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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed September 26, 2023 Written Comments September 26, 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 September 12, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c*�u underline format. The page number refers to Volume 65. Page 623, paragraph 1, sentence 1: "In response to Councilmember Grant, City Attorney Harp stated that, if found inconsistent with the Spheres Agreement or the John Wayne Airport (JWA) Settlement Agreement, the City weuld could be required to submit all subsequent actions, regulations, and permits to ALUC for review until the City remedies the inconsistencies." [note: City Attorney Harp said only this was a response "available" to the ALUC. They can impose it, but they aren't required to.] Page 623, paragraph 6, sentence 2: "He noted challenges with the decibel contours, inconsistencies with the airport planning sound ^�I;s principles, and potential exposure to litigation." [note: I think I was trying to say the proposal is inconsistent with "sound airport planning principles," which is slightly different, but apparently this is how it was heard, so I defer to that.] Page 624, paragraph 1, last sentence: "Mayor Pro Tern O'Neill reviewed past experiences overriding the Airport Environs Land Use Plan (ALP AELUP , noted that disagreeing with the ASP AELUP does not mean that the City will be out of compliance, ..." [note: I believe Council members and the City Attorney did say "Airport Land Use Plan," but what they meant is the AELUP, which is the document developed and administered by the ALUC. The ALUP is something different: a diagram of current and proposed improvements inside the airport footprint, required for federal grant support. JWA prepares its ALUP and submits it to the FAA for approval.' The ALUP diagram is included as an appendix to the AELUP, which is a California state mandated document determining acceptable land uses outside the airport footprint — i.e., in the airport's "environs."] Item S13. Approval of the Joint Use Agreement Between the City of Newport Beach and Newport- Mesa Unified School District for Use of Mariners Branch Library I commented on a previous version of this, when it was Item 9 on the September 12, 2023, City Council agenda. In my view, this version is an improvement over that, but as previously indicated, it is not my view that matters, but that of the Board of Library Trustees. And, to my knowledge, they have not yet considered, let alone approved it. ' JWA is currently trying to get the FAA to approve a revised ALUP diagram showing the Board of Supervisors approved General Aviation Improvement Program, without which it cannot proceed. September 26, 2023, City Council agenda comments - Jim Mosher Page 2 of 3 As I explained to the BLT at their September 18 meeting (where this was not on the agenda), the powers of the City Council in Newport Beach are broad but not unlimited. The recommended action — to enter into a contract not reviewed and approved by the BLT -- appears to be outside the Council's scope. To be clear, City Charter Section 405 qualifies the Council's powers by saying "All powers of the City shall be vested in the City Council except as otherwise provided in this Charter." The qualifying clause I have highlighted in bold was never intended as pointless surplus, for the power and duty to do many things is "otherwise provided in this Charter." Among those are powers and duties assigned to professional staff, and (as relevant here and pointed out in my September 12 comment) the power and duty to contract with schools to provide or receive library services, which Section 708(g) places with the BLT. The Council's role in the latter is limited to "approval" (or, presumably, rejection) of the contract developed by the BLT — in other words, a veto power. If it were intended the Council could substitute a contract it prefers, Section 708(g) would have been phrased differently: for example, "Recommend contracts for consideration by the Council." At their September 18 meeting, it appeared the Trustees expected to have a chance to address the late -discovered defects that caused staff to withdraw their request for approval of the previous version from the September 12 Council consent calendar. So, it comes as a great surprise to see this quite different version, unreviewed by the BLT, slipped in as a last-minute, supplemental agenda item. While staff may think they have corrected flaws, those corrections need to be reviewed and, along with possible other or alternative changes, approved by the BLT. Only then can the contract come back to the Council for approval or rejection. It is also disturbing that, as was the case when the BLT saw the previous version on August 21, the Council is being shown the new staff -drafted version out of context, without seeing the original agreement.2 And it is disturbing that in the latest version there is no place for the BLT President, as well as the Mayor, to sign, since the BLT is the contracting party specified in the Charter. Among other lingering defects in the latest version (starting on agenda packet page 13-4): • Last line of preamble should read "City and District a -Rd are individually referred to as "Party" and collectively ... The third "Recital" says the June 11, 2002, agreement "expired on June 20, 2022." The previous version said "June 10, 2022." Both are wrong. Section 14.1 of the June 11, 2002, agreement set the term as 20 years from the Effective Date and Section 14.7 defined Effective Date as the date the City receives notice of the state grant that the agreement allowed it to apply for. According to Item 7 2 The June 11, 2002, agreement was "incorporated" as Exhibit C to the previous version, seen by the Council and public on September 12, but the exhibits were not provided to the BLT when they saw it on August 21. September 26, 2023, City Council agenda comments - Jim Mosher Page 3 of 3 from March 25, 2003, the City received that notice on December 2, 2002, so, by its terms, the agreement expired on December 2, 2022. However, even this seems to have been drafting error, for (as acknowledged in Section 1.1 of the present revision) the requirement to qualify for the state funding that paid 65% of the facility's cost was not a 20-year agreement, but rather a commitment to 20 years of joint use, starting with the completion of the grant -funded project. The joint use facility opened in April 2006, so the City's obligation to the state is to continue to provide joint use through April 2026. After that, any continuation of the joint use appears to be voluntary on the part of the City, although the City must maintain it as a public library through 2046 (40 years from completion) — see Education Code Sec. 19999 and 5 CCR Sec. 20440(e)(3)(G) (erroneously cited in Section 8 of the original agreement as a section of the California Education Code). The third recital should also begin "WHEREAS, on June 11, 2002, the City and District entered into the Cooperative Agreement for the Joint Mariners Library Project ..." • Speaking to Mariners Branch Librarians, the definition in Section 2.2 of the "Joint Collection" is largely unintelligible. Although some books may have been requested by the School, apparently essentially all the books currently at Mariners have been purchased by and are owned by the City. Because the City books in the Secured Area can be checked out with a special non -City school card (as well as with a regular City - issued card) the librarians regard the books in that area as the "Joint Collection" and the books in two areas together as the "Mariners Children's Library Collection." The most natural reading of the proposed agreement would be that "Joint Collection" will be a synonym for "Mariners Children's Library Collection" (both meaning the whole room), and that "Mariners School Library Collection" will refer to the subset of those books housed in the secured area even though they are not owned by the School. Not only does this not correspond to the current understanding, but the definition of the "Joint Collection" as subsuming the entire collection at Mariners would give the School District veto power over all the children's books at Mariners, not just those housed in the Secured Area. It seems doubtful that is the intended policy. Other features of the newly proposed Section 2.2 are substantially different from Section 2.3, as this was numbered when seen by the BLT on August 21. The idea that the Council could make a 40-year commitment to changed library policies without sign -off from the BLT is wholly at odds with the City Charter. • Proposed Section 3.3, entitled "City Designated Hours" does not appear to provide any explanation of what that term means. Instead, it appears to be restating Section 4.3 ('District Designated Hours"), into which it could easily be folded. In summary, this contract needs further public review by the BLT, and the signature of the BLT President, authorized by them, before it can be considered for approval by the City Council. It is not the role of City staff, the City Attorney or the Council to make library policy.