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Home My WebLink About10/09/2012 - Regular Meeting� Y 4 r ^ 6l♦Y `� City Council Minutes Regular Meeting October 9, 2012 — 7:00 p.m. I. STUDY SESSION - Cancelled II. ROLL CALL - 6:00 p.m Present.: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle III. PUBLIC COMMENTS REGARDING CLOSED SESSION Referencing Closed Session Item C (City Attorney Performance Evaluation), Jim Mosher expressed concern about the quality of legal advice the City receives, discussed the incomplete red light prohibition proposed for the Charter in Measure EE, believed that Item 4 (Prevailing Wages) and the Charter proposal in Measure EE to prohibit class action lawsuits may have legal and financial ramifications for the City, and noted that Measure EE does not have a severability clause. IV. CLOSED SESSION - 6:05 p.m. A. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Government Code § 54956.9(a)): 1 matter Banning Ranch Conservancy u. City of Newport Beach, et. al. Orange County Superior Court Case No. 30- 2010 - 00365758 California Court of Appeal Case No. G045622 B. CONFERENCE WITH LABOR NEGOTIATORS(Government Code § 54957.6): Agency Designated Representatives: Dave Kiff, City Manager and Terri Cassidy, Deputy City Manager /Human Resources Director, Negotiators. Employee Organizations: All Labor Associations: Association of Newport Beach Ocean Lifeguards (ANBOL); Newport Beach City Employees Association (NBCEA); Newport Beach Employees League (ABEL); Newport Beach Firefighters Association (NBFA); Newport Beach Fire Management Association (NBFMA); Lifeguard Management Association (NBLMA); Newport Beach Part Time Unit (UPEC, Local 777); Newport Beach Police Association (NBPA); Newport Beach Police Management Association (NBPMA); Newport Beach Professional and Technical Association (NBPTEA). C. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code § 54957): Title: Aaron C. Harp, City Attorney Volume 60 - Page 612 City of Newport Beach City Council Minutes October 9, 2012 III. RECESS IV. RECONVENED AT 7:00 P.M. FOR REGULAR MEETING V. ROLL CALL Present: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle VI. CLOSED SESSION REPORT - City Attorney Harp reported that there were no reportable actions taken VII. PLEDGE OF ALLEGIANCE - Council Member Daigle VIII. INVOCATION - Melinda Blackman, Harbor Christian Church IX. PRESENTATIONS Presentation of Donation Check from the Friends of the Library for $187,000 - Library Services Director Cowell reviewed how the donation will be used and Wendy Frankel, Volunteer Coordinator for the Friends of the Library Bookstore, presented the $187,000 check to Mayor Gardner. Proclamation to recognizing Dean O'Malley and JetLev Southwest for setting a new world record by flying a JetLev /Jetpack from the City of Newport Beach to Avalon on Catalina Island - Mayor Gardner read the proclamation and presented it to Dean O'Malley. Mr. O'Malley thanked the City and discussed the connection between his flight and the historic. water -to -water flight by Glen Martin 100 years ago. 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) Council Member Hill invited everyone to attend the Annual Fire and Lifeguard Appreciation Beach Party on October 11 at the Newport Dunes at 6:00 p.m. and to the Annual Economic Forecast for 2013 hosted by the Newport Beach Chamber of Commerce on October 19 at 7:30 a.m. at the Newport Marriott Hotel and Spa. Council Member Henn invited everyone to attend the Balboa Beach Music Fest from noon to 10:00 p.m. at Peninsula Park. He also announced that he attended Public Safety Day on October 6. Council Member Selich announced that the architect of the Newport Beach Civic Center Project, Peter Bohlin, will be discussing his design and vision for the future on October 22 at the Central Library at 7:00 p.m. Mayor Gardner invited everyone to Paddle with the Mayor on October 13 at 9:00 a.m., leaving out of China Cove. She also announced that the installation of Sharrows will begin the last week of October. Volume 60 - Page 613 City of Newport Beach City Council Minutes October 9, 2012 XII. CONSENT CALENDAR A. READING OF MINUTESIORDINANCES AND RESOLUTIONS 2. READING OF ORDINANCES AND RESOLUTIONS. Waive reading in full of all ordinances and resolutions under consideration, and direct the City Clerk to read by title only. . B. ORDINANCE FOR ADOPTION 3. SECOND READING - REPEALING SECTION 9.04.060 OF THE NEWPORT BEACH MUNICIPAL CODE AND ADOPTING A NEW SECTION 9.04.060 OF TITLE 9, CHAPTER 9.04, TO REMOVE SECTION 610 BREATHING AIR REPLENISHMENT SYSTEMS (BARS). [100 -2012] Conduct second reading and adopt Ordinance No. 2012 -21 repealing Section 9.04.060 of the Newport Beach Municipal Code and adopting a new Section 9.04.060 of Title 9, Chapter 9.04, to remove Section 610 Breathing Air Replenishment Systems (BARS). D. CONTRACTS AND AGREEMENTS 5. NEWPORT BEACH CIVIC CENTER AND PARK PROJECT - APPROVE PURCHASE OF FF &E FOR LIBRARY EXPANSION (MILLWORK, ANCILLARY FURNITURE, CEILING FABRIC AND DESK CARREL LIGHTING AND POWER FIXTURES) (C-45 27). [381100 -2012] a) Approve the purchase of millwork furniture from Montbleau and Associates, Inc. for a not -to- exceed price of $210,916.00; purchase of ancillary furniture from Pivot Interiors, Inc. for a not -to- exceed price of $223,189.61; purchase of fabric ceiling from Preferred Ceilings for a not -to- exceed price of $15,890.00; purchase of library carrel lighting and power fixtures from Rosendin Electric for a not -to- exceed price of $50,525.00; and authorize the City Manager to execute the purchase agreements with Montbleau and Associates, Inc., Pivot Interiors. Inc., Preferred Ceilings, and Rosendin Electric in a form reviewed and approved by the City Attorney. The total cost for these purchases for the Library Addition to the new Civic Center is $500,520.61, including applicable sales tax; b) establish a budget of approximately 5% of the FF &E total agreements ($25,000) as FF &E contingency for unforeseen costs and authorize the City Manager to execute amendments as needed to complete the purchase FF &E for the Library Expansion project; and c) approve Budget Amendment No. 13BA -017 appropriating $525,520.61 from the FY 2013 Major Facilities fund balance reserves to Account No. 7410- C1002033 to fund the purchase of millwork, ancillary furniture, fabric ceiling, and lighting and power fixtures for the Library Expansion. 6. 2012 -2013 CITYWIDE SLURRY SEAL - NOTICE OF COMPLETION AND ACCEPTANCE OF CONTRACT NO. 5087. [381100 -2012] 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 65 days after the Notice of Completion has been recorded in accordance with the applicable portions of the Civil Code; and c) release the Faithful Performance Bond one year after Council acceptance. E. MISCELLANEOUS 8. PLANNING COMMISSION AGENDA REPORT FOR OCTOBER 4, 2012. [100 -2012] Volume 60 - Page 614 City of Newport Beach City Council Minutes October 9, 2012 Receive and file. 9. BUDGET AMENDMENT TO ACCEPT A CHECK FROM THE FRIENDS OF THE NEWPORT BEACH LIBRARY AND APPROPRIATE FUNDS TO THE LIBRARY'S FISCAL YEAR 2012 /2013 MAINTENANCE AND OPERATION BUDGET. [100 -20121 Approve Budget Amendment No. 13BA -015 to increase revenue estimates by $187,000 in Account 4091 -5892 (Friends of the Library Donations) and to increase expenditure estimates by the same amount in Division 4091 (Friends of the Library) and Division 4060 (Literacy Services). 11. 2013 NEWPORT BEACH RESTAURANT WEEK MARKETING PROFESSIONAL SERVICES AGREEMENT (C- 5257). 1381100 -20121 Approve and authorize the Mayor and City Clerk to sign the January 2013 Restaurant Week Professional Services Agreement between the City of Newport Beach and California Marketing Concepts, Inc, (CMC, Inc.). 12. AMEND AND RE- AFFIRM COUNCIL INVESTMENT POLICY (F -1). [10020121 Adopt Resolution No. 2012 -90, approving amendments to, and reaffirming Council Policy (F -1) Statement of Investment Policy, as amended. (Mayor Pro Tem Curry abstained on this item) 13. RESPONSE TO THE ORANGE COUNTY GRAND JURY -,,ELDER ABUSE: THE PERFECT STORM ". [100 -20121 Authorize the Mayor to send a response to the Presiding Judge of the Superior Court. Motion by Mayor Pro Tem Curry, seconded by Council Member Rosansky to approve the Consent Calendar, except for the items removed (1, 4, 7 and 10; and noting Mayor Pro Tem Curry's abstention on Item 12). The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle XIII. ITEMS REMOVED FROM THE CONSENT CALENDAR 1. MINUTES FOR THE SEPTEMBER 12, 2012 SPECIAL MEETING AND THE SEPTEMBER 25, 2012 STUDY SESSION AND REGULAR MEETING. [100 -20121 Jim Mosher referenced the September 25 minutes, page 609, and requested that the City Council direct the City Clerk to rearrange paragraphs that are out of order. Motion by Mayor Pro Tem Curry, seconded by Council Member Rosansky to waive reading of subject minutes, approve as amended, and order filed. Mayor Pro Tem Curry indicated that his motion does not include the request by Mr. Mosher to rearrange paragraphs. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle Volume 60 - Page 615 City of Newport Beach City Council Minutes October 9, 2012 4. PREVAILING WAGE EXEMPTION. [100 -2012) Council Member Henn expressed concern with continuing the item indefinitely and suggested continuing the item to the second Council meeting in January 2013. Motion by Council Member Henn, seconded by Council Member Rosansky to continue the item to the January 22, 2013 Council meeting. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle 7. ACQUISITION OF NON - CONFORMING INDUSTRIAL PROPERTY LOCATED AT 1499 MONROVIA AVENUE, NEWPORT BEACH, CALIFORNIA (C-5256).[38/100-20121 Jim Mosher believed that the reason for buying the property is to connect 15th Street to the proposed Banning Ranch property, and that the Banning .Ranch developers should be paying for some of the purchase and providing land for a new community center. He requested that Council reconsider the purchase. Robert Hawkins, former Planning Commissioner, discussed the history of the property, believed that the City should not be spending this money and should have done an environmental review, discussed what is involved with eminent domain, and requested that the City Council not purchase the property. Motion by Council Member Rosanskv, seconded by Council Member Henn to a) authorize the City Manager to execute a purchase and sale agreement, in a form substantially similar to the document attached to the staff report, and all associated documents, with Ken Kaplan to acquire the property for a purchase price of $4.3 million; and b) approve the interfund transfer budget amendment (Budget Amendment No. 13BA -014) in the amount of $4.3 million to the West Newport Capital Projects Fund, from the Facilities Replacement Fund, to fund the acquisition of the property. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tom Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle 10. RESPONSE TO THE ORANGE COUNTY GRAND JURY - 'TRANSPARENCY BREAKING UP COMPENSATION FOG - BUT WHY HIDE PENSION COSTST' [100 -2012) Jim Mosher believed that the public cannot determine how much current and past Council Members are costing the taxpayers and that Council Members should not be receiving compensation pursuant to the City Charter. He stated that staff believes that the IRS requires that health and pension benefits be provided to Council, but expressed the opinion that this does not follow the Charter. He believed that there are ways to change the Charter to retain its intent and not violate any IRS provisions, and took issue with how Council compensation is being proposed in Measure EE. He noted that there are no contracts with Council Members so it is hard to determine what Council is entitled to. He stated that the original Charter was written by citizens, not Council Members. Robert Hawkins provided a handout, took issue with Measure EE as it relates to compensation, discussed the City Clerk's request for them to amend their rebuttal to the direct argument, Volume 60 - Page 616 City of Newport Beach City Council Minutes October 9, 2012 believed that the amount of Council compensation is not transparent, and encouraged voters to vote no on Measure EE. In response to Mayor Pro Tem Curry's questions regarding Measure EE, City Attorney Harp confirmed that if Measure EE passes, it will not increase any Council Member's compensation from what they are receiving today; does not change the medical benefits or retirement formula for Council Members since they are considered employees under the IRS Rules and are required to participate in the retirement system and are entitled to the medical benefits. Further, the Charter section related to pensions is under a different section than is referenced by the opponents of Measure EE. Motion by Mavor Pro Tern Curry, seconded by Council Member Rosanskv to authorize the Mayor to send a response to the Presiding Judge of the Superior Court. Council Member Daigle commended the City for its progress relative to pension reform. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tern Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle XIV. PUBLIC COMMENTS Jim Mosher believed that the dialogue during Item 10 between Mayor Pro Tern Curry and City Attorney Harp was inappropriate. He referenced proposed Ordinance No. 2012 -22, paragraph 5 of the amended California Public Employees Retirement System (PERS) contract, which was discussed at the September 11, 2012 . Council meeting, and suggested adding Council Members to the list of excluded employee groups. George Schroeder, Speak Up Newport (www.speakupnewport.org), invited the public to attend their October 10 meeting at 6:00 p.m. where they will be discussing cycling in the City. He stated that speakers will include Citizens Bicycle Safety Committee Member Tony Petros and Police Chief Jay Johnson. Kimberly Mimms stated that she is speaking on behalf of students and teachers against bullying, relayed her daughter's story, encouraged people to watch the Bullying Warrior video on YouTube, and discussed the effort to create a bill into law. Ron Hendrickson thanked staff for placing election information on the City's homepage. He indicated that he opposes Measure EE, took issue with there only being one yes /no question for all of the proposed Charter amendments, and expressed opposition to the red light camera prohibition being added to the proposed amendments. He believed that the City's audit does not need to be published in its entirety; however, if it is required to be published, the City has not been following the Charter. Novell Hendrickson took issue with only having one yes /no question to vote on relative to Measure EE, similar to the Charter amendments presented in 2010. She discussed the July 10 Study Session and Council meeting about the Charter amendments, believed that citizen participation was hindered, and expressed opposition to the red light prohibition. She stated that she will be voting no on Measure EE. Robert Hawkins provided handouts relative to the Ardon u. the City of Los Angeles case and expressed opposition to prohibiting class action lawsuits as proposed in Measure EE. He encouraged voters to vote no on Measure EE (www.no2measureee.com). In response to Council Member Daigle's questions, City Attorney Harp clarified that individuals and small groups of individuals may file claims against the City. He stated that the proposed Charter Volume 60 - Page 617 City of Newport Beach City Council Minutes October 9, 2012 section prohibits lawyers from bringing forward claims in order to cause the City to incur attorney fees for themselves without allowing the real victims from receiving any benefit. Mayor Pro Tem Curry requested and received confirmation from City Attorney Harp that the annual financial statement (Comprehensive Annual Financial Report [CAP'R]) is required to be published and is over 200 pages. City Clerk Brown indicated that the Daily Pilot estimated that it would cost between $13,000 to $18,000 to publish the annual financial statement in its entirety for a single day. XV. ORAL REPORTS FROM CITY COUNCIL ON COMMITTEE ACTIVITIES Mayor Pro Tem Curry indicated that he spoke with San Diego Mayor Jerry Sanders at a recent Association of Orange County Cities meeting and was inspired by what San Diego is doing relative to pension reform. Council Member Daigle noted that she serves as a Trustee on the Orange County Vector Control and reported that they are actively spraying for the West Nile virus in Big Canyon Creek. She also provided the City with a DVD about actions residents can take to reduce their risk for contracting the West Nile virus. XVI. PUBLIC HEARING 14. ANNUAL REVIEW OF ZONING IMPLEMENTATION AND PUBLIC BENEFIT AGREEMENT FOR SOBER LIVING BY THE SEA, INC. (SLBTS) (PA2010 -150) - 505 29TH ST., 112 40TH ST. UNITS A AND B (CLOSED), 126 44TH STREET UNITS A AND B, 5004 NEPTUNE AVE. UNITS A AND B, 5101 RIVER AVE. UNIT B, 3980 SEASHORE DR., 4711 AND 4711% SEASHORE DR., 4500 -4504 SEASHORE DR. (CLOSED), 4800 SEASHORE DR. UNITS A AND B, 6111 SEASHORE DR., 6110 W. OCEAN FRONT, 4138 PATRICE RD., AND 2811 VILLA WAY (C- 4145). [381100 -20121 Assistant Planner Whelan provided a PowerPoint presentation that displayed Sober Living by the Sea (SLBTS) facilities; discussed compliance review, code enforcement inspections, and inspection results; highlighted various complaints received by the City; and the City's conclusions and recommendations. She reported that the City received correspondence today which believes that SLBTS opened another facility at 3206 and 3206'/2 Balboa Boulevard. However, she indicated that there is no evidence that the facility is related to SLBTS. She added that the addresses are on the City's website of facilities, but under a different operator. She noted that SLBTS staff is in the audience to answer any questions. City Manager Kiff added that 3206 and 3206Y2 Balboa Boulevard is unlicensed but has received reasonable accommodation. Mayor Gardner opened the public hearing. Laura Curran discussed the agreement and use permit process, and requested that this process be extended to all of the integral facilities in the City, like the Miramar facilities at 403 and 403'/2 Dahlia. Hearing no further testimony, Mayor Gardner closed the public hearing. Motion by Mayor Pro Tem Curry, seconded by Council Member Henn to a) find that SLBTS has demonstrated good faith compliance with the terms of the 'Zoning Implementation and Benefit Agreement; and b) receive and file documents submitted by SLBTS to demonstrate good faith compliance with the terms of the Zoning Implementation and Public Benefit Agreement. Volume 60 - Page 618 City of Newport Beach City Council Minutes October 9, 2012 The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle XVII. CONTINUED BUSINESS 15. COMMERCI -AL LEASE TEMPLATE: MARINA INDEX, [100 -2012] Mayor Gardner stated that, due to scheduling issues, she is recommending holding the special meeting at 4:00 p.m. on October 23, before the regular meeting. Motion by Council Member Rosansky, seconded by Council Member Henn to continue the item to a Special Meeting to be held on Tuesday, October 23, 2012, at 4:00 p.m. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle XVIII. CURRENT BUSINESS 16. OCTOBER 28, 2012 MEMORIAL BIKE RIDE, WAIVER OF FEES, BIKE SAFETY IMPROVEMENT FUND (BSIF). [100 -2012] City Manager Kiff provided the staff report and highlighted the recommendations Cameron Phillips, Team Simple Green /Bike Religion Bike Club, stated that he is looking forward to being part of the Memorial Ride and for any cycling efforts done by the City in the future. Laura Curran commended the City for creating the fund but believed that the $450,000 should be the beginning of the efforts. She suggested dedicating money towards improving infrastructure for pedestrians and cyclists. Jim Mosher referenced Charter Section 1113 which allows the City to create special capital improvement funds. In response to Mayor Pro Tem Curry's question, City Attorney Harp confirmed that the City is required to publish the annual financial statement (Charter Section 1116). April Morris, Memorial Ride organizer, reported that they have already collected $18,720 and expressed appreciation to the City for their assistance and matching fund recommendation. In response to Council questions, Ms. Morris reported that volunteers can collect cash donations at the event, raffle prizes will be given out at a separate event after the bicycle ride, families and children will start the ride, and the ride will only have right turns. She added that donations can be made at www .newportbeachmemorialride.com, as well as purchases of Share the Road shirts ($15) and bracelets ($I). Motion by Council Member Hill, seconded by Council Member Daigle to a) authorize a match of City resources at a proposed 3:1 ratio for all funds raised from community fundraising efforts for bicycle safety that occur prior to December 31, 2012 (The 3:1 match means that for every dollar raised by the community, the City will match three additional dollars in bike safety project expenditures and fee waivers, with a cap or $450,000 for the City's contribution. The Volume 60 - Page 619 City of Newport Beach City Council Minutes October 9, 2012 City's match may include competitive grant awards from sources such as Measure M.); b) authorize the City to act as a sponsor of the event, approve a fee waiver, and a City commitment to cover the cost of the special event insurance for the memorial bike ride fundraiser on October 28, 2012, with a not -to- exceed amount of $10,000 included within the City's matching contribution; and c) direct Public Works staff to develop a Resource Plan for the implementation of bicycle safety improvement fund projects that will be funded by community funding efforts and any City matching expenditure that is approved. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle XIX. MOTION FOR RECONSIDERATION - None XX. ADJOURNMENT - Adjourned at 8:17 p.m. in memory of former children's television host "Sheriff' John Rovick The agenda for the Regular Meeting was posted on October 4, 2012, at 4:10 p.m- on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. a' t Recording Secretary Mayor i 4r, City Clerk Volume 60 - Page 620