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HomeMy WebLinkAbout11/23/2010 - Regular MeetingTAX: City Council Minutes City Council Regular Meeting November 23, 2010 — 7:00 p.m. I. STUDY SESSION - 4:00 p.m II. CLOSED SESSION - 6:03 p.m A. Conference with Legal Counsel - Existing Litigation (Government Code 6 54956.9 (a)): One matter: City of Newport Beach v. Bach Bay Court, LLC, Orange County Superior Court Case No. 30- 2010 - 00385190 B. Conference with Legal Counsel - Anticipated Litigation - Exposure to Litigation (Government Code $ 54956.9(b)): Two matters: 1. Potential litigation regarding threat of notice of violation from California Coastal Commission for brush clearance allegedly being performed without a Coastal Development Permit on City Sunset Ridge Park property prior to City ownership. 2. Potential litigation over raising mooring fees within the harbor. C. Conference with Labor Negotiators (Government Code $ 54957.6): Agency Designated Representatives: Bill Avery of Avery & Associates and Terri Cassidy, Human Resources Director Emlovee Organization: Newport Beach City Employees Association (CEA); Newport Beach Professional and Technical Employees Association (Prof- Tech); Fire Management Association (FMA); and Newport Beach Employees League (NBEL) D. Public Employee Performance Evaluation (Government Code 6 54957(b)(1)): The City Council will meet in closed session to consider the appointment, employment, evaluation of performance, discipline, or dismissal of one public employee. Title: City Attorney III. RECESS IV. RECONVENED AT 7:00 P.M. FOR REGULAR MEETING V. ROLL CALL Present: Council Member Selich, Council Member Rosansky, Mayor Pro Tem Henn, Mayor Curry, Council Member Webb, Council Member Gardner, Council Member Daigle VI. CLOSED SESSION REPORT City Attorney Hunt stated that there was no reportable action taken; however, reported that Council Volume 59 - Page 638 City of Newport Beach City Council Minutes November 23, 2010 Member Webb will be recusing himself when the mooring issue is discussed tonight (Item 19) and stepped out when discussions occurred relative to potential litigation over raising mooring fees within the harbor (Item II.B.2). VII. PLEDGE OF ALLEGIANCE - Council Member Webb VIII. INVOCATION -Mayor Curry D:. PRESENTATIONS Presentation from the Orange County Human Relations Council Ellen Olshansky, Orange County Human Relations Council, provided the annual report and presented Mayor Curry with a certificate. Presentation on 1st Battalion, 1st Marines (1 /1) Foundation Upcoming Events Krysztina Scheeff, Lieutenant Colonel Craig Wonson, and Sergeant Major Jonathan Henry provided the history of 1st Battalion, 1st Marines, thanked the City and its residents for all their support, and invited everyone to attend Mess Night on January 13 at the Balboa Bay Club and participate in the Beach Challenge on January 22 at 8:00 a.m. (949- 385 -1110 for information). X. NOTICE TO THE PUBLIC XI. CITY COUNCIL ANNOUNCEMENTS OR MATTERS WHICH COUNCIL MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION OR REPORT (NON - DISCUSSION ITEM) Mayor Pro Tem Henn reported that Visit Newport Beach reports that tourism and Transient Occupancy Tax (TOT) is up; OPIS 100 will be conducting business seminars on January 22; there was a ribbon cutting for the Rhine Channel docks this morning; the tsunami warning siren ribbon cutting ceremony will be conducted on December 6; and the 102nd Annual Boat Parade will be held December 15 -19. Council Member Daigle referenced the plane crash that occurred in the bay and discussed current emergency procedures and operational plans. Council Member Gardner reported that the Corona del Mar Christmas Walk will take place on December 5 from 11:00 a.m. to 4:00 p.m. She also announced that the Bicycle Safety Committee will have its first meeting on December 6 at 4:00 p.m. in the Fire Conference Room. Council Member Webb announced that he walked his last mile on Saturday, December 9, and displayed a map of his 2010 walk. He thanked all the residents who assisted him in getting into the gated communities and to his wife, Jan, for accompanying him. Mayor Curry announced that a ribbon cutting ceremony will take place on November 30 to commemorate the completion of the San Miguel/MacArthur Boulevard widening. He commended the Civic Center and Park Project financing team and highlighted the savings that the City will realize due to their hard work. 3GI. CONSENT CALENDAR A. READING OF MINUTESIORDINANCES AND RESOLUTIONS 1. MINUTES FOR THE REGULAR MEETING AND STUDY SESSION OF NOVEMBER 9, 2010. Waive reading of subject minutes, approve as written, and Volume 59 - Page 639 City of Newport Beach City Council Minutes November 23, 2010 order filed. 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct City Clerk to read by title only. B. ORDINANCES FOR ADOPTION 3. CONSIDERATION OF AN ORDINANCE AMENDING SECTION 7.04.030 OF TITLE 7 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO ANIMALS PROHIBITED ON PUBLIC BEACHES. [100 -2010] Conduct second reading and adopt Ordinance No. 2010 -25 to amend Section 7.04.030, of Title 7 of Newport Beach Municipal Code, pertaining to Animals Prohibited on Public Beaches, as follows: a) "Oceanfront Beaches" - change the current hours that animals are prohibited on oceanfront beaches from 9:00 a.m. to 5:00 p.m. to 10:00 a.m. to 4:30 p.m. year - round; b) "HarborBay Front Beaches" - current hours will remain prohibiting animals from 9:00 a.m. to 5:00 p.m.; c) that the City Council approves changing the term of "Community Services Department" to the current name of "Recreation and Senior Services Department` and d) that the City Council approves changing "guide" dogs to "service" dogs as defined under the American with Disabilities Act (ADA) so as to include all service dogs that assist the disabled. 4. ADOPTION OF THE 2010 CALIFORNIA BUILDING CODES. [100 -2010] a) Conduct second reading and adopt Ordinance No. 2010 -23 relating to adoption of the 2010 California Building Codes with related amendments; and b) adopt Resolution No. 2010 -127 setting forth findings for the proposed amendments. C. RESOLUTIONS FOR ADOPTION 5. APPROVAL OF RESOLUTION ADOPTING A SUPPLEMENTAL MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION (NBFMA); AND ADOPTION OF RESOLUTION IMPLEMENTING A CALPERS TIME -IN -GRADE EXCEPTION (C- 2946). [381100 -2010] a) Adopt Resolution No. 2010 -128 adopting a Supplemental MOU between the City of Newport Beach and the Newport Beach Fire Management Association (NBFMA), extending the term to December 31, 2011; and b) adopt Resolution No. 2010 -129 implementing a Time -in -Grade Exception for newly hired employees, effective the date of adoption of the resolution. 6. ADOPT A RESOLUTION FOR LOCAL SIGNAL SYNCHRONIZATION PLAN FOR MEASURE M2 FUNDING ELIGIBILITY. [100 -2010] Adopt Resolution No. 2010 -130 approving the Local Signal Synchronization Plan for the City of Newport Beach in order to maintain Measure M2 funding eligibility as defined by the Orange County Transportation Authority (OCTA). D. CONTRACTS AND AGREEMENTS LIDO ISLE PAVEMENT REHABILITATION PHASE II - COMPLETION AND ACCEPTANCE OF CONTRACT NO. 4385. [381100 -2010] a) Accept the completed work and authorize the City Clerk to file a Notice of Completion; b) authorize the City Clerk to release the Labor and Materials Bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and c) release the Faithful Performance Bond one year after Council acceptance. Volume 59 - Page 640 City of Newport Beach City Council Minutes November 23, 2010 8. NEWPORT COAST COMMUNITY CENTER AUDIO - VISUAL EQUIPMENT - COMPLETION AND ACCEPTANCE OF CONTRACT NO. 4139. [381100 -20101 a) Accept the completed work and authorize the City Clerk to file a Notice of Completion; b) authorize the City Clerk to release the Labor and Materials Bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and c) release the Faithful Performance Bond one year after Council acceptance. 9. 2010 -2011 SIDEWALK, CURB AND GUTTER RECONSTRUCTION PROJECT - REJECT ALL BIDS FOR CONTACT NO. 4561. [381100 -20101 a) Reject all received bids for Contract No. 4561; and b) direct staff to clarify the contract documents and re- advertise the project for bids. 10. FISCAL YEAR 2010 -2011 STREETLIGHT REPLACEMENT PROGRAM - APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH JMDIAZ, INC. (C4693) [381100 -20101 Approve a Professional Services Agreement with JMDiaz, Inc. (JMD) of City of Industry, California, for design and construction support services at a not -to- exceed fee of $65,840.00, and authorize the Mayor and City Clerk to execute the Agreement. 11. TERMINATION OF CORONA DEL MAR CONCESSION AGREEMENT (C- 4017). [381100 -20101 Authorize the City Manager to execute a termination agreement based on the terms described within the staff report. 12. AGREEMENT WITH ORANGE COUNTY STRIPING SERVICES, INC. FOR STRIPING AND SIGN INSTALLATION SERVICES (C- 4694). [381100 -20101 Approve an agreement with Orange County Striping Services, Inc. to provide striping and sign installation services for two (2) years with an option of three (3) one -year extensions. 13. APPROVAL OF REPAIR SERVICES AGREEMENTS WITH: DOTY BROS. CONSTRUCTION COMPANY; GCI CONSTRUCTION, INC.; VALVERDE CONSTRUCTION, INC.; AND W. A. RASIC CONSTRUCTION COMPANY, INC. FOR UNDERGROUND UTILITY REPAIR SERVICES (C4695). [381100 -2010] Approve four (4) Repair Service Agreements with: Doty Bros. Construction Company; GCI Construction, Inc.; Valverde Construction, Inc.; and W. A. Rasic Construction Company, Inc., and authorize the Mayor and City Clerk to execute the agreements. E. MISCELLANEOUS 14. PLANNING COMMISSION AGENDA FOR NOVEMBER 18, 2010. [100 -20101 Receive and file written report. 15. EXCEPTION TO COUNCIL POLICY B -8 (BIKE, FOOTRACE, AND SURF CONTEST EVENT POLICY) - PACIFIC COAST TRIATHLON. [100 -20101 a) Authorize Pelican Coast Events, organizers of the Pacific Coast Triathlon to hold a sprint - distance triathlon in the Crystal Cove area within the Newport Beach city limits provided that the event is after Labor Day weekend as an exception solely to Council Policy B -8's prohibition of events during June 15 to September 15; and b) authorize this exception for the next five periods (2011, 2012, 2013, 2014, and 2015), revocable at any time by the City should the event not be managed correctly. Motion by Mayor Pro Tem Henn, seconded by Council Member Rosansky to approve the Consent Calendar. Volume 59 - Page 641 City of Newport Beach City Council Minutes November 23, 2010 The motion carried by the following roll call vote: Ayes: Council Member Selich, Council Member Rosansky, Mayor Pro Tern Henn, Mayor Curry, Council Member Webb, Council Member Gardner, Council Member Daigle )III. ITEMS REMOVED FROM THE CONSENT CALENDAR - None XIV. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Council Member Daigle reported that she was appointed to the Airport Lands Commission. Council Member Gardner discussed the joint meeting of the Harbor Commission and Planning Commission, and the benefits of these commissions working together. Mayor Pro Tem Henn reported on the Economic Development Committee (EDC) meeting and indicated that the City is included in Southern California Association of Government's (SCAG's) list of business - friendly cities that follow a statement of principles since Newport Beach adopted a fiscal sustainability plan. He reported that EDC also received a report relative to a "Shop Local" campaign. XV. PUBLIC HEARINGS 16. NEWPORT BUSINESS PLAZA (PA2008 -164) - 4699 JAMBOREE ROAD AND 5190 CAMPUS DRIVE - GENERAL PLAN AMENDMENT NO. GP2008 -007 - PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PD2009 -001 - TENTATIVE PARCEL MAP NO. NP2010 -006 (COUNTY TMPM NO. 2010 -101). [100 -20101 City Manager Kiff requested that the item be continued to January 11, 2011, not December 14, 2010. Mayor Curry opened the public hearing. Hearing no testimony, he closed the public hearing. Motion by Council Member Rosanskv, seconded by Council Member Webb to continue the item to the regular meeting of January 11, 2011, in order to provide adequate time to comprehensively review and identify the potential terms of a development agreement, and the applicant's request for a waiver of a development agreement. 17. CHINA PALACE USE PERMIT (PA2010 -082) - 2800 WEST COAST HIGHWAY - USE PERMIT NO. 2010 -015. [100 -20101 Acting Planning Director Campbell utilized a PowerPoint presentation to discuss the project site, existing site plan, floor plan, parking issues, proposed hours of operation with and without entertainment, and proposed changes to the conditions of operation. In response to Council questions, Acting Planning Director Campbell reported that the area is designated mixed -use but staff does not anticipate residential uses. He stated that C'est Si Bon Bakery is not open late, but people can be towed if they park there. He explained the reasons the Planning Commission recommended 1 parking space per 31 square feet of net public area (without valet) and staff recommended 1 parking space per 35. He also discussed the different recommendations relative to operating hours. Council Member Rosansky expressed support for having 1 parking space for every 35 square feet of net public area and closing the patio at midnight when there is no entertainment or dancing. However, he recommended closing at 2:00 a.m. when the business is operating strictly as a restaurant. Volume 59 - Page 642 City of Newport Beach City Council Minutes November 23, 2010 XVI. Motion by Council Member Rosansky, seconded by Council Member Selich to adopt Resolution No. 2010 -131 approving Use Permit No. UP2010 -015, including revisions to the conditions of approval to require 1 parking space for every 35 square feet of net public area, allow valet parking until 2:00 a.m., and modify Condition No. 5 to allow the applicant to keep the patio open until 2:00 a.m. when there is no entertainment or dancing. Mayor Curry opened the public hearing. Scott Bauer, representing the applicant, requested that the patio doors remain open even when there is entertainment or dancing. He noted that live entertainment will stop at 1:00 a.m. Hearing no further testimony, Mayor Curry closed the public hearing. Council Member Gardner expressed concerns relative to enforcement since entertainment and dancing may or may not occur nightly. Mayor Pro Tem Henn agreed and recommended that the site close at midnight. He noted the problems that occur on the Peninsula due to mixed - uses and facilities being open late. Substitute motion by Council Member Webb, seconded by Council Member Gardner to adopt Resolution No. 2010 -131 approving Use Permit No. UP2010 -015, including revisions to the conditions of approval to require 1 parking space for every 35 square feet of net public area, allow valet parking until 2:00 a.m., and modify Condition No. 5 to only allow the applicant to keep the patio open until midnight. The substitute motion failed by the following roll call vote: Ayes: Mayor Pro Tem Henn, Council Member Webb, Council Member Gardner Noes: Council Member Selich, Council Member Rosansky, Mayor Curry, Council Member Daigle The motion carried by the following roll call vote: Ayes: Council Member Selich, Council Member Rosansky, Mayor Curry, Council Member Daigle Noes: Mayor Pro Tem Henn, Council Member Webb, Council Member Gardner 18. AGREEMENT TO PROVIDE SANITARY SEWER SERVICES TO CANYON FAIRWAY COMMUNITY. [100 -20101 City Manager Kiff provided the staff report. Incompliance with California Constitution Article XIIId (Proposition 218), City Clerk Brown reported that no protests were received. Mayor Curry opened the public hearing. Hearing no testimony, he closed the public hearing. Motion by Council Member Webb, seconded by Council Member Rosanskv to direct staff to access sewer fees for the Canyon Fairway Community Association per Title 14 of the City's Municipal Code since there was an absence of a majority protest. The motion carried by the following roll call vote: Ayes: Council Member Selich, Council Member Rosansky, Mayor Pro Tem Henn, Mayor Curry, Council Member Webb, Council Member Gardner, Council Member Daigle Volume 59 - Page 643 City of Newport Beach City Council Minutes November 23, 2010 PUBLIC COMMENTS Petina Greninger believed that the Morningside Recovery Zoning Agreement does not adequately deal with any problems and took issue with the agreement lasting 25 years. Tom Billings took issue with the Morningside Recovery Zoning Agreement and their facilities being allowed in dense, residential neighborhoods. He stated that he speaks for Lido Island and that they will use all means possible to rescind the agreement. Mayor Pro Tem Henn emphasized that the City is working hard to enforce the Zoning Agreements with Sober Living by the Sea and Morningside Recovery, and enforce applicable ordinances and laws with every group homes operator throughout the City. XVII. CONTINUED BUSINESS 19. MOORING CHARGES, MOORING TRANSFERS: RESOLUTION NO. 2010 -132 RELATING TO INCREASING MOORING CHARGES; ORDINANCE NO. 2010 -26 RELATING TO MOORING PERMIT TRANSFERS AND OTHER MOORING OPERATIONS. [100 -2010] Council Member Webb announced that he is a member of Balboa Yacht Basin (BYB) and may have a conflict of interest. Therefore, he recused himself. City Manager Kiff provided a PowerPoint presentation to discuss the goal of reaching Fair Market Value (FMV), what FMV is, how the City's 14% proposal compares with FMV, the mooring committee's principles, and the committee's recommended changes. He reviewed the rate proposal, discussed the Orange County Grand Jury's recommendation, and highlighted the proposed Newport Harbor Marine Index and the seven locations. He detailed the rate - setting process and reviewed other rate suggestions. He also detailed the transfer proposal; and compared the various approaches to address the following issues: the number of times a person can transfer a mooring, family transfers, one - for -one exchanges, new boat owners, transfer fees, ownership of mooring tackles, and sub - permitting of moorings. He reported that the City is proposing to implement a true waiting list, answered questions brought up from previous meetings, and reviewed berthing rates and prices of moorings after purchase. He highlighted the recommended actions, including a proposed addition to the resolution. He reported on the uses of the Tidelands Fund, indicated that City costs exceed tidelands revenues, and noted that federal funds can no longer be earmarked for projects, like dredging. He confirmed that the mooring committee has been directed to address other harbor uses. Council Member Gardner discussed the emails she has received and noted that only one person mentioned the waiting list. Council Member Rosansky believed that individuals from the waiting list who are permitted a mooring should pay the new fee, not the phased -in fee, and also not be allowed to transfer their moorings. Council Member Daigle believed that the proposal should be amended to allow transfers to yacht clubs. Council Member Rosansky indicated that some of the yacht clubs have moorings and allowing them more would make moorings less accessible to the public. Mayor Pro Tem Henn added that he is not aware that any yacht club is requesting more moorings. City Attorney Hunt noted that the proposed ordinance identifies yacht club mooring fields and does allow them to expand if desired. Regarding the 2007 Grand Jury report, City Attorney Hunt stated that he reviewed the report and that the City responded that it wished to comply. He noted that the report is not legally Volume 59 - Page 644 City of Newport Beach City Council Minutes November 23, 2010 binding, but provides insight. Further, he confirmed that Title 17 was also updated in response to the report. Mayor Pro Tem Henn stated that the waiting list is important and that the City wants to ensure that there is a mechanism that provides for the fair distribution of available moorings to those that have been on the list. He agreed that the waiting list does need to be well- managed and controlled by City staff. He emphasized that the practice of receiving private value from the holding of moorings needs to stop. He reiterated that the mooring committee will be looking at all harbor uses in order to see if the appropriate fees are being charged. Greg Hatton, Newport Mooring Association (NMA), took issue with the increase and requested that Council not approve the recommendation. He discussed the Tidelands Fund and believed that the City does not have the money to dredge the harbor because it has not been collecting storage charges from every boat on public tidelands. He believed that this would have equated to $30 million since 1980. He explained why he thinks that the mooring increase is rate discrimination. He recommended that Council follow NMA's proposal to increase storage charges bay -wide since it is based on real market value. Brian Newton compared the City's proposal to NMA's proposal which uses Newport Harbor's berth index. He believed using the CPI is a sensible approach and was designed for this type of purpose. Patricia Newton provided a comparison between project cash surplus and deficit, and believed that the City's proposal is unfair even if it is phased in. She believed NMA's proposal is the best solution and would solve the budget shortfall. She took issue with the elimination of mooring transfers and stated that it would result in a financial hardship. Chip Donnelly believed that eliminating the transferability of moorings will pose a financial hardship and that other cities have procedures for handling transferability. Bill Moses believed that mooring holders contribute to the Tidelands Fund but are becoming victims of fee discrimination. He stated that they are relying on being able to transfer the moorings for income and noted that the moorings come with no services and no storage abilities. He requested that Council not approve the recommendation and requested that staff look into different fees and a better transfer policy. He stated that the market will determine the rates. Don Beatty took issue that the farmers market vendors are not being charged to use public land. Patti Janssen stated that an increase may be appropriate, but took issue with the proposed amount and not being able to transfer moorings. She indicated that, if she knew about the 2007 Grand Jury report she would not have purchased the mooring. She noted that the City sold moorings in 2002. Scott Karlin, Commodore, believed that the mathematics is flawed and does not take into account the true cost of renting a mooring, especially since maintenance and dinghy storage are not provided. Wallace Cook discussed transfer rates in other cities and requested that the City be fair to all mooring holders. Terry McGuire stated that he is a live - aboard and requested that the existing live - aboards be grandfathered in at the old rate. Dwight Belden, representing the Newport Harbor Yacht Club, provided a handout with Volume 59 - Page 645 City of Newport Beach City Council Minutes November 23, 2010 suggested changes and requested that they be included when considering the ordinance John Heffernan provided a handout that explained his objections. He stated that tideland fees need to be uniform and non - discriminatory, and suggested not piecemealing this issue. Steve Turansky expressed opposition to the proposal, especially as it relates to transferability. Preston Zelget expressed concern about being priced out of the marina and stated that people will be waiting a long time to receive a mooring if no transfers are allowed. Marshall "Duffy" Duffield, Harbor Commissioner and Chair of the Mooring Master Plan Subcommittee, took issue with the price increase since the harbor tends to have bad conditions that make it difficult to access the mooring. He believed that the City should only charge more if it comes up with a better mooring system that is easier to use. Jim Mahoney provided a newspaper and requested that the City make all the fees for harbor uses fair and equitable for everyone. Tim Bercovitz (Skipper Tim), American Legion Yacht Club (ALYC), requested that the City consider NMA's proposal. Sherman Stacey provided correspondence that highlighted his opposition to the elimination of the ability to transfer the mooring. He believed that the California Environmental Quality Act (CEQA) applies to this issue and that there was a Brown Act violation. He stated that the City should adhere to the proposals from the Mooring Master Plan Subcommittee and the Harbor Commission. Phil Slater believed that changing how transfers are handled will not make moorings more accessible. He believed that the current transferability process promotes free enterprise and protects everyone's assets. Gary Reasoner requested that the Harbor Commission's recommendation be considered and believed that piecemealing this issue is not fair and will not solve the problems associated with fixing the harbor. John Fradkin, Balboa Yacht Club, stated that he may want to transfer his mooring to the yacht club but will be unable to do that in the future. He believed that Santa Barbara's transfer policy works and should be looked at. George Hilcumma believed that the City is going from a system that works to one that will not work. Dan Gribble, Balboa Yacht Club, took issue with the proposed transferability change and believed that the fair market value analysis is incorrect. Hugh Bradley stated that he purchased his mooring from the City in 2002 and that he was hoping to be able to transfer it in the future in order to recoup some money. He believed that the waiting list system does not work and urged the City to continue with its current system. Edward McLaughlin stated that the City sold a mooring to him in 2002 for fair market value and believed that this needs to be thought through further so an equitable transferability policy is developed. Dennis Baker expressed support for all the work that has occurred on this issue, but took issue with piecemealing this. He agreed that no one should be profiting from public property. He believed that the waiting list should be eliminated and expressed concern that the City Volume 59 - Page 646 City of Newport Beach City Council Minutes November 23, 2010 may face issues regarding the giving away of public funds David LaMontaine believed that there is not much profiting from transferring moorings and that the proposed transferability plan is flawed. Tom Crison believed that the City should take more time to analyze alternatives that are fair for all the stakeholders. Marlene Pippin stated that the City should enforce its laws relative to requiring that moorings not remain vacant. Brian Ouzounian provided a handout and took issue that this will only apply to pleasure uses not commercial uses. He believed that this is just a means to collect money and that it is unfair to the current mooring holders. Wayne Pyle stated that it is difficult to access one's boat from the moorings, there is no longterm dinghy storage, and the comparable fees include mooring services when the City does not provide any. He believed that the document that was drafted by the NMA, staff, and Harbor Commission should be the version Council votes on. Anthony Gaffney stated that, although he is not a resident, he contributes to the community. He took issue that not enough copies of the staff report were available to everyone in attendance and suggested that the City consult with the mooring users to create a better document. James Woodworth hoped that the fees would not increase as quickly as proposed so he would not have to move his boat out of the City. He requested that the City not be too hasty to raise fees to private dock owners. Fred Forche took issue with the fee increase and encouraged the City to look at a rate that is fair. John Ruthess expressed concern that, with the City's proposal, it will price -out many of the current mooring holders. He recommended having the City look at all the users at one time so that there is a comprehensive plan that addresses all of the City's issues and is equitable to all harbor users. Robert Stotts stated that having a mooring is getting more expensive and believed that the mooring holders are losing their rights. He indicated that he would like to transfer his mooring to someone else if his children decide they do not want it so he could recoup his investment. Council Member Gardner indicated that the City's wait list works for the Balboa Yacht Basin, individuals should not be allowed to have three or four moorings if the City is trying to make moorings more accessible, boating is a hobby and comes with expenses, and that the City does provide services and spent more money for Harbor Patrol services at the request of the boating community. She expressed concern regarding piecemealing the issue. She suggested that the City raise the CPI this year but hold off on anything else while it examines other aspects of the issue. Council Member Daigle expressed support for increasing the fee by the CPI, not by the 14% ratio method as indicated in the proposal. She stated that the current transferability practice seems to be working but is unsure about the wait list process. She believed that the issue of transferability needs to be better thought through and that being able to give moorings to yacht clubs should be looked at by the committee. Volume 59 - Page 647 City of Newport Beach City Council Minutes November 23, 2010 City Attorney Hunt explained why the proposal is not rate discrimination. Regarding private piers, he stated that State law supports not charging for private piers if Council wanted to continue that practice. He indicated that it would not be rate discrimination if the City proceeded with the 14% rate increase. He stated that fees can also be increased for commercial leases, as long as there is a reasonable basis for it. He indicated that there is no case law relative to whether giving away or selling moorings is a gift of public funds; however, one could argue that the transfer value for private gain from public property could be considered a gift of public funds. Regarding the claim of a CEQA violation, he stated that socio- economic benefit is not addressed under CEQA. He reported that the ordinance amendments to Section 5.13.3.f. suggested by Mr. Belden are acceptable. He referenced the proposed ordinance and stated that "immediate family" includes his or her heirs at law to the second degree of consanguinity. He noted that the City could not provide information about the 2007 Grand Jury report when it sold some moorings in 2002, but emphasized that every person has the duty of reasonable investigation when purchasing an item and that it is not the City's responsibility to advise the purchaser of the report if it was not a participating party of the mooring transfer. He pointed out that the Newport Beach Municipal Code (NBMC) states that the moorings are not transferrable and that there should not have been an expectation of receiving back one's investment when being granted a mooring permit. Regarding Mr. Heffernan's comments, he indicated that the City has no obligation to pay the Tidelands Fund back for any money not collected. In response to the comment about vacant moorings, Harbor Resources Division Manager Miller reported that the regulation was removed from the NBMC over four years ago because mooring holders were keeping derelict boats on the moorings and this created different problems; however, vacant moorings can now be rented from the City on a short term basis. In response to public comments, City Manager Kiff reported that 75 copies of the staff report were made available in the lobby and that the staff report was also available on the City's webpage since Wednesday. He noted that the proposed fee has been adjusted for private ownership of tackle. In response to public comments, Mayor Pro Tem Henn emphasized that the proposed rate increase is also driven by the need to have more accessibility to the harbor and the need for each harbor user to pay their fair share. He pointed out that the increase is phased in over five years and that the City will continue to analyze the rates and see if the mooring waiting list concept works, as it is currently working at BYB. Regarding the question of whether the effective increase in shore moorings is much higher than offshore moorings, City Manager Kiff stated that the City looked at what the proposed increase would be and reported that this will be reevaluated each year until 2015. He indicated that he does not see an inherent flaw thus far. Council Member Selich noted that many individuals requested that the City use the CPI to raise the rates, but that assumes that the 1996 rates were set correctly. He believed that the fairest way to deal with this was to determine a percentage from what the slips are in other harbors. He reported that the proposed 14% was the lowest percentage found. He noted that this may also be adjusted every year. He stated that the BYB waiting list process works and that a waiting list would allow moorings to be market driven and be more accessible. Mayor Pro Tem Henn recommended that the ordinance be amended so moorings are also allowed to be transferred to spouses; mooring holders who are permitted a mooring off of the waiting list after the resolution is adopted be charged the fully - implemented rate; and the resolution be amended to include a commitment to review all harbor user charges and include the statement from the PowerPoint presentation about the price adjustment occurring on Volume 59 - Page 648 City of Newport Beach City Council Minutes November 23, 2010 September 30, 2012 Mayor Curry expressed appreciation to everyone in attendance. He stated that the NMA has been successful in delaying any fee increases, but it is the City's fault for not implementing any adjustments and that this is why it is being phased in. He believed that the increase in 1996 was not done in a way that kept pace with inflation and coats. He pointed out that the proposal allows for two transfers in 10 years. He emphasized that the mooring holders do not own the moorings, but are given a license and the privilege to use them. He stated that the proposal is a way to remedy the transfer practices that have been taking place inappropriately. He assured everyone that the City will also address fees for other users of the harbor. Motion by Mayor Pro Tern Henn, seconded by Council Member Rosanskv to a) adopt Resolution No. 2010 -132 establishing increased mooring charges for offshore and onshore mooring permits effective for the mooring permits issued in 2011, and include the statement about the price adjustment occurring on September 30, 2012; remove Lido Marina Village and include Ardell Marina and Port Calypso in the Newport Harbor Marina Index list; and amend the rate smoothing for 2011 and 2012 to 7.1% and 8.8 %, respectively; and b) introduce Ordinance No. 2010 -26 relating to Mooring Permit Transfers and Other Mooring Operations, and amend Section 5.B.3.f to delete "The boundaries of," capitalize "these," and add the word "by" after "depicted;" and add "mooring permittee's spouse..." to Section 17.60.040.E.1, and pass to second reading on December 14, 2010. The motion carried by the following roll call vote: Ayes: Council Member Selich, Council Member Rosansky, Mayor Pro Tern Henn, Mayor Curry Noes: Council Member Gardner, Council Member Daigle XVIII. MOTION FOR RECONSIDERATION - None XIX ADJOURNMENT -10:46 p.m The agenda for the Regular Meeting was posted on November 17, 2010, at 3:16 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Recording Secretary Mavor *Ii4� C) LoLe,— City Clerk Volume 59 - R