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Comments on May 22, 2012 City Council Agenda Items
from: Jim Mosher ( iimmosheravahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -545 -6229)
Study Session
Item 2. CIP — Budget Presentation
• The Parks, Beaches and Recreation Commission is required by Charter Section 709 to
"Consider the annual budget for parks, beaches, recreation, parkways and street tree
purposes during the process of its preparation and make recommendations with respect
thereto to the City Council and the City Manager."
• The Planning Commission is required by Charter Section 707 to "Make
recommendations to the City Council ... for the ... rebuilding of blighted or substandard
areas within the City."
• I don't believe either of those bodies has participated in preparation of the current CIP
budget.
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Regular Session
Item II. B. Closed Session - Conference with Labor Negotiators -�
• Since Item S21 on the regular agenda announces the completion of an igreement'vith
the Newport Beach Firefighters' Association, it is unclear why the Council would need to
meeting again in closed session to discuss NBFA. Is this a misprint?
Item 4. Healthy Eating Active Living (HEAL) Campaign
As is often the case, the CEQA finding that this action has "no potential for resulting in
physical change to the environment, directly or indirectly" is mildly amusing when the
intent of the resolution is to improve the environment, including encouraging physical
changes.
Page 2 of the draft resolution has an obvious typo: "Continue provide and maintain the
OASIS Senior Center..." should be "Continue to provide and maintain the OASIS Senior
Center..."
• The significance of adopting this resolution is unclear tome. Is it just an expression of
hopes? Or is it a legally binding commitment to do the things listed?
May 22, 2012 Council Meeting comments by Jim Mosher Page 2 of 11
o If the latter, it requires much closer scrutiny. For example, it might make it
impossible to convert or eliminate an existing game court (page 2); and I thought
the farmer's markets (page 3) were something of an experiment. Does this
resolution commit us to these uses in perpetuity?
U It is also unclear to me how encouraging mixed -use development (page 2) will, in and of
itself, reduce obesity. As an example, I cannot see how (residential above) / (Fafburger
below) would further that goal.
The nature of the "Employee Assistance Program" and the "facility' to which current and
retired employees are granted access (page 3) is unknown to me and not clearly
explained in the staff report.
o Providing lifetime free membership in some sort of Newport Beach health club (if
that's what this means) seems a rather odd employment perk.
Item 5. amendment to Agreement for Parking Meter Services
It's clear staff is happy with Central Parking System, Inc. ( "CPS "), and that the existing
contract (C -4767, dated March 31, 2011) has not been as lucrative as CPS hoped.
G It's less clear the new arrangement is a boon to taxpayers.
o According to the March 22, 2011 staff report, which led to the current contract, we were
at that time paying $500k per year to collect $3.5M in parking receipts, for a net
contribution to the general fund of about $3M. Under the proposed outsourcing
agreement it appears we will be paying $700k to bring in very slightly increased revenue
of $3.6M annual receipts under CPS management per the current staff report.
Contrary to the numbers quoted above, the current staff report suggests (in the
table on page 2) that the pre -CPS receipts were only $2.9M, but that seems to be
the net amount after subtracting the then - current expenses, because CPS
agreed to guarantee a net of at least $3M, independent of actual receipts, to
protect the City's then - current net.
o Likewise the $3.6M in the table on page 2 appears to be the gross receipts
under CPS, since under the existing agreement anything over $3M goes to CPS.
o Assuming receipts remained static at $3.6M per year, as I understand it under the
original agreement CPS would have been paid the amount over $10M, that is: $600k
each year. Under the revised agreement CPS will be paid $700k plus a percentage of
the amount over $3.4M, that percentage rising from 11.5% in 2012 to 21.5% in 2015,
which means that for the same $3.6M in receipts they would be paid between $723k and
$743k.
May 22, 2012 Council Meeting comments by Jim Mosher Page 3 of 11
Since the revised contract will apparently be retroactive to November 1, 2011, it
sounds like we are offering CPS substantial extra compensation for work already
performed. Not only do I fail to see the reason for doing this, but I find it hard to
reconcile with the California Constitutional prohibition against a city doing so.
Under the revised agreement we appear to be going from guaranteed revenue to the
City to a guaranteed payment to CPS. If CPS were to grow lazy, it sounds like we might
find ourselves paying $700k to collect less revenue than City workers collected for
$500k. Indeed, it would appear CPS could collect nothing and we would still have to pay
them $700k each year.
C It is difficult to tell from either the current staff report or the March 22, 2011 report how
the new meter equipment is to be paid for. Under the original agreement, it appears that
CPS had agreed to carry the cost until sufficient parking meter revenue was available to
pay for it. It looks like under the revised contract City taxpayers will be shouldering the
cost of the new equipment even if there aren't enough new meter receipts to pay for it
over the seven year span of the contract.
It would seem to me that as a consequence of CPS reneging on its promises to: (1)
guarantee minimum revenue to the City, and (2) absorb the costs of the new equipment
if it didn't prove profitable; their incentive bonuses should be substantially reduced.
Instead, it appears that in the revised contract the incentive bonuses will be cutting in at
a lower revenue level.
C One "good feature" of the revision is that, as best I can tell, under the original agreement
if the City were to try to increase parking receipts by raising rates, at the current revenue
level the increase would go entirely to CPS. Under the revised contract, most of the
increased receipts would go to the City, but this is "good" primarily because the current
arrangement is "bad."
Item 6. Amendment to Agreement for Preparation of Newport Banning
Ranch Environmental Impact Report
G Although the City is primarily acting as a conduit for money provided by the developer,
this, again, seems to be almost entirely a request for extra compensation to a contractor
for work already performed, something that is hard to reconcile with the California
Constitution where it says:
A local government body may not grant extra compensation or extra allowance to
a ... contractor after service has been rendered or a contract has been entered
into and performed in whole or in part (Article 11, Section 10(a))
G As a result, this would seem, more properly to be a claim against the City, and although
the previous contract may have contained a provision that the scope or dollar amount
could be increased with written permission of the City, it is unclear who is authorized to
May 22, 2012 Council Meeting comments by Jim Mosher Page 4 of 11
act on behalf of the citizens in such situations, nor is proof of any such written
authorization offered with the staff report.
Equally, or perhaps more importantly, the City has allowed the consultant to milk the
applicant of $2.5M, and now wants another $250k, without having fulfilled the basic
CEQA requirement to produce a document that provides clear and useful information on
the basis of which the public and decision makers can easily understand and discuss the
impacts of the project. The City should be shunning this firm, not funneling still more
money their way.
As seems to have become customary in such matters, instead of producing the
document envisioned in the CEQA Guidelines (one of at most 300 pages that
can be summarized in no more than 15), BonTerra has produced 1432 pages of
densely written bureaucratic gobbledygook (backed up by another 5817 pages
of appendices) that so obfuscates significant with insignificant impacts that no
one seems quite sure of such basic information as whether the traffic studies
assume the presence of a 19th Street bridge to Huntington Beach, or not, and
one Planning Commission is now on record as supporting the project because of
the positive benefits it will have on the regional watershed — a conclusion which
the general public will likely have difficulty confirming in the EIR (even though it
may be in there somewhere).
o BonTerra complains, in the staff report, of the unexpected burden of participating
in public meetings. In fact, to the best of my knowledge the public never heard
any explanation or defense of the EIR from any BonTerra representative except
in a single Planning Commission Study Session long after the public review
period had closed.
They were notably absent when the EIR was presented to the City's
volunteer Environmental Quality Affairs Committee for their review.
When they did appear, it was disturbing that the "experts" they called on
to clarify their positions appeared to be the same paid consultants
assisted the project applicant in preparing and presenting their proposal.
The 5817 pages of appendices that supposedly support the
"independent" findings of the EIR seem also to be largely the undigested
work product of these same consultants for the applicant.
We were told at the one public meeting that their work was "peer
reviewed" but I am unaware of any critical comments by BonTerra
in the body of the EIR about the accuracy of these appendices.
o BonTerra complains of the unanticipated burden of preparing responses to
comments, but that is a task that should have been thoroughly anticipated and I
am unaware of anyone who was satisfied with the responses received.
May 22, 2012 Council Meeting comments by Jim Mosher Page 5 of 11
• BonTerra complains of unanticipated work involved in preparing the "Findings of
Fact" for the Final EIR, but the report presented to the Planning Commission to
recommend to Council certification of a Final EIR at its March 22, 2012 meeting,
and unexpectedly approved by them without a single change, seems nothing
more than a word - processed regurgitation of the Draft EIR.
• Since it seems more than likely that the competence of this EIR will be the
challenged in court, any new or revised arrangement with BonTerra should
insure they will be held accountable for paying an equitable portion of the costs
associated with defending it.
Item 7. Lifeguard Headquarters Rehabilitation
G As noted in the work plan for Agenda Item 18 (the Charter Update Committee), 2008's
"Measure B" (now Charter Section 425) directed staff to relocate the City's administrative
offices to the Civic Center parcel on Avocado Avenue.
o City staff appears to be wanting voters to change that requirement, but it is
unclear whether this item anticipates moving the lifeguard administrative
functions to the new Civic Center, or not.
Item 14. FY 12 -13 Special Event Support Recommendations
Although somewhat greater effort seems to have been made this year to identify public
benefits associated with these expenditures, I am rather uncomfortable with this program
as constituting unconstitutional gifts of public funds for private purposes; possibly the
reason most other cities don't have such programs, although the Acting Assistant
Attorney made the rather startling assertion to the committee that constitutional concerns
could be ignored because charter cities are free to gift public moneys to whoever they
want.
G The review process remains highly flawed:
o The standing advisory committee was unwisely set up ignoring the minimal
standards for advisory bodies mandated in the Charter, leading to lifetime
appointees who review essentially the same package of proposals each year.
o To "conserve resources" the proposals were not put on -line, making it difficult for
the public to review and comment on them.
o The committee meetings were held in afternoon hours when much of the public
could not attend.
May 22, 2012 Council Meeting comments by Jim Mosher Page 6 of 11
o For unknown reasons, the evaluations and comments of the committee members
upon the individual events were withheld from public examination, the public
seeing only composite scored compiled by staff through a process not open to
public scrutiny. The Brown Act prohibition against decision by secret ballot was
skirted around by allowing the committee to review and modify the final rankings
in a public session.
o The citizens advisory committee did not in any way participate in the
recommendation of how funds should be allocated among the events — the
percentages assigned to various priority ranks being entirely an invention of City
staff.
o I am particularly concerned about the large fraction of the available funding
proposed by staff to go to the Film Festival. Although technically run by a
"charity," press reports suggest this is a highly promoted, largely commercial
venture that spends lavishly and could be entirely supported by ticket sales.
seems to me one of the events least in need of taxpayer funding.
o On a minor note: page 3 of the staff report refers to 12 events for which staff
recommends funding. The subsequent attachment lists only 10.
Item 16. Newport Harbor Lutheran Church Development Agreement
O Noticing on the premises of the present hearing seems less than in previous years. As
best I could tell there is a single staked notice well within the property that cannot be
seen by neighbors and passersby.
Although disclosed in this and previous development reviews, the plan to add a tall clock
(or bell ?) tower primarily for the purpose of housing telecommunications equipment
seems arguably outside the scope of development reasonably related to religious uses,
and should perhaps have been reviewed separately.
Item 17. Irvine Avenue Median Landscape Improvements
G The minutes of the joint Newport -Costa Mesa Parks Commissions meeting on
December 7, 2011 are a bit inscrutable, but it appears the final recommendation was for
staff not only to present choices to Council for the type of palm tree, but also for various
designs for the stamped concrete hardscape. I don't see hardscape choices in the staff
report.
Since this is a two -city issue, I suppose Council is somewhat obligated to give deference
to the recommendation from the joint meeting, but that meeting was very poorly attended
by the impacted public, and there was some dissatisfaction among the commissioners
that they were not given a variety of options to consider.
May 22, 2012 Council Meeting comments by Jim Mosher Page 7 of 11
o As to the tree, I continue to think that palms are a rather uncreative choice and
not particularly appropriate for a street which is not on a beach or ocean front.
would personally have preferred pine trees (as on Westcliff Drive and at the
neighboring library site), or Milo Schiff's (KOCI radio) suggestion of planting a
variety of classic American trees from which children at nearby schools could
learn.
Item 18. Appointments to the Charter Update Committee
I continue to think making these appointments today will violate (by one day) the state
law requirement (Government Code 54974) that at least 10 working days elapse
between the announcement of unscheduled opportunities to serve on advisory bodies
and the appointment to them. Vacancies are either scheduled (that is, noticed on the
Clerk's Local Appointments List) or they are not. These are not.
o Assuming this section of state law applies to charter cities (as it says it does), to
comply with Government 54974(b) the Council must make a finding that an
emergency exists, and the appointments will be valid only until final appointments
can be made in compliance with the normal guidelines.
Whether or not state law has been complied with, I don't feel eight or nine working days
is sufficient time to locate the persons most interested and qualified to serve in this
capacity; nor do I think a panel of seven persons is sufficiently large to provide a
diversity of viewpoints.
Staff's decision to schedule the meetings of the Charter Update Committee during
afternoon hours, when most working people will be unable to attend, further
disenfranchises a large segment of the public, both from serving on the committee and
from contributing to its deliberations.
0 1 continue to think staff's proposed work plan is impractical:
o With 42 sections to be reviewed in just four meetings before finalizing
recommendations, the committee has more than 10 issues to consider at each.
o The first of these four meetings will be held just two days after appointment, and
committee members will apparently be expected to be instant experts.
o Although the committee is invited to make suggestions for widening the scope of
the review, the second meeting on May 31 appears to be the last practical
opportunity for doing so. After that, the Council would not be able to return with a
decision in time for staff and the committee to pursue the suggestion. The idea
that committee members and the public will have such a comprehensive view of
the revision process as to be able to formulate all reasonable suggestions for
consideration by the Council in a single week seems implausible to me.
May 22, 2012 Council Meeting comments by Jim Mosher Page 8 of 11
Item 19. Quarterly Business Report
I continue to think that as valuable as this document may be, its production places a
considerable burden on staff resources at a time when we say we lack the resources to
perform many other functions (such as scanning the special events applications for Item
14, or keeping libraries open during holiday weeks).
The difficulty of producing something like this so many times a year may be reflected in a
certain lack of attention to accuracy: there are many errors in the parts I know something
about. Having had time to read only a small part before the meeting, here are some
random examples:
o The estimates of staff time spent supporting the various boards, commissions
and committees seem wildly inconsistent. Some may be more "honest" than
others, or meant in a different way, but it seem improbable to me that staff
spends 50 -100 hours per month preparing for a single informal meeting of the
Citizens Bicycle Safety Committee compared to just 25 hours preparing for the
Planning Commission (which meets twice as often and requires extensive written
staff reports).
o Page 17: the well known lot merger appeal is referred to as being on "Ocean
Avenue." I believe it is "Ocean Boulevard."
• Page 19: the Bicycle Safety Committee is said to meet on the second Monday of
each "monthly." In my experience it meets on the first Monday.
• Page 20: members of the Coastal /Bay and Water Quality Committee are said to
"serve for a one year term subject to renewal by the City Council." This would
seem contrary to the City Clerk's understanding, for no "renewal" dates appear
on her Local Appointments List, and to the best of my knowledge no applications
to fill routine vacancies have been solicited. The only recent change is George
Robertson, who was appointed on March 27, 2012 to fill the seat left vacant by
the resignation of 15 -year veteran member George Drayton — a change that is
oddly not reported in the QBR.
o Page 30: the "Length of Term" of the Tidelands Management Committee is
described as "Ongoing until such time as the need for the committee no longer
exists." This is contrary to the terms of the enabling resolution (2011 -26), which
said the committee would automatically sunset on December 31, 2012. My
recollection is that the finite life span was one of many contortions undertaken to
ensure the committee would not, like the Council's Finance Committee, be
subject to the Brown Act. The description in the QBR suggests it is a standing
committee after all.
May 22, 2012 Council Meeting comments by Jim Mosher Page 9 of 11
o Page 47 (Newport Banning Ranch project tracking report): it seems that the
open space option, which had been given lip service in previous QBR's, has now
been discarded entirely. Recent comments by both the City Manager and one of
the Planning Commissioners suggest that the proposed development will cost
the City more than it will generate in tax revenues. One wonders why we
continue to want to encourage this traffic - generating white elephant.
o Page 59 ( West Newport Heights Revitalization project tracking report): I found
the description of this as "West Newport Heights" rather jarring since I had
attended the Citizens Advisory Panel meetings and it was always referred to
there as "West Newport." To the best of my knowledge "Newport Heights" is the
area on the bluffs above Mariners' Mile, bounded on the west by Newport
Boulevard and of the east by Irvine Avenue. No part of this project is even close
to the heights.
Item 20. Second Meeting of the FY 2012 -13 Proposed Budget
G Based on the rather cryptic staff report it is difficult for the public to prepare for this item.
Charter Section 1102 requires the City Manager to submit his proposed budget to the
City Council at least 35 days prior to the beginning of the fiscal year (which is July 1s)
o Around May 8, 2012, just prior to the previous Study Session, certain draft
budget documents were posted to the City website.
o Is this the submittal of that proposed budget?
o If so, why does the staff report not contain a clear reference to the exact
documents being submitted and where they can be reviewed in advance of the
required hearing?
C The final sentence of the staff report, to the effect that "Public Notice for this item was
published in the Daily Pilot on June 4, 2011," seems odd since that was nearly a year
ago, and few readers of the Pilot are likely to remember that notice if it was actually
published.
Item S21. Labor Agreement: Newport Beach Firefighters Association
Although this item is agendized as if the Council were going to vote on the agreement,
and although Article 11, Section 5(b)(4) of the California Constitution gives charter cities
"plenary' (absolute) authority over the compensation paid to its employees, it is unclear
the Council has any power to alter this agreement beyond what it agreed to in closed
session.
May 22, 2012 Council Meeting comments by Jim Mosher Page 10 of 11
o According to previous agendas, the Council chose to confer with its labor
negotiator in closed session pursuant to Government Code 54957.6.
o Government Code 54957.1(a)(6) holds that an agreement reached under that
closed session provision can be publicly reported only "after the agreement is
final and has been accepted or ratified by the other party."
o I therefore assume the "draft" agreement attached to the staff report is final and
has been accepted and ratified by the NBFA, although I fail to see the required
signatures on the next to last page.
That said, there are many parts of the "draft" agreement I don't understand:
o I find particularly odd the statement in Section 1.13.2 that "this MOU shall prevail
over any conflicting provisions of the Newport Beach City Charter." I was
unaware the voters of Newport Beach had given their Council the power to
override the Charter, particularly in view of the California Constitutional mandate,
citied above, by which the people retain, through their charters, absolute control
over employment and compensation issues.
o In Section 1.C.4, I find odd the references to a person designated by the NBFA
as "the designate." I have been unable to find any dictionary of the English
language in which "designate" is recognized as a noun. I believe the author of
the Agreement meant "designee."
o In Section 1.D.1, I was unable to find any explanation of the acronym "SOP"
although I later learned (in Section 2.13.3) it stands for "Standard Operating
Procedures" -- although Section 2.13.1 introduces a new acronym ( "FLSA ") which
is not explained (as "Fair Labor Standards Act') anywhere other than in the staff
report.
o The right to use "bulletin boards within the Fire Department at their present
location" in Section 1.E.1 may be overly restrictive since fire administration, and
perhaps other units, are expected to move during the term of the agreement.
o The meaning of the table of "Scholastic Pay' in Section 2.D.1 is unclear, at least
to me.
What is the significance of the bonus being listed as a "percentage
/month" as opposed to a simple percentage increase in pay?
How do the seniority and credit/degree columns interact with the amount
listed in the final column, particularly for new hires who do not get credit
for credits alone?
C Does a new hire with a B.S. have to wait 4 years to be eligible for
a bonus, whereas if they had only an A.A. they could get a bonus
afterjust 2 years?
May 22, 2012 Council Meeting comments by Jim Mosher Page 11 of 11
o In Section 2.E.1 more undefined acronyms are introduced (MDC, SCBA).
o In Section 2.17.1 the condition that "A move up employee who completes the
minimum requirements for the position while working in the move -up
classification shall be deemed an 'Acting Appointment" effective the date the
minimum qualification is met" would appear to create an inequity in which
someone who was pre - qualified for the position has to wait until their 6m
consecutive shift to become "Acting," whereas someone who was initially
unqualified for the position can become "Acting" sooner.
I assume that if I read the remainder of the Agreement I would have more questions and
confusions, but if the Agreement is already final and ratified, as the Brown Act closed
session understanding would seem to require, further reading of it seems pointless. It is
whatever the Council has agreed to.
McDonald, Cristal
From: Jim Mosher Dimmosher @yahoo.com]
Sent: Tuesday, May 22, 2012 12:29 PM
To: Dept - City Council
Cc: City Clerk's Office; Houston, Rob
Subject: Written Comments on May 22 City Council Agenda Items
Attachments: 2012May22 CNB Council Agenda Item Comments - JimMosher.rtf
Madam Clerk,
I have just CC'd, by e -mail, the attached written comments to the City Council and would
appreciate them being made part of the public record of the May 22, 2012 meeting.
Thank you,
Jim Mosher
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