). Page 81: since the narrative indicates Council member Muldoon recused himself from both motions on this page, the statements that "The motion unanimously carried" are not only grammatically awkward, but inaccurate. They should be corrected to read something like: "The motion unanimous carried 6-0 with Council member Muldoon recused." April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 8 Page 80, statement following ADJOURNMENT — 9:55 p.m.: "The agenda and amend agenda were 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 """�T April 4, 2019, at 4:00. p.m." [The date listed is clearly erroneous. It was presumably copied from the boilerplate of an earlier meeting. The statement that the original agenda and an amended version were posted at the same time makes no sense. There would be no point calling something "amended" unless a version differing from it had been posted a previous time, not at the same time. Also, last I checked the "electronic bulletin board located in the entrance of the City Council Chambers" is not a legitimate posting site for Brown Act purposes. To be legitimate, viewers would have to be able to select, pause and scroll through the agenda pages, which is not possible with the uninterruptable slide show format. Hence, the City is required to provide 24-hour access to a paper copy of the agenda, which is done by placing one in the binder in the Council Chambers lobby.] Item 3. Adopt Ordinance No 2019-8: Amending the Newport Beach Municipal Code, Setting Time Limits to Complete Construction I offered a number of criticisms of this ordinance when it was presented for (its second) first reading at the Council's April 9 meeting. Since this is a series of amendments to the state Building Code, it will have to be redone later this year when the Council adopts, with amendments, the next three-year cycle of state codes. With that understanding, I continue to think the amendments are being placed in the wrong part of the state code, and that having our own City Building and Fire Board of Appeals hear the extension requests would be more appropriate than having them heard by an outside contract hearing officer, who might well be appearing by Skype from Mariposa. Whether or not the use of hearing officer is appropriate, my chief substantive concern is that staff has written the ordinance in such a way that decisions of the hearing officer, whether they are for approval or denial of the extension request, cannot be appealed or called up for review. I do not recall the Council discussing this point, and I doubt this expresses the way a majority would want it applied, for it seems to violate what many, including the Mayor, have cited as a fundamental principle of local government: namely, that all discretionary decisions based on the application of locally -enacted laws can be appealed to the body that created the law. This is particularly odd, since the ordinance regards the hearing officer as unqualified to make decisions about a third or greater extension request (which passes automatically to the Council). Yet his or her denial of a first or second request for extension is final, with no recourse other than in court. In effect, a series of hearing officer approvals can eventually be reversed by the Council, but denials cannot. April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 8 Item 4. Resolution No. 2019-38: Specifying Uses for FY 2019-20 RMRA Funding from the Road Repair and Accountability Act of 2017 I am unable to decipher the name of the person who approved the resolution on behalf of the City Attorney on page 4-6 (or when he or she did so). The statement in Section 1 of the proposed resolution on page 4-4 that "The projects listed below shall be funded in whole or in part with fiscal year 2019-2020 RMRA revenues" appears to be incorrect. Of the projects listed, according to the City's proposed FY20 CIP budget, only the Cameo Highlands Street Pavement Reconstruction project is proposed to be funded, in part, with FY20 RMRA revenues. Moreover, the amount of RMRA budgeted toward it is $1.5 million, which exceeds the amount the staff report says we expect to receive. As implied by (but not totally clear from) the Project List on page 4-7, the FY20 activity on the Bison Avenue project will be funded, in part, by a carryover of the FY19 RMRA allotment. The MacArthur Blvd project was funded, in part, by FY18 RMRA revenues, but the FY20 CIP budget indicates no RMRA revenues will be used toward activity in FY20. In short, those projects are not proposed to be funded with fiscal year 2019-2020 RMRA revenues. Regarding the Project List, in the "Description" column, staff might consider deleting the sentences at the end of each box that say "The estimated useful life of this project is 15 years minimum." That is excess verbiage, duplicating the information more succinctly provided in the "Min" column under "Useful Life" at the right hand edge of the chart. If staff chooses to retain it, the non -word "inimum" appearing inadvertently at the end of this sentence in the second box should be deleted. It might also be useful to list the oldest projects first, rather than last. Regarding the requirement to inform the public of projects completed with RMRA funds, apparently the answer is that Newport Beach has not yet completed any (although it expects completion to be about 4 months away on the first it started). Item 5. 2018-2019 Playground Improvements Project - Award of Contract No. 7582-1 (19P01) This item, and the illustration of Project 19P01 on page 50 of the FY2019 CIP Budget suggests the project will increase the amount of rubberized surfacing in children's play areas. The City's Parks, Beaches and Recreation Commission recently heard extensive testimony about a request to replace sand with rubberized surfacing in the children's play area at Newport Island Park — which the Commission rejected (April 2, Item VI -A). It appears many children prefer falling on sand to falling on rubber. They also like swings. The present staff report provides no indication of whether the details of the present proposal have been reviewed by PB&R, or what their recommendation to the Council about it (as required by City Charter Section 709) might be. Or if there has been any public outreach regarding the changes to these parks comparable to that on Newport Island. April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 8 Before awarding the contract, the Council might want to direct PB&R to reconsider the objectives of Project 19P01 in light of the recent testimony, particularly in view of the confirming statement in the staff report that "The project proposes to expand the rubber surfacing area at both locations." I also see no mention of swings. It may not be evident from the draft minutes, but Council members may recall that at their April 9 meeting, young Alexis Portillo asked the Council to consider adding some swings that could be enjoyed by special needs kids (see video). Item 7. Approval and Award of Agreement for Weed Abatement Services to Natures Image, Inc. The staff report, at the top of page 7-3, provides a table that seems intended to explain staff's reasons for recommending Natures Image over the other two proposers. The preceding paragraph says "Natures Image, Inc. proposed the lowest cost for the requested service and received the highest technical score, as shown in the table below." However, the table shows only a "Total Score" and it is not obvious if that is the same as the "technical score" or if it contains other components, such that the "total" was boosted by "an exceptional technical score." If the total consists of components it would be good to know what those components are, and how the individual evaluators scored each firm on each component. Likewise, the table shows the comparative cost proposals for "Weed Abatement" which the following paragraph explains is just the "fire fuel reduction" component of the total cost, and therefore only part of the total proposed. Again, it would be good to know what each of the firms proposed for each of the services requested. Possibly a combination of contracts choosing different firms for different services might have been advantageous to taxpayers. Likewise, no indication is provided of what these services might cost if brought "in-house." Now that pension obligations are lower and outside contractors have to pay the private -sector prevailing wage (which cities might not) the comparison is not obvious. Exhibit A to the proposed contract contains many pages of aerial photos (staff report pages 7-21 through 7-65). Although it is not explained with total clarity, the first 33 appear to illustrate with blue -crosshatching areas for which an annual cost has been agreed to in Exhibit B (Billing Rates, pages 7-67 and 7-68). The costs agreed to for the areas outlined on the remaining photos is less obvious. Of the first 33, it might be noted that at Site 1 (page 7-21), most of the area shaded on the south side of 19th Street is outside the Newport Beach city limit, and part of the privately -owned Banning Ranch property. Is the City to be reimbursed for the weed abatement provided there? Or is it considered a civic duty? April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 8 At Site 2 (page 7-21), why is weed abatement in the parkway at the rear of one particular home on Laurel Place a City responsibility, while that at the rear of the other homes is apparently not (or, again, is staff proposing to bill for the service)? At Site 4 (page 7-24), isn't at least some of the shaded area part of the area for which the City has separate plans as part of the Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 2A, which the Council heard about as Item 14 on January 22, 2019? At Site 5 (page 7-25), the image is confusingly labeled as "Bonita Canyon and University Bridge." The area shown is a small part of the University Drive median near where a bike lane crosses it. The bridges visible in the photo are the 73 toll road. Why was so small a portion of the median selected for weed abatement? The remaining images raise similar questions it would be too tedious to list (for example, Site 12 highlights what appears to be a portion of the Irvine Company's private Pelican Hills Resort). Presumably there is some method to this understood by the contracting department. All the above said, it is good, on staff report page 7-17, to see a semi -legible signature for the person who approved the proposed as to form on behalf of the City Attorney, and even a date for when she did so. Item 8. Approval of Amendments to Four On -Call Professional Engineering and Landscape Architectural Services Agreements The proliferation of on-call contracts for professional services has led to a systematic deterioration in the public visibility of the City's outside contracting activities. Originally intended as a means to deal with the need for emergency services, Council Policy F- 14 was amended in 2011 (perhaps unwisely) to extend the concept of on-call contracts to "professional services and repair and maintenance services, that are needed from time to time where the size of the job does not warrant the expense of entering into individual agreements for each service." This presumably envisioned things such as minor electrical repairs, but they now seem to be understood as pre -approval of major expenses in such a way that neither the Council nor the public knows what the contracting authority is being used for (and, ironically, the desirability of having on-call contracts in place for emergency services has been phased out of Policy F-14 as presently approved). Unlike other staff -approved requests for outside services, in which the specific services being contracted for and the dollar amount (hopefully within a budgeted amount) can be seen in a contract publicly posted to the City's Laserfiche contacts archive (and its rarely -current and seemingly misnamed "Contracts and Agreements Approved within the Last 30 Days" page), on- call contracts (whether staff or Council pre -approved) allow outside services to be requested by a "letter proposal" the details of which are never seen or posted. April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 8 Although not evident from the draft minutes, this was highlighted at the April 9 City Council meeting when I asked if the Council's submission to the Coastal Commission of the proposal for a Balboa Village Parking Management Overlay District would be taken by staff as direction to request services from Schmitz and Associates under the $75,000 on-call contract with them (C- 7440-1, later amended by the City Manager to $120,000) which Community Development staff privately approved within days of the Council publicly terminating a similar contract for advancing a "Port Plan." Staff was unable to provide a satisfactory answer, but it appeared they felt the on-call contract they had created gave them authority to engage (the singularly expensive and ineffective) Mr. Schmitz, or not, without any further public disclosure. It would also appear neither the Council nor the public knows if the original $75,000 was spent (and on what) or why the limit was increased to $120,000. The same will be true of the presently requested Council -approved on-call contracts: the Council and public will see only the on-call contracts on file in the Laserfiche system and have no idea what the funds are being spent on, or in what increments. Possibly there are internal limits on what staff members can spend through a letter proposal, but if there are, I don't believe there are any publicly -posted internal policies. As to transparency, as best I can tell the last time anything related to this set of on-call contracts came before the Council was as part of Item 9 on January 26, 2016, when the Council was asked to extend Public Works on-call contracts with 16 different firms. The four current on-call contracts for which the Council is being asked to increase the compensation limit all appear to have been entered into after that by the City Manager at his signing limit of $120,000, without any need for Council approval (Walden: C-8140-1, Civiltec: C-8304-1, Psomas: C-8170-1, BGB: C-7133-1). Psomas has a separate, still -active $75,000 on-call contract for "Assessment Engineering Services" approved by the Department Director. And might be noted there are other still -active $120,000 on-call contracts approved by the City Manager without Council oversight for "Civil Engineering Services" from the same era with at least six other firms: Civilsource (C-8446-1), Harris & Associates (C-8414-1), Tait & Associates (C-8177-1), Richard Brady & Associates (C-8169-1), Stantec Consulting Services (C-7176-1) and Civil Works Engineers (C-7167-1). In all cases, there is no readily accessible public record of what services have been or will be contracted for within the $120,000 limit. Prior to the change in Policy F-14 in 2011, the public could see individual contracts for "Civil Engineering Services," each with a clearly-defined scope of services, for dollar amounts as little as $1,750 (see, for example, C-4683 with Ducca-McCoy). Item 11. Storm Drain Operations Fiscal Year 2018/2019 Budget Amendment It would have been useful to detail what kind of repairs were required at each location, and in particular, in those cases where "the rain storms caused ... damage ... requiring emergency April 23, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 8 repairs" whether reasonable steps could be take to correct the system design so as to prevent such emergencies in the future. The report also suggests the bill would be even larger if it were not offset by "some planned street sweeping savings this fiscal year." It would have been useful to explain what those "planned" savings are, for they are not evident from the City's budget. To the best of my knowledge, street sweeping is a contact service, and the amount that was set aside in the current budget (FY19, Org 0109062 Object 811021) to service that contract is $501,785 which was a modest increase over the $498,398 set aside in FY18 and the $434,164.90 actually spent in FY17. It may seem a small point, but in the Expenditure Appropriations section of the Budget Amendment proposed on staff report page 11-3, no Object code is specified for where the proposed $1,522.50 increase in employee Medicare payments (apparently related to the extra overtime hours?) is going. Shouldn't that be Object code 727016? And do the extra overtime hours not trigger any increases in any of the many other employee benefit line items? Item 12. City's Position in Opposition to a State Drinking Water Tax; Support for Alternative State Legislative Measures SB 414 and SB 669 Of the very large number of bills before the California legislature each year, it is always a bit odd to see the City singling out a particular one for attention. The present staff report does not explain how this one got on the agenda. It does not seem a matter essential to the day-to-day operations of the City, nor did the Council ask for it. It also seems odd the bill being opposed is not identified in the item title, and is instead referred to by a pejoratively -invented pseudonym: the "State Drinking Water Tax." Only in the Discussion on page 12-2 do we learn the bogeyman is Assembly Bill AB 217, which actually calls itself the (equally loaded) "Safe Drinking Water for All Act." Nowhere are we told the proposed tax is, in relevant part, a $0.50 per year charge (called a "fee" in the Act) on each water service connection in the state — a proposal regarding which it seems likely that out of the many water ratepayers in Newport Beach there are a few who would find that a small and reasonable price to pay for an assurance that tap water throughout the state could be relied on as safe to drink. Acknowledging that the arguments suggesting this a problem better addressed through the state's general fund than through a charge on water customers who already have good water seem sound, the recommendation in the staff report about what to do about this is likewise vague as to who the Council is being asked to authorize letters from or what their exact content would be. Typically, a letter to be signed by the Mayor would be considered for authorization. But here it appears individual Council and staff members are to be encouraged to send letters of their own, provided they opposed to a "State Drinking Water Tax" and/or in support of SB -669 and SB -414.