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HomeMy WebLinkAbout0 - Public CommentsA:ar , V4pv��vt� �6MMWl Ts Comments on January 22, 2013 City CouncH Agendas Items Comments by: Jim Mosher ( jimmosher(a)vahoo.com ), 2210 Private Road, NB 92660 (949- 548 -6229) REGULAR MEETING Item 1. Minutes for the January 8 and 12, 2013 Meetings Corrections to the passages highlighted in italics are suggested as indicated: Page 3 of Volume 61: (first paragraph under XIII): "...the Regional Draining Dredging Permit and the ee /grass issue." Page 6: (third paragraph): "...the reason for the proposed changes are is unclear ..." Note: later in the same paragraph, Ms. Curran asked the question of whether the proposed policy was intended to be read as permitting a total of 3 minutes of comment on all Consent Calendar items, or 3 minutes on each Consent Calendar item. If an answer was provided, it is not reflected in the draft minutes. Page 7 (first line): "... but the staff repented report was provided by staff." Page 8 (under XVI): third paragraph: ".-the Shere SHOR American Seafood Grill at the Hyatt Regency..." fourth paragraph: "Marrt-Mark Tabbert announced ..." last line of fifth paragraph: "He noted the many projects in which the City is invested in ." Page 10 (first line): "... the proposed residential units are outside the noise currents contour." Page 11: fourth full paragraph: "... it would need to go through an a Master Plan for Arterial Highways (MPAH) amendment process." sixth full paragraph: "Public Works DirectornWebb Webb reported..," Page 12 (third paragraph): "He commented on the alternate recommendations and believed they do-neat make better sense." Note: as the minutes starting on page 16 of Volume 61 indicate, they are the permanent record of the Special January 12 Goal Setting Meeting held by the Council at the OASIS Senior Center. It is difficult to check their accuracy since the audio recording of that meeting has not been posted to the City's Agendas and Minutes webpages (nor have the recordings of any previous year's goal setting sessions). Page 16: January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 2 of 9 second paragraph under 3: "the Charter still needs amending, for examp e. as it relates to using independent auditors." Note: the previous sentence, saying I did not recall that the completion of a Charter amendment process was on last year's priority list accurately reflects what I said, but my recollection was at least partially faulty. "Does the City Charter need more cleanups ?" was listed as a review item for further Council direction near the bottom of the third page of the five page "Workplan Chart for 2012 Council Priorities" (which lacks headings explaining what the columns signify) presented to the Council as part of Agenda Item 20 at its February 14, 2012 meeting. final paragraph: My guess is that the percentage figures quoted are intended to indicate how the current levels compare to the levels a year ago, rather than to earlier projections of what they would be now. Page 18 (first long paragraph): "... the list of projects it will have in Newport Beach ..." Page 20 (second paragraph): "Mayor Pro Tern Hill suggested looking at parking on a district wide basis, not per location." Page 21 (fifth paragraph): "...should leek have looked at the West Newport median issue ... Item 3. Traffic Signal Rehabilitation Project — Completion and Acceptance of Contract No. 4841 I would like to thank City staff for its continuing efforts to upgrade pedestrian crossings to "count -down heads," which I believe are an important safety innovation and seem a good use of tax dollars, and which seem to have been a part of this contract per the map on the final page of the staff report. It is also good to see the bid items were provided at the agreed -to contract price of $547,050, albeit taking two months longer than promised (for which the contract appears to have provided no penalty). However, some of the $50,569.65 in change orders above that amount would seem like they should have been included in the agreed -to price. From page 33 of the 151 page PDF contract file posted to the City's "Alchemy" database, the $547,050 was mutually understood to include "Any loss or damage arising from the nature of the work" and "Any loss or damage arising from any unforeseen difficulties or obstructions in the performance of the work." I would have naively thought that such things as the need "to remove conflicting abandoned underground utilities" would have been among the "unforeseen difficulties or obstructions" included in the original bid and award. In addition, in the listing of change orders, it is unclear from the staff report if such items as the extra $30,882.58 given the contractor to "replace damaged conduit" was to repair existing damage or damage caused by the contractor, or exactly what the City's responsibility for that conduit may have been (that is, was it part of the project, or related to some other, possibly privately owned, utility). January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 3 of 9 Item 4. Approval of Amendment No. 1 to On -Call Professional Services Agreement with TCLA, Inc. and David A. Pederson I don't think it's wise for the City to be entering into so many "on- call" contacts, particularly of this magnitude. They seem the equivalent of handing City employees a credit card or blank check to pay for items that otherwise would have required justification and scrutiny through the normal contracting by job process. The Council's Policy F -14 authorizes the City Manager and Department Directors "to enter into on -call agreements for obtaining services on an as needed basis, including, but not limited 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." From page A -4 of staff's own Administrative Procedure AP -001 (implementing Council Policy F- 14): On -Call Agreements: These agreements are typically for 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. For example, an On -Call Agreement may be used to contract with an electrician who may be called on to perform minor electrical repair work on an as- needed basis. On -Call Agreements may not extend longer than two (2) years. It is unclear from the present staff report that the two captioned contracts for vaguely defined "assistance for landscape architecture services," now totally $250,000 per year ($125,000 per year to each firm), actually involve requests for services in any way comparable to "minor electrical repair "jobs too small to contract for separately. This abuse of the on -call contracting authority is particularly rampant in the City Attorney's office, where in addition under Policy F -14 there is no dollar limit and contracts exceeding $120,000 need be reported to the Council only quarterly (a promise which may or may not be being kept). The vast majority of contracts let by the City Attorney's office appear to be for undefined services in the "on- call" form with no time or dollar limit of any kind. Since staff does not (at least publicly) present "warrants' to the Council for approval, the net effect is that the public has no idea what outside entities are actually being paid, and for what. Item 5. Amendment to Agreement with Valley Soil, Inc. It is laudable that the City is promoting water conservation, and perhaps also suitable that tax dollars should be funding this initiative, although one might think conservation could be successfully promoted without government intervention through the cost benefits resulting from reduced water use. At the same time, this program has the potential to be a considerable windfall for Valley Soil, with a projected $1,230,000 of public funds being funneled through them. One might January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 4 of 9 reasonably wonder how much profit the contractor expects to make providing this service to taxpayers, a topic not touched on, as best I can tell, in the present staff report. I also find it unclear from the present staff report if the program is being offered only to residents of Newport Coast, as the maps would suggest, and how that reconciles with the reference to Big Canyon in the next to final sentence under "Discussion" on page 2. With regard to the grant money, which is, of course, also public funds, if I recall correctly (which I may not), the Council approved the concept of applying for the grants without actually reviewing the details of the grant applications that would be submitted. Item 6. Planning Commission Agenda January 17, 2013 I agree with Councilmember Gardner's suggestion at the January 12 Goal Setting Session that it would helpful for the Council and public to see summary minutes not just of the Planning Commission, but of all Council- appointed citizen's groups that have met since the Council's last meeting, especially those whose meetings were not attended by Council members and whose activities they would not expect to hear about in the "Oral Reports" item on the agenda. Item 7. Funds for Records Management- Building Deposit Account The effort to convert building permit records to a form readily accessible to the public on -line seems commendable (although ironically somewhat at odds for the justification for needing a new City Hall, which, if I recall correctly, was in part predicated on staff being squeezed out by the space required to store what I assume are these very records). What is puzzling to me, is the characterization of the source of the funds as an "increased revenue estimate." To the extent I understand the very cryptic report, it seems to be a simple transfer. Or is staff proposing increasing permitting fees to cover the costs of digitization? Item 8. Amended (Employment Agreement for City Attorney Since R. Craig Scott prepared the original contract, it would seem prudent to have chosen a different outside attorney to review and recommend changes to it. The original choice of R. Craig Scott seemed problematic, since media reports indicated he was first Councilmember in Laguna Hills ever to be defeated by a challenger, the campaign against him reportedly being based largely on suspicions regarding Mr. Scott's role in negotiating contracts with the Laguna Hills City Manager, whose total compensation of, according to the media, $460,809 was the highest in Orange County despite Laguna Hills being one of the smallest cities. The indefinite term structure Mr. Scott recommended for Newport Beach executive management contracts also seemed at odds with the findings of the 2010/2011 Orange County Grand Jury's Compensation Study of Orange County Cities, which observed with favor (page 19) that "None January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 5 of 9 have a lifetime commitment or terms over three years or automatic renewal for numerous years." The current report is also deficient in not adequately explaining the reasons for the proposed 3% increase in base salary or why it is being made retroactive to September 6, 2012. The Abstract to the staff report says "The City Council recently completed an evaluation of the City Attorney's performance and has assessed this in accordance with stated goals and objectives outlined upon hire." However, since most of that is conducted behind closed doors (and was done so illegally before the City Charter was recently amended to allow closed sessions), the public does not know what those goals and objectives may have been, and whether they were met or exceeded. That is, is 3% more than it might have been in recognition of unexpectedly exceptional service? Or less than it might have been if more progress had been made towards achieving the goals? Beyond this, the explanation of why Mr. Scott is now recommending replacing the lifetime arrangement, which he himself originally instituted, with a two -year "evergreen" term seems wanting. Government Code Section 53260(a), cited as the reason in the report, already contains a clause saying "if the unexpired term of the contract is greater than 18 months, the maximum cash settlement shall be an amount equal to the monthly salary of the employee multiplied by 18," so it does not seem to be the reason; and if it were, it is unclear why our City Attorney did not recommend removing the indefinite term from the City Manager and City Clerk agreements last fall, since the same code was in effect then. Do those contracts also have to be amended (again) now? With regard to the "one -time merit payment" which effectively makes the raise retroactive to September 6, 2012, the same comment applies as was made with respect to similar provisions made in the recent amendments to the City Manager and City Clerk agreements submitted to the Council by Mr. Harp on November 13, 2012: absent a provision in the original contract concerning an obligation, or even the possibility of paying a bonus for achieving, or exceeding, quantifiable goals, such a payment would appear to run afoul of Article 11, Sec. 10(a) of the California Constitution: "A local government body may not grant extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or pay a claim under an agreement made without authority of law." When he was hired, Mr. Harp agreed to provide his services for a fixed fee. If the "merit payment" is indeed a bonus for a past job well done, then it appears to me to be a questionable gift of public funds. As to eligibility for future "merit payments," I can find nothing in the proposed contract that would hint at anything triggering such an obligation, or even possibility. Section 3.13 remains disturbingly vague as to whether the Council has any obligation to set performance goals. As also noted in my written comments regarding the amended employment agreements for the City Manager and City Clerk, those contracts, as does the current one and the current staff report, refer to "the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan')," but the Key and Management Compensation Plan adopted by Council at its December 14, 2010 meeting was only effective from July 1, 2010 through June 30, 2012 and does not seem to have been replaced, so it appears Newport Beach has no current January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 6 of 9 Key and Management Compensation Plan. Likewise, it is unclear the Council has exercised its responsibility under Section 3.A of the contract to publicly adopt a resolution setting the City Attorney's annual base salary. Item 9. Bike Safety Improvement Fund: Term Extension and Project Authorization Given that the City's contribution can come from anywhere, including outside grants, the idea of the "3:1" match seems, to me, at most a mechanism for committing public funds to bike safety improvements: a cursory review of the proposed projects suggests that far more than the maximum "committed" fund balance would be needed to implement them. The recommended action of committing the City, without further explanation or thought, to all the projects listed in Exhibit A (far exceeding the expected fund balance), seems poor planning to me, especially with the several "TBD "'s for cost and completion date, as well as the many (on the last two pages) with no costs at all given. Item 11. Amendment to Newport Beach Municipal Code and Master Fee Resolution Related to Commercial and Non - Commercial Tidelands Uses As seems customary with Newport Beach city documents, the present staff report is muddled and confusing, including, among other things, a failure to clearly identify the three attachments listed on page 3, compounded by use of the Council's newly granted power (via Measure EE) to amend less than a full section of the Municipal Code. The statement on page 2 that "A complete list of the redline revisions is included in Attachment "A" andAttachment "C"." appears to be incorrect as I am unable to detect any redlining in Attachment A, nor are the proposed changes to the Master Fee Schedule illustrated anywhere I am able to see. Apparently "Attachment A," the proposed Ordinance 2013 -1, is ( "handwritten ") pages 4 -15; "Attachment B," the proposed Resolution 2013 -5 is pages 16 -17; and the remainder (which looks like an attachment to the resolution) is "Attachment C" and consists of pages 5 -15 (which are sometimes sections and sometimes snippets of NBMC sections) repeated in redline format. Do the words "Non- Commercial Implementation" tacked onto the end of the staff report title imply further ordinances and resolutions may be required in connection with commercial marinas? In the Abstract, the continuing reference to California Constitution Article 16, Section 6 (the prohibition against making gifts of public funds) continues to be interesting, since I thought the City Attorney had assured us it doesn't apply to Newport Beach, although perhaps it does when we are acting as agents on behalf of the state? The complete elimination of the $100 annual residential pier inspection fee currently required by NBMC Section 17.60.030.B.1, mentioned as Item 4 on page 2 of the staff report, is also interesting. Since non - commercial piers "located on private property, on a dedicated channel, January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 7 of 9 or County tide and submerged lands" (such as Councilmember Selich's) will no longer be charged, does this mean we have been charging for a service that was unnecessary or not actually provided? Some more or less random comments on this complex set of proposed changes, many of which are difficult to understand out of the larger context of the sections and chapters in which they occu r: o In the final "whereas" on handwritten page 4 it seems odd to omit the December 11, 2012 City Council hearing and which some of the present scheme was approved. o The proposed modification to Exhibit A of NBMC Section 03.36.030 to a establish a fixed dollar amount appeal fee appears to be inconsistent with the remainder of that Section as enacted by prior Councils, unless further changes were to be made. • Section 3.36.030 is entitled "Cost Recovery Percentages." • Subsection 03.36.030.13 explicitly states that "The fee or charge shall be based upon the actual cost of providing the user service, multiplied by the relevant cost recovery percentage." • Likewise Subsection 03.36.030.D says: "The City Council may modify the municipal functions determined to be user services in the fee resolution and the cost recovery percentage for any service only by amending this chapter." • These subsections do not anticipate, and are inconsistent with — indeed the entire existing fee structure is inconsistent with -- the idea that Exhibit A will contain anything other than a percentage figure. • In my view, staff should have, as with all other fees, come up with a percentage of actual costs to recover that arrives at the approximate desired dollar amount when figured using the current cost. Like are other fees, it will then automatically adjust in the future, which is the entire idea of the table. In addition, it should be noted that the proposed $100 result is much higher than the 0% recovery specified for Parking and Administrative Citation Hearings (if those are not misprints ?), but extremely small compared to the appeals to the City Council and Planning Commission, which when figured at 50% recovery, are claimed to cost many thousands of dollars. U The proposed modification to "Subsection 17.01.030(A) Definition of Terms" seems incomplete since that section consists of numbered items and there is no indication of how the addition is proposed to be numbered. I am guessing it would be "2" and the remaining items would be re- numbered? o "abutting(s) uplands property" at the start of the first full sentences seems to be a misprint for "abutting upland(s) property' January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 8 of 9 • It is unclear if "held in fee or by lease" is intended to apply only to a private owner. • It is unclear if the proposed language is to be read in conjunction with the definition elsewhere of "upland," of if "adjacent bordering property" is intended as a separate definition of "upland." o The final part of the long sentence appears (probably inadvertently) to be trying to include in the definition the property abutting the property abutting the public walkway. o This seems like a case of trying to precisely define something that would have been adequately understood without definition, and in the process creating new and unintended confusion. A comprehensive review of the definitions would probably reveal others that need revision. For example, "Upland" is the land adjacent to the water, not to the sandy intertidal zone ( "tidelands "), which seems different from the intended "precise" definition. In the proposed revision of Section 17.60.080 (Appeal), the idea that the appeal fee will be refunded if the appeal is successful sounds like a use one, but I believe it is inconsistent with the way other appeals processes in the City work (where, in consideration of the cost recovery mentality, no refund is offered, regardless of the outcome). o In proposed Subsection 17.60.080. F, it is unclear to me what "the findings prescribed in this chapter, " that the Hearing Officer is compelled to make, might be. a Although not a new problem with the NBMC, I find odd the final sentence of the proposed Subsection 17.70.020 (under "Revocation of Permit") which says: "The decision of the Harbor Commission shall be final, " followed by Subsections 17.70.020.D and E, both of which appear to refer to a right to appeal that decision. Item 12. Resolution No. 2013 -6: Prevailing Wages I previously submitted written comments on this item when it was before the City Council as Item 4 on its October 9, 2012 agenda. I found helpful the new reference to the California Appeals Court case of Vial v. City of San Diego (1981) 122 Cal.App.3d 346, in which a resolution passed by a charter city was found sufficient to displace the statewide statute on prevailing wages. It would have seemed helpful to also provide a direct reference to the more recent California Supreme Court case of State Building and Construction Trade Council of California, AFL -CIO v. City of Vista (2012) 54 Cal.4th 547, which is referred to throughout the staff report, and in the resolution, but without ever mentioning the name by which the public can look it up and read it. January 22, 2013 Regular Meeting agenda comments by Jim Mosher Page 9 of 9 Although the very brief Vial decision seems to be noted with favor by the majority in the Vista opinion, it might be noted that in 1981 three of our seven California Supreme Court justices thought that decision should be reviewed; and two of the current justices filed spirited dissents to their colleague's reasoning in the Vista decision. The staff report also seems to take out of context the Supreme Court's requirement of finding "an "actual conflict" between state law and charter city law" (the heading of their Section D.2) before a decision as to the precedence of one over the other has to even be addressed. As previously noted, although with respect to municipal affairs a charter city's laws can displace the legislature's statewide laws, the Vista Court explicitly found that "the state's prevailing wage law does not exempt charter cities" (page 560). That is, in the absence of conflicting enactments of its own, a charter city cannot simply ignore state law. At least to me, a resolution is not a "law": it is not adopted, nor recorded, with the same level of notice, scrutiny and formality as an ordinance. I would think that if the City Council wants to go down this path of exempting its locally- funded public works projects from statewide legislatively- mandated prevailing wage requirements, it should take the time to enact an actual law to that effect so that there would be no possible question of its precedence and of its having been subjected to full public scrutiny. As to staff's assertion on page 2 of the staff report that even a resolution is more than necessary, and that "the City may exempt itself from the payment of prevailing wage through the insertion of language into individual contracts, "I find that a doubtful and imprudent course. If the City were to assure contractors this was sufficient, as we recently did with a major landscaping project, and it turned out to be insufficient, then it seems quite possible Newport Beach taxpayers might find themselves liable for making up the difference between the wages allowed by the contract and those required by state law. Assuming the Council will choose not to enact an ordinance, it might be noted there is a typo in the third "whereas" of the proposed resolution, which is presumably intended to read either: "... therefore a charter city's prohibitions on the payment of prevailing wage supersede state law ... or: "... therefore a charter city's prohibition on the payment of prevailing wage supersedes state law ..." Items 13 -19 Due to the Council's new requirement that written comments must be submitted by 5:00 pm on the Monday preceding the meeting, I did not have time to comment in writing on the remaining agenda items, nor to proofread the above comments.