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HomeMy WebLinkAbout0 - Public Comments"RECEIVED AFTER AGEN,9A PU!TEC :" TOL Cc- ea{S !o - .2 3- l� Comments on October 23, 2012 City Council Agenda Items Comments by: Jim Mosher (limmosher a?yahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) Item 1. Minutes for the October 9, 2012 Regular Meeting 0 1 have submitted separate written comments regarding the draft minutes. Item 3. Adoption of Ordinance No. 2012 -22 to Approve an Amendment to the Contract with the California Public Employees Retirement System I don't think Ordinance No. 2012 -22, of which Section 3 implies the 7 page "Exhibit" is a part, can be properly adopted at the present meeting because it was not correctly "published" prior to adoption as required by City Charter Section 414 (Ordinances. Publication.) as amended by Newport Beach voters in 2010. A certified copy of the full text of the ordinance (including the "Exhibit ") was not posted in the Clerk's Office five days in advance of the proposed introduction. Had it been properly posted and reviewed, it might have been noticed that the ordinance (including the "Exhibit ") contains numerous errors, including those detailed below. Should it be adopted, I would ask again why "City Council Members" has not been considered as a class to exclude from the CalPERS system in Paragraph 5, along with Police Cadets and Reserve Officers. Errors noticed in proposed Ordinance No. 2012 -22: (paragraph 2, incorrect closing quote): ... ("Amendme;V "Amendment "); (paragraph 3, closing quote missing): ... the City Council of the City of Newport Beach Beach "; SECTION 1 does not describe any identifiable action. Possibly it is intended to read ( ?): ... and is incorporated herein this by reference. SECTION 2 is possibly intended to read: The Amendment is approved and the Mayor and City Clerk of the City of Newport Beach is are hereby authefiaed authorized to execute the Amendment for and on behalf of the City. SECTION 3 is presumably meant to apply to the "Exhibit" which is therefore impliedly a part of the Ordinance. It seems amusing to me that the Council finds it important to include a severability clause in this ordinance, when it sees no need to do so in the Measure EE Charter Update, especially since the latter most likely does contain provisions that are "invalid or unconstitutional." October 23, 2012 Council Meeting agenda comments by Jim Mosher Page 2 of 5 SECTION 4 attempts to state publication requirements. It is unclear if they are meant simply to implement Council and staffs basic obligations under Charter Section 414, or to be in addition to those. For example, is this a command to the Clerk to publish the full text, including the Exhibit, in the Daily Pilot, as opposed to the summary allowed by Section 414? SECTION 5 is missing the date on which the ordinance was introduced. In "Exhibit ": • The reference, in the first paragraph, to "above public agency' is ambiguous. It would be better to spell out "City of Newport Beach." • In Paragraph 1, the reference to "Public Employees' Retirement Law" is undefined. It presumably means California Government Code Sections 20000 et seq. • Paragraph 2 contains several misplaced commas. • In Paragraph 4, the significance of the variations in phrasing is unclear: o Should item "b" read "Local Police Officers (included as local safety members); o Or should item "c" read "Ocean Beach Lifeguards (herein referred to as local safety members); "? Paragraph 6, ending on December 22, 1977 does not work well with Paragraph 7, starting on December 22, 2007. My guess is the two dates are supposed to be the same. e In Paragraph 12(i) there was probably intended to be a paragraph break after Section 20475 (Different Level of Benefits) and before the reference to Section 21362. The improper publication of proposed Ordinance No. 2012 -22 is as follow: e Prior to 2010, Section 414. (Ordinances. Publication.) of the Newport Beach City Charter read: "The City Clerk shall cause each ordinance to be published at least once in the official newspaper within fifteen days after its adoption." Because there was some doubt as to whether this necessitated publication of the full text of adopted ordinances, or only a summary, then City Attorney David R. Hunt recommended replacing this with the following: "The City Clerk shall cause each ordinance to be published pursuant to the procedures established in California Government Code Section 36933 or any successor statute thereto." Mr. Hunt's proposed change was duly adopted by a majority of Newport Beach voters on November 2, 2010 (19,777 yes; 12,362 no). Mr. Hunt also recommended deletion, in its entirety, of Charter Section 419 (Publishing of Legal Notices) — which removed the definition of the "official newspaper," causing some confusion for the 2012 Charter Update Committee since there are multiple references to it elsewhere in the surviving Charter. Government Code Section 36933, which is far more involved than the language it replaces, includes requirements for posting and publication prior to adoption that are part of the October 23, 2012 Council Meeting agenda comments by Jim Mosher Page 3 of 5 requirement for publication after adoption. The pre- adoption option chosen in the present case is the one spelled out in subsection (c)(1), which reads in relevant part: "The city council may publish a summary of a proposed ordinance or proposed amendment to an existing ordinance. The summary shall be prepared by an official designated by the city council. A summary shall be published and a certified copy of the full text of the proposed ordinance or proposed amendment shall be posted in the office of the city clerk at least five days prior to the city council meeting at which the proposed ordinance or amendment or alteration thereto is to be adopted." Y The City of Newport Beach has been bound to follow this requirement since filing of the Charter amendments with the California Secretary of State on December 14, 2010. o Despite this, nearly two years later the City Council of Newport Beach has not yet designated the official responsible for preparing summaries of ordinances, nor, in the present case was a certified copy of the full text of the ordinance posted in the Clerk's Office 5 days prior to the proposed adoption of the ordinance. Visiting the Clerk's Office on Friday, October 19, 2012, four days prior to the proposed adoption, at approximately 3 pm, the only thing posted was a certified copy of the two cover pages of Ordinance No. 2012 -22, which say the Council is proposing to approve the attached contract. But there was no attached contract, let alone a certified copy of it. I believe this violates the intent of Government Code Section 36933 and deprives the public of its fundamental right to know, with certainty, what its Council will be voting on. Item 4. Proposed Community Emergency Preparedness Supply Storage Container within the Irvine Terrace Park When this matter was before the Parks, Beaches and Recreation Commission, concern was expressed that the proposed storage container is taller than the wall along which it will be placed, and its top will be visible from Coast Highway. This is an issue that the Council might want to revisit. Beyond that, the recommended action to "Authorize the City Manager to execute the Encroachment Agreement" is inconsistent with the Encroachment Agreement itself, which on page 7 (page 63 of the 66 page staff report) says it is to be signed by the Mayor. And beyond that the agreement contains a number of minor errors. Starting on page 58 of the staff report: • Condition 4.D. starts with an extraneous "That' • Condition 12 (fourth line) says "included' where "including" is probably intended. • In Condition 14.A.ii., the word "wither' in the fourth line from the end appears to be extraneous. • In Condition 14.C.i., the final "be" should by "by/'. • In Condition 14.C.ii., should "as respect" be "with respect'? October 23, 2012 Council Meeting agenda comments by Jim Mosher Page 4 of 5 0 In Condition 14.C.iii., "except with the respect to the limits' should be "except with respect to the limits'. • In Condition 14.C.vi., Should "The insurance provider by" be "The insurance provided by "? • In Condition 14. E, "it's" should be "its" Item 6. Amendment to the Professional Services Agreement with the Planning Center DD &E for the Preparation of the Environmental Impact Report for the Uptown Newport This request appears to be, in part, for after - the -fact compensation for services already rendered. This seems like poor public policy, and is in probable violation of the contracting powers afforded to charter cities by the California Constitution. Item 7. FY2011 -2012 Streetlight Improvement Project — Completion and Acceptance of Contract No. 4822 1 have a niece and nephew who live on Anniversary Lane, and observed that this project went, on, and on, and on, with considerable disruption to their property. The claim that it ran only 16 days "over" seems a bit of a stretch when it was originally planned to be finished in April, and was in fact finished in August. It is also unclear that the level and quantity of lighting is really necessary in this area. The area "enjoys" a high level of ambient light and the cost of providing no additional lighting would clearly be less than the cost of converting to LEDs. Item 8. Amendment No. 1 to Agreement with Global Power Group Inc. for Generator Preventative Maintenance and Repair Services 0 The first part of the recommendation would normally be to approve the contract and direct the Mayor and Clerk to execute it. 0 The second part of the recommended action appears to fly in the face of the recent California Supreme Court decision in State Building and Construction Trade Council of California, AFL -CIO v. City of Vista (54 Cal.4th 547) 0 The Court specifically found that "the state's prevailing wage law does not exempt charter cities" (page 560), although a conflicting local ordinance could displace the general state law for certain locally funded projects. 0 The present agreement seeks to circumvent the California Labor Code by taking an action under Article XI, Section 5 of the California Constitution in the "Recitals" section of the contract. This does not seem a proper recital. 0 Article XI, Section 5(a) states that with respect to municipal affairs the "ordinances and regulations" of a charter city "supersede all laws inconsistent therewith," however the recital is neither an ordinance nor a regulation. 0 1 proper recital would seem to be something like: October 23, 2012 Council Meeting agenda comments by Jim Mosher Page 5 of 5 o "The Council finds the present matter to be a municipal affair." o "It is exempted from the requirement to pay prevailing wages by Ordinance XXX or Regulation XXX." 0 But as far as I know, no local ordinance or regulation conflicting with the California Labor Code currently exists. Item 9. Approval of Amendment No. 5 to the Professional Services Agreement with RBF Consulting for the Buck Gully Restoration Project Landscaping Monitoring 0 In the first line under "DISCUSSION," the reference to a "California Development Permit' is presumably meant to be to a "Coastal Development Permit' Item 10. Approval of Landscape Maintenance Agreement for Citywide Medians and Roadsides. 0 This has the same problems as Item 8. 0 The attempt to exempt this project from a prevailing wage requirement seems particularly problematic since Section 1720(3) of the California Labor Code explicitly includes street improvement work under the scope of the state law whether the contracting agency "operates under a freeholder's charter or not." Item 12. Human Services Grant for 2012- 2013. The list of organizations to which these grants are offered, year after year, appears to have become a bit fossilized. The notification of the opportunity to seven groups may not be adequate. 0 In addition, the copy of what purports to be City Council Policy A -12 (Discretionary Grants), attached to the staff report as "Attachment A," is an oddly out of date version from 2001. The policy was amended by the Council on June 22, 2010, and again on September 27, 2011. One would hope staff would be using, and know where to find, a current copy. Item 14. Appointments to the Balboa Village Advisory Committee (BVAC). 0 1 believe that if the Council feels it needs an advisory board or commission for this purpose, it should be created pursuant to Article VII of the City Charter. 0 Also, since I assume BVAC will be making recommendations for expenditures of money belonging to the whole city, I don't see why its membership should be confined to those with a direct interest or expecting to benefit from the expenditures. 0 Finally, I do not see the need to waive the Council's Policy A -2. If the pool of qualified applicants is currently is insufficient, the Council certainly has the option to wait.