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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 12, 2023 Written Comments September 12, 2023, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the August 22, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in t4keGuunderline format. The page number refers to Volume 65. Page 607, paragraph 1: "City Attorney Harp announced that the City Council would adjourn to Closed Session to discuss the items listed on the Closed Session agenda and read the tWe titles." Page 608, Council Member Stapleton, bullet 2: "Attended the Association of California Cities — Orange County (AC-OCC ACC-OC) Public Policymakers Academy and..." Page 608, Council Member Stapleton, bullet 3: "Congratulated the Newport Beach Chamber of Commerce Citizen of the Year, Laird Hayes, and newly appointed Assistant City Manager Jurjis who provided an update on the fractional homeownership amendment hearing with the California Coastal Commission" Page 608, Council Member Avery, bullet 1: "Congratulated the Newport Beach Chamber of Commerce Citizen of the Year, Laird Hayes" Page 613, last paragraph: "Jim Mosher asked if the staff report reflects the installation purchase cost and whether the turf is made from recycled material and can be disposed or recycled at the end of its life." [The agenda item title was the Award of Contract for "Arroyo Park Synthetic Turf Field Installation." The contract clearly covered the turps "installation." It was not clear if it included its purchase.] Item 5. American Legion Bulkhead Wall Repair - Notice of Completion of Contract No. 7659-1 (16H11) Staff typically asks the Council to approve contracts at a base amount, but allowing for a contingency in the event of unexpected problems. The contingency is usually about 10% of the base amount, but can be 15%, or more, when the work that may be needed is less certain. In this case, the staff report indicates costs needed to complete the contract overran the base amount by 15%. What it doesn't say is that when the contract was approved as Item 4 on May 24, 2022, the contingency requested was only 10% or $99,200. Yet the overrun was $149,129.28. The staff report gives examples of some of the many unexpected problems encountered. But someone must have exercised their authority to increase the contract amount by even more than the contingency the Council approved. September 12, 2023, City Council agenda comments - Jim Mosher Page 2 of 7 Item 6. Water Well Rehabilitation - Tamura Deep Well (Project No. 24W15) - Award of Contract No. 9328-1 The staff report provides less than a complete history of this item. The same firm was last awarded a contract to "rehabilitate" this well as Item 10 on July 9, 2019. When, as Item 8 on the August 25, 2020, consent calendar, the Council received the notice of completion for that contract, it was told the work had been completed under cost because an optional well casing liner had been deemed unnecessary. However, in awarding a contract to rehabilitate a "shallow" well, as Item 5 on February 28, 2023, the Council (and public) learned the casing on this deep well had developed a hole and was leaking sand, triggering a need for $88,744 in new design work to repair. Hindsight is always 100%, but in my written comments on that item, I guessed it might have been wise to have spent an estimated $129,000 to install the liner in 2020. 1 don't recall anyone answering the question of who decided not to do it. This is apparently, in part, the contract to implement the fix. The report is not clear as to how much of the $817,024 contract is for the liner and much for the routine rehabilitation, or how often rehabilitation is normally needed. It might be noted that although the staff report suggests the City is getting a good deal, the same contractor's 2019 contract, which apparently included rehabilitation and a liner, was for $473,660. Even with inflation, the 72% increase in three years seems like a lot. It is also unclear if the design work for the liner was performed twice: once in 2019, when it was not installed; and then again this year. Item 8. Amendment No. One to Gift Agreement Between City of Newport Beach and Friends of Newport Beach Animal Shelter to Accept Donation of the Real Property at 20282 Riverside Drive It is good to see the state provides some independent oversight of agreements of this sort. And the Attorney General seems to have suggested reasonable revisions to ensure the donations received by FONBAS will continue to be used as was represented to the original donors. One small point I find ambiguous in the revised agreements is the use in the Gift Deed, on page 8-13, of the phrase "the Permitted Use(s) Term" to describe the term of the conditions. This phrase is printed with initial capitals, as if it were something defined in the document. However, although it was used as a defined phrase in the original Gift Agreement (see end of Covenant 2.1.1 on page 8-24) and Gift Deed (see end of top paragraph on page 8-55), those definitions were omitted in the revised documents. The omission could be because Covenant 2.1.1 originally expired at the latest of three possible dates, giving it a clear "term." As revised, Covenant 2.1.1's expiration is triggered by a more elaborate set of contingencies, making it less easy to describe its "term." Nonetheless, saying things expire at the end of "the Permitted Use(s) Term" without explanation of what that is does not seem helpful. September 12, 2023, City Council agenda comments - Jim Mosher Page 3 of 7 Item 9. Approval of the Joint Use Agreement Between the City of Newport Beach and Newport- Mesa Unified School District for Use of Mariners Branch Library For more than 68 years, City Charter Section 708(g) has vested in our Board of Library Trustees the power and duty to "Contract with schools, county or other governmental agencies to render or receive library services or facilities subject to the approval of the City Council." In view of that, it is a bit surprising the staff report makes no mention I can find of the BLT's involvement, if any, in this contract. Yet by my reading of the Charter it should be the BLT, not City staff, seeking the Council's approval of it. I am aware that as Item 10 on at its August 21, 2023, meeting, the BLT was asked to "review and approve the draft Joint Use Agreement." But because I am a member of the City's General Plan Advisory Committee, whose last meeting was scheduled at the same day and hour, I was unable to attend the BLT meeting, and I don't know what the outcome was. Although the Council's role appears limited to approval or rejection of whatever was negotiated by the BLT, it would seem to me any BLT discussion should have been included for the Council's review. I know I submitted written comments to the BLT on this matter. However, as best I can tell they have not been archived with the meeting materials. The following are the comments I attempted to submit to the BLT on August 20: It would have been helpful to include the original agreement (C-3496(B) = new Exhibit "C" ?) and any related obligations (such as with the State). As it is, the staff report is unclear as to whether the City must continue the joint use under some terms, or if any continuation is voluntary, and what say the BLT has in the matter (from Section 7 of agreement C-3496(B) it appears the continuation is voluntary; it does not appear the Council has ever regarded the BLT's consent necessary to its actions on this matter — even though the Agreement cites the BLT as the authorized rulemaking body, which authority the Council appears to be overstepping in dictating the numerous library use policy parts of the Agreement ). It is also unclear if the continued existence of a joint -use facility qualifies for external funding that would not otherwise be available. It would have been helpful to indicate which of the proposed terms are new, and which are old. For example, it appears C-3496(B) did not have separate sections defining City and School District privileges and responsibilities, although much of what is in those new sections may have been stated in other sections of C-3496(B). So, what may be changing is not obvious. Among things I do not understand about the proposed agreement: 1. Section 2.3, paragraph 2, last sentence: "Joint Collection materials deemed not age appropriate, no longer relevant, or not in support of the School curriculum will be relocated to the Joint Collection library or to another City library location." September 12, 2023, City Council agenda comments - Jim Mosher Page 4 of 7 What is the significance of relocating something from the "Joint Collection" to the "Joint Collection Library"? Isn't Mariners, specifically its Children's Room, the "Joint Collection Library"? 2. Section 3.3 (City Designated Hours) states some rules, and mentions "District Designated Hours" but does not explain what "City Designated Hours" refers to. 3. Section 4.1 (District Funding) cites a fixed number of $69,804 per year, which appears to represent only the cost of District personnel involvement. First, wouldn't that number be expected to change over the 20 (and potentially 40) years of the Agreement? Second, should this section state that the District will pay the cost of the materials they add to the Joint Collection? 4. Section 4.3 (District Designated Hours) appears to listing the City's library hours, not those reserved for special use by the District. I do not, for example, believe the Mariners School is open till 9:00 p.m. Monday through Thursday. Additionally, the promise Mariners "will be open 71 hours each week during the school year for use by Mariners School" appears to deprive the BLT of the ability to set special holiday hours, or shorten service during the last week of the year. Shouldn't this section be labeled "Secured Use Hours), since that seems to be what it is defining? "Secured Use" appears many times in the Agreement. The only use of the term "District Designated Hours" is in Section 3.3 (City Designated Hours). Shouldn't the 71 hour list appear in Section 3.3 instead of 4.3? Wherever they go, shouldn't the Agreement include a right for the BLT to modify the hours and possibly other promises? 5. If I am understanding the Agreement correctly, it seems a sweet deal for the District in that they are enjoying exclusive use of a portion of a City facility without having to share any of the operational costs (other than paying their own employee's salaries and supplying whatever supplemental materials they wish). This division of costs seems particularly exceptional considering the District receives a far larger portion of residents' property tax dollar than does the City, and would have to use it to pay that operational overhead if they maintained a separate school library. The only advantage to the City would seem to be that all cardholders can check out materials owned by the District. How large is the District -owned portion of the children's collection at Mariners compared to the City -owned portion? Are all the materials in the exclusive use area District owned? Or are they a mix? Item 10. Temporary, Non -Exclusive and Revocable License Agreement with Orange County Sanitation District for a Construction Staging Yard at Lower Castaways Park Located at 100 Dover Drive I have no problem with the OC Sanitation District using Lower Castaways for construction staging. September 12, 2023, City Council agenda comments - Jim Mosher Page 5 of 7 However, as part of the Back Bay Landing development proposal, just as there are plans to relocate water mains, I thought there was a plan to move the OC San's Bay Bridge Pump Station to a location farther from Coast Highway, near the north side of the entry to the property (see page 43 of Item 18 from April 12, 2016). Has that proposal been permanently scrapped? It would be surprising to see such a major investment in the current location if it is later to be reconstructed elsewhere. Item 12. Approval of Vehicle Replacement Purchase Orders for Four Toyota Tacomas, Two John Deere Cab Tractors, and One Rockland Beach King Sand Cleaning Machine The staff report says nothing about whether low -emission options for what appear to be conventionally powered vehicles. Item 14. Budget Amendment to Accept a Check from the Newport Beach Public Library Foundation and Appropriate the Funds to the Library's Fiscal Year 2023-24 Maintenance and Operation Budget All gifts are appreciated, but this is much lower than the annual amount the Foundation traditionally raised to support the Library. Is the bulk of the donations they receive going toward the Lecture Hall? Item 15. Budget Amendment Allocating Public, Educational and Governmental Access Support (PEG) Fees to Replace Light Fixtures Within the City Council Chambers Even considering the fixtures and controllers have to be replaced, $90,000 for 150 lights, or $600 per bulb, seem a bit high. Item 16. City Hall and Limited Off -Site Holiday Closure (Beginning on Monday, December 25, 2023, Through Monday, January 1, 2024) The new Council members should note that it is a relatively new concept in Newport Beach to force employees to use their vacation time so City Hall services can be suspended for a week at the end of the year. For most of the City's life, December was treated the same as any other month. The City Hall remained open (except on actual holidays) and the Council met twice, just as it did the rest of the year. When the week-long closures started 14 years ago (see Item 20 from November 10, 2009), the rationale, in addition to slight cost savings, if I recall correctly, was it gave the City Manager a week he could be away without being interrupted with City business or worrying he was missing something. That seemed, and still seems, a feeble reason, considering it deprives the residents the City was created to serve of many of the services they expect. September 12, 2023, City Council agenda comments - Jim Mosher Page 6 of 7 Item 19. Resolution No. 2023-52: Intent to Override Orange County Airport Land Use Commission's Finding of Inconsistency for Housing Element Implementation, Noise -Related Amendments (PA2022-0201) I was one of only two members of the Newport Beach public to attend the August 17, 2023, meeting of the Airport Land Use Commission. Although not mentioned in Attachment F (the Determination Letter), the Chair (and longstanding member) of the ALUC, after hearing the City's presentation, public comment and Commission discussion, said "This is the most outrageous proposal 1 have ever seen." Among my concerns about the proposed action: Public Utilities Code Sec. 21678 says: "With respect to a publicly owned airport that a public agency does not operate, if the public agency pursuant to Section 21676, 21676.5, or 21677 overrules a commission's action or recommendation, the operator of the airport shall be immune from liability for damages to property or personal injury caused by or resulting directly or indirectly from the public agency's decision to overrule the commission's action or recommendation." It is hard to believe that if the City's action relieves JWA's operator (the County of Orange) of liability, that liability does not fall on the City. 2. The assurance on page 19-4 of the staff report that "Should the City Council ultimately overrule the ALUC decision, that action will not immediately affect the City's status as a consistent agency with the AELUP. ALUC would need to place an item on its future agenda to consider deeming the City an inconsistent agency." is hardly comforting. One of the key protections residents of Newport Beach have against JWA expansion is the November 2006 Cooperative Agreement between the City and County (aka the Spheres Agreement). In return for the Board of Supervisors' promise to not extend the runway to the south without Council consent, the City promised "The City will become a "consistent agency" for purposes of the AELUP and the City shall take the actions necessary to become a consistent agency within 12 months after the Effective Date. The City will retain this consistent agency status through the term of this Agreement provided that the AELUP 65 CNEL contour is not the expanded in comparison to that which is in the AELUP as of the Effective Date." Particularly in view of the ALUC Chair's reaction, that promise now seems in question. I previously submitted comments to the Planning Commission, which can be found starting on page 19-188 of the present staff report. I also submitted extensive written comments to the ALUC, which do not seem to be part of the current record. Among other things, I questioned why the City is promoting use of the future noise contours modeled for the County's EIR 617 in 2014 (for the last Settlement Agreement extension), when more recent future contour projections are available, modeled in 2019 for the County certified EIR 627 for JWA's General Aviation Improvement Program. The latter, although projected only through 2026, presumably provide the most accurate assessment of the impact of continued growth in commercial and GA jet operations, as offset by anticipated fleet modernization. September 12, 2023, City Council agenda comments - Jim Mosher Page 7 of 7 Although I do not support subjecting residents to 65 dB CENEL or more of aircraft noise, I found it strange the City did not argue to the ALUC that the JWA AELUP does not actually prohibit such uses, but rather, in specific Policy 3.2.3 it states only that "The ALUC does not support residential development within the 65 dB CNEL noise contour. All residential units are inconsistent in this area unless it can be shown conclusively that such units are sufficiently sound attenuated for present and projected noise exposures, which shall be the energy sum of all noise impacting the project, so as not to exceed an interior standard of 45 dB CNEL, with an accompanying dedication of an avigation easement for noise to the airport proprietor applicable to single family residences, multi -family residences and mobile homes. Furthermore, all residential units are to be sufficiently indoor oriented so as to preclude noise impingement on outdoor living areas, as defined in Section 1. 7." Although this point can be found in the present resolution to override (page 19-10), and could be found buried on the final pages of the City's written submittal package to the ALUC, I can't recall it being made orally to them. In other words, the City did not appear to make an argument for consistency (which it could have done if it agreed to use the AELUP contours), but seemed to assume the August 17 hearing was irrelevant and whatever decision might be made could be overridden by the Council. Item 21. Confirmation of Appointment to Fill the Unscheduled Vacancy on the Board of Library Trustees The outpouring of letters in support of Mr. Rief's appointment to the Library Board is quite remarkable. That said, Ms. Castro appears to have put considerably more effort into writing her essay explaining why she seeks appointment (page 21-9). 1 cannot, however, tell what either's position on the current hot topic of book banning might be. Ms. Castro' essay could be read either way. Mr. Rief is silent. The City's new penchant for scheduling other public meetings at the same time as those of the Board of Library Trustees has caused me to miss at least half their meetings the last couple of years. But I cannot recall seeing either of these candidates at any of the meetings I have attended, nor have I seen any correspondence to the Board from them. I would like to remind the Council that my own application is once again active, as it has been continuously, with the exception of a brief recent lapse, since 2009. 1 guess there is always next year.