Loading...
HomeMy WebLinkAbout0 - Public CommentsCVtb Z- zc� -13 Comments on February 26, 2013 Council Agenda Items The following comments on items on the February 26, 2013 Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a)yahoo.com ), 2210 Private Road, Newport Beac�_92660 (9Q 548 - 6229) -± u STUDY SESSION � i:�rs; Item No. 3. Residential Refuse Collection Request for Proicob "ti I have a number of concerns about trash service, and the desirability of out- souroitig it, whiog is m the reason for the proposed RFP. N a First, unlike in most other Orange County cities, residential refuse collection in most of Newport Beach, including where I live, continues to be regarded as an essential municipal service paid for by the basic property tax levy. It is commendable for the Council to consider if the cost of providing those core services can be reduced without reducing quality, but it is my observation that in neighboring cities where residential trash service is provided by an outside vendor it becomes regarded as a value -added service, and residents receive a separate bill for it, above and beyond their basic property tax rate, much as fire ( ?) and paramedic service in Newport Beach has become an extra charge, as has the recycling fee. In fact, in some areas recently annexed areas, such as Santa Ana Heights and the new Emerson Annex, my understanding is residents are already required to pay an extra charge on their property tax bills covering the full cost of trash collection by a private hauler, while in others, such as Newport Coast, the November 27, 2012 Study Session trash report suggests the recycling fee is absorbed in the basic property tax. My concern is that the RFP for outsourcing would be seen not as a motivation to correct existing inequities, but rather as an opportunity to morph the trash costs into an extra fee, allowing the City's share of the resident's basic tax payments to be diverted to other purposes. My second concern is about the basic honesty and reliability of the information available about trash services. The agenda lists the need to achieve 75% landfill diversion as among the motivations for the RFP. Since my sewer connection is through the Costa Mesa Sanitary District (CMSD), I occasionally attend their public Board meetings, and was surprised to learn that 83% of the solid waste in Costa Mesa is generated by commercial enterprises who are required to have private contracts for its pickup and recycling, outside the control of CMSD. That means that even if the residences served by CMSD achieved 100% diversion, that would have only a small impact on the statistic for the city as a whole. Do we know what the comparable number for Newport Beach is? And do we have a plan for reaching the 75% target for the City as whole, including the commercially produced waste? Similarly, the CMSD Board is presented each month with a "Recycling Report" detailing what is claimed to be the tons recycled by CR &R (the same vendor we use for our recycling). I was surprised to see that although the tons vary each month, the claimed percentages never vary by more than a few hundredths of a percent. It turns out this is because the percentages reported are simply a blend of two fixed "formulas ": one applied to the trash collected in Costa Mesa and Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 2 of 12 one for Santa Ana Heights. The Costa Mesa percentages were arrived at by examining the content of 5 roughly 200 -300 pound barrels of trash in 2011. The Santa Ana numbers are probably based on a similar, but even older, "study." Whether either of these fixed formulas has any relation to the percentages of recyclables actually recovered when the contents of those barrels where run through the Materials Recovery Facility is unclear. I am told that such patently false and misleading reporting is all that is required by state law, but it certainly gives the public an unreliable and highly misleading picture of what is going on. Likewise, the CMSD ratepayers, like those in Newport Beach, pay CR &R to accept their waste for recycling (apparently a little under $46.32 per ton for CNB and $52.22 per ton in the case of CMSD), yet CR &R obviously reaps a considerable return on the recyclables it recovers that may more than offset the hauling and landfill fees for the part that cannot be diverted. The economics of this operation in which the vendor is being paid at both ends are unclear to me (CR &R does not reveal to CMSD the "street value" of the imaginary tons of recyclables produced), making it unclear that Newport Beach is getting a good value. It seems entirely possible to me that when diversion rates reach 75% or higher, the recycler should be paying the City for the privilege of receiving our product, rather than the other way around. Under the RFP, will the vendor be providing just trash collection service? Or both collection and recycling? And how, in any of these scenarios, do we know taxpayers will be receiving their fair share of the revenue generated from the recyclables? My third concern is that respondents to the RFP may pursue a "divide and conquer" strategy to take over a service that has been successfully provided by municipal employees. It has never been entirely clear to me why, aside from economies of scale, if a private vendor can provide a service at a profit to them, the City should not be able to replicate that service in -house at an even lower cost (with the profit being retained by the taxpayers). Historically, it appears the City of Newport Beach has been a large enough enterprise to make in -house residential trash collection viable. If RFP respondents carve out certain areas as "easy pickings" then providing in -house service for the remaining smaller and smaller areas becomes less and less viable. Finally, if taxpayers were to accept automated pickup as a better and more cost effective service than what they have at present (and, again, something that could be provided either in- house or from outside), there seemed considerable confusion at the November 27, 2012 Study Session as to whether a two - container or three - container system is best. The latter would obviously appear to require more noisy collection trucks on City streets. If either is adopted, I believe the recycling fee currently tacked onto residents' water bills should be re- absorbed back into the basic property tax levy, for my memory is that it is being charged as an alternative to automated multi - barrel collection. REGULAR MEETNG Item No. 9. Minutes for the February 92, 2 093 Meeting The page numbers in these suggested corrections refer to Volume 61 of the draft minutes as submitted for the Council's review. Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 3 of 12 Page 47: fourth paragraph: "He indicated he doesn't know how culpable the City was in fire this regard, but if the City will take the lead, the costs need to be known and bean borne and shared by the responsible parties." fourth paragraph from end: "Jim Mosher questioned why the City owns a right -of -way and suggested throwing out Policy L -12 and &uggested extending the Newport Beach boardwalk from the Santa Ana River to the harbor entrance." Page 48: "IV. ADJOURNMENT- The Council adjourned to Closed Session at 4:37 p.m." Page 50: "Rreser+t. �ea�ac+l M.embe +- 6ar�ner- Geunsi! A4enrbe�Retaes; tUiayer Rre -Fi�nr l ifl,- Wlayea y- Fa�swei{- ati7euraher�elis��, Ceur il- Mennaer -#Mnn, Ceunoil- Menrfiea Daigle" [the roll call result is given twice] Page 51 (third full paragraph): "He reported that the U.S. Army Corps of Engineers has started a dredging project on the Semineuk Semeniuk Slough... Petros asked staff to present a report back to the Council regarding the City's ability to dredge the Newport Slough, adjacent to the 3eatinetsk Semeniuk Slough. " [despite Councilman Henn's comments at the meeting, I am uncertain about the pronunciation, but the indicated spelling is by far the most common one for this Ukrainian family name, as well as the spelling adopted in the 2006 General Plan, and by the Council's Tidelands Management Committee] Page 55 (bottom of page, under "XV. Public Comments on Non - Agenda Items "): The first speaker, under this category was Centennial Mavor Don Webb (Jr.) who explained at some length his views regardina the need to unarade the representation of the City Seal in the new Council Chambers. His remarks are missing from the draft minutes. Page 60 (third paragraph): "Staff is concerned there may be a potential of overconcentration of co- location telecomm facilities and the paepesed proposal would allow current carriers to move to the faux tree location." Page 62: In the motion just below the middle of the page, the clause "c) continue the application to March 26, 2013;. "does not make sense in view of the following paragraph in which that date was offered as an amendment. Presumably the original motion cited a different date or the staff comments came before the motion. Also, just after the staff comments, the line saying "Maker of motion - AMENDED MOTION" may be a note someone made to themselves, inadvertently included in the draft minutes. Page 65 (second paragraph): "Mayor Curry stated that he believes Mr. McGee made a compelling case and noted that there are unpleasant options all around. He felt that the proposed one does the best job in aligning the residents ..." [ or: "... the prepesed proposal does...'] Page 66, Item 24: Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 4 of 12 The first paragraph, beginning "a? 4ppreve -the aas4ter �lae flaw,—+ �) �Jis' eet- sia�#- ta�s�efaaret��- tre�essa +'jy- eErc�€rast- dectr�efais; a+�sj -..." appears to be the agenda announcement, and is not normally included in the minutes (other than for Consent Calendar items). Was an exception made because no formal action was taken? Or was it left in inadvertently? Second paragraph from end: "Currently, the parking area is designated as commercial parking and he stated he would like for it to remain the same. " Page 67: Paragraph 7: "She felt there could be opportunities for negotiating with nearby business businesses while making a clear case this would not be public beach parking." Second paragraph from end: "In terms of chained -link barriers, he hoped that staff would find something more aesthetic than simple chained link fencing. Regarding parking, he shared the concerns of Council regarding the Coastal Commission and indicated if there is a way to structure agreements with surrounding business businesses that would be preferable.." Page 68, paragraph 3: "Relative to parking, he stated staff will do additional research and communicate with surrounding business businesses to gain a sense of their interest of entering into a potential lease agreement with the City." Item No. 3. Zoning Code Amendment Single Room Occupancy Residential Hotels and Parking for Emergency Shelters "Single Room Occupancy Residential Hotel" regulations typically apply to what were once called "flophouses" — that is, former hotels converted to permanent lodging -- in the older parts of some cities. As the Mayor pointed out, the present ordinance seems to be viewed primarily as window dressing required to qualify for state programs. However, if actually used or enforced I'm not sure it's been given enough thought to make it achieve its intended purpose, whatever that may be. The definition of SRO's, for example, is quite confusing and may both include properties to which the regulations are not meant to apply, and exclude some that might be thought of as SRO's. Likewise, little thought seems to have been given to the areas of the City in which SRO's might be allowed. The unwritten intention is presumably to deny all applications for the Conditional Use Permits required to build new, or convert existing structures to this format. However, as one Planning Commissioner pointed out, if we do have an ordinance allowing SRO's, then the City may not have the latitude to deny all applications made under it. For that reason, I think more thought should be given to accurately defining the use we are trying to regulate, and the conditions under which a permit would be granted. As to the proposed ordinance itself: In Section 3 (handwritten page 6), appears to have some grammatical problems. It is probably meant to read something like: Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 5 of 12 1. The amendments to Tables 2 -4 and 2 -5 and Section 20.70.020 of Title 20 implement ... 2. The amendrnent to Table 3 -10 of Tile 20 establishes ... 3. Both amendments implement ... I also believe that, although not explained in the Statement of Facts, or Findings, the present ordinance is intended to change some (but not all) of the underlined code section references appearing on handwritten pages 7, 8, and 10 — some of which were incorrect in the comprehensive Zoning Code revision adopted in 2010— and also to make official the sub - definition numbering system (shown on handwritten pages 9 and 10) which was added by the codifying service, but not part of the original ordinance. As a trivial observation, there is a missing close -quote symbol in the second line of Section 4 (handwritten page 9), and an extraneous close -quote in the table just above that. As a slightly less trivial observation, the present staff report as distributed to the public in hard copy form on Friday has attached to it what purports to be a copy of the staff report for Item 20 on the Council's February 12, 2013 agenda. Handwritten pages 3 and 4 of that attachment are in fact from a different item dealing with lot mergers, as are the Planning Commission minutes reproduced on handwritten pages 11 -14 of the attachment. Item No. 4. Santa Ana Heights Pavement restoration The rationale behind the award of this contract is less than clear, since only the amounts bid on the "Base Bid Items" are shown, and the cost for the "Additive Bid Items" (including relocation of private improvements) provided by the non - winning bidders are not revealed. It seems possible one of them might have offered a lower overall price. Given the Study Session regarding the Mesa Drive horse trail issue, I think it would have also have been helpful to be more explicit about the private improvements in public right -of -way that are proposed to be relocated to private property as part of this project. I suspect this refers to improvements appurtenant to the relatively modest homes on the north side of the street, and not to those of the "heavy hitters" on the south. Item No. 5. replacement of the Big Canyon reservoir Floating Cover This is a very significant increase in the compensation to this consultant, including two previous amendments nearly doubling the amount originally contemplated: going from $294,706 to $566,348. The staff report confusingly includes two copies of Exhibit A -2, the first of which (assuming it is intended to be identical) is missing the fourth page. The second full paragraph on page 2 of 19) also implies that part of the increase is necessary because "During the design effort, additional services were necessary to complete the final construction documents." Assuming completion of the construction documents is what was originally contracted for, I find additional after -the- fact payments to complete that task questionable under the California Constitution. Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 6 of 12 Beyond that, before additional public funds are given to this firm, I think the public deserves some presentation regarding what they have achieved so far, why their design would be expected to last longer than the previous one, exactly why litigation is necessary to recover costs from previous contractors, and how the plan they are offering will prevent that happening again. Perhaps some of that will be clarified in the presentation for Item 14 later on the agenda (the award of the contract for the actual construction); but it would seem the two items should have been combined to allow a more comprehensive discussion and decision. Item No. 6. Approval of Agreements for the Corona Del Mar Water Transmission Main The fact that even after two previous amendments, the dollar amount for the agreement with PSOMAS has nearly been reached, suggests either that the costs necessary to deliver the services were not properly estimated, or the scope of work not properly defined, either of which might have led to the selection of a different vendor. As with the previous item, this gives the impression that staff commits the City to unrealistically small contracts at the early stages of approval, then allows scope and costs to balloon (in this case going from $302,617 expected to be needed through June 30, 2014 to $432,031 now expected for the same period). Item No. 7. Inspection Services for Newport Beach Civic Center and Park Project This again seems to be largely a request to cover increased costs associated with providing services previously contracted for ($1,309,608 for services originally expected to not exceed $865,498, and to be completed by December 31, 2012). Unless the possibility of increased payments, and the protocol for qualifying for them, was clearly spelled out in the contract; this seems a questionable practice under the California Constitution. If this contract is typical, one also has to also question the reliability of the frequent claim made last year that the Civic Center project was "on time and under budget." More generally, the staff report raises the question of who authorizes changes to the publicly - approved Civic Center design, some of which seem to have generated the extra costs the contractor is seeking compensation for. The San Miguel Drive Pedestrian Bridge was publicly approved, but how the public oversees the smaller changes is much less clear to me. Although the Council may still have a 'Building Ad Hoc Committee," I do not believe its decisions, apparently on behalf of the full Council, are ever publicly reviewed, meaning that its role is clearly more than advisory, and as such, its deliberations are being conducted, and its decisions made, in flagrant violation of the Brown Act. Item No. 9. Award of Non - Exclusive Solid Waste Collection Franchise to Ecology Auto Parts Since the ordinance granting this franchise (provided as Attachment B to the present staff report) was introduced on the Consent Calendar at the last meeting, it received little review, and continues to contain some obvious errors. Among them, Section 3.D(2) refers to reporting Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 7 of 12 requirements in Sections 4 and 6 of the attached "Agreements" [sic]. The reporting requirements actually appear to be in Sections 7 and 9 of the Agreement. The Agreement, itself, refers in Section 18.D.2 to the "City's General Services Director" — a position I think no longer exists. More substantively, according to the presentation the public heard at the November 27, 2012 Council Study Session, a major reason for considering changes to the City's public refuse collection service was the need for the hauling fleets operating within the City, both public and private, to comply with new, tougher AQMD standards. I am unable to find anything in the present Agreement explicitly alerting the franchisee to that requirement. Item No. 10. UPTOWN NEWPORT PLANNED COMMUNITY Judging from the quantity of required actions listed on the agenda (515 words taking 41 lines to list), and the size of the staff report (564 pages, not counting seven key documents omitted "due to their size and bulk'), this seems a massive amount of decision making to undertake as a single agenda item without even benefit of a study session to introduce the Council (and public) to the scope of the project, and possible issues with it. More precisely, my breakdown of the 5,093 pages of material called out for review in the staff report (those after the first two being the documents omitted "due to their size and bulk') is: Staff report: 561 Correspondence provided with staff report: 3 Draft EIR, Volume I: 608 Draft EIR, Volume II: 1590 Draft EIR, Volume 111: 1900 Final EIR: 236 Mitigation Monitoring and Report Program: 20 Land Use Development Standards & Procedures: 26 Phasing Plan: 39 Design Guidelines: 104 Site Plan: 4 Tentative Tract Map: 2 I do not find it humanly possible for the Council (and public) to have carefully reviewed and considered that volume of matter since the report was posted on Friday morning, let alone to make an intelligent decision about it four days later. Out of 5,093 pages, it seems inconceivable to me that reasonable persons would not question at least some of the facts and /or reach different conclusions from them; yet I will not be surprised to see the Council adopt this without change, suggesting to me nothing more than that it has not been subjected to adequate public review. Two of the major issues for me (having read only a tiny fraction of this) remain why more effort is not being made to have the areas near the airport area in which the City is interested in adding residential development made part of the Newport-Mesa Unified School District (it is currently in the Santa Ana Unified School District, whose only schools are far away), and why, Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 8 of 12 as a Newport Beach taxpayer I should have any interest in overriding the Airport Land Use Commission's finding of inconsistency for the project, as proposed, with the AELUP. The potential liability, whether real or imagined, as well as the risk at which I could be placing the future occupants far outweigh any benefit this project may have for me. In addition, although ultimately, as a pragmatic matter, he voted to recommend approval of the project, the Council may wish to know that Planning Commission Chair Toerge repeatedly commented on the project's inconsistency with the 2006 General Plan's vision for the airport area, and in particular the Airport Business Area Integrated Conceptual Development Plan adopted by an earlier Council, which called for much more thoughtful integration of housing and commerce. Item No. 99. Appointments to EQAC It is unclear how the Council is expected to achieve the geographic diversity mentioned in the staff report. Also, although the staff report indicates the appointments will be for four year terms, it is unclear if these all seven four year terms are meant to be concurrent, or if, as on most other boards, commissions and committees, they are intended to be staggered. If they are to be staggered, who will determine the initial terms? It might have been helpful to attach the resolution creating the Committee, to see if it provided clarity on any of these issues. Item No. 92. Relinquishment of (Newport Boulevard from Finley Avenue to the Newport Channel Bridge I believe City staff has plans for widening this segment of Newport Boulevard, as well as that from Finley to 32 "d Street, that go well beyond traffic signal upgrades or "streetscape and pavement enhancements included in the Lido Village Design Guidelines." I don't think there is intended to be anything secret about those plans; but that aspect of the City's interest in this road segment does not seem accurately disclosed in the staff report. In the Relinquishment Agreement itself, in Recital 1, was AB 344 (2009) really a Senate bill? The staff report refers to it as an Assembly bill. Recital 2 has a misplaced ")" in the second line: "Newport Blvd.)" and a missing "," after "0.00" Recital 3 seems contrary to the claim in the staff report that the City will need "$20,000 to bring this segment of highway into a "Safe and Drivable" condition. " Item No. 93. Construction Management Services at Marina Park I seem to recall City staff saying they were confident they could have managed the Civic Center project in- house. Marina Park is a much smaller project, and now that we have a vast City Hall it is unclear to me why we would need to spend $1,222,860 to an outside vendor to "serve as an extension of staff' for management functions our own personnel might be able to perform. Why is it more economic for an outside company do to this, presumably at an extra profit to themselves, than for our own personnel to provide the services at cost? Do taxpayers have any Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 9 of 12 guarantee that the scope and cost of services to be provided by this vendor will not escalate far beyond the original estimate, as was the case in Items 5, 6 and 7 on this agenda? In the contract, Section 5.1 limits Griffin's right to remove or reassign the personnel listed in Exhibit A, however Exhibit A is the "Scope of Services" and contains no mention of specific personnel assigned to tasks that I am able to detect. It does refer to a "Construction Manager," a term I am unable to find defined elsewhere and assumed was synonymous with Griffin. Is "Construction Manager" meant instead to be a synonym for "Project Manager "? Attachment B refers, in the second paragraph from the end, to the "Griffin — Lyon Team." What is "Lyon "? I can find no mention of it on the provided organization chart. Is this recycled boilerplate, and they actually mean the "Griffin — TranSystems Team "? Item No. 14. Big Canyon Reservoir Floating Cover Replacement I find this staff report only slightly more informative than that for Item 5 (which authorized an additional $250,037 for design and construction support services beyond those already requested), as to what the problem was and whether the best solution has been found. The report confirms that the new proposal, intended to address a major past engineering failure, has only been reviewed by the Council's 3- member Finance Committee, many months ago. One might think that for a $6M project the Council might want to see a copy of the contract it is approving. Without seeing the contract, it is not entirely clear from the report if the $6,020,500 (with contingency) expected to be paid to MPC Containment International includes the cost of the replacement plastic, or is just for the incidental costs of installation. Item No. 15. Parking Lot Automation Infrastructure Upgrade I find this item deceptively listed on the agenda. Without explanation beyond that provided, few citizens reading the agenda would seem likely to realize this is a proposal to fundamentally change the rate structure and method of administering parking at two of the beach lots. Having heard the presentation given by City (and CPS) staff to the Corona del Mar Residents Association, it is apparent additional features would be needed, including signage warning motorists that they will need their license plate information to complete their "registration." One the whole, I think (depending on the amount settled on) the proposed hourly rate at Corona del Mar State Beach is probably an improvement over the present very high fixed rate ($15), but the automated License Plate Recognition system suggests a plan to institute aggressive, big brotherly enforcement of the sort the Council has said it finds offensive when in the form of automated red light ticketing cameras. In fact, it is quite unclear why the traditional pay -on -exit ticket system that we apparently use in the Balboa lot would not be a better solution for CdM. It is even possible the proposed form of automated citation writing is prohibited by the new Charter Section 426. How does City staff propose to address claims that owners mis- entered their license number, and hence were mis- cited? Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 10 of 12 In addition, although an hourly rate at CdM would seem to encourage greater public access to the beach than the current high rate (which one assumes discourages people from leaving once they have paid), it seems likely this proposal needs to be reviewed and approved by the California Coastal Commission before it can be implemented -- a topic I am unable to find mentioned in the staff report. In particular, I would doubt the CCC would be keen on the idea of aggressively collecting parking fees and /or fining beachgoers at times and seasons of the year when access to the beach by car was formerly free. Finally, if this is such a good idea, I'm not sure why it isn't being proposed to be applied to other City -owned parking areas, such as at Newport Pier. Item No. 96. Repeal of Various Municipal Code Provisions This item is far from my expectations of the comprehensive review of the Newport Beach Municipal Code that the Council authorized at its last meeting; and I find it extraordinary that after such a short time the Council is being asked to repeal a series of unrelated sections enacted by your predecessors based only on vague descriptions of what they do, and without so much as a redlined version showing what is actually being deleted, nor any review of the circumstances surrounding their original enactment. The results are predictably arbitrary and uneven, and at least some will have unintended (and undesirable consequences). My impression is the Mayor and staff are, with little thought, grasping at straws to come up with a rogues gallery of ten existing regulations they think can be safely branded as "silly' — even though some of the silliness was enacted by not very distant Councils. I agree that the tattoo parlor regulations have probably been made unnecessary by the state's 2011 AB 300 (although AB 300 reserves the right for cities to enact more stringent regulations, which we have obviously not given thought to), and something similar may apply to 1970's local regulations on Mobile X -ray Units (although I haven't attempted to research that). And, if we believe the staff report, the swimming restrictions in Section 11.12.140 (which were actually adopted as urgency Ordinance 461 on June 14, 1937 -- not 1949 as the staff report confidently asserts) have been superseded by later, and more general, legislation, making that section unnecessary. However, the analysis of NBMC Chapter 2.04, as presented on page 2 of the staff report, is highly deceptive. This very sensible pre -1949 regulation requiring all City Council meetings to be held in the Council Chambers was actually made redundant in 1954 when it was incorporated into Section 409 of the City Charter, where it apparently remained unnoticed until 2012. Recent Councils have blithely ignored this provision by once a year (and for no obvious reason) holding a "Planning Session" at a location other than the Council Chambers. Rather than admitting their error they asked voters to remove /modify the Charter provision, claiming it was "outdated" or redundant with the Brown Act, by means of Measure EE. It is not redundant with the Brown Act and the City in fact currently lacks any clear publicly- adopted policy Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 11 of 12 specifying the circumstances under which it is reasonable for the Council to meet at locations other than their publicly - provided Chambers. NBMC Sections 2.32.010 through 2.32.050, defining the Traffic Division within the Police Department, is not so much the aberration that Mayor would like to tar it as, but rather a useful example of a former Council accepting its fundamental responsibility to publicly and completely define the governmental structure that the City Manager (and his subordinates) are supposed to administer. Although these sections are a pre -1949 enactment, that responsibility to define the departmental structure by ordinance is found in Charter Section 601. Although the present Council did not ask voters to modify Section 601, it, like other recent Councils, have, in defiance of the Charter, largely allowed the City Manager to not only administer, but also to modify the governmental structure at his whim, and have rarely if ever enacted the ordinances necessary to define the detailed departmental structure. The staff report is also likely incorrect in attributing the creation of the Traffic Division to a 1949 ordinance. What happened in 1949 is that the entire existing municipal code was recodified. Section 2.32.010 of the present NBMC was Section 3222 of the 1949 NMBC, and so on, and those particular sections happen to have originated in Ordinance 582, introduced on July 26, 1948 and adopted on September 27, 1948. Regarding NBMC Chapter 5.16, the Mayor may think paying a fee to hold a Going Out of Business Sale is silly, but the preamble to these 1986 regulations clearly state sound policy reasons for wanting such controls, including the blighted appearance a proliferation of fraudulent sales can create. The current regulations include such sensible provisions as substantiating there is a true intention to go out of business by requiring the applicant to surrender his business license before the permit can be issued. The authors of the staff report pat themselves on the back for noticing that NMBC Section 5.04.020 will also need revision since it references Chapter 5.16. They failed to notice it is mentioned in Sub - section 11.03.020.0.1, which will also need modification if Chapter 5.16 is repealed. I suppose the Mayor thought Chapter 5.34 would be an easy target for fun because the mention of "Pool Tables" in the title evokes images of the 1912 mores of "Trouble with a capital T and that rhymes with P and that stands for Pool" of The Music Man. Yet the chapter, last revised in 1983, in fact includes what many might still regard as sensible regulations prohibiting video arcades from being located immediately adjacent to schools, and discouraging school age children from congregating in them during school hours. The reasons for wanting to repeal NBMC Section 10.12.020, added in 1994 to require private security guard uniforms to be readily distinguishable from true police uniforms, is less than clear. The rationale that without the Section, a guard whose company - supplied uniform was too close the NBPD standard would be cited for impersonating an officer seems a bit farfetched. It might be wise to review the report by the then -City Attorney that seems to have swayed the then - Council, a number of whose members are still honored at the Mayor's Dinner. I have not attempted to research NBMC Section 12.12.060, regulating the parking lot at the northwest corner of PCH and Newport Boulevard since 1974. The question in my mind is not so Comments on Feb. 26, 2013 Council agenda items - Jim Mosher Page 12 of 12 much whether that Section has been superseded by more general legislation, but rather whether the City still owns the lot, or it has been ceded to Hoag Hospital. The most ill- conceived recommendation in the staff report is that to repeal the local modifications to the statewide California Fire Code implemented by NBMC Section 9.04.040. As I told the City's Parks, Beaches and Recreation Commissioners both verbally and in writing on September 4, 2012, and the Council on September 25 (under Agenda Item 3): on October 27, 2009 the City Council, including many of its current members, adopted Ordinance No. 2009- 23 which modified the California Fire Code to provide detailed restrictions on use of the City's beach fire rings, including the kinds of materials that could be burned in them. Yet those carefully crafted rules were (apparently inadvertently) obliterated when the Council adopted the 2010 California Fire Code as modified by Ordinance No. 2010 -24 on November 6, 2010, leaving only two local modifications relevant to fire rings: local sub - section 307.4.2.1 prohibiting burning outside the rings, and local sub - section 307.1.1 giving the fire department the authority to shut down the rings when the smoke from them is creating offensive or objectionable conditions. The latter authority would not normally exist for recreational fires. Now, rather than correcting its previous error and restoring the detailed regulations enacted in 2009, the Council wants to expunge one of the two last remaining vestiges of local authority it gives the Fire Department over the fire rings. Considering the Council thinks the fire rings are so noxious they should be removed entirely, the reasons for repealing the existing regulations are totally unclear to me. Despite what the staff report implies, the AQMD exempts ceremonial fires, and is unlikely to step in to fill the void.