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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 28, 2015 Written Comments July 28, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(o),vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 1. Minutes for the July 14, 2015 Special Meeting, Study Session and Regular Meeting The page numbers below refer to Volume 62 of the draft minutes. The passages in italics are from the draft with suggested changes shown in °fFikee t underline format. General comment: The present minutes struck me as not up to the City's usual standard of clarity. The suggested changes are primarily to correct obvious errors in grammar or meaning. Although most of the other passages seemed grammatical, it appeared to me that the full content of many of them was indecipherable without reference to the video. Specific suggested changes and comments: Page 377: Item SS2, last sentence: "... prior seawall failure, Grand Canal cap veneer spalleel spallinp, and easement requirements." Page 378: paragraph 2, sentence 3: "In response to his question regarding why the idea of a soldier pile and whaler were was not considered on the west end in lieu of tie - backs, ..." Page 379: paragraph 2, sentence 1: "Jim Dastur, Chair of the Balboa Island Improvement Association Committee on Seawalls, ..." Page 380: paragraph 1, sentence 1: "Council Member Muldoon agreed with Council Member Petros regarding expediting emergency dredging in the area." [? The statement by Council Member Petros that Council Member Muldoon is agreeing with does not seem to be recorded in the minutes] Page 380: paragraph 2, sentence 1: "Council Member Petrol fie complimented staff and Mayor Selich." Page 381: Item IV.B, last paragraph: "Council Member Peotter recused himself because of the possible effect of the matter on his personal finances." Item VIII, last paragraph: "City Attorney Harp also announced that Council Member Peotter recused himself on Item 1V.B (Initiation of Litigation) due to the effect of the matter on his personal finances." Since Item IV.B consisted of two matters, it is not clear from the minutes if Council Member Peotter recused himself from one matter or both. The statement also does describe the possible financial conflict in sufficient detail for the public to understand what it was. See following comment on Page 393, Item 22. July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 2 of 10 Page 386: Item XVII: "Jim Mosher referenced the Special Meeting and F°"eved t' ha comments implying the resolution was had been previously distributed to the City Council and was then toned down." Page 388: first paragraph, sentence 2: "He commented on the expedited process for "roof -top solar systems" but noted references to photovoltaic systems on1v." Page 389: paragraph 4 from end: "In response to Mr. FellFs Foot's question, ..." Page 389: paragraph 2 from end: "Council Member Duffield commented on a mooring field off Lido Island which is sempleted completely surrounded by residences with no commercial ventures near it." Page 390: line 1: "Lido Yacht Club, or any other staseholder stakeholder." Page 390: paragraph 2, sentence 2: "... and commented on Duncan McIntosh's marina project..." Page 391: paragraph 3 from end: "... to fill the unscheduled vacancy on the to the Building and Fire Board of Appeals." Page 392: paragraph 4 from end: "City Clerk Brown announced that Roy Englebrecht was reappointed to the Parks, Beaches and Recreation Commission for a four year terms term." Page 393: Item 22, paragraph 1: "Council Member Duffield recused himself from the Balboa Island Wine Festival and Balboa Island Centennial Celebration items because he has a financial interest in the matters." The preceding statement does not, to me, seem adequate to meet the requirement of Section 87105 of California's Political Reform Act, which says in relevant part: (a) A public official who holds an office specified in Section 87200 who has a financial interest in a decision within the meaning of Section 87100 shall, upon identifying a conflict of interest or a potential conflict of interest and immediately prior to the consideration of the matter, do all of the following: (1) Publicly identify the financial interest that gives rise to the conflict of interest or potential conflict of interest in detail sufficient to be understood by the public, except that disclosure of the exact street address of a residence is not required. (2) Recuse himself or herself from discussing and voting on the matter, or otherwise acting in violation of Section 87100. (3) Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters. July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 3 of 10 (4) Notwithstanding paragraph (3), a public official described in subdivision (a) may speak on the issue during the time that the general public speaks on the issue. Since all the required recusals involve the public official having a real or potential "financial interest in the matter," the passage about providing detail would be meaningless if it did not require supplying additional detail specific enough for the public to understand the exact financial interest requiring the recusal. As with Item IV.BNIII (see page 381, above) the minutes accurately reflect what was said on July 14`"; but what was said does not seem legally sufficient. Hopefully a clearer explanation of the conflicts will be provided when the Special Events funding matter comes back at the present meeting. Page 396: last paragraph, sentence 2 from end: "He stated that Council Member Peotter's statements have affected nW many people, ..." Page 398: paragraph 5: "Denise Pennon commented people's reactions..." Page 398: last line: "... the best rainbows she has seen have been in the Back Bay and belongs belong to everyone." Page 401: line 2 from end: "Ill. PUBLIC COMMENTS ON NON - AGENDA ITEMS" Item 3. Adoption of Ordinance No. 2015 -23 Amending Newport Beach Municipal Code Adding Chapter 15.18 Regarding Residential Rooftop Solar Systems 1. Despite what the DISCUSSION in the staff report says, I believe this ordinance, adopted, will "take effect' in 30 days, not "take affect." 2. Although it may seem a minor point to many, I think the administrative staff endorses a poor policy when it allows important City documents to be signed in unclear ways. It would seem to me that basic principles of transparency and accountability dictate that the identities of those who sign official documents, and when they sign them, should be clear and unambiguous. Taking ownership of a document that has received as little public review as the text of the present ordinance seems particularly important. Yet although the final page suggests this ordinance has been reviewed by "Aaron C. Harp, City Attorney," a closer examination reveals that on some unknown date someone merely initialed it "for" the City Attorney — as is quite often the case. In this particular case, I would guess the initials might be those of one of our Assistant City Attorneys, Michael -Sean Demetrio Torres (California Bar #238973), but that is only a guess, and years from now even those in the City Attorney's office might not know for sure. Is it that difficult to print the true signer's name and the date on which it was signed? July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 4 of 10 Item 4. Adoption of Ordinance No. 2015 -22 Relating to Hotel Guest Registry Inspections 1. Regarding the DISCUSSION in the staff report: a. I believe this ordinance, too, if adopted, will "take effect' in 30 days, not "take affect." b. The implication that adoption of the ordinance "will require hotel operators to allow police officers to inspect their guest registries or registration cards" seems a bit overblown. My understanding is it makes the inspection more difficult for the police, and may arguably now require an administrative subpoena. 2. As to the substance of the ordinance, I continue to think the references, especially in the surrounding code, to paper registries and cards sound antiquated. And I remain in the dark as to whether this was reviewed as an opportunity to ensure there are adequate inspection mechanisms by those other than the police to verify the Transient Occupancy Tax is being properly collected. Item 5. Bay Avenue Pavement Reconstruction — Notice of Completion and Acceptance of Contract No. 5580 (CAP15 -0010) 1. The "Time Summary' portion of these notices of completion almost invariably indicate the work was completed exactly as expected relative to the "Contract Completion Date with Approved Extensions." This creates what I think may be the false impression that City contractors normally complete their work within the time the public was originally told. The reality would be much clearer if the report indicated both the originally noticed completion date and the duration of the extensions. In the present case, Council and the public were told at the time the contract was awarded (last line of page 2 of that staff report) that construction would take 50 working days. The present report suggests it was completed "on time," but it also suggests it took 62 working days, or (as I read the two reports together) more than two weeks longer than originally planned. I suspect this and even longer delays are typical. 2. Also as is typical of these staff reports, the ENVIRONMENTAL REVIEW section says the Council found the project exempt from CEQA. Although the ENVIRONMENTAL REVIEW section of the original staff report at the time of contract award contained a staff recommendation to that effect, as is also typical, there is nothing in the minutes to suggest the Council ever acted on that recommendation by formally making a CEQA finding. The mere statement of a recommendation in a staff report would not seem to me to constitute a Council action. July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 5 of 10 Item 6. Big Canyon Reservoir Flow Metering Vault and Treatment Improvements — Approval of Professional Services Agreement with Stantec Consulting, Inc. 1. It is good to see the contract and scope of services is being presented to the Council for public review. 2. It is curious that no information has been provided regarding the dollar amount of the other three bids received for this work or how those proposals were scored by the "review team." Item 8. Plan Review Services - Amendment to the Professional Services Agreements with VCA Code and JAS Pacific and Approval of Budget Amendment The history of this item is murky to me because: 1. Despite the City Charter Section 603(d) requirement for the City Clerk to "Maintain separate books, in which a record shall be made of all written contracts and official bonds," only the currently "active" contracts are readily available for public inspection in the online Laserfiche contracts archive. 2. Even then, there is no City policy to document the authority under which most of the contracts were signed. As best I can tell from the staff report for Item 11 at the Council's July 24, 2012, meeting, the original decision to outsource excess building inspection and building plan check tasks to VCA Code Group was made by administrative staff in 2011 and resulted in an on -call contract signed by an Assistant City Manager and effective September 1, 2011. Only when the dollar amount of the effort began to exceed the City Manager's signing authority did it come to public notice in the aforementioned item, which passed on the Consent Calendar without comment from the Council. The magnitude of the effort continued to grow with Item 6 on the July 23, 2013, Consent Calendar (again authorized without Council comment) and JAS Pacific was added (again without comment) as part of Consent Calendar Item 6 at the July 8, 2014, meeting. In short, there has been no public discussion I can detect of the wisdom of this program which began as one for the as- needed hiring of relief in -house personnel to handle overflow work, but has grown to one of routinely outsourcing to private workers at private offsite facilities what were once entirely in -house functions performed by City employees. July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 6 of 10 I find the result problematic on many levels. 1. One of the primary reasons for creating governments, and in particular municipal corporations, is to provide needed civic services at cost and without profit. If a private entity can provide the same service at a lower cost and make a profit, it would seem the government is not operating very effectively. The solution, it would seem to me, is not outsourcing, but rather making the government work as intended. 2. Even when acting in an in -house relief capacity, it is not clear the private contract employees have the same ethical training as the regular City employees. When they work unobserved at private off -site facilities the possibility they might be subject to untoward influences multiplies. 3. 1 would think it might also cause morale problems for the regular in -house City employees who may feel their position could soon be outsourced. 4. If an increasing number of traditional City services are to be preformed off -site by privately hired and privately managed personnel, it amplifies the question of why we need a City Hall of its present size. As to the substance of what the Council is being asked to review and approve: 1. Since the dollar amounts currently paid to both firms apparently include a combination of contract building inspector and contract plan review services, it is difficult or impossible to deduce from the requested dollar increases how much increase in the contracted plan review service staff expects, what fraction of the total plan review volume that represents, or how much shift from in -house to off -site review staff anticipates. 2. At least some of what is promised in the staff report is not evident from the contracts, which have rather vague, informal and quite different amended Scopes of Service. a. The staff report says "VCA will collect 60% of the plan review fee and JAS will collect 65% of the plan review fees collected by the City." i. The VCA contract calls for the payment of fixed hourly rates in its new Exhibit B (page 8 -10). They do not appear to be tied to the Council - approved City Master Fee Schedule. ii. The JAS contract cites its original Exhibit B (page 8 -68) which also has fixed hourly rates, although it is not immediately obvious which rates apply to which services in the City's Master Fee Schedule. iii. Closely related to this is the fact that the revised Master Fee Schedule presented to the City Council as Item 19 at its July 14, 2015, meeting proposed to increase the building plan check hourly rate charged applicants by 53 %, to $228 from its present $149 (line item 93 in new Shedule). If that truly represents the City's in -house cost, that could mean "the City" is getting an increasingly good deal with these fixed price contracts, but at the same time it makes it increasingly mysterious why the City should be charging applicants $228 per hour for a service to July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 7 of 10 which it pays VCA only $95 and JAS only $75 or $85 ( ?) per hour? I am also unable to find any provision in the proposed Master Fee Schedule that contemplates the offering of expedited review for an increased fee. b. Neither contract or Scope of Services appears to express a clear understanding of how the services will be allocated between in -house and off -site, or who will determine that. c. The reverse side of the proposed new "Plan Review Options" form (Attachment CC 5, pages 8 -72 and 8 -73) makes promises to the public about the availability of the outside plan reviewers which may or may not be assured by the contracts. 3. The proposed new "Plan Review Options" form (Attachment CC 5, pages 8 -72 and 8 -73) is difficult to relate to the staff report. a. The staff report says 80% of all plan checks are completed in a single day. Is this new form intended for all reviews? Or just the other 20 %? b. Perhaps related to that, I have trouble understanding how the in -house "overflow" personnel provided by the contractors relate to this form. If one asks to use the "City's Professional Plan Check Team" might one not still get a contract reviewer? c. The form seems designed to push business to the private firms, since it says a review by in -house City personnel could take up to 15 business days while a review by either of the outside firms is promised to take no more than 10 business days. d. I am unable to find any explanation of why the "Accelerated Review" option is available only from the outside contractors. e. If the "Accelerated Review' option proves popular, will that degrade the response time for standard reviews, giving the less well heeled citizens less service for their fee? f. I think it would be helpful to add to the form (or any other form like this) an explanation that any change which a plan check reviewer — whether in -house or contract — claims is needed to a project to bring it into compliance with building or fire codes can be challenged (or an alternative solution proposed) for review by the City's Building and Fire Board of Appeals. The existence of this little -used citizens' body does not seem to be well known. July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 8 of 10 Item 9. Revocable License Agreement between the City of Newport Beach and Sprouts of Promise to Operate a Certified Farmers' Market Located at McFadden Square and Newport Pier and a Request for a Reduced Rental Rate Attendees at the most recent Balboa Village Advisory Committee meeting expressed interest in a farmers' market type activity there, and it might be a more logical location since there is no longer a commercial market in that area. Has staff considered that. 2. The argument regarding City Council Policy F -7 (Income Property), and the loss of income if the Council does not go forward with the lease, seems doubtful since, as Policy L -13 (McFadden Plaza and Pier Use) indicates, the location was never contemplated as a commercial money- making site. The same argument would suggest that to prevent a loss of potential income all public open space under City control should be commercialized and rented out. 3. Closely related to this, the staff report informs the public the proposed rent is "below fair market value" but I am unable to find any indication of what staff thinks the fair market rent would be. 4. Since Policy L -13 indicates the present site and improvements were developed through use of a 1990 assessment district, it would seem the views of those assessed as to what is a proper use for it would be at least as important as those of City staff. Can they still be identified? And have they been consulted? I am unable to find anything about that in the staff report. 5. In the proposed contract, Recital "D" on the first page seems in error. Since the licensee has never operated a farmers' market at the proposed location, shouldn't the phrase "to continue" be deleted? 6. The exhibit on page 9 -23 illustrates a "Loading Area" that does not appear to part of the License Areas depicted on page 9 -19. 1 am unable to find any explanation of the Loading Area, or regulations on its use, in the contract. 7. Since the operation is proposed to be moved from an underutilized area to a highly used one and could impact access to other visitor serving coastal resources, does it need a Coastal Development Permit? July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 9 of 10 Item 10. School Resource Officer Program Agreement 1. With regard to Section 4.2 of the Agreement, I have trouble understanding how the officers can be "on duty each day that school is in session" if the contract is limited to four days per week at ten hours per day. Are these schools in session only four days a week? 2. Although it is not obvious from Exhibit A (repeated as Attachment B to the staff report), it appears that the "Annual Total for both School Resource Officers," from which the School District's contribution is computed, has been prorated to reflect just the part of the Total Compensation for the approximately ten months of the contract. Item 11. Tentative Agreement with the Association of Newport Beach Ocean Lifeguards Like the tentative agreement with the Newport Beach Lifeguard Management Association (presented as Item 13 at the Council's May 26, 2015, meeting), it is good to see the contract publicly aired prior to the Council's commitment to it. 2. In view of the California Constitutional provision (Article XI. Section 10(a)) that "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' it is disturbing to see the staff report say "The Agreement includes changes to wages and benefits for the period July 1, 2014 through June 30, 2017'— that is, potentially changes to compensation for services rendered more than a year ago. This term for the Agreement also appears in Clause 2 of the Preamble to the MOU on page 11 -8 and Clause B.1 on page 11 -9. Yet in the summary of deal points I am unable to find any changes retroactive to 2014. Is "2014" a typo for "2015 "? Item 13. Appointment to the Finance Committee 1. I am troubled by the practice of individual Council Members being allowed to control individual citizen appointments to the Finance Committee. Since the Committee already includes three Council Members, if a citizen member either reports back to their appointing Member on the Committee's activities, or is seen as representing their appointing Member's views to the Committee, then there is an immense possibility for a hub - and -spoke meeting of a majority of the Council in violation of the Brown Act. This seems to me to be a structural problem with the current Finance Committee that needs to be corrected. 2. Although even the City Attorney seems to acknowledge that the present vacancy on the Finance Committee needed to be noticed to the public in general in compliance with the Maddy Act (California Government Code Section 54970 et seq.), that process seems to July 28, 2015, City Council Consent Calendar Comments - Jim Mosher Page 10 of 10 have been ineffective, for an email in the Committee appointments folder maintained by the City Clerk indicates that the selection of a replacement had already been made simultaneous with Councilman Duffield's notice of Jack Wu's resignation on June 30, 2015. 1 have no idea how the selection was arrived at, but when it is made prior to the notice of a vacancy it hardly seems in compliance with the intent of the Maddy Act (namely, to be sure the appointing officials are aware of the best talent available). 3. That said, it is disappointing that no one in the public other than myself responded to the Clerk's advertisement by submitting an application. Perhaps they did not see the ad or, unlike me, knew the selection was already a done deal. 4. In any event, it would seem the Council should at least know the full list of applicants they might draw from. In the present case it is: Allan Beek (whose application was submitted earlier this year when the possibility of citizen positions on a re- configured Finance Committee was mentioned in the press), William O'Neill (Council Member Duffield's nominee), and James Mosher (whose application was submitted in response to the published ad). 5. Finally, I would like to observe that whatever his personal failings might be, I thought Jack Wu did an excellent job on the Committee and made many positive contributions towards its work. Item 15. Commercial Marina Rental Rate Approach 1. In addition to mentioning that Council Member Muldoon requested this, in view of Council Policy A -6 it would have been helpful to mention the meeting at which the full Council authorized staff to expend resources pursuing it as a future agenda item. I believe it was part of Item 23 at the May 12, 2015, meeting. 2. Even with that, it is difficult to understand the authority under which the administrative staff could "freeze" commercial rental rates or take several of the other actions listed. The minutes from May 12, 2015, indicate the decision was to schedule a vote at a future meeting on "whether to have a third party look at commercial rental rates." Further direction was never given at a noticed meeting of which I am aware (the June 16, 2015, special meeting on mooring rental rates notwithstanding), so I don't think that vote ever took place. 3. My personal guess is that harbor "property" is being grossly undervalued and the lion's share of the profit from use of the public's waters is going to the private persons privileged to lease or rent space, such as the commercial marina operators and waterfront homeowners.