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HomeMy WebLinkAbout02/24/1997 - Regular Meeting0 CITY OF NEWPORT BEACH City Council Minutes Regular Meeting February 24, 1997 - 7:00 p.m. CLOSED SESSION - 5:00 P.M. INDEX None RECESSED AND RECONVENED AT 7 :00 P.M. FOR REGULAR MEETING ROLL CALL Present: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Absent: Thomson Pledge of Allegiance - Mayor Pro Tem Edwards. Invocation by Helen McFarland, Second Church of Christ Scientist. Presentation of Proclamation to Mr. James E. Thompson, Chairperson of Gateway to Newport's Balboa Peninsula Citizens Committee. • Waived reading of the Minutes of the Adjourned Regular (Study Session) Meeting and Regular Meeting of February 10, 1997, approved as written and ordered filed; waived reading of Ordinances and Resolutions under consideration, and directed City Clerk to read by titles only. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None MATTERS WHICH COUNCIL MEMBERS WOULD LD{E PLACED ON A FUTURE AGENDA FOR DISCUSSION. ACTION OR REPORT (NON- Council Member Hedges requested that the Police Department implement the 311 notification system for non - emergency calls. • Council Member Hedges requested that staff meet with the Bay Island Association regarding tree trimming /mulching services to request that they move that operation more towards the commercial area and transport the waste off -site so it won't have such an adverse impact on the surrounding community. If that is unsuccessful, he requested that he be advised so more formal efforts can be pursued. • Council Member Glover requested a report from the City Manager on the balance of housing on apartment units versus single family /condominium Volume 51 - Page 113 • C J City of Newport Beach City Council Minutes February 24, 1997 units; and a report on the apartments that are being built in Newport Center on Santa Barbara regarding the setbacks. Council Member Glover requested a speed survey and volume count on Santiago in the very near future. Council Member Noyes recognized Officer Tom Monarch and his work with the DARE program. Council Member Hedges requested information on how long the DARE program has existed in the City and statistics on what the drug use was for graduating students when it was instituted versus what it is now. CONSENT CALENDAR 1. INTRODUCE ORDINANCE NO. 97.12 AMENDING SECTIONS 5.28.010, 5.28.035, 5.28.040 AND 5.28.090 OF CHAPTER 5.28 OF THE NBMC PERTAINING TO LIVE ENTERTAINMENT ESTABLISH- MENTS. ORDINANCE FOR ADOPTION 2. Removed from Consent Calendar. 3. ADOPT RESOLUTION NO. 97 -17 ORDERING SUMMARY VACATION AND ABANDONMENT OF A STREET AND HIGHWAY EASEMENT OVER A PORTION OF UNIVERSITY DRIVE LYING EASTERLY OF IRVINE AVENUE FOR STREET AND HIGHWAY PURPOSES TO THE CITY OF NEWPORT BEACH PER GRANT OF EASEMENT RECORDED IN BOOK 8152 PAGE 562 AND PER DOCUMENT NO. 82- 232549, BOTH OF OFFICIAL RECORDS FILED IN THE OFFICE OF THE ORANGE COUNTY RECORDER. Adopt resolution and direct the City Clerk to have the resolution recorded by the County Recorder. 4. ADOPT RESOLUTION NO. 97 -_ AUTHORIZING A SOLE SOURCE PURCHASE OF EQUIPMENT FOR THE JOINT HELICOPTER PROGRAM OPERATED BY COSTA MESA AND NEWPORT BEACH (ABLE) (CONTRACT NO. 3011). Continue to March 10, 1997. CONTRACTS AND AGREEMENTS 5. COMPLETION AND ACCEPTANCE OF OCEAN FRONT STREET END IMPROVEMENTS FROM 51sT STREET TO 55TH STREET (CONTRACT NO. 3081). Accept the work; authorize the City Clerk to file a • Notice of Completion; and authorize the City Clerk to release the bonds 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code. Volume 51 - Page 114 I hll Ord 97 -12 Live Entertainment (27) Vacation & Abandonment/ University Dr Res 97 -17 (90) (No report) Ocean Front St End Improve 51st -55th Sts C -3081 (38) u CJ City of Newport Beach City Council Minutes February 24, 1997 6. MATERIAL PROCUREMENT FOR THE 30 -INCH WATER TRANSMISSION MAIN REPLACEMENT IN EAST COAST HIGHWAY (CONTRACT NO. 3125 -A). Approve the 30 -inch Water Transmission Main Replacement Project in East Coast Highway between Jamboree Road and Promontory Point; find that Ameron International of Rancho Cucamonga submitted the "lowest responsible bid," and they can meet the requirements for providing the pipe materials for the East Coast Highway Project; and award Contract No. 3125 -A to Ameron International of Rancho Cucamonga in the amount of $126,080. 7. CITY -WIDE PAVEMENT MANAGEMENT PROGRAM. Approve a Consultant Agreement with Berryman & Henigar for providing professional services for the development of a citywide Pavement Management Program for a not -to- exceed amount of $77,814; and authorize the Mayor and City Clerk to sign the agreement on behalf of the City. 8. BUS SHELTER AGREEMENT (CONTRACT NO. 2839) AND APPROVAL OF BUDGET AMENDMENT (BA -031). Approve Budget Amendment (BA -031) to increase revenues to the Contributions Fund in the amount of $14,300 and appropriate this amount to Account No. 7251 - 05200352; Bus Shelters per amendment to the Bus Shelter Agreement. MISCELLANEOUS ACTIONS 9. Removed from Consent Calendar. 10. PLANNING COMMISSION AGENDA FOR FEBRUARY 20, 1997. 11. COMMUNITY SERVICES BUDGET AMENDMENT (BA -027). Approve Budget Amendment (BA -027) for $10,651 to appropriate donation to night shift differential pay; donation is from the California Literacy Campaign. 12. COMMUNITY SERVICES BUDGET AMENDMENT (BA -028). Approve Budget Amendment (BA -028) for $900 to appropriate donation to supplies (LCSA Grant Fund). 13. HARBOR VIEW AND NEWPORT HILLS SPECIAL REFUSE COLLECTION BUDGET AMENDMENT (BA -029). Approve Budget Amendment (BA -029) for $3,466.22 to budget revenue and appropriate funds for the special refuse collection paid by the Villageway Board of Directors. 14. APPLICATION OF MARK BECHER TO CONSTRUCT A CURB OPENING AT 303 COLLINS AVENUE, IN BALBOA ISLAND (EP 97 -48). Approve the application subject to an Encroachment Permit from Public Works Department. 15. ECONOMIC DEVELOPMENT COMMITTEE VACANCY. Appoint Kim • Barone as Member At -Large (Areas of Special Expertise), replacing Christie McDaniel who has been reassigned to another part of the Southern California Edison Company. Volume 51 - Page 115 INDEX 30 -Inch Transmission Mn Replacement ECH C -3125A (38) City -wide Pavement Management Program C- 3131(38) Metro Display Bus Shelter C -2839 (38) Planning (68) BA -027 (40) BA -028 (40) GS/Refuse Collection (44) BA -029 (40) PW /303 Collins Ave Curb Opening (65) EDC Comm (24) • • City of Newport Beach City Council Minutes February 24,1997 16. HOLISTIC HEALTH PRACTITIONER DENIAL FOR SHIRLEY HENDERSON. Accept, approve and adopt the determination of the hearing officer as final and deny administrative appeal of Shirley Henderson. 17. Removed from Consent Calendar. 18. FIREFIGHTER VACATION RELIEF STAFFING/RELIEF CREWS OR OVERTIME. Receive and file report prepared by Fire and Marine Chief comparing the costs of utilizing the Vacation Selection System vs. ten relief fire positions. 19. Removed from Consent Calendar. MOTION BY MAYOR PRO TEM EDWARDS TO APPROVE THE CONSENT CALENDAR, EXCEPT FOR THOSE ITEMS REMOVED (2, 9,17 & 19). The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None ITEMS REMOVED FROM THE CONSENT CALENDAR 2. ADOPT ORDINANCE NO. 97 -11 REDUCING THE SPEED LIMIT ON SAN JOAQUIN BILLS ROAD AND MARGUERITE AVENUE BY 5 MPH. Appeal of the decision by the Traffic Affairs Committee (TAC) to maintain the existing speed limits on San Joaquin Hills Road and Marguerite Avenue. Since the appeal of TAC's decision, additional speed surveys have been conducted and the matter reviewed by the City Council Public Works Committee. Based on this review, the Committee recommends reducing the speed limit on Marguerite by 5 mph and install additional signage; returning the speed limit on San Joaquin Hills Road to its prior speed limit and adding additional signage and markings. Public Works Director Webb explained that this item addresses the speed on San Joaquin Hills Road and Marguerite and through this ordinance the speed limit will be lowered on Marguerite from 45 mph to 40 mph and on San Joaquin Hills Road from 55 mph to 50 mph. In addition, staff will be working with the neighborhoods, as well as implementing several other programs. One of these programs is the posting of signs indicating "Senior Area Ahead," which will reduce the speed limit to 25 mph adjacent to Oasis and additional signage related to that will also be posted. On San Joaquin Hills Road some additional striping will be done in the area around the school loading zones to make the area more visible. Dolores Otting voiced concern about raising speed limits on any of the • streets in Newport Beach. She pointed out that the speed limit on San Miguel is 45 mph and there are areas on Pacific Coast Highway where the speed limits are 35, 40 and 45 mph, therefore she doesn't understand how Volume 51 - Page 116 I 1 Massage/ Holistic Health (27) Fire (41) Ord 97 -11 Veh & Trffc (85) City of Newport Beach City Council Minutes February 24,1997 isthe speed limit can be 50 mph on San Joaquin Hills Road. She spoke in opposition to the raising of speed limits and requested information on what is being done in other cities. Mayor Pro Tom Edwards explained that the action to be taken will reduce the speed limits by 5 mph. He said that approximately 3 -1/2 or 4 weeks ago the Council made some decisions as a whole not to increase certain speed limits in certain portions of the City. Motion by Mayor Pro Tem Edwards to adopt Ordinance No. 97 -11 reducing the speed limits on San Joaquin Hills Road and Marguerite Avenue by 5 mph. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None 9. COUNCIL POLICY K -7. Assistant City Manager Wood explained that there are two reasons for the proposed amendment to this City Council policy. The first is due to a recent change in state law that requires the City to make its determination of public convenience or necessity for liquor licenses within 90 days. Secondly, • this is in response to direction from the City Council after discussions were held about the alcohol related issues in Cannery Village in November. The proposed amendment satisfies the state law revision with the elimination of the appeal to the Planning Commission and the establishment of time frames for both the Chief of Police's action and for the appeal process to the City Council. She said that it is important to note that neither state law, the existing Council policy, or the proposed amendment to the Council policy affects existing businesses unless there is a desire to upgrade the type of liquor license that the business has. These provisions apply only to new licenses or premise to premise transfers of licenses. They do not apply to what is called a person to person transfer when someone sells their business and the liquor license is to remain at the same location. She explained that the state law provides that in areas that are 20% or more above the number of crimes that is average in the City or that have a higher than average in the County ratio of liquor licenses to population, the Alcoholic Beverage Control (ABC) must deny a new or premise to premise transfer of a liquor license unless the local government makes a determination of public convenience or necessity. Pursuant to existing policy the Council has delegated making these determinations to the Chief of Police. She said there are eleven reporting districts in the City that meet the criteria for crime, therefore the Police Chief is involved in making those determinations and there are 25 reporting districts in the City which do not meet the criteria at this time. What is proposed in the amendment is that -for reporting districts that have a number of crimes that are 75% over the City average and for • locations that are within 200 feet of residential use, which affects 3 reporting districts in the City, the City Council will be directing the. Police Chief not to issue a determination of public convenience or necessity for those situations, Volume 51 - Page 117 I1� 1 1 Council Policy K -7 (69) City of Newport Beach City Council Minutes February 24, 1997 II 1 therefore the ABC would be precluded from approving the liquor licenses. The specific areas that would be affected by this are West Newport, Lido Village, Cannery Village and Central Balboa. The definitions in the proposed amendment to the policy would have these new provisions apply to bars, cocktail lounges, cabarets and nightclubs and would not apply to restaurants that remain restaurants for all of the hours that they are open. If a restaurant ceases serving food and then becomes a bar operation then the new provisions would apply. She pointed out that this is a City Council policy, not an ordinance and it includes an opportunity to file an appeal with the City Council so that the Council could make the determination of public convenience or necessity if the circumstances of a particular business warranted it. She noted that there is a letter in the packet from Mr. Howard Norris stating a number of his concerns. She said she spoke with Mr. Norris and she believes the majority of his concerns are not with this policy but with the draft amendment to the zoning code that would implement additional regulations on these kind of businesses. She stated that the rumor that the City is planning to close the bars in Newport Beach at 11:30 p.m. is not true. Mayor Debay explained that staff will be calling the Restaurant Association, the Chamber of Commerce, the Business Associations and the Business Improvement Districts to meet and discuss the proposed zoning code amendments. She said those meetings will be held prior to March 24, 1997 when the amendments are scheduled to be considered by Council. • Responding to various questions posed by Council Member O Neil, Mrs. Wood reported that the only existing businesses that would be affected by the proposed policy would be ones that want to upgrade the type of license they currently have.. She said the policy would not affect a liquor license as long as the license remains at the same location or a person to person transfer. If a business has a liquor license and transfers it or sells it to another bar establishment at another location it would come within the limitations of the policy as long as the new location is one that meets the criteria of the state law or the more limiting criteria of the proposed policy amendment. She said that this policy is aimed at establishments which primarily have a bar /cocktail lounge as the primary use, however it does apply to restaurants that also serve beer and wine or alcohol as long as the bar service continues after the food service ceases. In response to Mayor Debay, Mrs. Wood stated that this policy does not apply to any applications currently being considered. Council Member Hedges said the policy is unclear in that it would not prohibit a premises to premises transfer from an area which falls under Items 1 and 2 of the policy, specifically the 75 %v or higher crime rate or the 200 feet within residences. He asked if the policy would prohibit someone from doing a premises transfer of a license from one of those areas to one of the areas which is not included. • City Manager Murphy explained that by being silent on this issue, the policy would permit the transfer from one of the included zones to one that is not included. Volume 51 - Page 118 • CJ City of Newport Beach City Council Minutes February 24, 1997 In response to Council Member Hedges' question about how the 200 feet was derived at, Mrs. Wood explained that staff was trying not to include Newport Center and the airport area in the criteria because both areas would meet the criterion for the 75% higher than average crime rate. It was felt that both of these areas were in a much more commercial area than the others being looked at, there is more distance between the commercial and residential uses, and there would always be a 200 foot distance maintained in those areas. John Stuhley, attorney representing Snug Harbor, voiced concerns with his client's business being singled out and named in the staff report and the Project 2000 report, which he feels is unfair and discriminatory. He also voiced concerns about the section of the policy dealing with the issuance of business licenses. Council Member Hedges explained that it is true that if his business were new it would not be allowed, but since it is in existence already it is allowed. He pointed out that Snug Harbor is given as an example in the staff report, however it is not named in the policy. Mrs. Wood explained that the section of the policy dealing with business licenses refers to new licenses, not renewals, and the only change is from "Finance" Department to "Administrative Services" Department. Council Member Glover personally apologized to Mr. Stuhley and said that she personally feels that businesses should not have been named in the staff report or the Project 2000 report. Richard Luehrs, President of the Newport Chamber of Commerce, reported that he reviewed the proposed policy, met with staff, the Police Department and bar and restaurant owners to discuss the proposals and other issues. He said that it was their conclusion that this policy is in the best interest of the business owners throughout the City, therefore encouraged the adoption of the policy. Howard Norris, owner of STAG BAR in McFadden Square, clarified that existing businesses are not affected by this policy nor are businesses that are transferred from person to person. He noted that the laws of the ABC cover the issues that are coming up. Les Bobbitt, Blackies by the Sea, explained that he has filed an appeal because he wants to upgrade his business. He said that his establishment has a good record and he would like his application to be judged on his record. Motion by Council Member Hedges to approve Council Policy K -7 as amended to clarify the issue of successors and the issue of new licenses, as well as language to address transfers as he noted earlier.. City Attorney Burnham read the following modified language into the record Volume 51 - Page 119 INDEX • • • City of Newport Beach City Council Minutes February 24, 1997 to address Council Member Hedges' concerns about transfers, "The provisions of this policy shall not prevent the Chief of Police from making a determination of public convenience or necessity in the case of a premises to premises transfer of any license from: 1) a location within an area where the number of crimes is 75% or more higher than the average of all reporting districts to an area which the number of crimes is less that 75% than the average, or a location within 200 feet of a property and residential use or location more than 200 feet from a property and residential use." The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None 17. HOLISTIC HEALTH PRACTITIONER DENIAL FOR ANDREA DANIELS. City Attorney Burnham explained that the hearing officer, as indicated in his report, has determined that the applicant did not satisfy the requirements of the holistic health practitioner ordinance related to passage of the required National Certification Exam or necessary insurance when the Police Department denied the application for that permit. Subsequent to submitting her application, she was reminded twice of the need to comply with those requirements and failed to do so before the Police Department took action. He said that there is a statement in Mr. Golden's letter that the applicant failed to receive notice of the hearing on the appeal and in fact the City gave notice of the date, time and place of the hearing on the appeal to her attorney two weeks prior to the hearing date. He said there was no written request for continuance submitted to the City and no one appeared at the date and time of the hearing to request a continuance or present any evidence on the applicant's behalf. He said that his office confirmed that the applicant's attorney of record was appointed to the bench as indicated in Mr. Golden's letter, however he does not have any confirmation whether the applicant did, sometime after the Police Department denied her application, supply some or all of the required documentation. Council Member Hedges said that his reading of this indicates that the application was denied because of the applicant's failure to provide the necessary paperwork. Mr. Burnham said that it was denied for failure to provide paperwork which would demonstrate that the license or permit should be or could be granted under the ordinance. He said that he does not have any information to indicate that there was anything else wrong that would have precluded the issuance of a license, nor does he have any information" to confirm the statement in Mr. Golden's letter that the applicant submitted the necessary documents subsequent to the date the application was denied. He said that subsequent to the applicant submitting her application the code was changed, therefore the applicant no longer satisfies the education Volume 51 - Page 120 I 1 Massage/ Holistic Health (27) • City of Newport Beach City Council Minutes February 24, 1997 INDEX requirements for a holistic health care practitioner. He also indicated that there is no proof to confirm or deny whether the documents were provided or the requirements were satisfied subsequent to the date that the Police Department made the determination to deny the application and prior to the date on which the appeal hearing was scheduled. He said he was unable to determine when Mr. Cassidy was elevated to the bench. Jonathan Golden, attorney for Andrea Daniels, verified that the application was denied because his client failed to provide documentation promptly as required by the Police Department, however she did provide it. He suggested that a way to resolve this fairly would be to simply kick it back to the hearing officer to determine one thing - did she satisfy the code, albeit belatedly. The code, as it existed at the time she applied, gave the Police Department a total of 75 days to approve or deny the application. Ms. Daniels submitted her paperwork well before the 75 day deadline, however the Department took the position that it had to be submitted within 45 days. He said he believes that if the hearing officer can review what actually occurred, he would probably recommend the granting of the license, since it was really an administrative type of thing that she fell down on. He said his client is a single mother, full -time college student, trying to get into medical school and she needs to work. He said the reason she didn't show up for the hearing was because her attorney got elevated to the bench and was therefore disqualified from representing her. He said he was informed that her previous attorney tried to get the hearing continued, but apparently he • didn't and she didn't have time to hire another lawyer. He said he believes that Mr. Cassidy received notice of the hearing about ten days in advance and the last his client heard from him was that he was going to get the matter continued. He said she was aware there was going to be a hearing in the near future, but did not know the exact date. He reported that he began representing Ms. Daniels on Friday, February 21, 1997. He said that it is his contention that his client submitted the documentation in a timely manner, however the Police Department construed the ordinance more strictly then needed. Mr. Burnham said his understanding was that the Police Department had 75 days to take action on the application. The applicant was allowed to apply with the understanding that she did not satisfy the requirements however would do so within a reasonable period of time. She was twice reminded of the requirements in conversations with the Police Department and the Police Department decided to deny the application after 45 days. He reminded the Council that during, as well as since this time period, the City has received complaints from applicants for both massage and holistic health practitioners. that the Police Department takes too long to take action on applications. He said he feels it is appropriate for the department to take action once they determine they have given the applicant a reasonable opportunity to comply. Chief McDonell said he spoke with the staff member who handles the • processing to verify the status of the application. He said that Ms. Daniels did present evidence that she passed the national certification some time after her application was denied, however to date has not presented any Volume 51 - Page 121 • City of Newport Beach City Council Minutes February 24, 1997 evidence of insurance or evidence that she belongs to a continuing professional organization, which are also licensing requirements. In response to an earlier question, Mr. Burnham said he reviewed the ordinance and did not find anything that would prohibit the applicant from submitting an application under the provisions of the current ordinance. In response to Mr. Burnham's question about whether a complete background investigation was conducted, Chief McDonell indicated that he did not know whether or not the investigation had been conducted. Motion by Council Member Hedges to continue this matter to March 10, 1997 in order to get more answers. Mr. Golden stated that he and his client would waive any enforcement of the time limits and would stipulate to the continuance. Mr. Burnham made representations to Mr. Golden that staff will work with him in an effort to reach some stipulated set of facts to submit to the City Council. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None 19. AQMD GRANT FOR NATURAL GAS VEHICLES. City Manager Murphy reported that the recommendation from staff is that the City inform the AQMD that due to delays in the production of CNG refuse vehicles and higher than anticipated costs, the city wishes to cancel the alternative fuel contract; and to direct staff to proceed with the re- bidding process to purchase five front loading refuse trucks and three rear loading refuse trucks with diesel engines. He said that based on the delays and higher costs it no longer makes sense to consider the alternative fuel vehicles, consequently the appropriate action is to proceed with diesel vehicles. Madelene Arakelian reminded the Council that she advised them earlier not to buy these trucks and again reiterated that they would not have been efficient. She voiced concerns about why the diesel trucks are costing so much since the City doesn't pay license and tax fees. She offered her assistance with the process and agreed to provide information to the City Manager about what she recently paid for new trucks. Mr. Murphy explained that when the trucks were bid the diesel prices came . in substantially higher than they were a couple of years earlier. He said staff will be meeting with the bidders before it goes back out to bid to inquire about why the prices are so much higher, to look at the specifications and Volume 51 - Page 122 INDEX So Coast AQMD Nat Gas Veh C -3123 (38) • City of Newport Beach City Council Minutes February 24, 1997 what is going on in the industry. INDEX Council Member Hedges stated that the City should take up Mrs. Arakelian on her offer since there may be a great opportunity to save the taxpayers money by using her depth of expertise. Motion made by Council Member O'Neil to direct staff to inform AQMD that due to delays in the production of CNG vehicles and higher than anticipated costs, the city wishes to cancel the alternative fuel contract; and direct staff to proceed with the re- bidding process to purchase five front loading refuse trucks and three rear loading refuse trucks with diesel engines. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None PUBLIC COMMENTS • Tom Hyans, President of Central Newport Beach Community Association, voiced concerns about a memo from one of the co- chairs of the BPPAC Committee that was addressed to the other committee members and workshop members. He said the memo describes the meeting that took place at the American Legion Hall and points out that because of the site location the meeting was dominated by Marina Park residents and their issue with the proposed alternate use and special study area designation. He noted. that there were eight couples there and one spokesperson addressed the assembly to ask why they were on the agenda and why they were included in the BPPAC report. In the letter the co -chair suggests that they meet with the press to stage a follow -up article on: comments made, misrepresentation of the reports, and organized opposition issues and to prepare a supplemental committee report to the Council to summarize the town hall input and to identify and challenge the special interest opposition. He stated that there was no special interest opposition nor any organized opposition. He said the Council should look softly on Marina Park taking into consideration that it is $1 million in annual revenue to the General Fund. • Ken Labbe, National Real Estate and Group, Inc., commended the Council on getting started with Project 2000. He stated that while attending a hotel conference in Beverly Hills, Newport Beach came up as an area of opportunity. He questioned whether the City is prepared to identify specific sites for development for a hotel use, an end use, or residential use and questioned whether the City is prepared to be productive in working with investors that are interested in the area. He questioned whether the City would be able to move within the current real estate cycle and take • advantage of interested investors. He said they have a specific user, a luxury hotel operator and developer, who is interested in the peninsula and they would like to be able to identify specific opportunities on the peninsula Volume 51 - Page 123 City of Newport Beach City Council Minutes February 24,1997 where they may be able to locate. CONTINUED BUSINESS 20. APPOINTMENTS BY THE CITY COUNCIL TO THE CITIZENS ADVISORY COMMITTEES FOR A ONE -YEAR TERM ENDING DECEMBER 31, 1997 (appointed by Council upon recommendation of each Council Member) (contd. from 12/9/96, 1/13/97, 1/27/97 & 2/10/97). Action: Confirmed the following nominations and continued the remaining as noted: Bicycle Trails Citizens Advisory Committee (District 1) Council Member Hedges' appointment of (continued indefinitely). (District 7) Council Member Thomson's appointment of and Environmental Quality Affairs Citizens Advisory Committee • (District 4) Mayor Pro Tern Edwards' appointment of Jon Robertson. (Note: Mr. Robertson appointed by Council Member Noyes on 1/13/97, therefore appointment will be rescheduled for 3/10/97). 21. HARBOR, . BEACHES AND PARKS COUNCIL (continued from 1219/96). Motion by Mayor Debay to appoint Council Member Noyes as Chairman. The motion carried by the following roll call vote: Ayes: O Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None CURRENT BUSINESS 22. COUNCIL POLICY MANUAL REVIEW. City Manager Murphy explained that annually the Council Policy Manual is reviewed pursuant to Council policy. He stated that most of the amendments are fairly minor and have gone through the appropriate Council committees for review and they have recommended approval. • Council Member Hedges voiced concerns about the City's duplex property and said he doesn't feel the City should be in the duplex rental property business and requested that the Council take a formal look at the ultimate Volume 51 - Page 124 INDEX CAC (24) (No report) Council Policy Review (69) • • City of Newport Beach City Council Minutes February 24, 1997 disposition of that property. He said he has never seen an income statement from it despite asking for it several times. He said nobody knows what the City spends on it or what the return on the asset is. Mayor Pro Tern Edwards said he also feels the Council should ultimately look at that particular income property, however noted that Policy F -7 indicates that. each property will be looked at separately. Motion by Council Member Glover to approve the proposed revisions to the Council Policy Manual pursuant to Council Policy A -3, as recommended by the Council Legislative Committee and Finance Committee. Mayor Debay requested the following modifications to Policy A -2, the procedure for voting on appointments to City Commissions, Boards and Committees: 1. Each Council Member casts one or more votes with not more than one vote per nominee. 4. Voting shall be by roll call vote. City Clerk Harkless and City Manager Murphy explained that the voice roll call vote procedure was suggested in order to make it easier to record the vote. The motion, with the above changes included, carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None Council Member Hedges noted that when the minutes were approved earlier there was a correction that needed to be made in reference to a motion that was made to include in the affirmative the study of the 32nd/Via Lido intersection on the BPPAC report. He said the motion did not state that in the minutes. Council Member Hedges requested that a transcript of that portion of the meeting be provided at the meeting of March 10, 1997. 23. WASTE DISPOSAL AGREEMENT. City Manager Murphy presented the staff report, noting this is a very complex issue. In 1996, the City Council uniquely listed as one of its top priorities landfill options. That was done primarily because the landfill rates for City trash increased substantially in 1995 from $22.75 a ton to $35 a ton, at a cost of about $250,000 to the general fund. As a result of that movement in the City Council priorities, the City staff fast began to renegotiate the contract with the recycling contractor which resulted in long -term savings. The second thing undertaken last year was examining the short- and long- term options for landfill disposal, again as a result of those increased costs. Staff looked at all the landfills in southern California and provided information to the Council as to the availability of those and what the rates might be. The Council initially authorized negotiating an agreement with a Volume 51 - Page 125 INDEX Commercial Refuse Franchises (42) • 1] • City of Newport Beach City Council Minutes February 24, 1997 landfill out of the county, the El Sobrante Landfill. Ultimately, that did not prove successful because they have been unable to get approvals from the governing body in that county to allow other counties' disposal. Subsequent to that action, Council directed that staff look at depositing waste in a waste energy facility in Long Beach at $22.50 a ton. Unfortunately, that option is no longer available at that rate. While looking at those options, coinciding with staff review, has been the examination of the underlying issue by Orange County whether or not the county really wants to remain in the landfill business. To that end and because it is a very complex issue in today's marketplace, the county retained two firms, A. G. Edwards & Sons and Alexander Brown & Sons, in early 1996 to look at what the best options might be. Those two companies were hired with the intention of selling the landfill system. The study came down to three basic options: 1) to sell the system, exit the business; 2) to keep the landfill without agreements with cities as they do today; and 3) to keep the landfill system in the county with agreements with the cities. The report also identified that the third option was unlikely to happen because of past experiences in negotiating those types of agreements with cities. The analysis that was also done which is relevant to this discussion was the fact that if the county were to retain the system and if it could reach agreement with the cities, that a rate at which it could adjust its tipping fee to, identified in the report that actually a rate of 10 years' agreements with the cities, could actually be $17.53 per ton. The Orange County League of Cities appointed a group of City Managers to review the report and look at the options which made most sense to the cities; and in that process, Newport Beach retained a consultant to look at the county's studies to make sure their assumptions were correct. If Newport Beach could get a rate of $17.53 for ten years, it would .be doing very well. The report that was completed indicated that there were some optimistic assumptions in terms of imported waste into the county and some under - reserving by the county's consultants for closure and post - closure reserves. As a consequence, the City's consultant indicated that a rate that could be sustained for ten years is $22. The Council had before it at this meeting a waste disposal agreement which would put the city in place of having a stable landfill rate. Within the staff report is a ten -year agreement which has been negotiated over a long period of time with county staff and with attorneys on both sides. The agreement is now going through the process of being reviewed by all the cities in the county. For this agreement to move forward with the county, cities with the aggregate total of 1,842,000 tons must act on this by March 30th. The purpose at this meeting is to give the Council its first look at the agreement. Council needs to take a step before actually considering the action at the next meeting; that is, if the City is to comply with the terms of the agreement now, the City must actually give notice for the terms of the potential agreement not only to the City's recycling contractor, CR &R, but also the non - exclusive franchisees that the city would be directing to deposit in the Orange County landfill system, provided that the city enters into that agreement at the next Council meeting. Mayor Debay noted that the requested action at this meeting is to receive Volume 51 - Page 126 INDEX .0 City of Newport Beach City Council Minutes February 24, 1997 INDEX the written and oral report, set the agreement for action on March 10th, and direct staff to give 120 -day notices to the franchisees and CR Transfer. City Manager Murphy indicated that three cities have taken action to approve the agreement and there are five cities this week considering the agreement. All their staffs are recommending approval. There are two sanitation districts also considering it this week, and there is one of the largest haulers in the county considering formal signature to the agreement. Council Member O'Neil addressed questions to the City Attorney, noting he could come back later with the answers. He noted three areas of interest: 1. The U.S. Constitution Commerce Clause limitation referred to in the memorandum from the law firm of Woodruff, Spradlin & Smart that talks about the Commerce Clause and various case law interpreting the commerce clause and the exception to the Commerce Clause for participants that sign this agreement who fall in this exception. The Woodruff memorandum has a caveat at the end of the analysis that should be reviewed by our the City Attorney. Mr. O'Neil asked for input from the City Attorney with regard to any potential violations of the Commerce Clause. 2. There is mention of CERCLA indemnification as an "arranger." The City has set up a system with its non - exclusive franchise haulers to have a fund set up for CERCI.A insurance to cover the city :in the area of toxic liability. • He asked the City Attorney to comment on the area of CERCLA protection. 3. The third question deals with joint and several liability. Assuming that each city enters into a separate contract with the county, if there is a breach on the part of one other member of this arrangement that that doesn't hold the other cities out for any kind of liability. City Attorney Burnham responded, noting there is no joint and several liability because each city will sign its own agreement with the county. As to CERCLA liability, the city currently has potentially generator and transporter liability under CERCLA and possibly arranger liability. This agreement does not indemnify the city for transporter or generator liability, but the city's liability in that regard is not increased by this agreement. The agreement does provide limited arranger indemnification to the extent that that liability flows from this agreement, so this agreement does not create any CERCLA liability that does not currently exist. Mr. Burnham noted he does agree with the Woodruff opinion. In reviewing the cases cited, the city is protected from commerce clause violations when it acts as a market participant. In this case, the city functions very much in that regard. The city in fact collects residential waste with its own forces and uses its ad valorem property tax revenues to pay the cost of those services. This agreement will, he believes, reduce the amount of ad valorem property tax revenues the city pays to dispose of solid waste and is not only saving money but is acting as an active market participant. While the city does franchise . the collection of commercial waste, it is still functioning in a contractural and market participant capacity in that regard as well and is protected from Sherman Antitrust and Commerce Clause liability. Volume 51 - Page 127 • City of Newport Beach City Council Minutes February 24, 1997 INDEX Council Member O'Neil asked if the agreement had been drafted by a law firm representing the county. City Attorney Burnham responded in the affirmative and noted that there was a team of City Attorneys that negotiated the agreement with the firm representing the County Counsel's office. City Manager Murphy noted that there was team effort of three City Managers and three City Attorneys that negotiated directly with the county. Council Member O'Neil asked if a legal opinion had been prepared on these various issues involving the contract itself. City Attorney Burnham responded that a legal analysis had been prepared for the County Counsel's office and provided to the cities. They concur with the conclusions of Woodruff, Spradlin & Smart. He stated he had reviewed it, and the law firm representing the county has, in its memo, clarified issues addressed to City Manager Murphy and which have been dealt with to his satisfaction. Council Member O'Neil asked if there was any provisions or clause in the agreement that City Attorney Burnham would recommend be modified in any way. City Attorney Burnham responded that before reading the memo from Hawkins, Delafield & Wood, he might have suggested a modification to provisions of the agreement that do not clearly identify what constitutes a breach of the waste disposal covenant that the city enters into. He noted he was also somewhat concerned about the liquidated damages penalty for any breach of the waste disposal covenant. After reading the memo which would • tend to bind the county in terms of their interpretation of the agreement, he is much more comfortable with both the breach provisions and the liquidated damage provisions. Council Member Glover noted she serves on the Integrated Waste Management Commission for the county, which is made up of representatives from the five supervisorial districts. At the time of the county bankruptcy, the supervisors looked to the landfills as a way of getting an immediate cash infusion that would help with the bankruptcy. When they brought in A. G. Edwards and Alex Brown to look at this, the supervisors intent was to sell. She served on the subcommittee that met with A. G. Edwards and Alex Brown as they put together their report. Throughout the process, most of those involved with this on the county level had hoped there would not be a sale. The whole issue of how the county can sell something and then come back to the cities who would have to figure out their own method of how to deal with a private entity. There are many who feel the landfill belongs to the citizens of Orange County and that maybe the Board of Supervisors didn't have the authority to sell it. She commended City Manager Murphy for his work on this matter. Council Member Hedges noted that the people who enacted the initiative ordinance many years ago which required that the disposal of waste be defrayed from ad valorem tax revenues should be thanked on this issue. He asked about the numbers of customers in the city and the amount of money • the agreement is supposed to save the city per year. City Manager Murphy responded that, based on the last quarter of last year, about 120,000 total tons between the city and the franchisees, the city looked at a $5 per ton Volume 51 - Page 128 City of Newport Beach City Council Minutes February 24, 1997 FQ P 1 issavings —about $600,000 in rough numbers in savings to all parties in Newport Beach as a result of this agreement. According to the current agreement with CR &R, the city gets to keep 75 % of the reduction, or approximately $125,000 per year to the general fund. Council Member Hedges said that computes to about a 40 to 45 cents per month increase per customer in the absence of any savings, and he felt that there were probably four people on the City Council that would say, in the absence of it being defrayed out of general tax revenues, if it were a monthly fee, we would have to raise it 45 cents per customer. Council Member Hedges had further questions: How open ended is the requirement to "exercise all legal and contractual power and authority" to deliver or cause to deliver waste to the county? City Manager Murphy gave the framework of why it was worded that way: in order for the county to give the city the rate it wants, it needs to know it is going to get a certain amount of tonnage. That would require each of the cities which have different relationships with their haulers to commit to take any legal steps necessary to direct it. What is perceived from the Hawkins, Delafield memo is if the city takes all the legal steps necessary to enforce that, it has complied with the terms of this agreement. City Attorney Burnham responded that the commitment would be the amendment of the franchise agreement, the amendment of the agreement with CR &R, and if a franchise hauler violated the terms of the franchise, the city would be obligated to commence legal action to enforce the terms of that agreement. In response to • further questioning by Council Member Hedges, City Attorney Burnham responded it would be up to the city to make that decision; that the city would consult with the county, advise it of the situation, and seek its counsel, but it would be the City Council's decision on how to proceed. Council Member Hedges had further questions regarding the current cost of disposing of waste, "convenience termination" if the city decides to opt out, the ability of the city to establish an enterprise fund and remaining in the spot market and making some overall savings, renewal terms and rate adjustments, out -of- county waste income to the county, and number of landfills in the county and which are used by the city, to which City Manager Murphy responded. Mayor Pro Tem Edwards referred to Paragraph F, page 13 of the staff report, Legal Challenges to Franchise System, and noted his concern if there is any challenge on any legal theory, the city not only has to defend itself but potentially the county. Referring to page 21, Calculation of Average Annual Inflation, he asked for clarification of the 4% annual inflation. City Manager Murphy responded, noting this section was written by the city's consultant. City Attorney Burnham responded to Mr. Edwards' first question, noting that the city would be obligated to defend the county against any challenge to the waste disposal covenant, but the city would be the primary party. Mayor Pro Tem Edwards noted he did not read in the agreement any • restriction on the county's ability to sell. City Manager Murphy responded that there is such a clause; at the seven year mark, if it is determined cities cannot reach an extension for another ten years, the county has the ability Volume 51 - Page 129 • City of Newport Beach City Council Minutes February 24,1997 I0 1 ` between years seven and ten to take the steps to sell it, but the county cannot consummate a deal and change ownership of the system until after the ten years conclude. The county has determined legally, through County Counsel, that if it was to sell the system, based on Proposition 13, it could not move the proceeds of the sale into its general fund. Mayor Pro Tern Edwards asked if the city has the right to review the county's accounting procedures. City Manager Murphy responded that that was a major issue and a procedure was written specifically in the agreement so that each year the cities look at the 10 -year financial projection. Mayor Pro Tern Edwards clarified his question to include additional requests to review working papers after the audit. City Manager Murphy responded that a request can be made at any time as the papers would be public documents; and further that written in the agreement is a base report format that all parties could agree to that would be maintained over the course of time. Mayor Pro Tern Edwards asked, regarding the joint several liability question referred to earlier, if a city dumps ultra hazardous waste at a site at which this city also dumps and the downwind neighbors bring suit against the county, and there is no determination as to who the liability shall inure to, do all become jointly and several liable? City Attorney Burnham responded, no, not pursuant to this agreement. The agreement protects the city from additional CERCLA liability that may relate to our status as an arranger. • Council Member Glover stated the main reason we were able to get this agreement is based on flow control, and this is what had to be sold to the county: that the city would have continuous flow control; without that this is not possible. Some of the elements she wanted to be sure were covered was 1) to make this agreement as recession -proof as much as possible; 2) set - aside of funds for closing a landfill; and 3) for the city to be in a position to have input as to how much imported trash will be accepted; that each one of the cities should have input into the long -term management plan. Mayor Debay opened the public hearing. Madelene Arakehan, franchise independent hauler, asked City Manager Murphy when signing the documents to the county, which all the cities will sign, what in turn is going to be asked of the franchise haulers to sign because there is also a franchise haulers acknowledgment. The independent franchise haulers in the County of Orange have not had the opportunity to give direct input in some of the other cities and the county. City Manager Murphy responded that in the agreement Appendix 1, only those cities in Category 2 will be asked to sign the acknowledgment. Because Newport Beach is not in Category 2, but for those listed in Categories 1 and 3, there is no need for the hauler acknowledgment. If the Council accepts staffs recommendation to give the haulers notice, then the • City would give notice this week that, effective July, 1, haulers would be directed to take trash to one of the three county landfills. Volume 51 - Page 130 C • City of Newport Beach City Council Minutes February 24, 1997 Ms. Arakalian had further questions about the hauler being indemnified because the city is getting indemnification from the county. City Manager Murphy responded that the city is paying for that indemnification. Mayor Debay asked Mr. Murphy to meet with the franchise haulers when he gives them the notice, which he indicated he would do. Council Member Glover indicated her desire that such a meeting take place. Ms. Arakelian further stated that major concerns in the contract will be addressed at the Board of Supervisors meeting, and noted her concern that the agreement was not brought to the public and that the elected officials were not involved in it Mayor Pro Tem O'Neil asked City Manager Murphy to provide the Council with a synopsis of the meeting with the franchise haulers. City Manager Murphy stated that Council Members were welcome to attend that meeting. Mayor Debay closed the public hearing. Motion by Council Member O'Neil to receive the written and oral report of the City Manager; direct staff to give 120 day notices to franchisees and CR &R to direct waste to the County landfills effective July 1, 1997; and set the agreement for action on March 10, 1997. The motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Hedges, Glover, Noyes, Mayor Debay Noes: None Absent: Thomson Abstain: None 24. CITY -WIDE NEWSLETTER. (Request of Council Member Noyes on 1 -13- 97.) Assistant to the City Manager Ducey explained that in January Council Member Noyes requested that staff analyze the cost and staff time necessary to prepare a City newsletter. Subsequent to that direction, staff surveyed all Orange County cities and found that a little over half of all of the cities actually have a regular newsletter, although the format and distribution varies widely. The most efficient way that some cities provide a City newsletter is through their quarterly recreation brochures and that is the recommendation that staff is making. If the City were to actually expand its current recreational brochure to include a newsletter the additional staff time to write the newsletter and format it, as well as the additional printing cost would run about $9,600 per year for four newsletters. The newsletter could either be incorporated into the actual recreational brochure or as a separate pull -out newsletter within the brochure. Another option that was explored was actually including the newsletter in the water bills, however only about two- thirds of the total households in the City actually receive a water bill, so a separate mailing would be required to the other one -third and that would cost an additional $5,000. She reviewed the options available to Council as outlined on the agenda. Volume 51 - Page 131 Al l City Council (33) City of Newport Beach City Council Minutes February 24,1997 INDEX • Motion by Council Member Noyes to direct staff to include $9,582 in the Community Services Department FY1997 -98 proposed budget to fund a quarterly newsletter to be included in the "Newport Navigator." Council Member Hedges clarified that the total cost would be approximately $10,000 and it would be sent to 37,000 households. He said he read the other cities' newsletter and was "underwhelmed" and feels the City of Newport Beach may not be able to do much better. He said it is "spin - doctoring" on the part of the City, courtesy of the taxpayer. He said he understands Council Member Noyes' intent, however noted that this was done several years ago and it ended up in the landfill because the people that do not take the time to read the newspaper, to watch Council meetings, to go to the library, or to get all the City information which is otherwise available on the City Web page at no cost to them, are probably not going to sit down and read this newsletter that they will be forced to pay for. He said that there are probably some people that would like to have a newsletter and those people probably would and should be willing to pay for it. He proposed that there be a subscription program to the City newsletter to allow those people that want to receive a newsletter to pay for it. Substitute motion by Council Member Hedees to direct staff to undertake a further review of options and alternatives and return to City Council with respect to a subscription program for the newsletter. • Mayor Debay said she would support the original motion with an addition that the newsletter also be included on the Web page as well. The substitute motion failed by the following roll call vote: Ayes: O'Neil, Hedges, Glover Noes: Edwards, Noyes, Mayor Debay Absent: Thomson Abstain: None Council Member Hedges said that while the intent is good it is bad public policy to force something on people that they're not already doing for themselves. Council Member Noyes noted that this is an extra effort on the Council's part to inform citizens and avoid confusion. The original motion, as amended to include the Web page, failed by the following roll call vote: Ayes: Edwards, Noyes, Mayor Debay Noes: O Neil, Hedges, Glover Absent: Thomson Abstain: None • Motion by Council Member Hedges to receive and file. Volume 51 - Page 132 • E City of Newport Beach City Council Minutes February 24, 1997 Substitute motion by Mayor Pro Tem Edwards to direct staff to undertake a further review of options and alternatives, including but not limited to a study in terms of whether a newsletter can be provided by subscription and to come back with some additional suggestions. Council Member Hedges said that Council Member Noyes' suggestion and intent is a good one, however the things that people are complaining about are not the things that you read about in the newspaper. The things that are being complained about are those things which generally affect them directly. He said that based on the size and weight of the agendas, it will be impossible to keep people comprised of the all the details in a newsletter. He said a newsletter will have to be very general and will cover things that are already well covered in the vernacular press and other sources. He said he doesn't think this will accomplish what Council Member Noyes really wants to accomplish. Mayor Pro Tern Edwards said that it will potentially do that and it is at least entitled to further examination and the exposure of some ideas. One of the things that was raised at the retreat was an issue of whether or not there was sufficient outreach to the community on issues such as back bay dredging, speed limit issues, BPPAC, etc. The substitute motion carried by the following roll call vote: Ayes: O'Neil, Edwards, Glover, Noyes, Mayor Debay Noes: Hedges Absent: Thomson Abstain: None MOTION FOR RECONSIDERATION - None The agenda for the Regular meeting was posted on February 19, 1997 at 2:53 p.m. on the City Hall' Bulletin Board located outside of the City of Newport Beach Administration Building. 10 f Recording Secretary C\J'�cq yor Volume 51 - Page 133 I 1