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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 28, 2020 Written Comments April 28, 2020, Council Regular Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item X11. Consideration of Forming a Business Reopening Committee This seems to have been preempted by the recently -announced 3:00 p.m. special meeting, at which this topic will (apparently) be discussed without the Council having voted to put it on the agenda. Item 1. Minutes for the April 3, 2020 Special Meeting and April 14, 2020 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in strikeout.underline format. The page numbers refer to Volume 64. Page 349, Item III, paragraph 2: "Carmen Rawson asked that Council consider closing public restrooms and beaches since people are supposed to walk near their homes." Comment: Considering the primary health directive to stem the spread of COVID-19 is for people to wash their hands as frequently as possible, and a secondary directive is for them to get air and exercise, any closing of public restrooms seems, to me, contrary to the public's interest. As an example, the Upper Newport Bay Nature Reserve hiking trails are a popular and permissible outlet for people in my neighbor. Finding the restrooms locked at the County's Muth Center seems an unnecessary disappointment. Likewise, it is both awkward and disappointing to find the public restrooms locked when hearings are held in the City's Council Chambers and Community Room. Page 349, Item IV, paragraph 1: "Mayor O'Neill indicated there will be no staff presentation and noted that Council received extensive communications about the subject." Comment: As I tried to indicate toward the end of this April 3 special meeting, dispensing with staff presentations is always problematic, and is particularly so with virtual meetings where the City is trying to encourage the public to observe and participate from their homes. When attendees participate in person, printed agendas as well as written staff reports and copies of last-minute communications are available in the lobby. While it is true most of these materials are available online, it is unrealistic to expect those participating via the NBTV cablecast to have access to these; nor even to expect most of those watching the internet live stream to know where they can be found. If public participation is being sincerely sought via call-in phone numbers, it is essential for those viewing to know what is being discussed and what questions the Council has been asked to answer. To that end, a staff presentation on each item provides essential background without which many of the Council's votes are meaningless to those watching. Inviting comment from viewers on the consent calendar is particularly problematic when there is no announcement of what is on the consent calendar. Page 349, Item VI, paragraph 1: "The special meeting agenda was posted on the City's website and on the City Hall electronic bulletin board located in the entrance of the City Council April 28, 2020, City Council regular agenda comments - Jim Mosher Page 2 of 9 Chambers at 100 Civic Center Drive on April .3 21 2020, at 3:20 p.m." [? This meeting was presumably noticed at least 24 hours before it occurred.] Page 350, paragraph 5: "Zill Amshamluka discussed her current renters and the condition of her homes, ..." [Was there a name card for this? One of the emailed comments was from a rental property owner named Rawa Shamrouckh. Could that be the surname?] Page 356, Item I (Roll Call): The formatting here, and in Item VI, is such that it is unclear if "Present via WebEx" refers to all the names or just those starting on the second line. Page 356, Item I, paragraph 2: "In response to Council Member Brenner's question regarding Mr. Mosher's written comments relative to Item 5, City Manager Leung indicated that she will check with the Finance Department and see if an adjustment to the building excise tax amount is needed." Page 357, Item X.111, paragraph 2: "It was the consensus of the City Council to bring this item back at a future meeting." [This passage does not comply with Government Code Sec. 54953(c)(2) (part of the Brown Act), which requires for each action taken by the Council, a public report of "the vote or abstention on that action of each member present for the action." Use of the word "consensus" leaves readers unable to know which Council members voted for or against giving staff this direction. The actual vote needs to be specified.] Page 360, paragraph 1: "An unidentified speaker thanked staff for reviewing the timeline and expressed concern regarding how the public will participate in the process during the current health crisis." [The speaker was Dorothy Kraus, supplementing her emailed comment regarding the item. I have had trouble viewing the video posted on the City website: at times it won't play at all; at others it (and all other videos showing the City/Granicus URL) play without sound. But the recorded audio seems to have dropped the first few seconds of the phoned -in comment, in which the speaker likely identified herself. Incidentally, I share Ms. Kraus' doubts about the effectiveness of audience participation if it remains confined to phoning in from remote locations.] Page 360, paragraph 4: "At Mayor O'Neill's request, Community Development Director Jurjis indicated Kerns anF Kearns & West is the City's current public outreach consultant, but they have been placed on standby, but staff intends to continue to use them at the advice of the former General Plan Update Steering Committee." [See contract C-8180-1 for this vendor's official name (Kearns & West, Inc.). Beyond that, I am unaware of the GPUSC giving the indicated advice. At their last public meeting in December (for which there is only an audio recording and no minutes have been posted) I believe they deferred all actions and advice until they received further direction from the Council about their role. The Council then, sadly, at staff's recommendation, disbanded the GPUSC without giving it an opportunity to present any report or conclusions from its work.] Page 360, line 6 from end: The paragraph beginning "Police Chief Lewis reported..." would normally be preceded by a blank line. Page 361, paragraph 3 from end, sentence 4: "She commended Mayor O'Neill for the children's reading video he produced and expressed here her appreciation to staff and medical personnel." April 28, 2020, City Council regular agenda comments - Jim Mosher Page 3 of 9 Page 362, last paragraph: "In response to Council questions regarding Resolution No. 2020-35 (Tattoo Services), City Attorney Harp ... stated that all items regarding tattoo businesses would go to the Planning Commission to make a recommendation to Council, and then Council would consider the items." [This seems contrary to the staff report which indicated staff was seeking authorization to develop a completely ministerial process for the processing of tattoo business applications. I thought ministerial decisions were by definition made by hired staff based on the applicant's meeting or failing to meet unambiguous objective criteria, without intervention by the Planning Commission or City Council.] Item 3. Ordinance No. 2020-13: Amending Section 6.04.170 Prohibiting Commercial Properties and Businesses from Disposing of Solid Waste in Public Waste Containers 1. This item is unusual in that it requests modifications to an existing section of the Municipal Code without providing a redline highlighting what words are proposed to be changed. 2. It is also unusual in that the Abstract -- which normally would be expected to summarize the most important points made in the body of the report -- is almost as long as the Discussion' and presents information not mentioned anywhere else in the report. And neither the Abstract nor the Discussion explains how the present proposal relates to the two other recent ordinances in which the Council was asked to make changes to the wording of this same NBMC Section 6.04.170 as part of larger changes to Chapter 6: Ordinance No. 2019- 15 and Ordinance No. 2014-7.2 3. Having read the entire staff report, as well as the proposed "Whereas" clauses, I fail to see why any change to the code is required. ' It would have been helpful for the "Funding Requirements" section to disclose the economics of this operation. Resolution No. 97-70 calls for the participating businesses to pay 75% of the cost, but caps the fee at $40 per month per business. How many businesses are currently using the City bins, and how much are they paying? Are they covering 75% of the cost? 2 As enacted by Ordinance No. 97- 27, what has become Section 6.04.170 originally prohibited placing "any refuse generated by the business" in a City "refuse container." Ordinance No. 2014-7 added to the NBMC the term "solid waste" meaning all waste that could (but did not necessarily) go a "Class III landfill" other than hazardous waste, whose disposal was separately prohibited. In connection with that change, the forerunner of Section 6.04.170 was modified to prohibit placing "any solid waste generated by the business" in a City "solid waste container." More recently, for reasons that are not entirely clear, Ordinance No. 2019-15 limited the meaning of the term "solid waste," excluding from it waste that can be diverted from landfills as well as "liquid wastes, abandoned vehicles, auto parts, hazardous, biohazardous or biomedical wastes." The "divertible materials" consist of a number of named sub -categories, including "recyclable materials, food scraps, green waste, and/or construction and demolition debris, electronic waste, universal waste, and all other materials that may be diverted from landfill disposal." In connection with this change in definitions, Section 6.04.170 was revised to prohibit placing "any solid waste or divertible material generated by the business into any public solid waste or divertible material container" and the section title was inexplicably changed to "Prohibition of Commercial Use of Public Solid Waste or Public Recyclable Material Containers" (where "recyclable" is not the same as "divertible," but rather a subcategory of it). April 28, 2020, City Council regular agenda comments - Jim Mosher Page 4 of 9 Purportedly, a new ordinance is needed to allow the Council to designate not just business names, but eligible property addresses. This is accomplished by inserting "unless the business or property is exempted by resolution of the City Council." However, I see nothing in the existing language that disallows what is said to be needed. The existing Section 6.04.170 prohibits businesses from using City bins "unless otherwise authorized by resolution of the City Council." Consistent with that existing language, the Council resolution could simply say "Businesses at the following addresses are authorized to use the Washington Street Bins:...." Indeed, the existing Resolution No. 97-70 already appears to specify addresses (rather than businesses) in the program, but it, rather unhelpfully, lists only addresses that, at the time of adoption, housed a business without some other arrangement for disposal of waste. 4. A further purpose of the ordinance, not explained in the report, seems to be more tinkering with the use of the confusingly -defined words "solid waste," "recyclable material" and "divertible material".' The present effort inserts the term "recyclable material" to match the previously -revised section title and, apparently, to achieve consistency with the use of the term "public recyclable material containers" in the previous Section 6.04.160 and in the definitions of Section 6.04.020. But specifically calling out recyclables seems unnecessary since they are a sub -category of "divertible material." In addition, being too specific about materials and containers suggests there are categories of materials and public containers which it's OK for commercial users to dispose of/use without Council authorization. I think it would be wiser to revert to something close to the 1997 original, and simply say commercial users are prohibited from putting anything in any City containers without Council authorization. 5. Of less concern, nothing in the staff report or proposed ordinance explains how the "approximately 20 residential units above the businesses" fit into this. Without explanation of what the Residential Refuse Collection contract is, we read those residents "are eligible to receive refuse service under the Newport Beach Residential Refuse Collection contract'. But the proposed ordinance has to do with exceptions to a prohibition on commercial use of City containers. Is everyone welcome to use these City containers for non-commercial purposes? Or just these residents? For example, can the public containers be used for disposing of residential waste generated elsewhere in Newport Beach, including other areas where curbside residential pick-up is not provided? Or for disposing of residential waste generated in other cities or countries? 3 See previous footnote as to how these terms have multiplied. 4 Per NBMC Section 1.08.020, "Title, chapter and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of any title, chapter, or section hereof." April 28, 2020, City Council regular agenda comments - Jim Mosher Page 5 of 9 6. Regarding the text of the proposed ordinance, even if the Council wants to go forward with this, I notice one particularly misleading statement on page 3-4 (last paragraph) that I believe should be removed: "WHEREAS, on August 25, 1997, the City Council adopted Resolution No. 97-70, identifying a list of businesses authorized to use the Washington Street Bin and establishing a solid waste service fee for those businesses that wi- he,d toyeluntari y participate in the Washington Street Qin coniine•" e I don't know how the City has been administering this, but there was nothing in Ordinance No. 97-27 that required authorizations to use City containers to be voluntary, and nothing in Resolution No. 97-70 that made participation in the program it established "voluntary" in the usual sense of an "opt in" program. Indeed, the resolution requires the businesses at the addresses authorized on its list to use the service and pay for it whether they use it or not. The only way to avoid participation (and the fee) was to obtain an exemption, and the only way to obtain an exemption was to show proof of a contract for some other means of waste disposal. 7. Less importantly, on page 3-5, the third "Whereas" was presumably intended to read: "WHEREAS, the Washington Street Bin service is essential to providing a centralized location for the use of businesses and the properties where businesses operate, because there is limited space in the area to place bins or cans; and" There is apparently more than one container there now, so it is a "bin service" rather than the single bin it may have been in 1997.5 8. My opinion of the ordinance's operative paragraph at the bottom of page 3-5 is expressed above: it leaves one wondering if it is trying to say there are categories of waste not listed, which can be disposed of in City bins by businesses without an exemption from the Council. At the very least, this paragraph's use of the phrase "City Council of the City" is an unnecessary redundancy.6 9. Speaking of prohibitions on use of City waste containers, in reviewing the present proposal, I wonder how many members of the Council or public read beyond Section 6.04.170 to NBMC Section 6.04.180 (Prohibition on Private Use of Public Solid Waste or Public Recyclable Material Containers on Balboa Island), last revised and readopted last September? Since 1982, it has prohibited not only business owners/employees, but also all residents of Balboa Island, from using the public trash containers on Balboa Island, with no possibility for any exceptions. In other words, a person residing on Balboa Island can, technically, be arrested for placing litter in a public trash barrel on Marine Avenue or the 51 am not sure, and the staff report does not explain, what kinds of bins are there now. Does the City provide, for example, "food scrap," "green waste," "wood waste" or "construction/demolition debris bins" — all of which might be examples of "divertible material containers" separate from a "solid waste" or "recyclables" container, and which, technically could not be put in a container with the latter two labels? 6 For purposes of the NBMC, per Sec. 1.08.120 (Definitions): "The term "City" means the City of Newport Beach" and "The term "Council" means the City Council of this City." April 28, 2020, City Council regular agenda comments - Jim Mosher Page 6 of 9 Balboa Island Boardwalk, while their guests and other visitors cannot. That seems arbitrary and discriminatory to me, since there is no comparable prohibition anywhere else in the City (including Balboa Village and Washington Street), where residents (including locals and those from Balboa Island) seem free to use public containers for non-commercial purposes. Item 5. Water Transmission Main Valve Replacement — Notice of Completion for Contract No. 7539-1 (18W12) Attachment A (Location Map) helpfully shows the site of the deleted work, whose size or previously -agreed -to cost is not clearly indicated in the staff report. The attachment does not appear to indicate all the locations of the work that was added (for example, the replacement of the small assembly "at San Joaquin Hills Road just west of San Miguel Drive"). 2. The stated change order amount of $72,965.66 presumably represents the net increase in the contract as a result of the added work, but after correcting for the work not performed? Item 6. Three Year Software License Agreement for Microsoft 1. The flat service charge in the Riverside Agreement (pages 6-10 and 6-11) of $425 per hour seems both rather large and unreflective of what one would have to assume are different levels of expertise and effort needed for the many possible tasks listed (the meaning of which is not obvious to me — are they software titles?). 2. The "Project Descriptions" in Dell's quote (page 6-36) make what is being purchased (with unit prices varying from $17.44 to $712.72) largely unintelligible to me. Item 8. Acceptance of Reimbursement Funds from the Anaheim Police Department/Orange County Human Trafficking Task Force The MOU (Attachment B) places a great number of duties (pages 8-6 through 8-7) on the Newport Beach Police Department, including that the NBPD investigator "work on-site at the Anaheim Police Department through the term of this MOU." It is not entirely clear from either the staff report or the MOU if NBPD's participation focuses exclusively on the investigation of human trafficking allegations involving Newport Beach? Or, alternatively, if NBPD has been assisting the Anaheim Police Department with whatever they are doing (and wherever) — effectively loaning an officer to supplement their staff? Item 10. Ordinance No. 2020-14: Terminating Non -Exclusive Commercial Solid Waste Franchises Although notice of this item has been posted for several weeks, it is unusual in that as Item 5 at the March 24 meeting the Council adopted Resolution No. 2020-27 stating its intention to hold a hearing on April 28 to debate granting solid waste franchises under the new 2020 agreement to 8 incumbent franchisees and 4 new applicants. April 28, 2020, City Council regular agenda comments - Jim Mosher Page 7 of 9 Instead, we have a proposal to terminate 13 incumbent franchisees. Unless evidence to the contrary is received from them, the termination of the 13 haulers lacking collision avoidance equipment, and additionally, in some cases, the requested insurance, appears fully justified. However, the complete absence from the agenda of the hearing scheduled by Council Resolution No. 2020-27 — not even a mention of a date to which it has been continued — is disturbing. What happened to the hearing on granting new 2020 solid waste franchise agreements? Item 11. Resolution No. 2020-39: Authorization to Issue Obligations by the California Municipal Finance Authority to Benefit Harbor Day School Project This is the latest of several recent requests for the City Council of Newport Beach to confer municipal tax-free bond status on loan agreements made for the benefit of private entities. I do not agree with any of these. The tax-free status is a special privilege, originally intended to be afforded only to government entities. Conferring it on others cheapens its value by increasing the competition for this market, leading, I would think, to increased costs to municipalities when they, themselves, have to borrow. Preserving cities' advantage in the bond market seems particularly important in a time of anticipated revenue shortfalls, during which municipalities may find increasing need to borrow. Even if Newport Beach never needs to borrow, increasing the borrowing costs of less fortunate cities does not seem appropriate or ethical to me. I hope the Council will reject this and similar requests from the CMFA and turn down the $10,000 gift the City is being offered to confer tax -fee status on a non-governmental entity. How much has the City already spent on this? Item 12. Approval of a Service Agreement for Street Sweeping Services with Jonset Corporation dba Sunset Property Services It is good that with its proposal to change vendors staff has been able to minimize the anticipated increase in street sweeping costs, and I would not be overly concerned about the change as I have no reason to think the incumbent (Athens) has been doing an exceptional job. In fact, some debris seems to evade their sweeping for many weeks. In that connection, the street sweeping is, hopefully, coordinated to come after trash collection, rather than before. That seems increasingly important because I have noticed our residential trash collection contractor, CR&R, seems to have become increasing sloppy, frequently leaving various amounts of debris in the streets after their pick-ups. April 28, 2020, City Council regular agenda comments - Jim Mosher Page 8 of 9 At least one aspect of the proposed contract seems problematic: Condition IX.1.0 on page 12- 27 says that during Sunset's 5 -month phase in period "Existing contractor shall remain responsible for areas of the city that are not specifically assigned to new contract staff until notified by the Utilities Manager." It is not only unclear how a contract with a new vendor can bind the existing contractor, but the staff report appears to say the existing contractor is not willing to perform any work after May 31. Is Condition IX.1.0 a holdover from an earlier time? Finally, it might be noted that on page 13-12 of the following agenda item, the City Manager is hoping to achieve $250,000 of "Storm Drains/Street Sweeping - Operational Savings" by the end of the current fiscal year. $115,000 of that is presumably the amount mentioned on page 12-2 of the present report as having been added to the budget in anticipation of increased contract costs, but not used (although the contract cost is going up —just not as much as feared). How will the remaining operational savings be realized? And how is this compatible with the idea there will be "no reduction in services" (especially since the staff anticipates the frequency of sweeping will be reduced during the transition period)? Item 13. COVID-19 Pandemic Estimated Financial Impact on City Revenue and Recommended FY 2019-20 Budget Amendment I am not sure the statement on page 13-5 is entirely accurate where it says regarding the Tidelands Operating Fund that the recent decline in oil prices is "unrelated to COVID-19." 1 thought the decline had been attributed to an imbalance between supply and demand, with an increase in supply and a reduction in demand, the latter being due, in large part, to a reduction in travel resulting from COVID-19 (as is implied in the discussion of Gas Tax revenues). 2. Regarding recommendation "b" (Review and consider the City Manager's recommendations for FY 2019-20 revenue and expenditure changes), does staff expect any of the stated revenue losses to be offset by revenue gains from disaster relief funding (see comment on Item 15, below)? 3. Regarding recommendation "c" (Budget Amendment No. 20-044), it is not obvious none of the expenditure reductions listed on page 13-12 will require cuts in service relative to prior service levels. See, for example, the final comment on Item 12, above: with a new contract, street sweeping for the remainder of this fiscal year is expected to cost less than was estimated, but the amount of sweeping provided is also expected to be less. 4. Regarding recommendation "d" (Provide direction on funding allocation for City grants programs for FY 2020-21), why does the list on page 13-9 not appear to include the "District Discretionary Grant Accounts" in which each Council person is given $6,000 of taxpayer money each year to dispense as they see fit without any requirement for concurrence by any of their Council colleagues. Not only do these grants conflict with the idea that individual Council members have no powers on their own (the Council is only empowered to act as a collective body), but they would seem among the easiest to cut. April 28, 2020, City Council regular agenda comments - Jim Mosher Page 9 of 9 5. It would also be good to use the same terminology as in Council Policy A-12. "City Grants" in the staff report seems to be "Community Programs Grants" in A-12. Item 14. Review of the Adopted Fiscal Year 2019-20 Capital Improvement Program (CIP) Budget Staff is to be commended for making their PowerPoint presentation available for review ahead of the meeting. The fact that with just two months left in the fiscal year, less than 38% of the money allocated in the CIP has been committed suggests a philosophy in which staff doesn't feel under pressure to spend everything designated at the beginning of the year (hence the large fraction of 11rebudgets" we see each year). Since (based on that past experience) most of the unspent money is not likely to be used immediately anyway, it would seem the decisions the Council makes about using the seeming large available balance in the remainder of FY2019-20 will have relatively little effect compared to the direction it gives regarding CIP spending in FY2020-21 -- something the staff report says will be coming later. Given that lack of urgency, it would seem prudent to defer most of these decisions until the future is more certain. Item 15. Novel Coronavirus (COVID-19) Update As Item E.1 on its April 27, 2020, agenda, the Costa Mesa Sanitary District Board of Directors is being asked to adopt a resolution approving Cal OES Form 130, which designates their authorized agents for requesting disaster assistance. This is said to be necessary to file every three years to qualify for FEMA disaster assistance, which is apparently dispensed through the California Office of Emergency Services, including reimbursement for eligible emergency protective measures taken to respond to the COVID-19 emergency at the direction or guidance of public health officials. Does the Newport Beach City Council also need to do this? Or does it have a still -current Council -approved Form 130 on file?