CITY OF NEWPORT BEACH
SPECIAL JOINT MEETING OF THE CITY COUNCIL AND
FINANCE COMMITTEE AGENDA
COUNCIL CHAMBERS - 100 CIVIC CENTER DRIVE, NEWPORT BEACH TUESDAY, MAY 24, 2022 - 4:00 P.M.
City Council Members:
Kevin Muldoon, Mayor
Noah Blom, Mayor Pro Tem
Brad Avery, Council Member
Joy Brenner, Council Member
Diane B. Dixon, Council Member
Duffy Duffield, Council Member
Will O’Neill, Council Member
Finance Committee Members:
Will O’Neill, Chair / Council Member
Noah Blom, Mayor Pro Tem
Brad Avery, Council Member
William Collopy, Committee Member
John Reed, Committee Member
Nancy Scarbrough, Committee Member
Joseph Stapleton, Committee Member
____________________________________________________
NOTICE TO THE PUBLIC
The City Council and Finance Committee are subject to the Ralph M. Brown Act. Among other things, the Brown Act requires that their agenda be posted at least twenty-four (24) hours in advance of a special meeting and that the public be allowed to comment on agenda items before the City Council and Finance Committee, and items not on the agenda but are within the subject matter jurisdiction of the City Council and Finance Committee. The City Council and Finance Committee may limit public comments to a reasonable amount of time, generally three (3) minutes per person.
The City of Newport Beach’s goal is to comply with the Americans with Disabilities Act (ADA) in all respects. If, as an attendee or a participant at this meeting, you will need special assistance beyond what is normally provided, we will attempt to accommo date you in every reasonable manner. Please contact Leilani Brown, City Clerk, prior to the meeting to inform us of your particular needs and to determine if accommodation is feasible (949-644-3005 or [email protected]).
NOTICE REGARDING PRESENTATIONS REQUIRING USE OF CITY EQUIPMENT Any presentation requiring the use of the City of Newport Beach’s equipment must be submitted to the City Clerk 24 hours prior to the scheduled meeting.
I. CALL MEETING TO ORDER
II. ROLL CALL
III. PRESENTATIONS
• Recognition of Retired Library Services Director Tim Hetherton
• Proclamation Honoring the Newport Harbor High School Boys and Girls Water Polo CIF, State and National Champions
• Mental Health Awareness Month Proclamation
IV. CURRENT BUSINESS
1. Review of the Proposed Fiscal Year 2022-23 Operating Budget Staff will be reviewing the revenue assumptions, expenditure requirements, and program enhancement recommendations included within the proposed budget, as well as any revisions required to the proposed budget as originally distributed.
Special Joint Meeting Agenda
May 24, 2022
V. PUBLIC COMMENTS
Public comments are invited on non- agenda items generally considered to be within the subject matter jurisdiction of the City Council and Finance Committee. Speakers must limit comments to three (3) minutes. Before speaking, we invite, but do not require, you to state your name for the record. The City Council and Finance Committee have the discretion to extend or shorten the speakers’ time limit on non-agenda items, provided the time limit adjustment is applied equally to all speakers.
VI. ADJOURNMENT
CITY OF NEWPORT BEACH
CITY COUNCIL AGENDA
MAY 24, 2022
CITY COUNCIL CHAMBERS – 100 CIVIC CENTER DRIVE, NEWPORT BEACH, CA 92660
STUDY SESSION – 4:30 P.M. (PUBLIC WELCOME)
REGULAR MEETING – 6:00 P.M.
KEVIN MULDOON, Mayor
NOAH BLOM, Mayor Pro Tem
BRAD AVERY, Council Member
JOY BRENNER, Council Member
DIANE B. DIXON, Council Member
DUFFY DUFFIELD, Council Member
WILL O’NEILL, Council Member
GRACE K. LEUNG, City Manager
AARON C. HARP, City Attorney
LEILANI I. BROWN, City Clerk
NOTICE REGARDING PRESENTATIONS REQUIRING USE OF CITY EQUIPMENT Any presentation requiring the use of the City of Newport Beach’s equipment must be submitted to the City Clerk 24 hours prior to the scheduled City Council meeting.
PUBLIC HEARINGS
If in the future, you wish to challenge in court any of the matters on this agenda for which a public hearing is to be conducted, you may be limited to raising only those issues which you (or someone else) raised orally at the public hearing or in written correspondence received by the City at or before the hearing.
NOTICE TO THE PUBLIC
Any times listed in this agenda are provided as a courtesy and the actual item may be heard either before or after the time given.
This agenda was prepared by the City Clerk and staff reports are available in the City Council Chambers lobby located at 100 Civic Center Drive. Staff reports or other written documentation have been prepared or organized with respect to the items of business listed on the agenda. If you have any questions or require copies of any of the staff reports or other documentation regarding any item of business on the agenda, please contact City Clerk staff at 949-644-3005. Agendas and staff reports are also available on the City's webpage at newportbeachca.gov/agendas .
The City of Newport Beach’s goal is to comply with the Americans with Disabilities Act (ADA) in all respects. If, as an attendee or a participant at this meeting, you will need special assistance beyond what is normally provided, we will attempt to accommodate you in every reasonable manner. Please contact City Clerk Leilani Brown prior to the meeting to inform us of your particular needs and to determine if accommodation is feasible (949-644-3005 or [email protected]).
NEWPORT BEACH CITY COUNCIL AGENDA
CITY COUNCIL CHAMBERS
100 CIVIC CENTER DRIVE, NEWPORT BEACH, CA 92660
MAY 24, 2022
STUDY SESSION – 4:30 P.M. (PUBLIC WELCOME)
REGULAR MEETING – 6:00 P.M.
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NOTE: A Special Joint Meeting of the Newport Beach City Council and the Finance Committee will be held at 4:00 p.m. in the same location (City Council Chambers). Please see the separate agenda for this meeting. The public is welcome to participate in the Special Joint Meeting, as well as the City Council Meeting.
* * * * * * * * * * * * *
I. ROLL CALL – 4:30 p.m.
II. CURRENT BUSINESS
SS1. Clarification of Items on the Consent Calendar
SS2. Review of the Proposed Fiscal Year 2022-23 Capital Improvement Program Budget Public Works staff will be presenting the proposed Fiscal Year 2022- 23 through 2023- 28 Capital Improvement Program. The Capital Improvement Program (CIP) serves as a plan for the provision of public improvements, special projects, on-going maintenance programs, and the implementation of the City’s master plans. Projects in the CIP include improvements and major maintenance on arterial highways, local streets, and alleys; storm drain and water quality improvements; harbor, pier, and beach improvements; park and facility improvements; water and wastewater system improvements; transportation safety, reliability, and traffic signal improvements; and planning programs and studies. The presentation will review the proposed CIP budget of $102,933,613 for capital improvement projects and programs in FY 2022-23.
III. PUBLIC COMMENTS
The City Council of Newport Beach welcomes and encourages community participation. Public comments are invited on items listed on the agenda and non- agenda items. Speakers must limit comments to three (3) minutes per person to allow everyone to speak. Written comments are encouraged as well. The City Council has the discretion to extend or shorten the time limit on agenda or non-agenda items.
IV. RECESS
V. RECONVENE AT 6:00 P.M. FOR REGULAR MEETING
VI. ROLL CALL
VII. INVOCATION
VIII. PLEDGE OF ALLEGIANCE
IX. NOTICE TO THE PUBLIC
The City Council of Newport Beach welcomes and encourages community participation. Public comments are generally limited to three (3) minutes per person to allow everyone to speak. Written comments are encouraged as well. The City Council has the discretion to extend or shorten the time limit on agenda or non-agenda items.
City Council Meeting
May 24, 2022
X. CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL ON
COMMITTEE ACTIVITIES
XI. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA
• Consider the adoption of a resolution supporting Senate Bill No. 904, which will amend California law to clarify current statutes and ensure the criminal justice system is helping educate and treat those offenders who are suffering from addiction to contro lled substances [O’Neill]
XII. PUBLIC COMMENTS ON CONSENT CALENDAR
This is the time in which Council Members may pull items from the CONSENT CALENDAR for discussion (ITEMS 1 – 9). Public comments are also invited on Consent Calendar items. Speakers must limit comments to three (3) minutes. Before speaking, please state your name for the record. If any item is removed from the Consent Calendar by a Council Member, members of the public are invited to speak on each item for up to three (3) minutes per item.
All matters listed under CONSENT CALENDAR are considered to be routine and will all be enacted by one motion in the form listed below. Council Members have received detailed staff reports on each of the items recommending an action. There will be no separate discussion of these items prior to the time the City Council votes on the motion unless members of the City Council request specific items to be discussed and/or removed from the Consent Calendar for separate action.
XIII. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
1. Minutes for the May 10, 2022 City Council Meeting
Waive reading of subject minutes, approve as written, and order filed.
2. Reading of Ordinances
Waive reading in full of all ordinances under consideration, and direct the City Clerk to read by title only.
CONTRACTS AND AGREEMENTS
3. Cliff Drive Clubhouse Rehabilitation – Notice of Completion for Contract No. 8695 -1 (20F13)
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project;
b) Authorize the City Clerk to release the Labor and Materials Bond 65 days after Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and c) Release the Faithful Performance Bond one year after acceptance by the City Council.
4. American Legion Bulkhead Wall Repair (Project No. 16H11) – Award of Contract No. 7659-1
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301, Class 1 (Existing Facilities - maintenance of existing public facilities involving negligible or no expansion of use) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 because it has no potential to have a significant effect on the environment; b) Approve the project plans and specifications;
City Council Meeting
May 24, 2022
c) Award Contract No. 7659-1 to Applied Restoration, Inc. for the total bid price of $991,600, and authorize the Mayor and City Clerk to execute the contract; and d) Establish a contingency of $99,200 (approximately 10 percent of total bid) to cover the cost of unforeseen work not included in the original contract.
5. Amendment No. Two to Temporary Employment Agreement with Rosalinh Ung a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Authorize the Mayor and Community Development Director to execute an amendment to the Post Retirement Temporary Employment Agreement with retired employee Rosalinh Ung.
6. Lease Agreement with Newport Ridge Community Association to Develop, Operate and Maintain Pickleball Courts at Newport Ridge Park
a) Determine this project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilitates) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable; b) Authorize the City Manager and City Clerk to execute a 30- year Lease Agreement by and between the Newport Ridge Community Association and the City of Newport Beach for the Development, Operation, and Maintenance of Pickleball Courts Complex at Newport Ridge Park (Lease), in a form substantially similar to the agreement prepared by the City Attorney; and
c) Review and approve the Conceptual Design and direct staff to proceed with final construction documents.
7. Tentative Agreement with Newport Beach Fire Management Association (NBFMA) a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Receive and consider the Tentative Agreement between the City of Newport Beach and the Newport Beach Fire Management Association.
MISCELLANEOUS
8. Planning Commission Action Report for the May 12, 2022 Meeting Receive and file.
9. Set Public Hearing Date to Adopt Fiscal Year 2022-23 Budget a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Schedule a public hearing of the City’s Proposed Budget for Fiscal Year 2022- 2023 for June 14, 2022, and direct the City Clerk to publish a notice of said hearing in accordance with Section 1102 of the Newport Beach Charter.
ACTION: MOVE AFFIRMATIVE ACTION OF THE CONSENT CALENDAR, EXCEPT FOR
THOSE ITEMS REMOVED
XIV. ITEMS REMOVED FROM THE CONSENT CALENDAR
City Council Meeting
May 24, 2022
XV. PUBLIC COMMENTS ON NON-AGENDA ITEMS
Public comments are invited on non- agenda items generally considered to be within the subject matter jurisdiction of the City Council. Speakers must limit comments to three (3) minutes. Before speaking, please state your name for the record.
XVI. PUBLIC HEARING
10. Ordinance No. 2022- 13: Amendment to Municipal Code Chapter 14.16, Water Conservation and Water Supply Shortage Program
a) Conduct a public hearing;
b) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and c) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance No 202 2- 13, An Ordinance of the City Council of the City of Newport Beach, California, Amending Chapter 14.16 of the Newport Beach Municipal Code Pertaining to Water Conservation and Supply Level Regulations, and pass to second reading on June 14, 2022.
XVII. CURRENT BUSINESS
11. Resolution No. 2022- 33: Seventh Amended and Restated Employment Agreement for City Clerk
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Approve and authorize the Mayor to execute a Seventh Amended and Restated Employment Agreement between the City of Newport Beach and City Clerk Leilani I. Brown, subject to the terms and conditions approved by the City Council;
c) Adopt Resolution No. 2022-33, A Resolution of the City Council of the City of Newport Beach, California, Modifying the Salary Range for the City Clerk; and d) Approve Budget Amendment No. 22-055 appropriating $1,776 from unappropriated General Fund balance to various salary and benefit accounts to implement the terms of the Agreement for the remainder of FY 2021-22.
XVIII. MOTION FOR RECONSIDERATION
A motion to reconsider the vote on any action taken by the City Council at either this meeting or the previous meeting may be made only by one of the Council Members who voted with the prevailing side.
XIX. ADJOURNMENT
Testimony given before the City Council is recorded.
The timer light will turn yellow when the speaker has one minute remaining.
The timer light will turn red when the speaker has 10 seconds remaining.
PLEASE TURN CELL PHONES OFF OR SET IN SILENT MODE
CITY OF NEWPORT BEACH
City Council Meeting Minutes
Study Session and Regular Meeting
May 10, 2022
Volume 65 - Page 305
I. ROLL CALL – 4:00 p.m.
Present: Mayor Kevin Muldoon, Council Member Brad Avery , Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Will O’Neill
Absent: Mayor Pro Tem Noah Blom (excused)
II. CURRENT BUSINESS
SS1. Clarification of Items on the Consent Calendar – None
SS2. National Public Works Week Proclamation
Mayor Muldoon read the proclamation and presented it to Public Works Director Webb, who thanked the City Council and residents for their support, recognized the opportunities presented in the City, and announced the Touch-a-Truck event on May 14, 2022, at the Balboa Pier.
SS3. Proclamation Honoring the Corona del Mar High School Women’s Water Polo CIF Champions
Mayor Muldoon read the proclamation and presented it to Coach Melissa Seidemann who recognized the team’s efforts and thanked the City Council for honoring them.
SS4. Residential Refuse Program Roll-Out Update
Public Works Director Webb and Deputy Public Works Director Martin utilized a presentation to provide an update on the roll- out of the residential refuse collection and recycling program since its implementation in January 2022, refuse collection/processing modifications and the new three-cart waste collection system, new split-body collection trucks, cart options and right- sizing, kitchen pa il distribution, customized ancillary services, the valet service, CR&R extended start date for ancillary service charges and its WebPak on-line system, outreach and education, a first quarter contamination audit, an example of non-containerized waste reminder hang tags, bulky item pickup, and noted that customers can reach CR&R at 949-677-4158.
In response to Council Member Aver y’s question, Public Works Director Martin indicated that the hang tags are used as a reminder to residents to breakdown boxes and place them in the correct cart, explained charges for noncompliance, and discussed next steps for enforcement, education, and appropriate cart count.
In response to Council Member Brenner ’s question, Deputy Public Works Director Martin assured that multiple cans are not being emptied into the same truck . Public Works Director Webb discussed alley complaints, the new split truck s ystem, and the side loader trucks.
Hashem Shokair, CR&R Senior Sustainability Manager, confirmed that the containers do no t comingle and discussed driver training.
In response to Council Member Dixon’s questions, Deputy Public Wor ks Director Martin discussed the importance of properly filling carts, Mr. Shokair confirmed that carts are collected regardless of fill levels and indicated that calls should be directed to CR&R relative to any materials left behind . Council Member Dixon relayed the ease of pull ing apart newer boxes during breakdown and extended her thanks for the roll-out and a job well done.
DRAFT
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Agenda Item No. 1
City of Newport Beach
City Council Meeting
May 10, 2022
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In response to Council Member Avery’s question, Mr. Shokair described a newer, smaller truck fleet powered by renewable natural gas (RNG). Public Works Director Webb indicated the contract recall included a new fleet to service Newport Beach and Deputy Public Works Director Martin discussed fleet optimization after the route changes.
In response to Council Member Brenner’s question, Mr. Shokair discussed complaint reporting options and Council Me mber Brenner thanked Deputy Public Works Director Martin and CR&R.
Jim Mosher questioned the split body truck loading process and valet service charges, noted discrepancies with the valet service revised due dates and WebPak account, and inquired about the goal of Senate Bill 1383 and which items are being missorted.
Deputy Public Works Director Martin clarified that split body trucks are rear loading, used in alleys, and are operated by two people , valet service is optional, and reviewed contamination goals for residential waste . Mr. Shokair added that mixed materials and plastic film are the most common misplaced items and, in response to Mayor Muldoon’s question, described plastic film as flimsy plastic wrappers.
SS5. Short Term Lodging Transferability
Community Development Director Jurjis and Management Assistant Alannouf utilized a presentation to discuss transferability of Short-Term Lodging (STL) Permits on the same property with different ownership, transferability allowances, the transfer process, the number of transfers since July 2020, other cities that allow transfers, and STL permit status.
In response to Council Member Brenner’s question, Management Assistant Alannouf discussed the transfer of ownership process into LLCs and indicated that , when the City reviews a transfer, the title owner is matched and verified. In response to questions by Community Development Director Jurjis, Management Assistant Alannouf confirmed that copies of the title transfer, which list the title holder, are required. Community Development Director Jurjis confirmed that the City can identify property ownership. Council Member Brenn er expressed concern for the number of sale transfers and that this could create a separate asset class .
Community Development Director J urjis indicated that the City Council could change the transferability provisions to exclude sales. Council Member Brenner requested that the Council discuss and evaluate the process for fairness.
In response to Council Member Dixon ’s questions, Community Development Director Jurjis confirmed that the City has no evaluations on housing market price, STL permits are allowed by the City Council and not a property right, and moorings are the only salable permit. Council Member Dixon indicated that as STLs increase, housing stock and population counts decrease as per the California Coastal Commission (CCC) , expressed concerns relative to the consequences and impact to the City on the affordability, sale, value, and market price of homes, Council discretion to allow STLs, concerns for equitable permit distributions and a waiting list, and a desire to uncover the ramifications of permitting.
In r
esponse to Council Member Avery’s inquiry, Management Assistant Alannouf confirmed the $165 transfer fee and explained the application process. Council Member Avery noted that the mooring transfer fee is much higher.
Randy Beck suggested a STL grandfather clause.
Jim Mosher expressed concern that this creates an unfair private market and a special asset class, and proposed an annual lottery for STL permits.
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An unidentified speaker discussed the vacation rental business model and offered to share a business model with the Council to use during considerations.
Council Member Brenner suggested further study and expressed concerns relative to holding an annual lottery system.
Council Member Dixon expressed concern for the impact to the housing stock and cost of housing in the City, noted her interest in understanding why other cities do not allow permit transfers, as well as the impacts to housing and affordable housing, and expressed support for continued monitoring of this issue.
Mayor Muldoon agreed that monitoring is informative.
In response to Council Member Brenner ’s question, Community Development Direct or Jurjis relayed that staff will return at the September City Council meeting with information regarding fractional ownership and agreed to include STL scenarios.
In response to Council Member Duffield’s question, Management Assistant Alannouf indicated that STL permits are required for rentals less than 30 days and Council Member Duffield reminded the public that house rentals for more than 30 days are allowed without a n STL permit.
Council Member Avery noted a market analogous to mooring permits, suggested conferring with real estate agents, related business professionals, and involved parties to identify a solution to reduce impacts, reiterated that STL permits are not a property right, and suggested conducting a forum to effect gradual rules.
Mayor Muldoon clarified Council’s wish to monitor the situation.
III. PUBLIC COMMENTS ON AGENDA AND NON-AGEN
DA ITEMS
Nancy Scarbrough discussed Closed Session Item IV.C, the timing of the topic, the monthly rental rate at 62 Beacon Bay, and questioned why it is a Closed Session item.
City Attorney Harp announced that the City Council would adjourn to Closed Session to discuss the items listed in the Closed Session agend a and read the titles ; and reported that Mayor Muldoon will be recusing himself on Closed Session Item IV.D due to potential future business with the law firm.
IV. CLOSED SESSION
A. CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6): 1 matter
Agency Designated Representatives: Grace K. Leung, City Manager, Barbara Salvini, Human Resources Director, and Charles Sakai, Esq., Negotiators.
Employee Organizations: Newport Beach Police Management Association (NBPMA) and Association of Newport Beach Ocean Lifeguards (ANBOL).
B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Government Code § 54956.8): 1 matter
Property: 1201 Dove Street, Newport Beach, California 92660 (APN 427-221-06).
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City Negotiators: Seimone Jurjis, Community Development Director and Lauren Wooding Whitlinger, Real Property Administrator.
Negotiating Parties: Parke Miller.
Under Negotiation: Instruction to City Negotiators regarding price and terms of payment.
C. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Government Code § 54956.8): 1 matter
Property: All properties in Beacon Bay that have a lease with a City of Newport Beach, as set forth in Attachment A.
City Negotiators: Seimone Jurjis, Community Development Director and Lauren Wooding Whitlinger, Real Property Administrator.
Negotiating Parties: All lessees of properties in Beacon Bay, as set forth in Attachment A.
Under Negotiation: Instruction to City Negotiators regarding price and terms of payment.
D. CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54956.9(d)(1)): 1 matter
City of Newport Beach vs. William O’Connor, Cooley, LLP Orange County Bar Association Case No. NV-021-6750.
V. RECESSED – 5:09 p. m.
VI. RECONVENED AT 6:00 P.M. FOR REGULAR MEETING
VII. ROLL CALL
Present: Mayor Kevin Muldoon, Council Member Brad Avery , Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Will O’Neill
Absent: Mayor Pro Tem Noah Blom (excused)
VIII. CLOSED SESSION REPORT
City Attorney Harp announced that no reportable actions were taken.
IX. INVOCATION – Mo nsignor Douglas Cook, Our Lady of Mt. Carmel Catholic Church
X. PLEDGE OF ALLEGIANCE – Mayor Muldoon
XI. NOTIC E TO THE PUBLIC
XII. CITY COUNCIL ANNOUNCEMENTS AND OR AL REPORTS FROM CITY COUNCIL ON
COMMITTEE ACTIVITIES
Council Member Dixon:
• Utilized a slide to announce the Balboa Peninsula Trolley operating season and the “Make a Splash, Pick Up Trash” anti-litter campaign (www.newportbeachca.gov/clean) • Attended the Orange County Council of Governments (OCCOG) monthly meeting and several yacht club opening days
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Council Member Brenner:
• Utilized a
slide to announce the OASIS Senior Center Health and Wellness Resource Fair on May 14,
2022, the Corona del Mar Residents Association (CdMRA), Corona del Mar (CdM) Historical Society, and Sherman Library outreach for old CdM photos and documents to preserve the history
and legacy ([email protected] to volunteer), and the CdM Chamber of Commerce Meeting “Good Morning CdM” on May 12, 2022, to discuss Ballot Measure B Mayor M
uldoon:
• Utilized a slide to display a photo with Harbormaster Paul Blank from the 100-year opening day at Balboa Yacht Club
• Attended the American Legion opening day with Council Members Brenner and Dixon • Utilized a s lide to announce the Harbor Department abandoned vessel auction on May 20, 2022, and the Touch-a-Truck event on May 14, 2022, in celebration of National Public Works Week XIII. PUBLIC COMMENTS ON CONSENT CALENDAR
Jim Mos
her pointed out that approval of all the agenda items will require only a single vote , noted Council had no questions relative to the Consent Calendar, and questioned the noticing provided to the public regarding Item 6 (Overnight Parking Prohibition on Old Newport Boulevard).
XIV. CONSENT CALENDAR
READI
NG OF MINUTES AND ORDINANCES
1. Minutes for the April 26, 2022 City Council Meeting [100-2022] Waive reading of subject minutes, approve as amended, and order filed.
2. Reading of Ordinances
Waive reading in full of all ordinances under consideration and direct the City Clerk to read by title only.
ORDINANCES FOR ADOPTION
3. Ordinance No. 2022- 9: Amending the Newport Beach Municipal Code Pertaining to Live-Aboards, On-Shore Moorings, and Other Miscellaneous Provisions [100-2022] a) Find this project statutorily exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Conduct second reading and adopt Ordinance No. 2022-9, An Ordinance of the City Council of the City of Newport Beach, California, Amending Sections 1.12.020, 17.10.060, 17.25.010,
17.25.020, 17.40.030, 17.45.020, 17.60.040, 17.65.010 and 17.70.050 of the Newport Beach Municipal Code Pertaining to Live-Aboards, On-Shore Moorings, and Miscellaneous Provisions.
Council Member Duffield recused himself on Item 3 due to business interest conflicts.
4. Ordinance No. 2022- 11: LCP Amendment Related to Setback Map Corrections (PA2020- 006) [100-2022]
a) Find this amendment exempt pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15061(b)(3), and Section 15265(a)(1), because it has no potential to have a significant effect on the environment and local governments are exempt from the requirem ents of CEQA in connection with the adoption of a Local Coastal Program; and b) Conduct second reading and adopt Ordinance No. 2022- 11, An Ordinance of the City Council of the City of Newport Beach, California, Amending Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code and Adopting Local Coastal Program Amendment No. LC2020-001 Correcting Setback Map Errors (PA2020-006).
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5. Ordinance No. 2022-12: LCP Amendment Related to Tattoo Establishments (PA2020- 030) [100-2022]
a) Find this amendment exempt pursuant to California Environmental Quality Act (“CEQA”) Guidelines Section 15061(b)(3), and Section 15265(a)(1), because it has no potential to have a significant effect on the environment and local governments are exempt from the requirements of CEQA in connection with the adoption of a Local Coastal Program; and b) Conduct second reading and adopt Ordinance No. 2022- 12, An Ordinance of the City Council of the City of Newport Beach, California, Amending Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code and Adopting Local Coastal Program Amendment No. LC2020-002 Related to Tattoo Establishment Development Standards (PA2020-030).
RESOLUTIONS FOR ADOPTION
6. Resolution No. 2022-27: Overnight Parking Prohibition on Old Newport Boulevard [100- 2022]
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2022-27, A Resolution of the City Council of the City of Newport Beach, California, Prohibiting Overnight Parking on Old Newport Boulevard between 15th Street and Hospital Road.
7. Resolution No. 2022- 28: Adopting a Memorandum of Understanding with the Newport Beach Lifeguard Management Association (NBLMA) (C-2058(B)) and Associated Salary Schedule [38/100-2022]
a) Determine this action is exempt from the California Environmental Qua lity Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Adopt Resolution No. 2022 -28, A Resolution of the City Council of the City of Newport Beach, California, Adopting a Memorandum of Understanding between the City of Newport Beach and the Newport Beach Lifeguard Management Association and Amending the Salary Schedule; and c) Approve Budget Amendment No. 22-054 appropriating $46,435.65 in increased expenditures in various City division salary and benefit accounts from unappropriated General Fund balances .
8. Resolution No. 2022- 29: Initiation of Zoning Code and Local Coastal Program Amendments Related to Nonconforming Residential Uses and Setback Clarification (PA2022-076) [100-2022]
a) Determine this action is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to Section 15262 of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3; and
b) Adopt Resolution No. 2022 -29, A Resolution of the City Council of the City of Newport Beach, California, Initiating Amendments to Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the City of Newport Beach Municipal Code Related to Nonconforming Residential Uses and Setback Clarifications in the R-1-6,000 Zoning and Coastal Zoning Districts (PA2022-076).
9. Resolution Nos. 2022- 30 to 2022- 32: Calling the November 8, 2022 General Municipal Election [39/100-2022]
a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly;
DRAFT
City of Newport Beach
City Council Meeting
May 10, 2022
Volume 65 - Page 311
b) Adopt Resolution No. 2022 -30, A Resolution of the City Council of the City of Newport Beach, California, Calling for the Holding of a General Municipal Election to be Held on Tuesday, November 8, 2022, for the Election of Members of the City Council as Required by the Provisions of the City Charter;
c) Adopt Resolution No. 2022 -31, A Resolution of the City Council of the City of Newport Beach, California, Requesting the Board of Supervisors of the County of Orange to Consolidate a General Municipal Election to be Held on Tuesday, November 8, 2022, with the Statewide General Election to be Held on the Same Date Pursuant to California Elections Code Section 10403 for the Purpose of Electing Members of the City Council; and d) Adopt Resolution No. 2022 -32, A Resolution of the City Council of the City of Newport Beach, California, Adopting Regulations for Candidates for Elective Office Pertaining to Candidates Statements Submitted to the Voters at an Election to be Held on Tuesday, November 8, 2022 .
CONTRACTS AND AGREEMENTS
10. 2020-2021 Playground Improvements Project – Notice of Completion for Contract No. 7934-1 [38/100-2022]
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project;
b) Authorize the City Clerk to release the Labor and Materials Bond 65 days after Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and c) Release the Faithful Performance Bond one year after acceptance by the City Council.
11. Concrete Replacement Program FY 2021- 22 (Project No. 22R06) – Notice of Completion for Contract No. 8722-1 [38/100-2022]
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project;
b) Authorize the City Clerk to release the Labor and Materials Bond 65 days after the Notice of Completion has been recorded in accordance with applicable portions of Civil Code; and c) Release Faithful Performance Bond one year after acceptance by the City Council.
12. Approval of On-Site Mobile Car Washing and Detail Services (C-8877-1) [38/100-2022] a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 1 5060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve a Professional Services Agreement with Bumper to Bumper, Inc. to provide on -site mobile car wash and detail services for a three-year term at a total not-to-exceed (NTE) price of $165,000.00, and authorize the Mayor and City Clerk to execute the agreement on a form approved by the City Attorney.
Motion by Council Member Av
ery, seconded by Council Member O’Neill, to approve the Consent Calendar; and noting the recusal by Council Member Duffield to Item 3 and the amendments to Item 1.
Wit
h Mayor Pro Tem Blom absent, the motion carried 6-0
XV. ITEMS REM OVED FROM THE CONSENT CALENDAR – None
XVI. PUBLIC COMMENTS ON NON-AGENDA ITEMS
Jim Mosher expressed th e opinion that the Measure B vote is not simple and the result will be a less accountable Mayor.
Jennifer Irani expressed her reasons for opposing Measure B.
City Attorney Harp reminded speakers that campaigning at City Council meetings is not allowed.
DRAFT
City of Newport Beach
City Council Meeting
May 10, 2022
Volume 65 - Page 312
Jay Elbettar discussed the safety of kindergarteners at Mariners Elementary School during pick up and drop off, and suggested implementing parking limitations for the new development on Mariners Drive.
XVII. MOTION FOR RECONSIDERATION – None
XVIII. ADJOURNMENT – 6:27 p.m.
The agenda was posted on the City's website and on the City Hall electronic bulletin board located in the entrance of the City Council Chambers at 100 Civic Center Drive on May 5, 2022, at 4:00 p.m.
_________________________________________
Kevin Muldoon
Mayor
________________________________________
Leilani I. Brown
City Clerk
DRAFT
3-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 3
ABSTRACT:
On October 26, 2021, the City Council awarded Contract No. 8695-1, Cliff Drive Clubhouse Rehabilitation, to A2Z Construct, Inc. The project consisted of replacing the exterior of the building, painting, wood patching and repair, installing a new pathway to the building, adding a new water fountain, replacing the wall behind the sidewalk at the park, and removing an interfering tree. The work is now substantially complete and staff requests City Council acceptance and closeout of the contract.
RECOMMENDATION:
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project;
b) Authorize the City Clerk to release the Labor and Materials Bond 65 days after Notice of Completion has been recorded in accordance with applicable portions of the Civil Code; and
c) Release the Faithful Performance Bond one year after acceptance by the City Council.
DISCUSSION:
Overall Contract Cost/Time Summary
Award Contract
Amount
Final Cost at
Completion
Total Contract
Change Amount
Percent Contract Cost
Change
$ 185,750.00 $ 181,378.75 $ -4,371.25 -2.4%
Allowed Contract Time (days) 40 Actual Time
Under (-) or Over (+) +7
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Tom Sandefur, Assistant City Engineer,
[email protected]
PHONE: 949-644-3321
TITLE: Cliff Drive Clubhouse Rehabilitation – Notice of Completion for Contract No. 8695-1 (20F13)
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I
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Cliff Drive Clubhouse Rehabilitation – Notice of Completion for Contract No. 8695-1 (20F13)
May 24, 2022
3-2
The work necessary for the completion of this contract consisted of replacing the exterior siding of the building, wood patching and repair, painting, installing a new pathway to the building, adding a new water fountain, replacing the wall behind the sidewalk at the park, removing an interfering tree, and other incidental items to complete the work in place as required by the contract documents.
The contract has now been completed to the satisfaction of the Public Works and Recreation and Senior Services Department s. A summary of the construction cost is as follows:
Original Bid Amount: $ 185,750.00
Actual Cost of Bid Items Constructed: $ 175,750.00
Total Change Orders: $ 16,128.75
Applied Liquidated Damages $ -10,500.00
Final Contract Cost: $ 181,378.75
Changes to the contract cost included replacing several rotted support posts and additional concrete repairs. The seven day delay in contract completion resulted in the contractor incurring $10,500 in liquidated damages.
A summary of the project schedule is as follows:
Estimate Start of Construction per Annual Baseline Schedule February 28, 2022 Actual Start of Construction per Notice to Proceed January 10, 2022 Actual Substantial Construction Completion Date April 15, 2022 FISCAL IMPACT:
Funds for the construction contract were expended from the following Capital Improvement budget account:
Account Description Account Number Amount
FFP: Parks/Community Centers 56201-980000-20F13 $ 181,378.75 Total: $ 181,378.75
The City’s Facilities Financing Plan (FFP) fund is used to fund improvements and replacements of public buildings throughout the city.
ENVIRONMENTAL REIEW:
On October 26 , 2021, City Council found this project exempt from the Califor nia Environmental Quality Act ( CEQA) pursuant to Section 15301(a) (minor interior or exterior alterations involving such things as partitions and plumbing ) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project results in no expansion of an existing use.
Cliff Drive Clubhouse Rehabilitation – Notice of Completion for Contract No. 8695-1 (20F13)
May 24, 2022
3-3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A – Location Map
Attachment A
3-4
ci
Cl
LL
LL
....J
(.)
CLIFF DRIVE CLUBHOUSE BUILDING
REHAB
LOCATION MAP
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
C-8695-1 10/11/21
4-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 4
ABSTRACT:
Staff has received construction bids for the American Legion Bulkhead Wall Repair and requests the City Council’s approval to award the construction contract to Applied Restoration, Inc. The project includes installing a new external steel wale beam along the length of the existing bulkhead to provide additional structural stability and to increase its useful life.
RECOMMENDATION:
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301, Class 1 (Existing Facilities - maintenance of existing public facilities involving negligible or no expansion of use) of the CEQA Guidelines , California Code of Regulations, Title 14, Chapter 3 because it has no potential to have a significant effect on the environment;
b) Approve the project plans and specifications;
c) Award Contract No . 7659-1 to Applied Restoration, Inc. for the total bid price of $991,600, and authorize the Mayor and City Clerk to execute the contract; and d) Establish a contingency of $99,200 (approximately 10 percent of total bid) to cover the cost of unforeseen work not included in the original contract.
DISCUSSION:
The City of Newport Beach (City) owns the property at 215 15 th Street, and leases the premises, including the marina, to the American Legion. As part of the Rhine Channel / American Legion dredging project in 2011, the City agreed to study the feasibility of repairing or replacing the existing vertical bulkheads at the property. A study was conducted in 2018 which originally identified a need to strengthen the existing wall a nd suggested installing a new tie-back system throughout, as well as replacing the concrete cap along the top of the bulkhead wall so as to anchor the new tie -back rods. However, the cap replacement component would then facilitate the need for other ancill ary upgrades which included installing a new Americans with Disabilities Act (ADA) gangway, in addition to significantly modifying the existing float system and piles to accommodate this larger gangway. The gangway modification added substantial cost to the project.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Chris Miller, Administrative Manager, [email protected] PHONE: 949-644-3043
TITLE: American Legion Bulkhead Wall Repair (Project No. 16H11) – Award of Contract No. 7659-1
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American Legion Bulkhead Wall Repair (Project No. 16H11) – Award of Contract No. 7659-1 May 24, 2022
4-2
As a result, staff reviewed the approach of repairing the existing wall through value engineering and identified an alternate design which includes attaching a wale beam along the exterior bulkhead surface, just below the existing concrete cap, via a series of tiebacks. This approach eliminated the cap replacement option which therefore eliminated the costly gangway replacement and corresponding marina modifications. Although this modified and simplified approach has an anticipated reduced life span (25-35 years vs . 75 years for full cap replacement), the savings to the City of approximately $1.0 million is significant. In the future, the bulkhead will eventually require replacement and the access to the adjacent marina upgraded to meet ADA standards.
Permits have been secured from the California Coastal Commission, Santa Ana Regional Water Quality Control Board, and the Army Corps of Engineers.
At 10 a.m. on April 21, 2022, the City Clerk opened and read the bids for this project:
BIDDER TOTAL BID AMOUNT
Low Applied Restoration, Inc. $ 991,600
2nd Jilk Heavy Construction, Inc. $ 1,056,096
3rd Beador Construction $ 1,518,700
4th Bosco Constructors, Inc. $ 2,699,420
The City received four bids for this project. The low bid was 26% percent below the Engineer’s Estimate of $1,345,000. The lowest bidder, Applied Restoration, Inc. possesses a California State Contractor ’s License Classification “A” as required by the project specifications. A review of references for Applied Restoration, Inc. shows satisfactory completion of concrete contracts for the City and other municipalities.
The proposed project includes distributing construction notices to affected residents and businesses; creating a landside storage area in the American Legion parking lot adjacent to the bulkhead; installing a steel wale beam along the exterior of the bulkhead; installing tiebacks through the steel wale beam into the soil; repairing minor concrete spalling along the existing bulkhead cap; and adjusting the interior marina headwalk to accommodate the protrusion of the new steel wale beam.
Staff recommends awarding this construction contract to Applied Restoration, Inc.
Pursuant to the contract specifications, the contractor will have 140 consecutive working days to complete the work. Work is scheduled to start in September 2022, after the Labor Day holiday, to avoid construction during the American Legion’s busy summer season, and is anticipated to be substantially complete by the Christmas Boat Parade.
The project plans and specifications will be available for review at the May 24, 2022, City Council meeting or upon request.
FISCAL IMPACT:
The Fiscal Year 2021 -22 adopted Capital Improvement Program budget includes sufficient funding for the award of this contract. Staff recommends establishing $99,200 (approximately 1 0 percent of total bid) for contingency purposes and unforeseen conditions associated with construction. The following funds will be expensed.
American Legion Bulkhead Wall Repair (Project No. 16H11) – Award of Contract No. 7659-1 May 24, 2022
4-3
Account Description Account Number Amount
Tidelands Fund 10101-980000-16H11 $ 1,090,800
Total: $ 1,090,800
Proposed fund uses are as follows:
Vendor Purpose Amount
Applied Restoration, Inc. Construction Contract $ 991,600 Applied Restoration, Inc. Construction Contingency $ 99,200 Total: $ 1,090,800
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301, Class 1 (Existing Facilities - maintenance of existing public facilities involving negligible or no expansion of use) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 because it has no potential to have a significant effect on the environment.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in ad vance of the meeting at which the City Council considers the item). In addition, staff has coordinated with the American Legion on timing and design, and they are supportive of the project. And lastly, the Harbor Commission reviewed the original project sc ope (cap replacement) in October 2020 as required per Council Policy H-1 (Harbor Permit Policy).
ATTACHMENT:
Attachment A – Location Map
ATTACHMENT A
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CITY OF COSTA
MESA
JOHN WAYNE
AIRPORT
VICINITY MAP
NOT TO SCALE
AMERICAN LEGION BULKHEAD WALL
REPAIRS
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
LOCATION MAP C-7659-1 05/24/22
5-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 5
ABSTRACT:
For the City Council’s consideration is Amendment No. Two to extend, by one more year, a temporary employment agreement with Rosalinh Ung, a retired City of Newport Beach (City) employee. Ms. Ung will provide planning services to the Community Development Department (Department). The extended agreement will limit hours worked to 960 hours and the agreement is of a limited duration.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Authorize the Mayor and Community Development Director to execute an amendment to the Post Retirement Temporary Employment Agreement with retired employee Rosalinh Ung.
DISCUSSION:
The City Council approved the original Post Retirement Temporary Employmen t Agreement (Agreement) on June 23, 2020, consistent with City Council Policy F-20, which requires the City Council to consider any contract with a person formerly employed by the City within the past five years. The City Council extended the agreement for an additional year by way of the first amendment to the agreement. The amended agreement will expire on June 30, 2022.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232, [email protected]
PREPARED BY: Brittany Ramirez, Management Analyst
[email protected]
PHONE: 949-644-3239
TITLE: Amendment No. Two to Temporary Employment Agreement with Rosalinh Ung
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Amendment No. Two to Temporary Employment Agreement with Rosalinh Ung May 24, 2022
5-2
The need to retain Ms. Ung continued through the pandemic and continues still due to a recent vacancy at the principal planner level. Amendment No. 2 would extend the term one additional year. The salary would be adjusted consistent with approved cost-of-living increases. Ms. Ung would continue to work on a part-time basis and provide specialized planning and entitlement services to the Department, given her knowledge and experience in reviewing Airport Area development applications and the City’s General Plan.
Ms. Ung was a long-tenured and well-respected City employee with close to 30 years in the profession. She worked for the City for approximately 20 years and is very familiar with the City’s plans, codes, procedures, and staff. She retains the necessary knowledge and skills to perform the anticipated duties with no further training required. The extension will allow the Department the ability to maintain a high level of customer service, while the Department recruits for a p rincipal planner. Furthermore, she will provide additional training to Department staff.
In accordance with Government Code Section 7522.56, the City has met the following requirements:
1. Waited an excess of 180 days since the employee's retirement under PERS rules;
2. Ensured the employee is not earning less than the minimum, nor exceeding the maximum, of other employees in the classification; and
3. Ms. Ung has certified that she has not received unemployment insurance compensation arising out of prior employment with a public employer during the last 12 months.
The amended Agreement will be in compliance with Council Policy F- 20:
1. On July 1, 2022, the City will engage Ms. Ung at $65.74 per hour. The amount is not more than a Principal Planner employed by the City; and
2. Ms. Ung will not be authorized to work or receive overtime pay.
FISCAL IMPACT:
The adopted budget will include sufficient funding for this expense. It will be expensed to the Community Development Department part-time salary budget account 01050501- 711003. Additionally, there will be salary savings from vacant positions that will help off- set the cost of the agreement.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
Amendment No. Two to Temporary Employment Agreement with Rosalinh Ung May 24, 2022
5-3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A – Amendment No. Two to Temporary Employment Agreement Attachment B – Amendment No. One to Temporary Employment Agreement Attachment C – Original Temporary Employment Agreement
ATTACHMENT A
5-4
AMENDMENT NO. TWO TO
POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT
WITH ROSALINH UNG FOR PRINCIPAL PLANNER SERVICES
THIS AMENDMENT NO. TWO TO POST RETIREMENT TEMPORARY
EMPLOYMENT AGREEMENT ("Amendment No. Two") is made and entered into as of this 24th day of May, 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ROSALINH UNG ("Employee"), whose mailing address is 7693 Couples Way, Hemet, CA 92545, and is made with reference to the following:
RECITALS
A. On June 23, 2020, City and Employee entered into a Post Retirement Temporary Employment Agreement ("Agreement") for temporary Principal Planner employment ("Position").
B. On May 11, 2021, City and Employee entered into Amendment No. One to the Agreement to extend the term of the Agreement to June 30, 2022, and to update the total compensation.
C. The parties desire to enter into this Amendment No. Two to extend the term of the Agreement to June 30, 2023, update the total compensation, and to update the Notices section.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on June 23, 2020, or earlier as directed, in writing, by the Community Development Director, and shall end June 30, 2023, unless terminated earlier as set forth herein."
2. COMPENSATION
Section 3.1.4 shall be added to the Agreement as follows:
"3.1.4 Beginning July 1, 2022, pay shall increase to Sixty-Five Dollars and 74/100 ($65.74) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to State and Federal income tax withholdings. $65.74 per hour shall be considered just compensation and no additional benefits or holiday pay will be provided under this Agreement."
Rosalinh Ung Page 1
5-5
3. NOTICES
Section 6.3 of the Agreement shall be amended in its entirety and replaced with the following:
"6.3 All notices, demands, requests or approvals from City to Employee shall be addressed to Consultant at:
Rosalinh Ung
7693 Couples Way
Hemet, CA 92545"
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE]
Rosalinh Ung Page2
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below.
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ---------
By: ____________ _
Seimone Jurjis
Community Development Director
APPROVED AS TO FORM:
CITY ATTOR/E� OFFICE
Date: .S 9 2--2--,
ATTEST:
Date: -------
By:. ____________ _
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ---------
By: ____________ _
Kevin Muldoon
Mayor
EMPLOYEE: Rosalinh Ung
Date: ---------
By: ____________ _
Rosalinh Ung
[END OF SIGNATURES]
Rosalinh Ung Page 3
5-6
ATTACHMENT B
5-7
AMENDMENT NO.ONE TO
POST RETIREMENT TEMPORARY EMPLOYMENT AGREEMENT
WITH ROSALINH UNG FOR PRINCIPAL PLANNER SERVICES
THIS AMENDMENT NO. ONE TO POST RETIREMENT TEMPORARY
EMPLOYRMENT AGREEMENT ("Amendment No. One") is made and entered into as of this 11th day of May, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ROSALINH UNG ("Employee"), whose mailing address is PO Box 4999, Irvine, California 92616, and is made with reference to the following:
RECITALS
A. On June 23, 2020, City and Employee entered into a Post Retirement Temporary Employment Agreement ("Agreement") for temporary Principal Planner employment ("Position").
B. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to June 30, 2022, and to update the total compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on June 23, 2020, or earlier as directed, in writing, by the Community Development Director, and shall end June 30, 2022, unless terminated earlier as set forth herein."
2. COMPENSATION
Section 3.1.3 shall be added to the Agreement as follows:
"3.1.3 Beginning July 1, 2021, pay shall increase to Sixty-Five Dollars and 09/100 ($65.09) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to State and Federal income tax withholdings. $65.09 per hour shall be considered just compensation and no additional benefits or holiday pay will be provided under this Agreement."
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE]
Rosalinh Ung Page 1
5-8
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below.
CITY OF NEWPORT BEACH,
a California unicipal corporation
Date: ~ z,1 2 uiz...
By: J'~ ~
Seimone Jurjp'
Community Development Director
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 4/~7 /~-z1
By:_(1~*-_,, _--:L_:_ __ ~ _____.:A_~)r __
Aaron C. Harp
City Attorney
ATTEST: t;,. "JC;- ~j
Date: 11 • -v:.J;
By: ·~ lk. Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ---------
By:~~( Br ery
Ma
EMPLOYEE: Rosalinh Ung
[END OF SIGNATURES]
Rosalinh Ung Page 2
ATTACHMENT C
5-9
POST RETIREMENT
TEMPORARY EMPLOYMENT AGREEMENT
WITH ROSALINH UNG FOR PRINCIPAL PLANNER SERVICES
THIS AGREEMENT FOR POST RETIREMENT TEMPORARY EMPLOYMENT ("Agreement") is made effective as of the 23rd day of June, 2020 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city ("City") and ROSALINH UNG ("Employee") whose mailing address is PO Box 4999, Irvine, California 92616, with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. City requires temporary Principal Planning services.
C. In accordance with Government Code Section 21224(a), a retired person may serve without reinstatement from retirement or loss or interruption of benefits provided by this system upon appointment by the appointing power of a state agency or public agency employer either during an emergency to prevent stoppage of public business or because the retired person has specialized skills needed in performing work of limited duration. These appointments shall not exceed a combined total of 960 hours for all employers each fiscal year. The compensation for the appointment shall not exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on a publicly available pay schedule divided by 173.333 to equal an hourly rate. A retired person appointed pursuant to this section shall not receive any benefit, incentive, compensation in lieu of benefits, or other form of compensation in addition to the hourly pay rate. A retired annuitant appointed pursuant to this section shall not work more than 960 hours each fiscal year regardless of whether he or she works for one or more employers.
D. The City desires to employ Employee on a provisional "at will" basis and to enter into an Agreement with Employee for temporary Principal Planner employment ("Position") services upon the terms and conditions in this Agreement.
E. Employee is willing to accept such temporary employment on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. TERM
The term of this Agreement shall commence on June 23, 2020, or earlier as 5-10
directed, in writing, by the Community Development Director, and shall end June 30, 2021, unless terminated earlier as provided herein.
2. SERVICES TO BE PERFORMED BY EMPLOYEE
2.1 Services shall include the following: Principal Planner, as further described in the Job Description attached hereto as Exhibit A and incorporated herein by reference.
2.2 All duties shall be performed in compliance with City ordinances, policies, rules and regulations. Employee shall familiarize him or herself with the City's Employee Manual. At all times, Employee agrees to perform all services related to Employee's employment hereunder faithfully and diligently and to discharge the responsibilities thereof to the best of Employee's ability.
3. COMPENSATION
3.1 As consideration for the performance of specified services under this Agreement Employee shall be compensated as follows:
3.1.1 Pay of Sixty-Three Dollars and 96/100 ($63.96) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to State and Federal income tax withholdings. $63.96 per hour shall be considered just compensation and no additional benefits or holiday pay will be provided under this Agreement.
3.1.2 Employee shall maintain and submit complete records of time expended pursuant to this Agreement and corresponding to City's payroll schedule.
4. HOURS
4.1 Hours of work are not guaranteed. Employee's services will be provided on an as needed, per project basis, upon written request of the Department Director or City Manager. Hours of work shall not exceed 30 hours per week.
4.2 It is expressly understood that Employee is a nonexempt Employee and employment is for a provisional, "at will" position.
4.3 Notwithstanding any federal and state laws, regulations or orders, Employee shall not work more than 960 hours during the term of the Agreement in accordance with CalPERS post retirement employment guidelines. The Employee shall be responsible for monitoring the hours worked during these time periods to insure full compliance.
5. ADMINISTRATION
This Agreement will be administered by the Community Development Department.
City's Community Development Director or designee shall be the Administrator and shall have the authority to act for City under this Agreement. The Administrator shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement.
Rosalinh Ung Page 2
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6. NOTICES
6.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided.
6.2 All notices, demands, requests or approvals from Employee to City shall be addressed to City at:
Attn: Seimone Jurjis
Community Development Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
6.3 All notices, demands, requests or approvals from City to Employee shall be addressed to Consultant at:
Rosalinh Ung
PO Box 4999
Irvine, CA 92616
7. TERMINATION
7.1 Employee's employment is "at will" which means that Employee's employment with City may be terminated at any time, with or without cause, by either party by giving 24 hours prior written notice to the other party.
7.2 Provisional Employee shall mean any person who, pursuant to an Appointment, contract or otherwise, performs work that is generally identified in the Annual Budget and is of limited duration or seasonal in nature.
7.3 Employee's employment status cannot be changed except in writing on a form signed by the Department Director, City Manager and Employee.
7.4 Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from the temporary position with the City.
7.5 No promises or representations regarding regular, full time or permanent employment status have been made to Employee and Employee has no expectation of permanent employment with the City. Furthermore, Employee has no expectation of Civil Service classification, rights or status under this Agreement.
7.6 Upon termination of this Agreement, the City shall pay to Employee that Rosalinh Ung Page 3
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portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination.
8. EFFECT OF PRIOR AGREEMENTS
This Agreement supersedes any prior agreement between the City and the Employee, except that this agreement shall not affect or operate to reduce any benefit or compensation inuring to the Employee of a kind elsewhere provided and not expressly provided in this Agreement.
9. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Employee, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Employee or any other party.
10. CONFIDENTIALITY
Employee shall hold and safeguard confidential information in trust for the City and shall not, without the prior written consent of the City, misappropriate or disclose or make available to anyone for use outside the City at any time, either during his employment with the City or subsequent to the termination of his employment with the City for any reason, including, without limitation, termination by the City for cause or without cause, any confidential information, whether or not developed by Employee, except as required in the performance of Employee's duties to the City. All documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information.
11. CONFLICTS OF INTEREST
11. 1 The Employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest.
11.2 If subject to the Act, Employee shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City.
12. OUTSIDE ACTIVITIES
12.1 Employee is expected to devote his/her full time, attention and efforts to the performance of his or her assigned duties. An Employee shall not engage in any outside employment or business activities during his/her workday. An Employee shall not engage Rosalinh Ung Page 4
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in any employment, outside activity, or enterprise that is inconsistent, incompatible or in conflict with, or that interferes with, his/her ability to perform the duties, functions, or responsibilities of his/her Position.
12.2 Employees may obtain and/or maintain employment with persons or entities other than the City or self-employment (outside employment) subject to written approval by the Department Director.
13. STANDARD PROVISIONS
13. 1 Recitals. City and Employee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement.
13.2 Compliance with all Laws. Employee shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Employee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Department Director and City.
13.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Job Description or any other attachments attached hereto, the terms of this Agreement shall govern.
13.4 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
13.5 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
13.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply.
13. 7 Amendments. This Agreement may be modified or amended only by a written document executed by both Employee and City and approved as to form by the City Attorney.
13.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
13.9 Controlling Law and Venue. The laws of the State of California shall govern Rosalinh Ung Page 5
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this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California.
13.10 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
13.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Rosalinh Ung Page 6
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below.
CITY OF NEWPORT BEACH,
a California corporation
Date: <:?[ o
By:_---'=---="'=c..L...:...!::--.:c~~=---i'7"--..L___-- Seimone Jurjis
Community Develo
APPROVED AS TO FORM:
CITY ATTO NEV'S OFFICE
Date: 6 I Z,o'Z-0
By: rltv~ -
fo/: Aaron C. Harp
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a California 2; unicipal corporation
Date: V-i.~ /'Z,~20 •
ByWill ~ ~
Mayor
EMPLOYEE: Rosalinh Ung
Date: ---------
By~ ....:........+----
[END OF SIGNATURES]
Attachments :
Exhibit A: Job Description
Rosalinh Ung Page 7
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Rosalinh Ung
EXHIBIT A
JOB DESCRIPTION
Page A- 1
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CITY OF NEWPORT BEACH
PRINCIPAL PLANNER
DEFINITION: To perform a wide variety of advanced level duties related to urban planning and the coordination of planning and development projects to ensure compliance with Federal, State and local regulations governing planning and the environment; and to provide responsible staff assistance to the Deputy Community Development Director.
DISTINGUISHING CHARACTERISTICS: This is the technical/supervisory level class in the professional planning series. Positions at this level are distinguished from other classes within the series by the level of responsibility assumed and the complexity of duties assigned to classes within this series including review, coordination and analysis of major or complex projects, preparation of environmental impact and traffic studies and reports, and supervision of outside consultants and Department staff involved in the preparation of special studies, environmental impact studies and traffic studies.
Employees at this level are required to be fully trained in all procedures related to assigned area of responsibility and to supervise a section or area of specialization.
SUPERVISION RECEIVED AND EXERCISED: Reports to the Deputy Community Development Director and may receive direction from the Community Development Director and/or Planning Manager. Exercises direct technical and functional supervision over professional, technical, consultant and clerical staff EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following:
Essential Job Duties
• Administer the California Environmental Quality Act; advise other departments on compliance and prepare or supervise the preparation of environmental documents as necessary for Departmental projects and projects of other departments; • Analyze and develop recommendations on complex planning, zoning and development proposals;
• Act as liaison for projects involving intergovernmental coordination; review other agencies' environmental impact reports for potential impact to the City; • Research a variety of environmental issues related to advance and current planning activities;
orts and/or su ervise the erformance of rofessional staff or 5-18
Principal Planner
City of Newport Beach
outside consultants in the preparation of specialized planning reports including environmental impact reports and traffic studies;
• Ensure project compliance with all regulations and policies governing development and the protection of the environment;
• Prepare scope of services and administer contracts of outside consultants retained by the City to prepare environmental documents;
• Attend a variety of meetings to explain projects and documents of a specialized nature;
• Provide technical assistance to individuals, citizen committees, City Council, Planning Commission and other City Departments;
• Develop and present recommendations related to the environmental impact of various projects; prepare appropriate reports and presentations; • Confer with engineers, developers, architects, a variety of agencies and the general public in acquiring information and coordinating planning and zoning matters; provide information regarding City development requirements; • Provide direct supervision and technical assistance to professional and technical planning staff in the preparation of a variety of planning and special studies; conduct performance evaluations;
• May investigate, conduct administrative public hearings, and render decisions on administrative discretionary applications;
• May assist in preparing the budget; participate in the forecast of additional funds needed for staffing, equipment, materials, and supplies; assist in monitoring and tracking the approved budget;
• Remain current in the planning principles, practices, and techniques through continuing education; and
• Perform related duties as assigned.
QUALIFICATIONS:
Knowledge of:
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Principal Planner
City of Newport Beach
Modern principles and practices of current and/or advanced local government planning and development with particular emphasis on environmental protection; Methods and techniques of effective technical report preparation and presentation;
Research methods and sources of information related to urban growth and development;
Recent developments, current literature and sources of information related to municipal planning and administration;
Principles, practices, and techniques of project management; Methods and techniques of scheduling work assignments to ensure assignments are completed in an efficient and timely manner;
Contract negotiation and administration;
Pertinent Federal, State and local rules, regulations and ordinances; and Principles and practices of supervision, training, performance evaluation, and personnel management.
Ability to:
Work under minimum supervision and provide lead direction, coordination and supervision of staff;
Analyze proposed projects for compliance with environmental regulations and develop appropriate recommendations to decision-makers and department management;
Ensure project compliance with Federal, State and local rules, laws and regulations particularly those pertaining to environmental protection; Administer the contracts of outside consultants and evaluate quality of work and ensure assignments are completed in an efficient and timely manner; Interpret and apply pertinent laws, rules and regulations; Prepare and analyze technical and administrative reports, statements and correspondence;
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Principal Planner
Page4
City of Newport Beach
Supervise planners and clerical staff and insure assignments are completed in an efficient and timely manner;
Conduct performance evaluations;
Assist with budget development and monitoring;
Negotiate and oversee contracts and manage the work of consultants; Exercise sound independent judgment within established procedure guidelines; Communicate clearly and concisely, both orally and in writing; Appear for work on time;
Follow directions from a supervisor;
Understand and follow posted work rules and procedures; Accept constructive criticism; and
Establish and maintain cooperative working relationship with those contacted in the course of work.
This position may be required to work overtime hours as needed.
EXPERIENCE AND TRAINING: Any combination of experience and training that would likely provide the required knowledge and abilities is qualifying. A typical way to obtain the knowledge and abilities would be:
Experience: Four years of responsible professional current and/or advanced local government planning experience including some experience in the preparation or review of environmental documents.
Training: Equivalent to a Bachelor's degree from an accredited college or university with major course work in planning, public or business administration or a related field.
LICENSE OR CERTIFICATE: Possession of, or ability to obtain, an appropriate, valid California driver's license.
Bargaining Group - Key & Mgmt
Approved by Council 1 /08/08
Revised (mwd): 12/7/17
6-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 6
ABSTRACT:
The sport of pickleball has grown in popularity in Newport Beach and around the country in recent years. The City of Newport Beach (City) has four pickleball courts for public use and due to the increase in demand from residents, an opportunity to add a new pickleball courts complex has been identified at Newport Ridge Park. Following the City Council’s November 2021 approval of authorization to apply for grant funds from the State of California for park development, a lease agreement was negotiated with Newport Ridge Community Association (NRCA), and is submitted for the City Council’s consideration.
The lease will al low the City to use a portion of Newport Ridge Park to develop eight pickleball courts, with six courts maintained and operated by the City to meet the public demand for more courts, and the remaining two courts to be maintained and operated by NRCA.
RECOMMENDATION:
a) Determine this project is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilitates) and Class 3 (New Construction or Conversion of Small Structures ), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable;
b) Authorize the City Manager and City Clerk to execute a 30-year Lease Agreement by and between the Newport Ridge Community Association and the City of Newport Beach for the Development, Operation, and Maintenance of Pickleball Cour ts Complex at Newport Ridge Park (Lease) (Attachment A), in a form substantially similar to the agreement prepared by the City Attorney; and
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Sean Levin, Interim Recreation and Senior Services Director - 949- 644-3159, [email protected]
PREPARED BY: Justin Schmillen, Recreation and Senior Services Manager [email protected]
PHONE: 949-644-3160
TITLE: Lease Agreement with Newport Ridge Community Association to Develop, Operate and Maintain Pickleball Courts at Newport Ridge Park
--
Lease Agreement with Newport Ridge Community Association to Develop, Operate, and Maintain Pickleball Courts at Newport Ridge Park
May 24, 2022
6-2
c) Review and approve the Conceptual Design (Attachment B) and direct staff to proceed with final construction documents.
DISCUSSION:
Pickleball continues to rise in popularity among Newport Beach residents, maintaining its reputation as one of the fastest growing sports in the country. In fall 2017, the City constructed four dedicated Pickleball courts at Bonita C anyon Sports Park Field #6 to meet the community need and growing interest in the sport. As the sport continues to gain momentum as a mainstream recreational activity, the outdoor courts at Bonita Canyon Sports Park have become heavily impacted and do not meet the increasing demand for available court time. Adding new courts in the City would fulfill the public need for more open court times and could also support recreational programs such as league play, group/private lessons, and tournaments for all skill levels and ages.
NRCA approached the City to partner in the development of pickleball courts at Newport Ridge Park, a 1 1.32-acre private park site located at 6331 Newport Ridge Drive in the Newport Coast area of the city. The park is owned and managed by NRCA, the homeowner’s association for the Newport Ridge housing development, and presents itself as the most viable park location in the City that meets important site conditions:
1. Distanced from homes to diminish noise impact from pickleball play.
2. Existing parking that is sufficient to support the new recreational amenity.
3. Does not displace or impact any existing recreational programs.
Project Design
In June 2021, the Parks, Beaches & Recreation Commission (PBR) appointed three commissioners to serve on the Newport Ridge Park Pickleball Courts Ad Hoc Committee to assist with conceptual design and community outreach. The Ad Hoc Committee, NRCA Board Members, the Recreation & Senior Services Department, and the Public Works Department have worked collectively to develop plans for the eight unlit courts, which will be located along the eastern edge of the park, adjacent to the City-owned Newport Coast Community Center parking lot, and other various associated site amenities.
All of the courts are designed to USA Pickleball Association (USAPA) specifications and the site will be furnished with shaded viewing areas, benches, trash cans, a bike rack and a bottle filling station. The two northern most courts will be fitted with a key fob system for NRCA resident access. The existing Newport Coast Community Center parking lot (120 spots) and restrooms will be utilized to support public use of the site. NRCA Pickleball players will access the courts by utilizing the community association parking lot and restrooms along the western edge of the park . The closest home to the proposed pickleball courts is approximately 340 feet away and located on the opposite side of San Joaquin Hills Road, south of the courts. The close st home east of the courts is approximately 650 feet away and the closest home on the west side is over 670 feet away, and both are elevated significantly higher than the park. Undeveloped open space and Highway 73 provide over a mile buffer from homes to the north.
Lease Agreement with Newport Ridge Community Association to Develop, Operate, and Maintain Pickleball Courts at Newport Ridge Park
May 24, 2022
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In December 2021, the Conceptual Designs included in Attachment B were presented to PBR and the Commission voted to approve and forward design plans to City Council for final approval.
On March 31, 2022, NRCA Board of Directors notified their membership about the project, including the design parameters and received no opposition to the project. A copy of the notice is included as Attachment C.
Project Costs
Preliminary design and construction estimates are projected to be $1,000,000 and funds are included in the FY 2021 -2022 Capital Improvement Project budget. The City of Newport Beach has also been awarded Per Capita and Urban County Per Capita Grant Funds i n the amount of $177,952 and $53,284, respectively, and the grant funds are committed to the development of pickleball courts at Newport Ridge Park , and were previously approved by Council in November 2021 (Attachment D) and will supplement the budgeted CIP funds.
Project Entitlements
On April 29, 2022, pursuant to PA2022-091 (Attachment E), the Community Development Director approved Staff Approval No. SA2022-003, allowing conversion of a portion of an existing baseball field into eight outdoor pickleball courts, finding the proposed development is consistent with all applicable provisions of the zoning code, does not change the total square footage or operational characteristics of Newport Ridge Park, and provides new park amenities with portions designated for public use.
Previously, the County of Orange authorized Newport Ridge Park under Site Development Permit No. PA95 -0043 before the property's annexation into the City of Newport Beach in 2000. The Site Development Permit allowed the development of a local park and related park amenities. Condition of Approval No. 3 in PA95 -0043 authorizes changes to the approved plan, including location and alteration of any use or structures, provided the change complies with the provisions and spirit and i ntent of the approval action and that the action would have been the same for the changed plan as the approved pl at plan. In this case, the proposed change involves altering an existing baseball field to accommodate eight pickleball courts. Pickleball is an increasingly popular sport and is a common recreational amenity in parks today. A pickleball court could have been part of the original plan based on the sport's current popularity. As a result, altering the existing baseball field to accommodate pickleb all courts complies with the original approval's provisions, intent, and spirit.
Lease Agreement
Following is a summary of the proposed Lease terms:
1. The initial term is 30 years, with two automatic five-year options to extend, unless not renewed by the City, or terminated earlier as provided by the Lease.
2. In consideration of the City’s use of the land, the City will fund design and construction for eight courts and maintain and operate six courts for public use, with dedicated use of the two remaining courts for NRCA.
Lease Agreement with Newport Ridge Community Association to Develop, Operate, and Maintain Pickleball Courts at Newport Ridge Park
May 24, 2022
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3. NRCA may, by following the standard application process and payment of fees, obtain a Special Event Permit to reserve the City’s public courts for special events.
4. City may, with no less than 90 days prior written notice, reserve the NRCA courts for public events. City events may not exceed two per quarter or 16 days in a 12-month period.
5. Each party is responsible for the regular cleaning, maintenance and repair of their respective courts.
6. City shall be responsible for maintenance, repair and/or replacement of the playing surfaces, fencing, windscreens, and the outer improvements of the pickleball courts complex like the immediately adjacent sidewalk and landscaping.
7. After the City’s initial installation, NRCA shall be responsible for the ongoing utility service costs for the courts.
8. City has a first right of refusal to purchase the property should NRCA decide to transfer its ownership of the property.
9. NRCA shall be responsible for any property taxes levied or assessed against the property, including any changes in value resulting from the project.
10. If the Lease is terminated early, NRCA shall reimburse the City for a prorated amount of the cost of the improv ements, based on a 30-year amortization schedule.
11. Construction must commence before December 31, 2023, and must be completed by December 31, 2024.
The Lease has been reviewed by the City Attorney’s Office and has been approved as to form. NRCA has agreed to the terms of the Lease and executed the document.
FISCAL IMPACT:
The adopted Capital Improvement Program includes sufficient funding for the project and is in the Facilities Financing Plan. Fund sources are General Fund and State grant funds and will be expensed to the Newport Coast Pickleball Courts Project in the Adopted FY 2021-2022 CIP Budget Account No. 56201-980000-22P13.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 and 15303 under Class 1 (Existing Facilitates) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. Class 3 exempts new commercial construction of less than 10,000 square feet in floor area, if zoned for such use, if not involving the use of significant amounts of hazardous substances where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive. The project includes an agreement and conceptual approval to alter an existing baseball field with eight (8) pickleball courts at an existing park and thus the project is categorically exempt from CEQA.
Lease Agreement with Newport Ridge Community Association to Develop, Operate, and Maintain Pickleball Courts at Newport Ridge Park
May 24, 2022
6-5
The exceptions to the Class 3 categoric al exemption under Section 15300.2 are not applicable. The developed project site does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due t o unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advan ce of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A – Lease Agreement
Attachment B – Conceptual Design
Attachment C – Newport Ridge Community Association March 31, 2022 Notice Attachment D – Resolution No. 2021-108
Attachment E – PA2022-091 CDD Action Letter
Attachment
A
Lease Agreement by and between the Newport Ridge Community Association and the City of Newport Beach for the Development, Operation, and Maintenance of Pickleball Courts Complex at Newport Ridge Park
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DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-7
LEASE AGREEMENT BY AND BETWEEN
THE NEWPORT RIDGE COMMUNITY ASSOCIATION
AND THE CITY OF NEWPORT BEACH FOR THE
DEVELOPMENT, OPERATION, AND MAINTENANCE OF PICKLEBALL COURTS
COMPLEX AT NEWPORT RIDGE PARK
THIS LEASE AGREEMENT ("Lease") is made and entered into this ____ _ day of _______ , 2022 ("Effective Date") between the NEWPORT RIDGE COMMUNITY ASSOCIATION, a California nonprofit mutual benefit corporation ("NRCA"), and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"). City and NRCA are collectively referred to as "Parties" herein.
RECITALS
This Lease is made with reference to the following facts:
A. NRCA owns and operates that certain real property and improvements consisting of a community park with a playground area, restroom facilities, outdoor seating, walking paths and sidewalks, landscaping, parking lot, outdoor lighting, tennis courts, basketball courts, and baseball field, commonly referred to as the Newport Ridge Park located at 6331 Newport Ridge Drive E, Newport Coast, CA 92657, Assessor's Parcel Number461-152-13 ("NRCA Property"). The NRCA Property is more particularly depicted in the attached Exhibit "A", which is incorporated herein by reference.
B. City owns that certain real property and improvements adjacent to NRCA Property, consisting of a public community center building, parking lot, landscaping and outdoor lighting, commonly referred to as Newport Coast Community Center located at 6401 San Joaquin Hills Road, Newport Coast, CA 92657, Assessor's Parcel Number461-152-12 ("City Property"). The City Property is more particularly depicted in the attached Exhibit "B", which is incorporated herein by reference.
C. The Parties desire to convert a portion of the baseball field ("Field") on NRCA Property into pickleball courts ("Pickleball Courts Complex") for the use and enjoyment by NRCA and City under the terms and conditions explicitly set forth under this Lease. The Pickleball Courts Complex will comprise eight (8) pickleball courts ("Courts") and their surrounding improvements, which may consist of sidewalks, benches, picnic tables, water fountains, shade mechanisms, landscaping and/or hardscape ("Outer Improvements"). The Courts will be allocated between City and NRCA, with six (6) pickleball courts designated for City's use ("City Courts") and two (2) pickleball courts designated for NRCA's exclusive use ("NRCA Courts").
D. This Lease sets forth the terms and conditions for the development, construction, operation, and maintenance of the Pickleball Courts Complex.
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-8
AGREEMENT
NOW THEREFORE, the Parties agree that:
1. AGREEMENT TO LEASE
1.1 Purpose of Lease. NRCA hereby grants access and right of entry to the Field to City to design, develop, construct and install, at City's sole cost and expense, the Pickleball Courts Complex. City desires to lease from NRCA and NRCA desires to lease to City that portion of the Field on which the Pickleball Courts Complex will be constructed, as will be more fully described and depicted in amended exhibits to this Lease.
1.2 Lease Amendment to Incorporate Final Design. The Parties understand that the final design and details for the Pickleball Courts Complex, including the final location and layout of NRCA Courts and City Courts, do not exist at the time of execution of this Lease and that the document(s) will be adopted later. The Parties expressly intend, and hereby agree, to timely amend this Lease to incorporate the final approved design and details for the Pickleball Courts Complex and the maintenance obligations for the Outer Improvements. Notwithstanding the following, the approximate design, location and layout of the Pickleball Courts Complex is depicted in the attached Exhibit "C", which is incorporated herein by reference.
1.3 Net Lease. This Lease is a net lease, pursuant to which City has no obligation with respect to the payment of taxes, insurance, the cost of maintenance, utilities, repairs or other costs or obligations associated with NRCA Property or the Field, except as expressly stated herein.
1.4 Termination of Prior Lease(s). NRCA affirmatively represents that: (a) to the best of its knowledge, no other person/entity has any interest, whether by lease or otherwise, in the Field; and (b) the person(s) executing this Lease have the authority to bind NRCA and be bound by the terms herein. Upon the Effective Date of this Lease, any lease(s) between City and NRCA or any other party covering the Field shall automatically terminate and be of no further effect. NRCA shall execute and record any document(s) that may be required to evidence the termination of any prior lease(s) covering the Field. City shall owe no compensation to NRCA or any other party for the termination of a lease under this Section. NRCA shall indemnify and hold City harmless from any and all liability, loss, expense, damage, or claims which may arise directly or indirectly from or in connection with any allegation that the representations made in this Section are false.
2. TERM
2.1 Initial Term. NRCA hereby leases to City the property described in Section
1.1. above, for the purposes described herein this Lease, and subject to the terms and NEWPORT RIDGE COMMUNITY ASSOCIATION Page2
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-9
conditions herein contained, for an initial term of thirty (30) years beginning on the Effective Date ("Initial Term").
2.2 Option to Extend. Provided City is in full compliance with the terms and conditions of the Lease, and is not then in default beyond applicable notice and cure periods provided herein, this Lease shall renew automatically for two (2) additional successive terms of five (5) years (each an "Option Term"), on the same terms and conditions as contained in this Lease as it may be amended from time to time, unless City gives NRCA written notice of its intention not to exercise the Option Term at least ninety (90) days prior to expiration of the Term.
2.3 Term of Lease. The "Term" as used herein is defined as the Initial Term and, as exercised, any Option Term.
2.4 Amendments. The Parties may amend the terms of this Lease at any time during the Term hereof to better serve the public interest and/or better accomplish the purposes of the Lease; provided, however, that the Term may not be extended by the Parties beyond the express provisions of this Lease. Any amendment made to this Lease must be in writing and executed by the Parties, and approved as to form by the City Attorney.
3. PICKLEBALL COURTS COMPLEX DESIGN AND CONSTRUCTION
3.1 Pickleball Courts Complex Design and Development: Costs. The conversion and development of the Field into the Pickleball Courts Complex, which includes but is not limited to the design, installation and construction work (including installation of the electronic key fob system), shall be performed by City at its sole cost and expense. The Pickleball Courts Complex shall be designed and constructed by qualified and licensed (where required) architectural, design, engineering and construction firms selected by City at its sole and absolute discretion. NRCA shall have an opportunity to provide input in the Pickleball Courts Complex design process and suggest changes, which City may at its sole discretion incorporate into the final design.
Notwithstanding the foregoing, City and NRCA must mutually agree and determine the final placement of City Courts_. NRCA Courts and Outer Improvements, which shall be made part of the final design for the Pickleball Courts Complex. The final design shall also include installation of the gate(s) at the point of entry to the NRCA Courts, to be accessible through an electronic key fob system to secure the entrance to NRCA Courts and addition of an electronic key fob system at the two park entry gates adjacent to the Courts.
3.2 Pre-Construction Due Diligence.
3.2.1 No later than thirty (30) calendar days following execution of this Lease, NRCA shall deliver to City copies of any and all documents in its possession relating to the area proposed for construction of the Pickleball Courts Complex and the surrounding NRCA
Property, which may include any environmental reports, natural NEWPORT RIDGE COMMUNITY ASSOCIATION Page 3
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hazard disclosure reports, engineering reports, surveys, title materials, geotechnical reports, soils studies, environmental audits and reports, environmental impact reports or mitigated negative declarations, and any other documents that may assist the City in the design and construction of the Pickleball Courts Complex (collectively the "NRCA Property Documents").
3.2.2 City's construction of the Pickleball Courts Complex shall be contingent upon completion of its due diligence and determining, to its sole satisfaction, that the Field is sound and safe for the construction of the Pickleball Courts Complex. City shall have a period of one hundred twenty (120) calendar days after NRCA delivers the NRCA Property Documents to City to complete such due diligence and determination. If the City does not provide written notice of satisfactory completion of its due diligence to NRCA within the one hundred twenty (120) calendar days (which the Parties may extend by mutual agreement), then this Lease shall terminate and the Parties shall have no further obligations hereunder. The City's determination of the feasibility of construction of the Pickleball Courts Complex is a material condition of this Lease.
3.3 Notice of Commencement of Construction. At least thirty (30) calendar days prior to taking possession of the Field to commence construction of the Pickleball Courts Complex, City shall provide NRCA written notice of the same and NRCA shall provide written notice to its residents/members of the commencement of construction.
3.4 Preservation of NRCA Property. City may utilize a portion of the NRCA Property outside of and immediately adjacent to the Pickleball Courts Complex and Outer Improvements for construction staging and access, which area shall be identified on the design documents. City agrees to take all prudent action to protect NRCA Property from any damage or injury during construction and installation of the Pickleball Courts Complex. City shall repair or cause to be repaired any damage to NRCA Property outside of the Pickleball Courts Complex directly caused by City or its contractors or subcontractors during the construction and installation of the Pickleball Courts Complex.
3.5 Prevailing Wages. The City, its contractors and subcontractors shall comply with all State of California labor laws, rules and regulations, including those governing the payment of prevailing wage.
3.6 Permits and Approvals. Unless restricted by law, City shall obtain, and be responsible for the costs for all building permits, health department permits and other required permits prior to the commencement of construction of the Pickleball Courts Complex and its operations. If applicable, City shall be responsible, at its sole cost and expense, for compliance with the California Environmental Quality Act ("CEQA") in connection with construction and operation of the Pickleball Courts Complex.
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3.7 Acceptance. The date upon which the City formally accepts the completed construction work of the Pickleball Courts Complex shall be the "Commencement Date."
4. OPERATION AND USE OF THE PICKLE BALL COURTS COMPLEX
The Pickleball Courts Complex shall commence operations and be open for use as of the Commencement Date. NRCA Courts shall be available at the same time for the exclusive use by its members and residents, except as set forth herein. City Courts and the Outer Improvements shall be open for use by the general public.
4.1 City Courts and Outer Improvements.
4.1.1 City Courts shall be reserved for the City to make available for the general public's use and benefit, which includes public recreational programs, classes, and events. The City Courts shall be managed by the City's Recreation and Senior Services Department ("RSS") comparable to the City's other public park facilities.
4.1.2 NRCA may reserve the City Courts for NRCA private events ("NRCA Event"). NRCA shall make its reservation request in advance, in writing, through a Special Event Permit from the City, and/or any other permits or approvals as may be required for the use of any City public facility. The Special Event Permit and any other required approvals must be obtained prior to the
commencement of any NRCA Event. The NRCA Event shall be in compliance with the approved hours of operation of public facilities as set forth in the Newport Beach Municipal Code. NRCA shall promptly repair any damage and remove any rubbish resulting from an NRCA Event, at its sole cost and expense.
4.1.3 The Outer Improvements shall be available for the general public's use and benefit.
4.2 NRCA Courts.
4.2.1 NRCA Courts shall be reserved for the exclusive use of the NRCA and its residents/members. NRCA shall conduct its use and operation of NRCA Courts in compliance with Chapter 11.04 of the Newport Beach Municipal Code.
4.2.2 NRCA shall provide City with a copy of its key fob to access NRCA Courts.
4.2.3 City may reserve the NRCA Courts for public event(s) ("City Event"). No less than ninety (90) calendar days prior to the City Event, City shall provide NRCA with a written request to use the NRCA Courts, stating the date(s) and time(s), description, and contact person for the proposed City Event. NRCA shall provide NEWPORT RIDGE COMMUNITY ASSOCIATION Page 5
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City a written notice of approval or disapproval no less than thirty (30) calendar days prior to the first date of the proposed City Event, or if the City Event is in conflict with a previously scheduled NRCA Event, then NRCA shall, using its reasonable efforts and following good faith negotiations with City, determine a time to reschedule the City Event, which shall take priority over any other NRCA Event.
City Events may not exceed more than two (2) in any calendar quarter or more than sixteen (16) days in the aggregate in any consecutive twelve (12) month period. City shall promptly repair any damage and remove any rubbish resulting from a City Event, at its sole cost and expense.
4.2.4 NRCA shall not modify, alter, add or remove any permanent feature or aspect of the NRCA Courts, or install any improvements on the NRCA Courts without prior written approval by City.
4.2.5 NRCA shall fully comply with its Covenants, Conditions and Restrictions (CC&Rs) as may be amended from time to time, and which are recorded against the NRCA Property.
4.3 New Improvements. Neither Party may install, construct, maintain, or allow any signs, permanent or non-permanent fixtures or improvements on the Pickleball Courts Complex that were not otherwise specified in the final design of the Pickleball Courts Complex, unless approved in writing by the other Party and in strict compliance with the provisions of the Newport Beach Municipal Code.
4.4 Signage and Information. City may post signs, messaging and other information in the Pickleball Courts Complex that may include, but is not limited to, City's rules of conduct, public programming, and class schedule information. NRCA may post NRCA information about the NRCA Courts, as preapproved in writing by City.
4.5 Lawful Use of the Pickleball Courts Complex. The Parties agree that no business shall be conducted on or near the Pickleball Courts Complex in violation of the terms of this Lease or of any regulation, order, law, statute, bylaw, charter provision, or ordinance of any governmental agency having jurisdiction.
4.6 Waste or Nuisance. NRCA shall not commit or knowingly permit the commission of any waste on the Pickleball Courts Complex. NRCA shall not maintain, commit, or knowingly permit any public or private nuisance as defined in Section 3479 of the California Civil Code on the Courts.
4.7 Protective Action. Each Party shall take all prudent action to protect the Pickleball Courts Complex from any damage or injury resulting from its use, maintenance or repair of the Pickleball Courts Complex.
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5. MAINTENANCE OF THE PICKLEBALL COURTS COMPLEX
5.1 City Courts: NRCA Courts. Each Party shall be responsible for and perform at its sole cost and expense regular ongoing general upkeep and minor repairs of its respective City Courts or NRCA Courts and ensure that they are in clean and good working condition at all times. In general, each Party's general upkeep and repair duties shall encompass cleaning and graffiti removal and include the netting and shading mechanism. NRCA shall be responsible, at its sole cost and expense, for maintenance and repair, and any future modification or replacement of the electronic key fob system to access the NRCA Courts. All work shall be performed in strict compliance with the specifications and requirements of the final approved design for the Pickleball Courts Complex.
5.2 Courts. City shall be responsible for and perform at its sole cost and expense any maintenance, repair, and/or replacement of the Courts playing surfaces, fencing, and windscreens, consistent with the repairs and maintenance performed at other City public recreational facilities and to ensure they are kept in an attractive, safe and good working condition.
5.3 Outer Improvements. City shall be solely responsible for and perform at its sole cost and expense regular ongoing maintenance and minor repairs of the Outer Improvements, including that easterly portion between the Pickleball Courts Complex up to the adjacent City Property. The specific details of the Outer Improvements and their maintenance and repair requirements shall be set forth in a Lease amendment that will be executed after the approval of the final design of the Pickleball Courts Complex.
5.4 Refuse Disposal. City shall be solely responsible for the scheduling, costs and expenses of refuse collection services for the Pickleball Courts Complex.
5.5 Sound Attenuation Measures. If the Courts require sound attenuation measures, as determined in the City's reasonable discretion, then the Parties will proportionally share the costs for the acquisition, installation, construction, maintenance, repair and replacement.
5.6 Option to Assume Maintenance. In the event NRCA fails to complete, or commence and diligently pursue to completion, any maintenance or repairs required to keep the NRCA Courts in a condition reasonably acceptable to City within thirty (30) calendar days of delivery of the City's written notice of the need for maintenance or repair, City may perform the maintenance or repair and charge the cost to NRCA. If NRCA repeatedly (i.e., more than three (3) times in any twelve (12) month period after written notice thereof) fails to fulfill its obligations hereunder, City has the option to assume the maintenance and repair obligation and perform it at NRCA's sole cost and expense.
5.7 Site Walk: Annual Report. The Parties shall perform an annual joint inspection of the Pickleball Courts Complex by July 15th to determine the necessary repairs and maintenance for the following calendar year. Prior to the joint inspection, NRCA shall provide to City a written report listing any and all maintenance, repairs, or NEWPORT RIDGE COMMUNITY ASSOCIATION Page7
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other work completed, including the costs incurred thereof, for the preceding calendar year.
6. DAMAGE OR DESTRUCTION
6.1 City Courts; NRCA Courts.
6.1.1 If either City Courts or NRCA Courts are rendered totally or partially inaccessible or unusable due to damage or destruction
("Destruction"), then subject to Section 6.2 below, the Party having the right of exclusive use thereof shall repair and restore its respective area of the Courts to substantially the same condition as existed immediately prior to the Destruction. However, for any such Destruction directly caused by an NRCA Event or City Event, the Party conducting that event shall bear the sole cost and expense for promptly repairing and restoring those premises to substantially the same condition as existed immediately prior to the Destruction.
6.1.2 Notwithstanding the foregoing, if Destruction renders a majority of City Courts or a majority of NRCA Courts inaccessible or unusable and which cannot within twelve (12) months from the date of the Destruction reasonably be repaired or restored to substantially the same condition as existed immediately prior to the Destruction, then either Party may terminate this Lease in accordance with the procedure in Section 6.2.
6.2 Courts. If a major portion or the entirety of the Courts are rendered inaccessible or unusable due to Destruction, then the Parties shall share on a pro rata basis the costs to repair and restore the Courts to substantially the same condition as existed immediately prior to such Destruction. The pro rata costs shall be detennined based on the proportion of City Courts to NRCA Courts affected. However, either Party may, in its sole and absolute discretion, elect to terminate this Lease by giving written notice to the other Party within thirty (30) calendar days of the date of occurrence of the Destruction if: (a) the cost for repair and restoration exceeds the amount of any insurance proceeds available to the tenninating Party; (b) the Destruction was caused by an uninsured casualty or event; or (c) the terminating Party reasonably estimates that repairs will take more than twelve (12) months. Upon such tennination, NRCA shall reimburse City in accordance with Section 19 and the tenninating Party shall, at its sole cost and expense, remove any damaged property or debris from its respective portion of the Courts, and thereafter neither Party shall have any further liability or obligations to the NEWPORT RIDGE COMMUNITY ASSOCIATION Page 8
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other Party under this Lease, except as otherwise expressly provided herein (e.g. indemnity, insurance).
7. RIGHT TO ENTER; EMERGENCY
City and its authorized representative(s) shall provide NRCA at least one (1) business day notice before entering NRCA Courts for inspection or any purpose other than maintenance. City shall use reasonable efforts to not interfere with NRCA's use of the NRCA Courts. City shall not be required to provide notice in the case of an emergency.
8. UTILITIES
City shall provide for the installation of electrical, including electrical connectivity for the NRCA Courts key fob system, water, and, if applicable, gas service (collectively, the "utilities"} for the Pickleball Courts Complex as part of the construction work.
Beginning on the Commencement Date, NRCA shall pay for ongoing utilities service for the Pickleball Courts Complex for the Term. Maintenance and repair of utility lines within the Courts shall be the sole responsibility of NRCA. Utilities services maintenance shall occur between 7:00 a.m. and 6:00 p.m. on non-holiday weekdays. NRCA shall provide City with not less than thirty (30) calendar days' prior written notice before commencing any work that may occur during regular hours of operation, or would impact City's regular use of City Courts.
9. REDEVELOPMENT OF NRCA PROPERTY
NRCA shall provide City with a minimum of six (6) months' prior written notice for any plans to redesign, redevelop or otherwise substantially modify any portion of the NRCA Property near or surrounding the Pickleball Courts Complex ("NRCA Redevelopment"). If, in the City's sole determination, the NRCA Redevelopment will interfere with the City's ability to occupy or use all or a portion of the City Courts, then NRCA shall modify the NRCA Redevelopment to City's satisfaction, which City shall not unreasonably withhold. If the Parties are unable to mutually agree upon changes to the NRCA Redevelopment, then City may, at its sole discretion, terminate this Lease and NRCA shall reimburse City in accordance with Section 19 of this Lease.
10. EASEMENTS
Subject to applicable provisions of law, it is understood that all rights granted under this Lease are subject to easements, rights-of-way, and similar burdens, if any, now existing or heretofore granted by NRCA or its predecessors, in, to, over, or under the NRCA Property for any purpose.
11. TRANSFER OR SALE OF PROPERTY
11.1 Assignment by NRCA. The provisions of this Lease shall run with the land and be binding upon and inure to the benefit of the Parties, their legal representatives, successors, and assigns (collectively "successors"}. NRCA may, after providing City with one hundred twenty (120) calendar days prior written notification, assign its rights and NEWPORT RIDGE COMMUNITY ASSOCIATION Page9
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obligations under this Lease to another homeowners' association established by the owners of the lands comprising the NRCA Property, provided said association meets any and all qualifications as required by law to be a legally recognized homeowner's association. Any proposed successors shall fully and unconditionally assume the covenants, provisions and obligations, including all maintenance and repair, of NRCA herein including, without limitation, the indemnification obligations. Such assignment shall be by written assignment executed by NRCA. Upon assignment, NRCA shall have no further liability under this Lease to the extent first arising from and after the effective date of the assignment. Any proposed assignment to any other shall require prior written approval of the City, which City may, in its sole discretion, withhold for any reason or no reason at all.
11.2 Change in Management. NRCA shall promptly notify City of any change in management of the NRCA Property, with a minimum of forty-five (45) calendar days' prior written notice to City of such intended assignment. Any assignment or transfer made without City's prior written consent or not otherwise strictly permitted under this Section shall be null and void.
11.3 Purchase Option. NRCA shall, in good faith and upon the same material terms as would be offered to other private Parties, grant City a continuing First Right of Refusal (FROR) to purchase, should NRCA elect to transfer the Pickleball Courts Complex. For purposes of this Lease, "transfer'' and similar terms mean and include, without limitation, a sale or other transfer of all or any part of the Pickleball Courts Complex, or interest therein, either alone, or as part of a larger sale, provided, however, that "transfer" shall not include the granting of a license, an easement or similar right on all or a portion of the Pickleball Courts Complex that would not materially interfere, disrupt, or frustrate City's contemplated use pursuant to this Lease.
11.4 Assignment by City. City shall not assign this Lease or any right acquired hereunder without the prior written consent of NRCA. Any assignment without the prior written consent of NRCA is null and void.
12. ENVIRONMENTAL MA TIERS AND HAZARDOUS MATERIALS
12.1 Environmental Law. "Environmental Law" shall include all federal, state, and local environmental, health, and safety laws, statutes, ordinances, regulations, rules, judgments, orders, and notice requirements, which were in effect as of the date of closing, which regulate or relate to (a) the protection or clean-up of the environment; (b) the use, treatment, storage, transportation, handling or disposal of hazardous, toxic or otherwise dangerous substances, wastes or materials; (c) the quality of the air and the discharge of airborne wastes, gases, particles, or other emissions; (d) the preservation or protection of waterways, groundwater, or drinking water; (e) the health and safety of persons or property; or (f) impose liability with respect to any of the foregoing, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42 USC section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USC section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 USC section 1251 et NEWPORT RIDGE COMMUNITY ASSOCIATION Page 10
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seq.]; the Toxic Substances Control Act (TSCA) [15 USC section 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USC section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC section 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 USC section 6901 et seq.]; the Clean Air Act [42 USC section 7401 et seq.]; the Safe Drinking Water Act [42 USC section 300f et seq.]; the Solid Waste Disposal Act [42 USC section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC section 1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 USC section 11001 et seq.]; the Occupational Safety and Health Act [29 USC sections 655 and 657]; the California Underground Storage of Hazardous Substances Act [California Health and Safety Code section 25280 et seq.]; the California Hazardous Substances Account Act [California Health and Safety Code section 25300 et seq.]; the California Hazardous Waste Control Act [California Health and Safety Code section 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code section 24249.5 et seq.]; the Porter- Cologne Water Quality Act [California Water Code section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above.
12.2 Hazardous Materials. "Hazardous Materials" shall include any substance which falls within the definition of hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, or pollutant or contaminant, under any Environmental Law.
12.3 Hazardous Materials Indemnification.
12.3.1 City shall defend, indemnify and hold harmless NRCA, its officers, directors, employees, agents and representatives from and against any and all legal or administrative proceedings, claims, reasonable attorneys' fees and costs, expenses, penalties, actual damages, including indemnity claims, in any way related to (a) the use, release, generation, storage or disposal of Hazardous Materials in, on or around City Courts by City or any agent of City, (b) City's compliance or non-compliance with any federal, state or local environmental law, ordinance, rule or regulation, (c) the removal, clean-up, encapsulation, detoxification or any other action taken by City or any agent of City, directly or indirectly arising out of the presence of Hazardous Materials in, on or around the City Courts. If the storage, use and disposal of Hazardous Materials in, on or around City Courts is caused by City or any agent of City and results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such
contamination, City shall promptly take any and all action required by such agency to investigate and clean-up such contamination.
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reasonable attorney fees and costs, expenses, penalties, actual damages, including indemnity claims, in any way related to (a) the use, release, generation, storage or disposal of Hazardous Materials in, on or around NRCA Courts by NRCA or any agent of NRCA; (b) NRCA's compliance or non-compliance with any federal, state or local environmental law, ordinance, rule or regulation, (c) the removal, clean-up, encapsulation, detoxification or any other action taken by NRCA or any agent of NRCA, directly or indirectly arising out of the presence of Hazardous Materials in, on or around NRCA Courts. If the previous, current and future storage, use and disposal of Hazardous Materials in, on or around the Courts is caused by the NRCA or any agent of NRCA and results in contamination or deterioration of water or soil resulting in a level of contamination greater than maximum allowable levels established by any governmental agency having jurisdiction over such contamination, NRCA shall promptly take any and all action required by such agency to investigate and clean-up such contamination.
12.4 City's Obligations. City will not use, occupy, or permit any portion of the City Courts to be used or occupied in violation of any Environmental Law or to store any Hazardous Material.
13. TAXES, LICENSES AND OTHER OBLIGATIONS
13.1 Payment of Taxes. NRCA shall pay directly to the appropriate taxing authorities all taxes applicable to this Lease, improvements, NRCA's Property, and the Pickleball Courts Complex, that are levied or assessed against NRCA during the Term.
NRCA shall pay, before delinquency, all taxes, assessments, license fees and other charges ("Taxes") that are levied or assessed against NRCA's interest in the Pickleball Courts Complex or any personal property installed on the Pickleball Courts Complex.
13.2 Challenge to Taxes. NRCA shall have the right in good faith, at its sole cost and expense, to contest the amount or legality of any Taxes on or attributable to this Lease, the Pickleball Courts Complex, NRCA's personal property, or NRCA's occupation and use of the Pickleball Courts Complex, including the right to apply for reduction. If NRCA seeks a reduction or contests such taxes, NRCA's failure to pay the taxes shall not constitute a default as long as NRCA complies with the provisions of this Section.
City shall not be required to join in any proceeding or contest brought by NRCA unless the provisions of any law require that the proceeding or contest be brought by or in the name of City or any owner of the Pickleball Courts Complex. In that case, City shall join in the proceeding or contest or permit it to be brought in City's name as long as City is not required to bear any cost. If requested by NRCA, City shall execute any instrument or document necessary or advisable in connection with the proceeding or contest. NRCA, on final determination of the proceeding or contest, shall immediately pay or discharge NEWPORT RIDGE COMMUNITY ASSOCIATION Page 12
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any decision or judgment rendered, together with all related costs, charges, interest and penalties.
14. INDEMNITY AND EXCULPATION
14.1 NRCA Hold Harmless. NRCA agrees to indemnify, defend and hold harmless City, its City Council, boards, commissions, committees, officers, agents, volunteers, and employees (collectively, "City Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to the occupation or use of any part of NRCA Courts by NRCA, its residents, guests, employees, contractors, subcontractors, agents, invitees, or volunteers (collectively, "NRCA Parties"), including without limitation any claim, liability, loss or damage arising by reason of:
14.1.1 The death or injury of any person or damage to personal property caused or allegedly caused by the condition of the NRCA Courts or an act or omission of the NRCA Parties;
14.1.2 Any work performed on the Courts or materials furnished to the NRCA Courts, at the request of the NRCA Parties; and
14.1.3 NRCA's failure to perform any provision of this Lease or to comply with any requirement of law or any requirement imposed on the NRCA Courts by any duly authorized governmental agency or political subdivision.
14.1.4 NRCA's challenge or contest of Taxes under Section 13.
NRCA's indemnity obligations herein shall not extend to any Claim arising from or in any manner relating to the sole gross negligence, willful misconduct or unlawful or fraudulent conduct on the part of City Indemnified Parties. The indemnity obligations herein shall survive the termination of this Lease.
14.2 City Hold Harmless. City agrees to indemnify, defend and hold harmless NRCA, its board, committees, officers, agents, volunteers, and employees (collectively, "NRCA Indemnified Parties") from and against any and all Claims, which may arise from or in any manner related (directly or indirectly) to the occupation or use of any part of City Courts by City, its residents, guests, employees, contractors, subcontractors, agents, invitees, or volunteers (collectively, "City Parties"), including without limitation any claim, liability, loss or damage arising by reason of:
14.2.1 The death or injury of any person or damage to personal property caused or allegedly caused by the condition of City Courts or an act or omission of City Parties;
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14.2.2 Any work performed on the Courts or materials furnished to City Courts, at the request of City Parties; and
14.2.3 City's failure to perform any provision of this Lease.
City's indemnity obligations herein shall not extend to any Claim arising from or in any manner relating to the sole gross negligence, willful misconduct or unlawful or fraudulent conduct on the part of NRCA Indemnified Parties. The indemnity obligations herein shall survive the termination of this Lease.
14.3 Not Limited by Insurance. NRCA's indemnity obligations herein shall not be contingent upon or limited by the availability of any insurance policies.
15. NO DAMAGES
Each Party acknowledges that it would not enter into this Lease if it were to be liable for consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use (collectively herein "Damages") under, or relating to, this Lease or any of the matters referred to in this Lease, including, without limitation, any and all plans, permits, licenses or regulatory approvals, CEQA documents, or any future amendments or enactments thereto related to the Courts (collectively herein "Lease Matters"). Accordingly, each Party covenants and agrees on behalf of itself and its successors and assigns, not to sue the other party for Damages.
16. INSURANCE
NRCA shall maintain insurance in the types and amounts specified in Exhibit "E," attached hereto and incorporated herein by this reference.
17. CONDEMNATION OF THE NRCA PROPERTY
If the use or possession of the entire NRCA Property or any material portion thereof shall be taken in condemnation proceedings, then City may terminate this Lease by giving written notice to NRCA within thirty (30) calendar days after the date of such taking.
18. TERMINATION, DEFAULT AND REMEDIES
18.1 Default; Termination. A Party's failure to perform any of the terms, conditions or covenants of this Lease or failure to perform such obligations within thirty (30) calendar days after written notice from the other Party shall constitute a default and material breach of this Lease. If the nature of an obligation is such that more than thirty (30) calendar days are reasonably required for performance, then a Party shall not be in default and breach if it provides the other Party with a written plan to cure and commences performance to cure within such thirty (30) calendar day period and thereafter diligently prosecutes the same to completion. Upon a Party's default and breach, the other Party NEWPORT RIDGE COMMUNITY ASSOCIATION Page 14
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may terminate the Lease with thirty (30) calendar days' written notice to the defaulting Party.
18.2 Stay of Obligations. Neither Party hereto shall be under any obligation to perform or comply with its obligations pursuant to this Lease after the date of any default by the other Party.
18.3 Waiver of Rights. The failure or delay of either Party hereto to exercise any right or remedy shall not be construed as a waiver of such right or remedy or any default by the other Party.
18.4 Waiver of Right of Redemption. City waives any right of redemption or relief from forfeiture pursuant to California Code of Civil Procedure Sections 1174 and 1179 and pursuant to any existing or future statutory or decisional law in the event City is evicted or NRCA takes possession of the City Courts by reason of any default by City.
18.5 Construction Milestones. If construction of the Pickleball Courts Complex does not commence on or before December 31, 2023, or if construction is not completed by December 31, 2024, NRCA may terminate this Lease by providing written notice to City of such termination, and neither Party shall have any further obligations hereunder.
19. REIMBURSEMENT UPON TERMINATION OF LEASE
Should this Lease terminate for any reason during the Initial Term, NRCA shall reimburse City for City's total costs and expenses incurred to date related to the design, implementation and management, installation and construction of the Pickleball Courts Complex. However, after the Commencement Date, the amount of NRCA's obligated reimbursement for City's costs shall be adjusted annually to reflect depreciation of the improvements based on an amortization schedule from the Commencement Date. The amortization period shall be thirty (30) years less the construction period, which shall be from the Effective Date until the Commencement Date. City shall have the right to change the amortization schedule subject to the terms of any grant funding that City receives for the construction of the Courts.
20. SURRENDER OF POSSESSION UPON EXPIRATION OR TERMINATION Upon the expiration or lawful termination of this Lease, the Pickleball Courts Complex shall remain on the NRCA Property, and City agrees to peaceably deliver possession of, and agrees to vacate without contest, legal or otherwise, the City Courts and Outer Improvements. NRCA, at its sole discretion, with the City's cooperation, may record a document evidencing the expiration or termination of the leasehold interest.
21. NOTICE
All notices pursuant to this Lease shall be deemed given when personally delivered or deposited in the United States mail, first class postage prepaid, and addressed as follows:
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NRCA: NRCA
c/o First Service Residential
Attention: Lisa Barrett, Senior Community Manager
15241 Laguna Canyon Road
Irvine, CA 92618
City: City of Newport Beach
Attention: Real Property Administrator
100 Civic Center Drive
Newport Beach, CA 92660
22. STANDARD CONDITIONS
22.1 Successors in Interest. This Lease shall be binding upon the successors of both Parties.
22.2 Compliance with all Laws. The Parties shall at their own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted.
22.3 Waiver. A waiver by either Party hereto of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character.
22.4 Integrated Contract. This Lease represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
22.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Lease and any other attachments attached hereto, the terms of this Lease shall govern.
22.6 Interpretation. The terms of this Lease shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party hereto by reason of the authorship of the Lease or any other rule of construction which might otherwise apply.
22.7 Severability. If any term or portion of this Lease is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Lease shall continue in full force and effect.
22.8 Controlling Law and Venue. The laws of the State of California shall govern this Lease and all matters relating to it and any action brought relating to this Lease shall NEWPORT RIDGE COMMUNITY ASSOCIATION Page 16
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-23
be adjudicated in a court of competent jurisdiction in the County of Orange, State of California.
22.9 No Attorney's Fees. In the event of any dispute or legal action arising under this Lease between the Parties, the prevailing Party to such dispute or legal action shall not be entitled to attorney's fees.
22.10 Counterparts. This Lease may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument.
22.11 Time of Essence. Time is expressly declared to be of the essence in this Lease.
[SIGNATURES ON NEXT PAGE]
NEWPORT RIDGE COMMUNITY ASSOCIATION Page 17
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 4/7/2022
4/7/2022
6-24
IN WITNESS WHEREOF, we have executed this Lease as of the day and year written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7 - 2-'f r-:VZ-
ATTEST:
Date : - - -----
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: ------ ---
By: ___________ _
Grace K. Leung
City Manager
NRCA: NEWPORT RIDGE COMMUNITY
ASSOCIATION , a California nonprofit
mutual benefit corporation
Date: -------- -
By: ____________ _
Leilani I. Brown
By: ~ ~
Signe Keller
President City Clerk
Attachments : Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Date: ------ ---
By: ~
Jamie Gruwell
Treasurer
[END OF SIGNATURES]
Depiction of NRCA Property
Depiction of City Property
Draft Depiction of Pickleball Courts Comple x
[Reserved]
Insurance
NEWPORT RIDGE COMMUNITY ASSOCIATION Page 18
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-25
Exhibit "A"
Depiction of NRCA Property
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit A-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-26
NB
NEWPORT BEACH 0
0 EXHIBIT"A"
DEPICTION OF NRCA PROPERTY
200 400
Feet
Disclaimer :
Every reasonable effort has been made to assure the accuracy of the data provided , however , The City of Newport Beach and its employees and agents disclaim any and all responsib ility from or relating to any results obtained in its use.
3123/2021
EXHIBIT A-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-27
Exhibit "B"
Depiction of City Property
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit B-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-28
s
NEWPORT BEACH 0
0 EXHIBIT "B"
DEPICTION OF CITY PROPERTY
200 400
Feet
Disclai mer:
Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its emplo yees and agents disclaim any and all responsibi !ily from or relating to any results obtained in its use.
J/23/2021
EXHIBIT B-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-29
Exhibit "C"
Draft Depiction of Pickleball Courts Complex
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit C-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-30
l
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EXHIBIT "C" DRAFT DEPICTION OF COMPLEX
SEE MID-COURT DETAIL
!.r: .
LEGEND
lil LANDSCAPE
□
SHADE CLOTH
0 NEW AC SIDEWALK
■ WATER FOU N TAIN
•
TRASHCAN
~
TABLE
-
BENCH
FENCE
AREAORAIN
DRAINAGE PATH
CONNECT PROPOSED AREA DRAIN
TO EXISTING CATCH BASIN
'EXIST FENCE
EXIST ING •
, SIDEWALK \
' .
PROPOSED AREA DRAIN
LAYOUT #7
10' 10'
GATES
MID-COURT
DETAIL
tilS
THE CITY OF NEWPORT BEACH PICKLEBALL COURTS
NEWPORT BEACH, CALIFORNIA
! I
NTS
11 24 2021
11 09/2021
11 08 2021
11 03 2021
I~- D~IC E~GINEERING ~ T..111111111111 C1n, • ~•..-; •flv,v,.:; 0Ca,cs:u10- Td t~1Pl>·9Hl
......... 111~1>:r,c,5..::r t)l,lr,-::r.~1l i'I
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DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-31
Exhibit "D"
[RESERVED]
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit D-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-32
Exhibit "E"
Insurance
1. Provision of Insurance. Without limiting NRCA's indemnification of City, and prior to commencement of any installation of the Courts (the "Pickleball Courts Complex"), NRCA shall obtain, provide and maintain at its own expense during the term of this Lease, policies of insurance of the type and amounts described below and in a form satisfactory to City. NRCA agrees to provide insurance in accordance with requirements set forth here. If NRCA uses existing coverage to comply and that coverage does not meet these requirements, NRCA agrees to amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. NRCA shall maintain Workers' Compensation Insurance providing statutory benefits and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each employee for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, NRCA shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with California law for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers. NRCA shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its elected or appointed officers, agents, officials, employees, and volunteers.
8. General Liability Insurance. NRCA shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate and two million dollars ($2,000,000) completed operations aggregate. The policy shall cover liability arising from premises, operations, products-completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract).
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit E-1
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-33
C. Automobile Liability Insurance. NRCA shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of NRCA arising out of or in connection with the Project to be performed under this Contract, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident.
D. Builder's Risk Insurance. For Contracts with property exposures during construction, NRCA shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Project for "all risk" or special causes of loss form with limits equal to 100% of the completed value of contract, with coverage to continue until final acceptance of the Project by City.
At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and/or Flood. City shall be included as an insured on such policy, and NRCA shall provide City with a copy of the policy.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Lease shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers, or shall specifically allow NRCA or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. NRCA hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City, its elected or appointed officers, agents, officials, employees, volunteers shall be included as additional insureds under such policies.
C. Primary and Non-Contributory. NRCA's insurance coverage shall be primary insurance and/or the primary source of recovery with respect to City, its elected or appointed officers, agents, officials, employees, and volunteers. Any insurance or self-insurance maintained by City shall be excess of NRCA's insurance and shall not contribute with it.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days' notice is required) for each required coverage except Builders Risk Insurance, which shall contain an endorsement with said required notices.
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit E-2
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-34
5. Additional Agreements Between the Parties. The parties hereby agree to the following:
A. Evidence of Insurance. NRCA shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Lease. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City.
If such coverage is cancelled or reduced, NRCA shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
B. City's Right to Revise Requirements. The City reserves the right at any time during the term of the Lease to change the amounts and types of insurance required by giving NRCA ninety (90) calendar days advance written notice of such change.
C. Right to Review Subcontracts. NRCA agrees that upon request, all agreements with subcontractors or others with whom NRCA enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. NRCA shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and NRCA shall ensure that City is an additional insured on insurance required from subcontractors.
For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13.
D. Enforcement of Contract Provisions. NRCA acknowledges and agrees that any actual or alleged failure on the part of City to inform NRCA of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Exhibit are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit E-3
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-35
waiver of any type. If the NRCA maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the NRCA. Any available proceeds in excess of specified minimum limits of insurance and coverage shall be available to the City.
F. Self-Insured Retentions. NRCA agrees not to self-insure or to use any self- insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self-insure its obligations to City. If NRCA's existing coverage includes a self-insured retention, the self- insured retention must be declared to City. City may review options with NRCA, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. NRCA agrees to be responsible for payment of any deductibles on their policies.
G. City Remedies for Non-Compliance. If NRCA or any of its subcontractors fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, or to suspend NRCA's right to proceed until proper evidence of insurance is provided.
H. Timely Notice of Claims. NRCA shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from NRCA's performance under this Lease, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.
I. Coverage not Limited. All insurance coverage and limits provided by NRCA and available or applicable to this Lease are intended to apply to the full extent of the policies. Nothing contained in this Lease or any other agreement relating to City or its operations limits the application of such insurance coverage.
J. Coverage Renewal. NRCA will renew the coverage required here annually as long as NRCA continues to provide any work under this Lease. NRCA shall provide proof that policies of insurance required herein expiring during the term of this Lease have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from NRCA's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City with five (5) calendar days of the expiration of the coverages.
K. Maintenance of General Liability Coverage. NRCA agrees to maintain commercial general liability coverage for a period of ten (10) years after termination of the Lease.
NEWPORT RIDGE COMMUNITY ASSOCIATION Exhibit E-4
20'
20'
10'
20'
20 0
0 2
2 20'
0 20
0 20
10'
0'
10 10'
EXIST. FENCE
EXIST. FENCE
(97.10 FG)
JOIN
(94.57 FS)
JOIN
(93.86 FS)
JOIN
(94.16 FS)
JOIN
(94.47 FS)
JOIN
(94.77 FS)
JOIN
(96.22 FG)
JOIN
(96.46 FG)
JOIN
PROPOSED AREA DRAIN
CONNECT PROPOSED AREA DRAIN
TO EXISTING CATCH BASIN
PROPOSED
AREA DRAIN
ENTRANCE GATE
EXISTING
SIDEWALK
REBUILD GATE
(93.82 FS)
JOIN
(93.74 FS)
JOIN
EXISTING
SIDEWALK
EXISTING
SIDEWALK
EXIST. WATER FOUNTAIN TO
BE RELOCATED ONSITE
PROPOSEDGATE
PROPOSEDGATE
10'10'
SEE MID-COURT DETAIL
MID-COURT
DETAIL
NTS
LEGEND
WATER FOUNTAIN
TRASHCAN
TABLE
BENCH
NTS
NEW AC SIDEWALK
LANDSCAPE
FENCE
AREA DRAIN
DRAINAGE PATH
SHADE CLOTH
BIKE RACK
ATTACHMENT B
6-36
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LAYOUT #7
THE CITY OF NEWPORT BEACH PICKLEBALL COURTS
NEWPORT BEACH, CALIFORNIA
~ DMC ENGINEERING
I ...... _ .. C I V IL ■ S lJIV:Y l ~ G • PLAttl l HG ■ CCHST RIX T IOO Tel:(IM9)753-9393
P'.i.... 18TcclmologyDrivc,Suitc:100,lrvine,Cllifmiia92618 :.,a..: E-Mail:drrc@dox:cng.co ♦ www.dmceng.com
A FirstService Residential Supported Community
15241 Laguna Canyon Road, Irvine, CA 92618 * (949) 448-6000 * FAX (949) 448-6400 www.fsresidential.com
March 31, 2022
TO: The Newport Ridge Community Association Membership
FROM: The Newport Ridge Community Association Board of Directors Dear Members,
The Newport Ridge Community Association Board of Directors wanted to update you on the status of the pickleball courts in partnership with the City of Newport Beach, Recreation, Senior Services Department. With all funding coming from the City of Newport Beach. There will be eight (8) pickleball courts
Two (2) courts dedicated to Newport Ridge that will use the Association’s key fob All eight (8) courts will be used for tournaments a few times a year The field remains multi-purpose and can accommodate both softball, soccer and pickleball for all age groups
The Pickleball center will be landscaped appropriately Parking for Pickleball center will be at the Newport Coast Community Center parking lot Bike racks will be provided at the pickleball courts
The Board of Directors is pleased to note that the construction will start January 2023 with estimated completion of June 2023. Should you have any further questions regarding this matter, please email our Community Manager, Lisa Barrett, at [email protected].
ATTACHMENT C
6-37
NEWPORT RIDGE
---.11.1~ ~ -
NEWPOltiJ COAST
ATTACHMENT D
6-38
RESOLUTION NO. 2021-108
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
APPLICATIONS FOR PER CAPITA GRANT FUNDS
UNDER THE CALIFORNIA DROUGHT, WATER, PARKS,
CLIMATE, COASTAL PROTECTION, AND OUTDOOR
ACCESS FOR ALL ACT OF 2018
WHEREAS, the State Department of Parks and Recreation has been delegated the responsibility by the Legislature of the State of California ("State") for the administration of the Per Capita Grant Program, setting up necessary procedures governing application(s);
WHEREAS, said procedures established by the State Department of Parks and Recreation require the grantee's governing body to certify by resolution the approval of project application(s) before submission of said applications to the State; and WHEREAS, the City of Newport Beach ("City"), as grantee, will enter into a contract(s) with the State to complete Per Capita Grant Program project(s).
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The City Council does hereby approve the filing of project application(s) for Per Capita Grant Program project(s).
Section 2: The City Council certifies that said grantee has or will have available, prior to commencement of project work utilizing Per Capita Grant Program funding, sufficient funds to complete the project(s).
Section 3: The City Council certifies that the grantee has or will have sufficient funds to operate and maintain the project(s).
Section 4: Pursuant to Public Resources Code ("PRC") Section 80063(a), the City Council certifies that all projects proposed will be consistent with the recreation element of the City's general plan.
Section 5: The City Council certifies that these funds will be used to supplement, not supplant, local revenues in existence as of June 5, 2018 (PRC Section 80062(d)).
Section 6: The City Council certifies that the grantee will comply with the provisions of Section 1771.5 of the State Labor Code.
6-39
Resolution No. 2021-108
Section 7: Pursuant to PRC Section 80001 (b)(8)(A)-(G), to the extent practicable, as identified in the "Presidential Memorandum--Promoting Diversity and Inclusion in Our National Parks, National Forests, and Other Public Lands and Waters," dated January 12, 2017, the City will consider a range of actions that include, but are not limited to, the following:
a) Conducting active outreach to diverse populations, particularly minority, low-income, and disabled populations and tribal communities, to increase awareness within those communities and the public generally about specific programs and opportunities.
b) Mentoring new environmental, outdoor recreation, and conservation leaders to increase diverse representation across these areas. c) Creating new partnerships with State, local, tribal, private, and nonprofit organizations to expand access for diverse populations. d) Identifying and implementing improvements to existing programs to increase visitation and access by diverse populations, particularly minority, low- income, and disabled populations, and tribal communities. e) Expanding the use of multilingual and culturally appropriate materials in public communications and educational strategies, including through social media strategies, as appropriate, that target diverse populations. f) Developing or expanding coordinated efforts to promote youth engagement and empowerment, including fostering new partnerships with diversity-serving and youth-serving organizations, urban areas, and programs. g) Identifying possible staff liaisons to diverse populations.
Section 8: Pursuant to PRC Section 80001 (b)(5), the City agrees that to the extent practicable, the project(s) will provide workforce education and training, as well as contractor, and job opportunities for disadvantaged communities.
Section 9: The City Council certifies that the grantee shall not reduce the amount of funding otherwise available to be spent on parks or other projects eligible for funds under this division in its jurisdiction. A one-time allocation of other funding that has been expended for parks or other projects, but which is not available on an ongoing basis, shall not be considered when calculating a recipient's annual expenditures, pursuant to PRC Section 80062(d).
6-40
Resolution No. 2021-108
Section 10: The City Council certifies that the grantee has reviewed, understands, and agrees to the General Provisions contained in the contract shown in the Procedural Guide.
Section 11: The City Council delegates authority to the City Manager, Recreation and Senior Services Director, or their designees, to conduct all negotiations, sign and submit all documents, including, but not limited to applications, agreements, amendments, and payment requests, which may be necessary for the completion of the grant scopes.
Section 12: That the City agrees to comply with all applicable federal, State and local laws, ordinances, rules, regulations and guidelines.
Section 13: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution.
Section 14: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 15: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
6-41
Resolution No. 2021-108
Section 16: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 16th day of November , 2021 .
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Arl~r !(~
City Attorney
6-42
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF NEWPORT BEACH
SS .
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California , do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2021-108 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 16th day of November, 2021; and the same was so passed and adopted by the following vote, to wit:
AYES: Mayor Brad Avery, Mayor Pro Tern Kevin Muldoon , Council Member Noah Blom, Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Will O'Neill
NAYS None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 17th day of November, 2021.
Leilani I. Brown ......
City Clerk
Newport Beach, California
Attachment
E
PA2022-091 CDD Action Letter
6-43
COMMUNITY DEVELOPMENT DEPARTMENT
PLANNING DIVISION
100 Civic Center Drive, P.O. Box 1768, Newport Beach, CA 92658-8915 949-644-3200
www.newportbeachca.gov
COMMUNITY DEVELOPMENT DIRECTOR
ACTION LETTER
Subject: Newport Ridge Park Pickleball Courts (PA2022-091) ▪ Staff Approval No. SA2022-003
Site Location: 6331 East Newport Ridge Drive
Applicant: Newport Ridge Community Association and The City of Newport Beach
Legal Description: Parcel 1 of Lot Line Adjustment No. LL 94-006. See Attachment No. CD 1 for property depiction, incorporated herein by reference.
On April 29, 2022, the Community Development Director approved Staff Approval No.
SA2022-003 allowing the conversion of a portion of an existing baseball field into eight (8) outdoor pickleball courts. This approval is based on the following findings and subject to the following conditions.
LAND USE AND ZONING
• Zone: PC53 (Newport Ridge), Planning Area 10 – Recreation • General Plan: PR (Parks and Recreation)
SUMMARY AND PROJECT DESCRIPTION
The Applicant requests the conversion of a portion of an existing baseball field at Newport Ridge Park into eight (8) outdoor pickleball courts. The outdoor pickleball courts will be allocated between the City and Newport Ridge Community Association (NRCA), with six (6) courts designated for public use managed by the City and two (2) cou rts designated for NRCA’s exclusive use. The project also includes new park amenities such as sidewalks, benches, picnic tables, water fountains, shade mechanisms, landscape, and hardscape.
The Applicant’s request does not change the total square footage or operational characteristics approved for Newport Ridge Park. No additional on-site improvements are proposed.
I. BACKGROUND
Newport Ridge Park. The County of Orange Planning Commission approved Planning Application No. PA95-0043 on March 30, 1995, for a site development permit to establish a 26-acre local park (Newport Ridge Park). The approval included grading and landscaping with the following major attractions: a sand volleyball court, a family picnic area , shade 6-44
structures, play equipment, two (2) outdoor basketball courts, two (2) outdoor tennis courts, a multi-purpose sports field, restrooms, and connecting walkways.
Pickleball Popularity. The sport of pickleball continues to rise in popularity among Newport Beach residents and is one of the fastest growing sports in the country. In Fall 2017, the City constructed four (4) dedicated pickleball courts at Bonita Canyon Sports Park Field No. 6 to address the growing community need and interest in the sport. As the sport continues to gain momentum as a mainstream recreational activity, the outdoor courts at Bonita Canyon Sports Park have become heavily impacted and do not meet the increasing demand for available court time. Adding new courts in the City would help fulfill the public demand for more open court times and could also support recreational programs such as league play, group/private lessons and tournaments for all skill levels and ages.
NRCA and City Partnership. The Newport Ridge Community Association (NRCA) approached the City to partner in the development of pickleball courts at Newport Ridge Park. The park is owned and managed by NRCA and presents itself as the most viable park location in the City that meets important site conditions:
1. Distanced from homes to diminish potential noise impacts from pickleball play.
2. Existing parking that is sufficient to support the new recreational amenity.
3. Does not displace or impact any existing recreational programs.
Lease Agreement. City staff is in the process of negotiating a thirty (30)-year lease with NRCA for use of land in exchange for development and maintenance costs of eight (8) pickleball courts along the eastern edge of the park, adjacent to Newport Coast Community Center parking lot. Per the agreement, the City will fund , design and construct eight (8) courts. Six (6) courts of which will be maintained and operated for public use. The remaining two (2) courts will be dedicated for NRCA use. In June 2021, the Parks , Beaches & Recreation (PB&R) Commission appointed three (3) commissioners to serve on the Newport Ridge Park Pickleball Courts Ad Hoc Committee to assist with conceptual design and community outreach. The Ad Hoc Committee, NRCA Board Members, Recreation & Senior Services and Public Works Departments have worked collectively to develop plans for the eight (8) unlit courts and site amenities.
Proposed Improvements. The outdoor pickleball courts are designed to USA Pickleball Association (USAPA) specifications and the site will be furnished with shaded viewing areas, benches, trash cans, a bike rack and a bottle filling station. The two (2) northernmost courts will be fitted with a key fob system securing and limiting these two courts for NRCA resident access and use. The existing Newport Coast Community Center parking lot (122 spots) and restrooms will be utilized to support public use of the site. NRCA pickleball players will also have access to their community association parking lot and restrooms along the western edge of the park. In December 2021, the PB&R Commission voted to approve and forward design plans to City Council for final approval. On March 31, 2022 , the Newport Ridge Community Association Board of Directors noticed their membership about the project and design parameters (Attachment No. CD 4) and received no opposition to the project. 6-45
II. FINDINGS AND FACTS
Pursuant to Section 20.54.070 (Changes to an Approved Project) of the Newport Beach Municipal Code (NBMC) , the Community Development Director may authorize minor changes to an approved site plan, architecture, or the nature of the approved use, without a public hearing, and waive the requirement for a new use permit application. This staff approval is based on the following findings and facts in support of the findings. In this case, the Director determined the proposed changes:
Finding:
A. Are consistent with all applicable provisions of this Zoning Code.
Facts in Support of Finding:
1. Newport Ridge Park will continue to be utilized as a recreational use. The outdoor pickleball courts are typical accessory use s within a recreational park and are permitted within Area 10 of PC53 (Newport Coast Planned Community Text ) designated for the subject property.
2. The Project provides new public accommodations in the form of outdoor pickleball courts to serve the recreational needs of Newport Beach’s visitors and residents.
The Project design will enhance the Recreation and Senior Services Department’s service capabilities to fulfill the public need for more open court times and could also support recreational programs such as league play, group/private lessons and tournaments for all skill levels and ages.
3. Pursuant to Chapter X (Permit Regulations and Procedures) of the Newport Ridge Planned Community (PC53), a Changed Plan may make minor amendments or changes regarding the location or alteration of any use or structure and may be approved by the Planning Director pursuant to Orange County Zoning Code Section 7 -9-150.3. The property has since been annexed to the City . The Cit y Community Development Director serves in the capacity of the Planning Director.
4. The Project emphasizes a use that enables Newport Beach to continue as a self - sustaining community. The Project minimizes the need for residents to travel outside of the community to look for recreational services. The pickleball courts will complement exis ting recreational infrastructure at Newport Ridge Park and the Newport Coast Community Center.
5. The Project would adhere to interior and exterior noise standards of the Municipal Code. Per Condition of Approval No. 8, all noise generated by the Project mus t comply with the provisions of Chapter 10.26 (Community Noise Control) and other applicable noise control requirements of the NBMC.
6. The pickleball courts are unlit, unenclosed, and do not increase the total square footage or overall capacity for the project. The proposed changes are consistent 6-46
with the applicable conditions of approval of the original County Site Development Permit No. PA95-0043.
7. Sufficient parking will continue to be available to serve all uses on-site. The outdoor pickleball courts would not reduce existing parking. An on-site parking lot with 66 spaces (including accessible stalls) is adjacent to the multipurpose field. The 12 2 parking spaces at Newport Coast Community Center will also remain useable to serve the site.
Finding:
B. Do not involve a feature of the project that was a basis for or subject of findings or exemptions in a negative declaration or Environmental Impact Report for the project
Facts in Support of Finding:
1. No square footage or other new sports facilities are proposed at Newport Ridge Park.
The pickleball courts and new park amenities will provide for existing patrons and will not result in excessive increased daily trips to the site.
2. The outdoor pickleball courts will replace an existing portion of a baseball field and does not involve grading of any previously undisturbed land.
3. There is no substantial evidence that the proposed pickleball courts will have any significant adverse impacts upon the environment . Final Environmental Impact Report (EIR) 517, certified on February 26, 1991, was determined adequate to serve as a Program EIR for Site Development Permit No. PA9 5-0043. The pickleball court s do not affect any basis for findings or Applicable Mitigation Measures of Final EIR 517 for PA95-0043.
Finding:
C. Do not involve a feature of the project that was specifically addressed or was the subject of a condition(s) of approval for the project or that was a specific consideration by the applicable review authority in the project approval.
Facts in Support of Finding:
1. The proposed changes do not negatively impact a feature that was specifically addressed in staff reports or minutes prepared for Planning Application No. PA95- 0043. The recreational park was approved to serve the public with sports cou rts, picnic areas, and play structures . The proposed pickleball courts and park amenities do not substantially change the operation of the use, traffic, or parking for the site as was originally authorized under the original Site Development Permit No. PA95-0043.
6-47
2. Condition of Approval No. 3 in Site Development Permit No. PA95-0043 authorizes changes to the approved plan, including location and alteration of any use or structures, provided the change complies with the provisions and spirit and intent of the approval action and that the action would have been the same for the changed plan as the approved plan. In this case, the proposed change involves removing an existing baseball field to accommodate eight (8) pickleball courts , which are common recreational amenities in public and private parks today. If the sport had the popularity as it does today, it is reasonable to assume that the pickleball courts would have been included at the time the park was originally developed. As a result, altering the existing baseball field to accommodate pickleball courts complies with the original approval's provisions, intent, and spirit.
3. The proposed pickleball courts do not result in any additional impacts beyond those analyzed prior to original project approval as docume nted in Planning Application No. PA95-0043. The project does not displace or impact any existing recreational programs, but serve to enhance existing amenities for residents and visitors of Newport Beach.
4. No conflict exists between the project and identified Natural Community Conservation Planning (NCCP) area. Development of the courts and park amenities are on an existing baseball field and adheres to the mitigation measures and conditions of approval of the approved park.
5. The proposed outdoor pickleball courts are approximately 300 feet away from the nearest residential use and separated by San Jaoquin Hills Road. Existing parking is sufficient to support the new recreational amenity. Since the courts are unlit and no amplified noise is permitted, negative impacts to residential uses are not anticipated.
6. Off-street parking will be maintained as established in the County of Orange Zoning Code. The Director has determined s ufficient parking will be provided in the existing 122 -space surface parking lot at Newport Coast Community Center and 66-space surface parking lot at Newport Ridge Park.
Finding:
D. Do not result in an expansion or change in operational characteristics of the use.
Facts in Support of Finding:
1. The Project’s size and operational characteristics complement the existing park amenities such as the tennis and basketball courts on -site. The addition of the pickleball courts will not result in a change in the operational characteristics of the park but will instead provide additional amenities to complement the existing facilities. The pickleball courts are typical athletic facilities found at parks.
2. The Recreation and Senior Services Department, Public Works Department, and the Parks, Recreation, and Beach Commission reviewed the application. The 6-48
Project is required to obtain all applicabl e permits from the appropriate City Departments and must comply with the most recent, City -adopted version of the California Building Code.
III. DETERMINATION
The Community Development Director determined that the proposed pickball courts and park amenities are consistent with the plans approved by the Orange County Planning Commission in conjunction with the review and approval of Planning Application No. PA95- 0043.
IV. CONDITIONS
1. The development shall be in substantial conformance with the approved site plan, floor plans, materials board, and elevations stamped and dated with the date of this approval (except as modified by these conditions of approval).
2. The development shall be in substantial conformance with all applicable conditions of the County of Orange’s Site Development Permit No. PA95-0043.
3. The use of amplified sound within the outdoor pickleball courts area shall be prohibited.
4. This approval shall expire unless exercised within twenty-four (24) months from the date of approval as specified in Section 20.54.060 (Time Limits and Extensions) of the NBMC, unless an extension is otherwise granted.
5. The Applicant is required to obtain a building permit from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements.
6. The Applicant shall comply with all project design features, mitigation measures, and standard conditions contained within the approved Mitigation Monitoring Reporting Program (MMRP) as approved by the County of Orange in Planning Application No. PA95-0043 for the project.
7. Any modification to the parking lot and/or number of parking spaces shall be reviewed and approved by the Planning Division.
8. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code (NBMC). The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher:
6-49
Between the hours of 7:00AM
and 10:00PM
Between the hours of
10:00PM and 7:00AM
Location Interior Exterior Interior Exterior
Residential Property 45dBA 55dBA 40dBA 50dBA
Residential Property located within
100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA
Commercial Property N/A 65dBA N/A 60dBA
9. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of the Newport Ridge Park Pickleball Courts including, but not limited to, Staff Approval No. SA2022-003 (PA2022-091). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.
APPEAL PERIOD: An appeal may be filed with the Director of Community Development or City Clerk, as applicable, within fourteen (14) days following the date the action or decision was rendered. For additional information on filing an appeal, contact the Planning Division at 949 644-3200.
On behalf of Seimone Jurjis, P.E., C.B.O., Community Development Director
By:
JC / pda
Attachments: CD 1 Property’s Legal Depiction
CD 2 Vicinity Map
CD 3 Excerpt of PA95-0043 Conditions of Approval and Findings CD 4 Project Plans
6-50
8tw!~
Patrick Achis
Assistant Planner
Attachment No. CD 1
Property’s Legal Depiction
6-51
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69-1D1B18E18E48 6-52
NB
NEWPORT BEACH 0
0 EXHIBIT"A"
DEPICTION OF NRCA PROPERTY
200 400
Feet
Disclaimer :
Every reasonable effort has been made to assure the accuracy of the data provided , however , The City of Newport Beach and its employees and agents disclaim any and all responsib ility from or relating to any results obtained in its use.
3123/2021
EXHIBIT A-1
Attachment No. CD 2
Vicinity Map
6-53
VICINITY MAP
Staff Approval No. SA2022-003
PA2022-091
6331 East Newport Ridge Drive
Subject Property
Location of Outdoor
Pickleball Courts
6-54
Attachment No. CD 3
Excerpt of PA95-0043 Conditions of
Approval and Findings
6-55
6-56
-------~~-----------------------------·--··----- ..... .
FILE; PA 95-0043
TO= File/Record/Appiicant
FROM= Michael M. Ruane, Director EMA
SUBJEC~: Planning Application PA 95-0043 for Site Development Pe~mit APPLICAHz Coastal community Builaers
I. HA~ Ol" PROJECT:
Site plan approval for development of a local park (Newport Ridge Local Park} in Planning Area 10 of the San Joac:IUin Eills Planned community {marketed and more commonly known as Newport Ridge}. Planning Area 10 has a. land use designation of R "Recreation" and the proposed park is a permitted use subject to the approval of a Site Development Permit. The 26 acrs parkr in addition to grading and landscaping has the following major attractions~ a s~nd volleyball court; a family picnic ar~a with four picnic tables; a group picnic area with shade structure; a tot lot/play area with play equipment: twa basketball courts; two tennis courts; a multipurpose field that can be configured into a soccer field or two softball fields; a restroom; and, connecting walkways with seating areas throughout the park. A parking lot with 66 spaces {including three handicapped spaoee) is loeateo adjacent to the multipurpose field.
Newport Ridge Park is located on the north side of San Joaquin Hills Road and is bordered by Newport Ridge Drive East and the now closed Coyote canyon Landfill. Park construction is by coastal ccmmun~ty ~u!lders and the maintenance will be the responsibility of the Newport Ridge community associations. This park and two view parks located in Planning Area l7 <Planning Application PA 95-0044) satisfies the local park requirements for the San Joaquin Hills Planned Community.
II. R.EFSRBNCE: (Authority for Admini~trative action is given by what ordinance, ~egulationr etc.)
San Joaquin Hills Planned Community Chapters IV and X; and, orange county Zoning Code Section 7-9-150.
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PA 95-0043 Neport Ridge Park
I II. ENVIRONMENTAL DOOUMEN'l'A'l'rON:
Ths proposed project iG covered by Final EIR 517. section V of thie report contains the requi~sd CEQA Finding.
IV. CERTIF~CA~IOH:
I hereby certify that the subject proposal has been conditionally Approved as ncted below.
Michael M- Ruane, Director E;-<.A
By: ~; /, , . . , -~/
Date;
Ch.arles M. Shy~maker, Chief
Site Planning' $~cti□ n
WVM
V. FIND ING$!
I. The use or project proposed i:::i consist,,mt with the objectives, policies, general land uses and programs specified by the G>a'neral Plan.
II. The u:a1e, activity or irr1provsme:nt( 8} proposed, subject to the sp~cified conditions, is consistsnt with the provisions of the Zoning Cods and ths San Joaquin Hills Planned Community regulation,c: applicable to the property.
III. Final EIR 517, previously certified on February 26, 1991, was considered prior to approval of tha project, was determined adequate to serve as a Program EIR fo~ this project~ ~n& s~tlsfies all the requirements of CEQA.
IV. The l □ ~ation, size, design and operating characteristics of the p:i: □ posed m,e will not ere at~ unusual no.i.se, traff i.c or other c:ondi t io~1s or situation:a1 that may be objectionable, detrimental or incompatibl~ with other permitted uses in the vicinity.
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..
PA 95-0043 Report Ridge Park
v. The application will not result in conditions or circumstances contrary to the public health ana safety and the general welfarE.
VI. That the permit would not allow development of a projeot that would contribute to the need fa~ a fire station or library facility for which a fae is required, ae ~hatter~ is defined in aeotion 1-9-701.
VrI. That the proposed use will not significantly changs the traffic generation characteristics cf the existing use, with respect to the San Joaquin Hills Transportation corridor Major Thoroughfare and Bridge Fee Program, thus corridor fees a~e found not to be appropriate in this instance.
VI, COHDITIOHS=
1. LU NA NA BASIC/ZONING REGULATIONS
This approval constitutes approval of the propo5ea project only to the extent that the project complies with the Orange County Zoning Code and any other applicable zoning regulatione. Appro~al ooes no~ include any action or finding as to compliance of approval of the project rega~ding any other applicable ordinance, regulation er requirement.
2. LU NA MA BASIC/'I'IME LIMI'I'
Thio approval is valid for a period 0f 24 months from the date of final determination. If the use approved by this action is not established within such period of time, this approval shall be terminated and shall thereafter be null and void.
.3. LUNANA BASIC/PRECISE PLAN
Except aG otherwi5e provided herein, this permit is approved ae a preci~e plan. After any application ha5 been approved, if changes are proposed ~egarding the location or alteration of any use or structu~e, a changed plan may be submitted to the Director-EMA for approval. If the Director determines that the propoeed change complies with the provisions and the spirit and intent of the approval action, and that the action would have been the 5ame for the changed plan as for the approved plot plan, he may approve the changed plan without requiring a new public hearing.
4. LU NA NA BASIC/COMPLIANCE
Failure to abide by and faithfully comply with any and all conditions attached to thi5 approving action 5hall constitute grounds for the revocation of said action by the Orange County Planning Commi5sion. 6-59
----~-------------------------------------------·----· ··-· -- PA 95-0043 Report. Ridge Park
Pag-e 4 of 7
5. LU NA NA BASIC/OBLIGATIONS
Applicant shall defend at his/her sole expense any action brought againet the County because of issuance of this permit or, in the alternati~e, the relinquiehment of such permit. Applicant will reiml;:iurse the county for any court costs and attorney's fees which the county may be required by a court to pay as a result of $U~h ac~ion. County may, at its sole discretion, participate in the defense of any such action, but such participation shall not relieve applicant of his obligations under this condition. 6 .. DS DSG GEOLOGY RPT
Prior t0 the issuance of a grading permit, the applicant shall submit a geotechnical report to the Manager, Development Services, for approval. The report shall inclgde the information and be in a form as required cy the Grading Manual.
7. DS DSG GRADING DEVIATION
~rior to the issuanae of any grading permits, i£ review of the grading plan for this property by the Managsr, Dsveloprnsnt Services. indicates significant deviation from the proposed grading illustrated □n the approved ~entative tract map, specifically with regard to slope heights, slope ratios. and pad elevations and configuration, the plan shall be reviewed by the Subdivision Committee for a finding cf substantial conformance. Failure to achieve such a finding will requ.~re processing a revised tentative tract mapj or, if a final tract/parcel map has been record@d, a ne~ tentative tract/parcel map or a site development permit application per or&nge County Zoning code section 7-9-139 and 7-9-150.
8. HP flP GR GRADING ADJ PRK
Prior to the rscordation of the first final tract/parcel map or isouanoe of the first grading permit for projects located immediately adjacent to or including portions of regional parks, significant open space corridors, or othe~ environmentally sensitive areasr the project proponent shall ~rovide evidence acceptable to the Manager, Development Services, in con~ultation with the Manager, HB&P/Program Planning, that graded areas will be compatible with natural land characteristics of the adjacent area5. Treat ment to achieve the desired effect shall include:
A. Smooth and gradual transition between graded slopes and existing grades using variable slopes ratios (2:1-4.l); and
B. Urban Edge Treatment/Landscaping Plan{s) for all graded ar~as adjacent to open space; and
c. Inc □ rporating architectural and design techniques into the project in order to enhance off-site views attained from within parks and other environmentally sensitive areas.
9'. EP DSG EROSION CONTROL
Prior to the issuance of grading permits, the project proponent shall submiu to the M~na9er, Development services, for review and approval, an Erosion Contl,"ol :Pl.an.
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.--------------------------------------- ··-··----·- ..
PA 95-0043 Neporl Rid9e Park
lo.FF G WATER IMPV PLANS
Prior to the issuance of grading permits, water improvement plans shall be submitted to and approved by the Fi~e Chief to ensure adequate fire p~otection and financial security is posted for the installation. The water system design~ location of valvesr and the distribution of fire hydrants will be evaluated and approvea by the Fire Chief.
11. FF B COMBSTBLE CONST
Prior to the issuance of any builaing permits for combustible construction, a letter and plan from the developer shall be submitted to and approved by the Fire Chief. This letter and plan shall state that water for fire fighting purposes and an all weather fire access road shall be in place before any coml:)ustible materials are placed on the site. 1:2. FF B WATER AVAILABILITY
Prior to the issuance □ f any building permits, an O~ange County Fire Department Water Availability Form shall be submitted to and approved by the Engineering Section of the Orange County Fire Department. If sufficient water to meet fire flow requirements is not available~ an automatic fire extinguishing system shall be installed in eaoh structure+ l.J. FF U FIRE HYDRANT MARK.!i:F..
Prior to the issuance of any ce~tificates of use and occupancy, all fire hydrants shall have a ''Blue Reflective Pavement Marker" indioat.ing its location on the street or drive per the orange county Fire Department Standard. On private p~operty these markers are to be maintained in good condition by the property owner.
14. FF B BUII..I'.lil\lC us~
Prior to the issuancs of any building pe:i:mits, the applicant shall 5Ubmit a detailed letter of intended use for each building tc th~ Fire Chief.
15. F Ji' G S'l'REE'l' PLANS
Frior to the issuance of any grading permit~ 1 plans for all street and courts, public or private, shall be submitted to and appr0vea by the Fire Chief. The plans shall include sectional view, and indicate the width measurea flow line to flow line. All proposed fire apparatu~ turnarounds shall be clearly marked.
16. F F R FIRE HAZARD
Prior to the reco~dation of a final tract/parcel map, a note shall be placed on the map meeting the approval of the Fire Chief that the property is in a ( high) fire haza-rd due to wildland &xiJosure.
17. F 'I!' GB FUEL MOD PLAN
Prior to the iGsuance ot any grading permit~, a fuel modifLcat1on plan and program shall be submitted and approved by the Fire Chief. Contact the Wildland Fire Detense Flanning Section at 744-0498 for requirements and clearance of this condition. The plan shall indicate the proposed means □ f achieving an acceptable level of risk to structures by vegetation. Include the method {rneohanical or hand laborJ for removal of flammable vegetation 6-61
PA 95-0043 •eport Ridge Park
and the planting of drought tolerant fire resistant plants. The approved fuel modification plan shall be installed prior to the .issuance. of building permit~, under the supervision of the Fire Chief, and completed prior to the issuance of any use and occupancy permits. The CC&R's shall contain pro~ision for maintaining ~he fuel modification zones including the removal of all dead and dying vegetation and the insFection and correction of any deficienciee in the irrigation system three times a year.
18. TE TE G SPECIAL - DRIVEWA~
Prior to the issuance cf grading permits, the driveway located along San Joaquin Hills Road near its intersection with Newport coast Drive shall be removed and replaced with curb, gutter and sidewalk in a manner meeting the approval of the Manage~, Traffic Engineering.
19. BP BP G CONST NOISE
A. Prior to the issuance of any grading permits, the project proponent shall produce evidence acceptable to the Manager, Building Permits, that:
{l) All const~uction vehicles or equipment, fixed or mobile, operated within 1,000' of a dwelling shall be equippea with properly oper~ting and maintained mufflers.
(2} All operations shall comply with Orange County Codified ordinance Division 6 {Noise Control).
(3) Stockpiling and/or vehicle staging areas shall be located as far as practicable from dwellings. ·
a. Notations in the above fo~mat, appropriately numbered and included with other notaticns on the front sheet of grading plans~ will be considered as adequate evidence of compliance with this condition.
20. EP HP G PALEO GRD OBS
.21.
22. If required by the Manager, HB&P/Progra.rn Planning, prior to the issuance of a grading pe~mtt, the project ~pplicant shall provide wr~tten evidence to tne Manager, Development Services, that~ Ca~nty-certified paleontologist has been ~etained to observe grading activities and salvage and catalogue fossils ae necessary •
EP BP B
Prior to
that all
rays are
Managerr
issuance
exterior
confined
Building
LIGHT AND GLARE
of any building permit, the applicant shall demonstrate lighting has besn dssigned and located so that all direct to the property in a manner meeting the awroval of the
Permits.
ER SD B POLLUTANT RUNOFF
Prior to is6uance of building permits, permit applicant shall submit for approval of the Manager, OeYelcpment Services, a Water Quality Management Plan (WQMP) specifically identifying Best Management Practices (BMPS) that will be used on site to control predictable pollutant runoff. 6-62
r----------------------~~-----------------------------···--··-···· -- -· -----· l
PA 95-0043 Report Ridge Park
2J. !:!P BI lJ PVT LANDSP
Prior to the issuance of certificates of us~ and occupancy, landscape plans for privately maintained landscape areas shall be prepared by a licensed landscape architect taking into account an approved preliminary landscape plan (if any), EMA Standard Plans~ adopted planned community, scenic corridor and specific plan requirements, Grading and Excavation Code, recreation trail and erosion control rBqu.irements, subdivision Code. Koning Code, conditions of approval, water Conservatf~n Msasurss contaLned in Board Resolution SI0-48 7 ( Water conservation Meaaures} , ··and Board Resolution 90-1341 (Water Conservation I~plsrne:ntation Plan). The plans shall be certified by the landscape architect or the licensed landscape contractor, as applicable, as to compliance with said requirements. Furthermore, applicant shall have installed said landscaping and irrigation system and shall have a licensed landscape architect verify that the landscaping and irrigation system was installed in accordance with the certified plan.
Appl~cant shall furniah a landscape plan certification and installation ,,erification, including an irrig~tian management report for each lands~ape irrigation system, and any other required implementation report determined applicable, in writing to the Manager, Building Inspection, prior to the issuance of any certificates of use and occupancy.
Attachment No. CD 4
Project Plans
6-63
6-64
DocuSign Envelope ID: EAF6CE4A-0293-4FD8-8C69 -101B18E18E48 EXHIBIT 11 C11 DRAFT DEPI CTION OF COMPLEX
SEE MIO-COURT DETAIL
LEGEND
I f O !IHN!iE O.OrH
D NEIIACSDErw
1 ■ ~'I'~ R rwlrlr o\lN
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10' 10'
LAYOUT #7
THE CITY OF NEWPORT BEACH PICKUEBALL COURTS
NEWPORT BEACH, CALIFORNIA
~II Di\l
............... ( • !L.~
1 - ~ ~1...
7-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 7
ABSTRACT:
The Memorandum of Understanding (MOU) between the City of Newport Beac h (City) and the Newport Beach Fire Management Association (NBFMA or Association) expires June 30, 2022. Representatives from the City and the NBFMA have reached a Tentative Agreement (Agreement) on t he terms and conditions of a successor agreement . The Agreement addresses the negotiated wages, benefits, and other terms and conditions of employment for employees represented by the Association as required under the Meyers- Milias-Brown Act, California Government Code §3500.
To promote greater transparency in the negotiations process, including the cost associated with the labor contract, the Agreement with the NBFMA is being presented at this time for public review and comment. The complete Agreement, which spans the time period from July 1, 2022 through June 30, 2026, will be presented again for City Council adoption (or rejection) at the June 14, 2022 regular meeting.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Receive and consider the Tentative Agreement between the City of Newport Beach and the Newport Beach Fire Management Association.
DISCUSSION:
The NBFMA is an exclusively recognized bargaining unit representing the full-time Fire Battalion Chief classifications. The group is budgeted for four full-time positions TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Grace K. Leung, City Manager - 949-644-3001,
[email protected]
PREPARED BY: Barbara J. Salvini, Human Resources Director, [email protected]
PHONE: 949-644-3259
TITLE: Tentative Agreement with Newport Beach Fire Management Association (NBFMA)
--
Tentative Agreement with Newport Beach Fire Management Association (NBFMA) May 24, 2022
7-2
Significant provisions of the Agreement between the City and the NBFMA include:
Term of four years, from July 1, 2022 through June 30, 2026 Wage adjustments
July 2022 – 2.0%
July 2023 – 2.0%
July 2024 – 2.0%
July 2025 – 2.0%
City-paid short-term and long-term disability benefits Additional City contribution of $200 per month to the employee medical cafeteria allowance if certain criteria are met during the term of the agreement Upon City Council adoption, one-time signing bonus of $2,000 for currently active unit members
A draft version of the Tentative Agreement between the City and the NBFMA is included as Attachment A, with changes from the current agreement in redline. Costing information for NBFMA is included as Attachment B. The total cost of the NBFMA MOU is estimated to be $332,294.
The City has been informed the majority of NBFMA members have voted to approve the Agreement. Following the City Council’s review of the Tentative Agreement and proposed MOU with the NBFMA, a final version of the successor MOU will be presented at the June 14, 2022 regular meeting. The costing information and proposed revisions to the MOU will be posted for public review on the City’s website.
The A greement will not become effective, per Government Code §3505.1, until the governing body, i.e., City Council, takes action to adopt it. If the City Council approves adoption of the Tentative Agreement with the NBFMA at the June 14, 2022 meeting, City staff will work to implement the provisions as soon as practicable.
FISCAL IMPACT:
Because the effective date of the Agreement is July 1, 2022, there is no fiscal impact during FY 2021-22. The necessary funds to cover the cost increases associated with the Agreement will be incorporated into the Proposed Budget Revisions presented to the City Council with the FY 2022-23 proposed budget on June 14, 2022.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subje ct to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as define d in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
Tentative Agreement with Newport Beach Fire Management Association (NBFMA) May 24, 2022
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NOTICING:
The agenda item has been noticed accordin g to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A – Tentative Agreement and proposed MOU (redlined) between the City and NBFMA with signature of NBFMA President Brian McDonough Attachment B – Estimated Cost of Contract with the NBFMA
1 NBFMA MOU 20192022-20222026
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF NEWPORT BEACH AND
NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION
This MEMORANDUM OF UNDERSTANDING (hereinafter referred to as "MOU") is entered into with reference to the following:
1. The Newport Beach Fire Management Association ("NBFMA" or “Association”), a recognized employee organization, and the City of Newport Beach ("City"), a municipal corporation and charter city, have been meeting and conferring, in good faith, with respect to wag es, hours, fringe benefits and other terms and conditions of employment.
2. This MOU, upon approval by NBFMA and the Newport Beach City Council, represents the total and complete understanding and agreement between the parties regarding all matters within the scope of representation.
SECTION 1. GENERAL PROVISIONS
A. Recognition
In accordance with the provisions of the Charter of the City of Newport Beach, the Meyers Milias Brown Act of the State of California and the provisions of the Employer's/Employee Labor Relations Resolution No. 2001-50, the City acknowledges that NBFMA is the majority representative for the purpose of meeting and conferring regarding wages, hours and other terms and conditions of employment for all employees in those classifications specified in Exhibit "A" or as appropriately modified in accordance with th e Employer/Employee Resolution. All other classifications and positions not specifically included within Exhibit "A" are excluded from representation by NBFMA.
B. Term
Except as specifically provided otherwise, any ordinance, resolution or action of the C ity Council necessary to implement this MOU shall be considered effective as of July 1, 20192022. This MOU shall remain in full force and effect through June 30, 20262, and the provisions of this MOU shall continue after the date of expiration of this MOU in the event the parties are meeting and conferring on a successor MOU.
The provisions of this MOU shall prevail over any conflicting provisions of the Newport Beach City Charter, the ordinances, resolutions and policies of the City of Newport Beach, and federal and state statutes, rules and regulations which either specifically provide that agreements such as this prevail, confer rights which may be waived by any collective bargaining agreement, or are, pursuant to decisional or statutory law, superseded by the provisions of an agreement such as, or similar to, this MOU.
ATTACHMENT A
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C. Scope
All present written rules and currently established practices and employee rights, privileges and benefits that are within the scope of representation shall remain in full force and effect during the term of this MOU unless specifically amended by the provisions of this MOU, or in the case of the Department SOP’s falling within the scope of representation, the City has given notice to the Association and, upon request, met and conferred on any proposed changes which fall within the scope of representation.
The parties agree to meet and confer changes to dep artment SOP, rule, or regulation if such proposed change materially impacts any matter within the scope of representation.
Pursuant to this MOU, the City reserves and retains all of its inherent exclusive and non -exclusive managerial rights, powers, funct ions and authorities ("Management Rights") as set forth in Resolution No. 2001-50.
D. Bulletin Boards
Space shall be provided on bulletin boards within the Fire Department at their present location for the posting of notices and bulletins relating to NBFMA business, meetings, or events. All materials posted on bulletins boards by the NBFMA shall indicate that the NBFMA posted it . Material posted shall not contain personal attacks on any City official or employee, any material which constitutes harassment, discrimination or retaliation on the basis of any protected class under the law or other statutorily or constitutionally impermissible basis, as well as any pornographic or obscene material.
Material posted and messages sent through electronic mail (E -Mail) shall not contain personal attacks on any City official or employee, any material which constitutes harassment, discrimination or retaliation on the basis of any protected class under the law or other statutorily or constitutionally impermissible basis, as well as any pornographic or obscene material. E-Mail may be used for Association business on a limited basis and consistent with Department Policy.
E. Conclusiveness
This MOU contains all of the covenants, stipulations, and provisions agreed upon by the parties. Therefore, for the life of this MOU, neither party shall be compelled to meet and confer concerning any issue within the scope of representation except as expressly provided herein or by mutual agreement of the parties. No representative of either party has the authority to make, and none of the parties shall be bound by, any statement, representation or agreement reached prior to the execution of this MOU and not set forth herein.
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F. Modifications
Any agreement, alteration, understanding, variation, or waiver or modification of any of the terms or provisions of this MOU shal l not be binding upon the parties unless contained in a written document executed by authorized representatives of the parties.
G. Savings
Should any part of this MOU be rendered or declared illegal or invalid by legislation, decree of court of competent j urisdiction or other established governmental administrative tribunal, such invalidation shall not affect the remaining portions of this MOU provided, however, should the provisions of this MOU relating to salary increases, fringe benefits, or the compensation policy be declared invalid the City shall provide alternative forms of compensation such that NBFMA members suffer no financial detriment by virtue of the decision or ruling with the manner and form of the compensation to be determined by the parties after meeting and conferring in good faith.
H. Impasse
In the event of an impasse (the failure to agree on a new MOU after the express term of the existing MOU has expired), the parties may agree on mediation pursuant to the procedure outlined in Section 16 of Resolution No. 2001-50 or a successor resolution.
Upon request by the Association the parties will engage in non -binding fact finding pursuant to State law.
I. Definitions
For the purposes of this MOU these terms shall have the following meanings:
The term "member" or "NBFMA member" shall mean all persons within classifications represented by NBFMA.
The term "staff employee" shall mean any NBFMA member who is assigned to work a 40-hour workweek.
The term "line employee" shall mean any NBFMA member assigned to work an average 56-hour workweek in 24-hour shift increments.
The term "Municipal Fire Departments in Orange County" or "Municipal Fire Departments" shall mean all City operated Fire Departments and the Orange County Fire Authority.
SECTION 2. COMPENSATION
A. Salary
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Guaranteed Salary
The salary for the position of Fire Battalion Chief shall maintain at least a 9.5% salary differential between the top step of Fire Captain and the bottom step of the Fire Battalion Chief. Adjust ments to the salary of Battalion Chief shall be reflected in corresponding adjustments to other positions represented by NBFMA necessary to maintain the salary differentials listed in Exhibit A.
Salary Adjustments – this MOU Period
Base salary increases for all NBFMA represented classifications shall be as follows and as specified in Exhibit A:
1. Effective the first day of the pay period following July 1, 2022, there shall be a base salary increase of two percent (2.0%) for all classifications in the bargaining unit. Individuals must be employed by the City on the first day of the pay period following City Council adoption to qualify for retroactive payment of the COLA.
2. Effective the first day of the pay period following July 1, 2023, there shall be a base salary increase of two percent (2.0%) for all classifications in the bargaining unit.
3. Effective the first day of the pay period following July 1, 2024, there shall be a base salary increase of two percent (2.0%) for all classifications in the bargaining unit.
4. Effective the first day of the pay period following July 1, 2025, there shall be a base salary increase of two percent (2.0%) for all classifications in the bargaining unit.
1. Effective the payroll period that includes July 1, 2019 there shall be a base salary increase of two percent (2%) for all represented classifications.
2. Effective the payroll period that includes July 1, 2020, there shall be a base salary increase of two percent (2%) for all represented classifications.
3. Effective the payroll period that includes July 1, 2021, there shall be a base salary increase of two percent (2%) for all represented classifications.
B. Salary Differential
The Battalion Chief assigned as the Staff Battalion Chief shall receive an additional
7.5% of base pay over Battalion Chiefs while assigned to that position. Assignment as a Staff Battalion Chief is typically for 2 years, unless extended by the Fire Chief. 7-7
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Designation as a Staff Battalion Chief does not trigger a property interest in the position and removal from the position does not trigger any right of appeal. Staff Battalion Chiefs shall receive an additional 7.5% of base pay over Line Battalion Chiefs. This does not apply to modified/light duty assignments.
Line Battalion Chiefs who are assigned to modified or light duty assignments are not eligible for this pay.
C. Overtime - Hours Worked
The City and Association agree that all unit classifications are properly exempted from the overtime provisions of the Fair Labor Standards Act.
However, NBFMA members may be required to work additional floor shifts in excess of their regular work schedule. Off-duty employees in the Battalion Chief classification who are assigned by the Fire Chief or desi gnee to additional fire suppression work shift for an emergency assignment, or to replace another Battalion Chief who is on an approved leave, will receive overtime pay equal to one-and-one-half times’ the employees base rate of pay.
Use of Flex Leave, Comp Time, or other paid leaves are not considered hours worked for the purpose of det ermining overtime eligibility. Regular staff meetings or other assignments will not b e eligible for overtime at the 1½ rate and shift exchanges between two Battalion Chief s do not qualify for overtime compensation.
Strike Team Actions. In the event that a Unit employee is assigned to provide fire suppression services as part of a regional, state, or federal strike team organized by State or Federal officials and when all of the below Conditions exist, that Unit employee shall be paid at the time and one -half (1½) 56-hour rate. The conditions are:
• The Unit employee is working outside of his or her regularly scheduled hours;
• The Strike Team is operating outside of the city limits; • The Unit employee is on duty on the Strike Team for more than eight (8) hours;
• A disaster declaration has been approved by the State or Federal government for the fire suppression action; and
• The costs for these overtime hours are specifically authorized for reimbursement by the state or federal government.
Compensatory Time. In lieu of overtime , members may elect t o accrue compensatory time off. Compensatory time off is provided per this MOU, and not pursuant to the Fair Labor Standards Act. Staff personnel may accrue a maximum of 120 hours. Line personnel may accrue a maximum of 196 hours.
The provisions for accrual and use of compensatory time shall be provided in the Fire Department Standard Operating Procedure.
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All other overtime not specified above will be at the straight time rate.
D. Required Uniform
City shall pay the entire cost of providing NBFMA member with each component of the required NBFD uniform. The required NBFD uniform includes shoes, badges and insignias, uniform pants, uniform shirts, uniform jackets and liner, belts, sweatshirt, and turnout safety clothing. City shall not be responsible for providing employee with socks, underwear, cap or workout shoes, or other clothing.
PERS Reporting of Uniform Allowance - To the extent permitted by law, the City shall report to the California Public Employees’ Retirement System (CalPERS) the uniform allowance of $1,519 annually, paid biweekly, for each sworn classification as special compensation in accordance with Title 2, California Code of Regulation, Section 571(a)(5). Notwithstanding the previous sentence, for “new members” as defined by the Public Employees’ Pension Reform Act of 2013, the uniform allowance will not be reported as pensionable compensation to CalPERS.
Specifically, the City shall report as compensation earned the value of provided uniforms at $1,519 annually ($58.42 per pay period) in acc ordance with PERS requirements. The parties agree the reported value of uniforms is intended to reflect clothing such as pants, shirts, jackets, and related attire and excludes health and safety related equipment, including safety boots and turnout gear.
E. Scholastic Achievement/Certificate Achievement Pay
NBFMA members are entitled to additional compensation contingent upon scholastic/certificate achievement ("Scholastic/Certificate Achievement Pay").
NBFMA members may apply for increases pursuant to this Section when eligible and scholastic/certificate achievement pay shall be included in the member's paycheck for the pay period immediately after approval by the Fire Chief. It is the responsibility of the NBFMA member to apply for Scholastic/Certificate Achievement Pay. Approval of the member's application shall not be unreasonably withheld or delayed, and the member shall not be entitled to receive scholastic/certificate achievement pay prior to the date the application is approved even though the member may have been eligible prior to approval.
NBFMA members shall receive scholastic achievement/certificate pay in accordance with the City’s evaluation and approval process for degrees and/or coursework awarded by accredited community col leges, state colleges, or universities or other approved institutions as follows: in accordance with the following:
Scholastic Achievement
Degree Scholastic Pay Percentage
AA/AS 3.5%
BA/BS 5.5%
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MA/MS/JD 7.0%
Certificate Pay
Coursework Compensation
Certified Chief Fire Officer 3.0% of base pay
Certified Strike Team Leader $100 per month
The parties agree that to the extent permitted by law, the Scholastic Achievement/Certificate pay in this section is special compensation and shall be reported to CalPERS as such pursuant to Title 2 CCR, Section 571(a)(2) and 571.1(b)(2) Educational Incentive Pay.
F. Bilingual Pay
Employees certified as bilingual (Spanish) shall be eligible to receive one hundred fifty ($150.00) dollars per month ($69.23 per pay period) in bilingual pay. The certification process will confirm that employees are fluent at the street conversational level in speaking, reading and writing Spanish. Employees shall receive bilingual pay the first full pay period following certification.
Additional languages may be certified for compensation pursuant to this section by the Fire Chief.
The parties agree that to the extent permitted by law, the bilingual pay in this section is special compensation and shall be reported to CalPERS as such pursuant to Title 2 CCR, Section 571(a)(4) and 571.1(b)(3) Bilingual Premium.
G. Court Standby Pay
NBFMA members who, pursuant to subpoena compelling attendance to testify to acts, observations, or omissions occurring in the course and scope of employment or at the direction of their supervisor, are required, while off -duty, to remain within a certain response time from court, shall be considered to be on "court standby time" and shall receive four hours of pay for each eight hours of court standby time. NBFMA members shall, when required to appear in court pursuant to a subpoena or the direction of their supervisor to testify at to matters relating to their employment with the City, be considered to be on duty and shall be paid accordingly. Members shall remit all witness fees received for testifying or appearing on any matter for which the member is eligible to receive court standby time.
H. Compaction Adjustment
Effective July 1, 2017, the Battalion Chief salary range was adjusted by 3.0% to address compaction between Fire Captain and Battalion Chief. 7-10
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SECTION 3. LEAVES
A. Flex Leave
NBFMA members shall accrue flex leave as follows.
The Flex leave program shall be administered as follows:
a. Newly hired NBFMA members shall not accrue flex leave until continuously employed by the Newport Beach Fire Department for a period of three (3) months provided, however, if a member in the flex leave program becomes sick during the first three months of employment, t he City will advance up to three (3) months of accrual for line employees (63.50 hours ) / staff employees (45.30 hours) for use by the member to recover from illness.
In the event the City advances paid leave time and the employee is terminated or resigns before completing three months of continuous employment, the member's final check shall be reduced by an amount equal to the number of flex leave hours advanced multiplied by the member's hourly rate of pay.
b. Newly hired NBFMA members shall accrue three (3) months of flex leave [line employees (63.50 hours) / staff employees (45.30 hours)] immediately upon completing three (3) months continuous employment with the Newport Beach Fire Department, provided however, this amount shall be reduced by any flex leave time advanced during the first three months of employment. c. Earned flex leave in excess of the maximum permitted will be paid bi-weekly at the member's hourly rate of pay (“Spillover Pay”). NBFMA members may not elect to buy down accrued Flex Leave below the current threshold for payment unless, during the twelve months preceding the election, the member has taken at least ninety -six (96) hours of paid leave if a line employee and eighty (80) hours of paid leave if a staff employee.
Employees shall have the option of converting accrued Flex Leave to cash on an hour for hour basis subject to the following: On or before the pay period which includes December 15 of each calendar year, an employee may make an irrevocable election to cash out accrued flex leave which will Years
of Continuous
Service
LINE EMPLOYEES STAFF EMPLOYEES
Accrual
Hours/Pay Period
Maximum
Accrual
Accrual
Hours/Pay Period
Maximum
Accrual
Less than 5 9.77 508.04 6.97 362.44
5 but less than 9 10.69 555.88 7.63 396.76
9 but less than 12 11.62 604.24 8.33 433.16
12 and over 12.54 652.08 8.95 465.40
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be earned in the following calendar year. The employee can elect to receive the cash out in the pay period which includes June 30 and the pay period which includes December 15 for those Flex Leave benefits that have been earned during that portion of the year. In no event shall the flex leave balance be reduced below what each employee can accrue for fifty-two pay periods. However, in no event shall the flex leave balance be reduced below what each employee can accrue for fifty-two pay periods. d. All requests for scheduled flex leave shall be submitted to appropriate department personnel. In no event shall a member take or request flex leave in excess of the amount accrued.
e. Members shall be paid for all accrued flex leave at their current hourly rate of pay upon termination.
f. Concurrent with the July 1, 2017, 3% compaction salary range adjustment as stated in Section 2, G, the Longevity Pay incentive program in Section 3, A, 1 was eliminated for all members.
B. Holiday Time
Accrual
The provisions of this subsection shall apply to all NBFMA members on a pro-rata basis. NBFMA members who are line employees shall accrue holiday time at the rate of 5.54 hours per pay period. NBFMA who are staff employees shall accru e holiday time at the rate of 3.96 hours per pay period.
All employees including Staff Employees shall receive their h oliday time in pay.
Holiday pay shall be paid bi -weekly with the regular check. The parties agree, to the extent permitted by law, the compensation in this section is special compensation for those employees who are normally required to work on an approved holiday because they work in positions that require scheduled staffing without regard to holidays and shall be reported as such pursuant to Title 2 CCR, Section 571(a)(5) and 571.1(b)(4) Holiday Pay.
Staff Employees
Staff Employees may be required to take specified City holidays off, in the sole discretion of the Fire Chief. Time will be charged against the employee’s flex leave bank.
C. Bereavement Leave
Bereavement leave shall be defined as "the necessary absence from duty by an employee because of a death or terminal illness in his/her immedia te family.” Staff employees shall be entitled to ) forty (40) hours of Bereavement Leave per event while Line Employees shall be entitled to ninety (90) hours of Bereavement Leave per event (terminal illness followed by death is considered one event). Leave hours need 7-12
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not be used consecutively, but should occur in proximate time to the occurrence but no more than 90 days from the date of the death of the family member. Exceptions to the 90 day requirement may be made at the sole discretion of the Fire Ch ief.
Bereavement leave shall be administered in accordance with the provisions of the Employee Policy Manual. For the purpose of this section immediate family shall mean an employee’s father, stepfather, mother, stepmother, brother, sister, wife, husband, registered domestic partner, child, stepchild, or grandparent, and the employee’s spouse/domestic partner’s mother, father, brother, sister, child or grandparent. An employee requesting bereavement leave shall notify his/her supervisor as soon as possible of the need to take leave.
D. Jury Duty
Employees who are summoned to perform jury service shall be entitled to their regular compensation while serving; provided the fees, except mileage and subsistence allowance, if any, which they receive as jurors, are remitted to the City.
If an employee calls in at night and finds out that he/she must report to jury duty the next day (and is scheduled to be working that day as part of a regular shift or on an overtime basis) he/she must contact his/her supervisor as soon as possible so that coverage can be arranged for his/her shift.
E. Family Sick Leave
Unit employees shall be entitled to use their annual leave accrual as set forth in Labor Code section 233.
F. Workers’ Compensation Leave
The City will comply with the provisions of Labor Code section 4850 for workers’ compensation claims.
G. Reassignment
In the event a line employee is reassigned to a staff position, or a staff employee is reassigned to a line position, the City shall automatically convert the Flex Leave , Bereavement Leave and other benefits from the position previously held to the newly assigned position provided. The ratio for conversion of staff employee benefits to line employee benefit shall be 7/5 and the ratio for converting line employee benefits to staff employee benefits shall be 5/7.
H. Early Relief
The parties acknowledge Department of L abor regulation, 29 CFR section 553.225 that provides:
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“It is a common practice among employees engaged in fire protection activities to relieve employees on the previous shift prior to (between the hours of 0600 and 0800) the scheduled starting time. Such early relief time may occur pursuant to employee agreement, either expressed or implied. This
practice will not have the effect of increasing the number of compensable hours of work for employees employed under section 7(k) where it is voluntary on the part of the employees and does not result, over a period of time, in their failure to receive proper compensation for all hours actually worked. On the other hand, if the practice is required by the employer, the time involved must be added to the employee's tour of duty and treated as compensable hours of work.”
The parties acknowledge that if there is early relief, the City does not require it.
The Association agrees that it will advise the Human Resources Director in writing if at any time in the future it learns or believes that the City is requiring early relief.
If that occurs, early relief will immediately end.
SECTION 4. FRINGE BENEFITS
A. Insurance
Benefits Information Committee
The City has established a Benefits Information Committee (BIC) composed of one representative from each employee association and up to three City representatives. The Benefits Information Committee has been established to allow the City to present data regard ing carrier and coverage options, the cost of those options, appropriate coverage levels and other health programs. The purpose of the BIC is to provide each employee association with information about health insurance/programs and to receive timely input from associations regarding preferred coverage options and levels of coverage.
City Contribution
The City has implemented an IRS qualified Cafeteria Plan. In addition to the amounts listed below, the City shall contribute the minimum CalPERS participating employer’s contribution towards medical insurance. Employees shall have the option of allocating Cafeteria Plan contributions towards the City’s existing medical, dental and vision insurance/programs. The City and NBFMA will cooperate in pursuing ad ditional optional benefits to be available through the Cafeteria Plan.
Employees shall be allowed to change coverages in accordance with plan rules and during regular open enrollment periods.
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Effective the pay issue that includes:
The City ’s contribu tion towards the Cafeteria Plan will increase by $200.00 , to $1,824.00 (plus the minimum CalPERS participating employee’s contribution).
Unit members who do not enroll in any health care plan offered by the City must provide proof of minimum essential co verage ("MEC") through another source (other than coverage in the individual market, whether or not obtained through Covered California) and execute an opt out agreement releasing the City from any responsibility or liability to provide health care insuran ce coverage, on an annual basis.
Employees hired as full-time City employees prior to June 22, 2019 who elect to opt out of medical coverage offered by the City because they have provided proof of minimum essential coverage ("MEC") through another source (other than coverage in the individual market, whether or not obtained throug h Covered California) will receive $1,000.00 per month in taxable cash. For these same employees, if they elect medical coverage and spend less than the City contribution provided above, those unused cafeteria plan funds shall be paid to the employee as taxable cash.
Employees hired as full-time City employees on or after June 22, 2019 who elect to opt out of medical coverage offered by the City because they have provided proof of minimum essential coverage ("MEC") through another source (other than coverage in the individual market, whether or not obtained through Covered California) shall receive $500.00 per month in taxable cash. For these same employees, if they elect medical coverage and spend less than the City contribution provided above, there shall be no cash back provided.
Dental Insurance
The existing or comparable dental plans shall be maintained as part of the City’s health plan offerings as agreed upon by the Benefits Information Committee.
Vision Insurance
The existing or a comparable vision plan shall be maintained as part of the City's health plan offerings as agreed upon by the Benefits Information Committee.
B. Additional Health Insurance/Programs
IRS Section 125 Flexible Spending Account
Section 125 of the Internal Re venue Code authorizes an employee to reduce taxable income for payment of allowable expenses such as child care and medical expenses. The City shall maintain a “reimbursable account program” in accordance with the provisions of Section 125 of the Internal Revenue Code, pursuant to which an Association member may request that medical, child care and other eligible expenses be paid or reimbursed by the City out of the employee’s 7-15
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account. The base salary of the employee will be reduced by the amount designated by the employee for reimbursable expenses.
Disability Insurance
The City shall provide Short-Term (STD) and Long-Term (LTD) disability insurance to all regular full time employees with the following provisions:
Short-Term Disability Long-Term Disability
Benefit Amount 66.67% of covered wages 66.67% of covered wages Maximum Benefit $1,846 weekly $15,000 monthly
Waiting Period 30 calendar days 180 calendar days
Employees shall not be required to exhaust accrued paid leaves prior to receiving benefits under the disability insurance program. Employees may not supplement the disability benefit with paid leave once the waiting period has been exhausted.
Employees shall pay one percent (1%) of base salary as a post -tax deduction for this benefit. Efffective the first premium payment following the City Council adoption of the MOU in Fiscal Year 2022 -23, the City will no longer require unit members to pay one percent (1%) of base salary for this benefit and this Paragraph shall be deleted.
Life Insurance
The City shall provide life insurance for all full -time employees in $1,000 increments equal to one times the employee’s annual salary up to a maximum of $50,000. At age 70 the City -paid life insurance is reduced by 50% of the pre-70 amount. This amount remains in effect until the employee retires from City employment. Employees may also purchase supplemental life insurance at their own cost.
C. Employee Assistance Program
City shall provide an Employee Assistance Prog ram (EAP) for Association members through a properly licensed provider. Association members and their family members may access the EAP subject to provider guidelines.
D. PERS Retirement Benefits
Retirement Formula
The City contracts with the California Public Employees ’ Retirement System (“CalPERS” or “PERS”) to provide retirement benefits for its employees. Pursuant 7-16
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to prior agreements and state mandated reform, the City has implemented first, second and third tier retirement benefits as follows:
Tier I: Employees hired by the City on or before November 23, 2012, the retirement formula shall be 3%@50, calculated on the basis of the highest consecutive 12 month period selected by the employee.
Tier II: For classic members (as defined in the Public Employees’ Pension Reform Act) employees first hired by the City on or after November 24, 2012, and who are not new members as defined in Government Code Section 7522.04(f), the retirement formula is 2%@50. For these same employees, final com pensation will be based on the highest annual average compensation earnable during the three consecutive years of employment immediately preceding the effective date of his or her retirement or any other three consecutive year period chosen by the employee as set forth in Government Code section 20037.
Tier III (“PEPRA”): For employees first hired by the City on or after January 1, 2013, who are new members as defined in the Public Employees’ Pension Reform Act, the retirement formula shall be 2.7%@57 provided for by the Public Employees’ Retirement Law at Government Code section 7522.25(d).
For these same employees, final compensation will be based on the highest annual average pensionable compensation during the three consecutive years of employment immediately preceding the effective date of his or her retirement or any other three consecut ive year period chosen by the employee as set forth in Government Code section 7522.32(a).
Employee Contributions
Unit members shall contribute amounts toward the PERS retirement benefit, to the extent permissible by law, as set forth below. Should an y such provision be deemed invalid, the City and Association agree to meet for the purpose of renegotiating employee retirement contributions or other equivalent economic adjustments.
Employee retirement contributions that are in addition to the normal PERS Member Contribution shall be made in accordance with Government Code §20516(f) and calculated on base pay, special pays, and other pays normally reported as pensionable compensation or compensation earnable, and will be made on a pre- tax basis through p ayroll deduction, to the extent allowable by the Internal Revenue Code.
If, prior to June 20, 2026, a court of competent jurisdiction or formal legal opinion determines that the City’s cafeteria benefit plan is a bona fide plan such that the City’s contributions towards medical premiums will not be included in the employee’s regular rate of pay under the Fair Labor Standards Act, the City will increase the monthly contribution towards the Cafeteria Plan by a total of $200 over the remaining term of the agreement. The $200 will be prorated annually over 7-17
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the remaining term of the agreement, beginning with the first day of the month following the day it becomes bona fide.
Example:
If the cafeteria benefit plan becomes bona fide at the beginning of the third year of the agreement, the City will increase the monthly contribution by $100 per month in January of Year 3 and by an additional $100 per month (total $200) in January of Year 4. If the cafeteria benefit plan becomes bona fide at the beginning of the second year of the agreement, the $200 will be spread evenly over the remaining three years of the agreement, or at $67 per month in Year 2, another $67 per month in Year 3 and another $67 per month in Year 4. If the City’s cafeteria benefit plan is n ot determined to be a bona fide plan as outlined above by a court of competent jurisdiction or formal legal opinion prior to June 30, 2026, this paragraph will become ineffective and the City’s obligation to increase the cafeteria contribution by $200 will cease on June 30, 2026.
Tiers I and II:
Effective June 22, 2019, a All members in Tier I and II shall contribute the full statutory member contribution equal to 9% of compensation earnable plus an additional half of one percent (.5%) of compensation earnable for a total of 3.5% of compensation earnable of the Employer rate for a total contribution of 12.5% of compensation earnable.
Effective the pay period which includes July 1, 2020, all members in Tier I and II shall contribute the full statutory member contribution equal to 9% of compensation earnable plus an additional half of one percent (.5%) of compensation earnable for a total of 4.0% of compensation earnable of the Employer rate for a total contribution of 13.0% of compensation earnable.
Effective the pay period which includes July 1, 2021, all members in Tier I a nd II shall contribute the full statutory member contribution equal to 9% of pensionable compensation earnable plus an additional half of one percent (.5%) of compensation earnable for a total of 4.5% of compensation earnable of the Employer rate for a total contribution of 13.5% of compensation earnable.
Tier III:
The normal member contribution rate for Tier III members is 50% of the total normal cost and is calculated annually for possible adjustments, as provided in the PERS valuations.
Effective J une 22, 2019, Tier III unit members will contribute the full statutory member contribution. If that rate is less than 12.5% of pensionable compensation these employees will contribute an additional percentage of pensionable compensation of the Employer rat e to achieve a total contribution of 12.5% of pensionable compensation.
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16 NBFMA MOU 2019-20222022-2026
Effective the pay period which includes July 1, 2020, Tier III unit members will contribute the full statutory member contribution. If that rate is less than 13% of pensionable compensation these employees will contribute an additional percentage of pensionable compensation of the Employer rate to achieve a total contribution of 13% of pensionable compensation.
Effective the pay period which includes July 1, 2021, Tier III unit members will contribute the full statutory member contribution. If that rate is less than 13.5% of pensionable compensation these employees will contribute an additional percentage of pensionable compensation of the Employer rate to achieve a t otal contribution of 13.5% of pensionable compensation.
The City’s contract with PERS shall also provide for:
a. The military buy -back provisions pursuant to Section 20930.3 of the California Government Code and the highest year benefit pursuant to Section 20042.
b. The Level 4 1959 Survivors Benefits.
c. The pre-retirement option settlement 2 death benefit (Section 21548).
E. Defined Contribution Plan
To the extent allowed by PERS, the IRS and other applicable regulatory agencies and laws, unit members who shall be enrolled in the 2% @ 50 retirement formula or 2.7% @ 57 formula , shall be eligible to participate in a defined contribution plan to be administered by the City or its designee in accord with said regulatory agency regulations and laws. The defined contribution plan shall be funded by allowing each affected employee to contribute a percentage of base salary each payroll period. The City shall match any such employee contributions up to a maximum of 1.5% of base salary. The employee only cont ributions shall be deemed fully vested at the time of its deposit. The employer only matching contribution shall vest upon a PERS retirement being implemented as follows: 100% - age 55+; 80% - age 54; 60% - age 53, 40% - age 52; 20% - age 51.
F. Retiree Medical Benefit
Background
In 2005, the City and all Employee Associations agreed to replace the previous “defined benefit” retiree medical program with a new “defined contribution” program.
The process of fully converting to the new program will be ongoing for an extended period. During the transition, employees and (then) existing retirees have been 7-19
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17 NBFMA MOU 2019-20222022-2026
administratively classified into one of three categories. The benefit is structured differently for each of the categories. The categories are as follows:
a. Category 1 - Employees newly hired on or after January 1, 2006. b. Category 2 - Active employees hired prior to January 1, 2006, whose age plus years of service as of January 1, 2006 was less than 50 (46 for public safety employees).
c. Category 3 - Active employees hired prior to J anuary 1, 2006, whose age plus years of service was 50 or greater (46 for public safety employees) as of January 1, 2006.
Program Structure
This is an Integral Part Trust (IPT) Retiree Health Savings Plan (“RHS”, formerly the MERP plan):
a. For employees in Category 1, the program is structured as follows:
Each employee will have an individual RHS account for bookkeeping purposes, called his or her “Employee Account.” This account will accumulate contributions to be used for health care expense s after separation. All contributions to the plan are either mandatory employee contributions or City paid employer contributions, so they are not taxable to employees at the time of deposit. Earnings from investment of funds in the account are not taxable when pos ted to the account.
Benefit payments are not taxable when withdrawn, because the plan requires that all distributions be spent for specified health care purposes.
Contributions will be in three parts.
Part A contributions (mandatory employee contributions): 1% of Salary.
Part B contributions (employer contributions): $2.50 per month for each year of service plus year of age (updated every January 1 st based on status as of December 31st of the prior year).
Part C contributions (leave settlement as determined by Association):
The Association will determine the level of contribution for all employees it represents, subject to the following constraints. All employees within the Association must participate at the same level. Th e participation level should be specified as a percentage of the leave balance on hand in each employee’s leave bank at the time of separation from the City.
For example, if the Association wishes to specify 50% of the leave balance as the participation level, then each member leaving the City, or cashing out leave at any other time, would have the cash equivalent of 50% of the amount that is cashed out added to the RHS, on a pre-tax basis. The remaining 50% would be paid in cash 7-20
2. 18 NBFMA MOU 2019-20222022-2026
as taxable income. Individual employees would not have the option to deviate from this breakout.
The Association has decided to participate in Part C contributions at the level of zero percent (0%) Flex. This amount may be changed, on a go forward basis, as part of a future meet and confer process. However, the participation level must be the same for all employees within the Association. Additionally, the purpose and focus of these changes should be toward long -term, trend type adjustments. Due to IRS restrictions regarding “constructive receipt,” the City will impose restrictions against frequent spikes or drops that appear to be tailored toward satisfying the desires of a group of imminent retirees.
Spillover pay and Compensatory Time are not eligible for Part C contributions.
Nothing in this section restricts taking leave for time off purposes Part A contributions may be included in PERS compensation. Part B and Part C contributions will not be included in PERS compensation.
Part A contributions begin upon enrollment in the program and are credited to each RHS Employee Account each pay period. Eligibility for Part B contributions is set at five years of vested City employment (i.e. five years at full time status) . At that time, the City will credit the first five years’ worth of Part B contributions into the Employee Account (interest does not accrue during that period). Thereafter, contributions are made bi-weekly. Part C deposits, if any, will be made at the time of employment separation.
Each Employee has a r ight to reimbursement of medical expenses (as defined below) from the Plan until the Employee Account balance is zero. This right is triggered upon separation. If an employee leaves the City prior to five years of employment, only the Part A contribution s and Part C leave settlement contributions, if any, will be in the RHS Employee Account. Such an employee will not be entitled to any Part B contributions. The exception to this is a full -time employee, participating in the program, who leaves the City due to industrial disability during the first five years of employment. In such cases, the employee will receive exactly five years’ worth of Part B contributions, using the employee’s age and compensation at the time of separation for calculation purpose s. This amount will be deposited into the employee’s RHS account at the time of separation.
Distributions from RHS Employee Accounts are restricted to use for health insurance and medical care expenses after separation, as defined by the Internal Revenue Code Section 213(d) (as explained in IRS Publication 502), and specified in the Plan Document. In accordance with current IRS regulations and practices, this generally includes premiums for medical insurance, dental insurance, vision insurance, supple mental medical insurance, long term care insurance, and miscellaneous medical expenses not covered by insurance for the employee and his or her spouse and legal dependents – again only as permitted by IRS Publication 502. Qualification for dependency stat us will be determined by 7-21
19 NBFMA MOU 2019-20222022-2026
guidelines in IRC 152. If used for these purposes, distributions from the RHS accounts will not be taxable. Cash withdrawal for any other purpose is prohibited.
Under recent IRS Revenue Ruling 2005 -24, any balance remaining in t he Employee Account after the death of the employee and his or her spouse and/or other authorized dependents (if any) must be forfeited. That particular RHS Employee Account will be closed, and any remaining funds will become general assets of the plan.
The parties agree that the City’s Part B contributions during active employment constitute the minimum CalPERS participating employer’s contribution (i.e., the CalPERS statutory minimum amount) towards medical insurance after retirement.
The parties also agree that, for retirees selecting a CalPERS medical plan, or any other plan with a similar employer contribution requirement, the required City contribution will be withdrawn from the retiree’s RHS account. b. For employees in Category 2, the program is the same as for those in Category 1, with the following exception:
In addition to the new plan contributions listed above, current employees who fully convert to the new plan will also receive a one -time City contribution to their individual RHS accounts that equates to $100 per month for every month they contributed to the previous “defined benefit” plan, to a maximum of 15 years (180 months). This contribution will be made only if the employee retires from the City and at the time of retirement. No interest will be earned in the interim.
Employees in Category 2 who ha d less than five years’ service with the City prior to implementation of the new program will only receive Part B contributions back to January 1, 2006 when they reach five years total service. c. For employees in Category 3, the program is the same as for those in Category 2, with the following exception:
For employees in this category, the City will make no Part B contributions while the employees are still in the active work force. Instead, the City will contribute $400 per month into each of their RHS accounts after they retire from the City, to continue as long as the employee or spouse is still living.
Each employee will contribute a flat $100 per month to the plan for the duration of their employment to partially offset part of this expense to the City. The maximum benefit provided by the City after retirement is $4,800 per year, accruing at the rate of $400 per month. There is no cash out option for these funds, and they may not be spent in advance of receipt.
Employees in this category will also receive an additional one-time City contribution of $75 per month for every month they contributed to the previous plan prior to January 1, 2006, up to a maximum of 15 years (180 months). This contribution will be made to the RHS account at the time of retirement, and only if the employee retires from the City. No interest will be earned in the interim. 7-22
20 NBFMA MOU 2019-20222022-2026
Administration
Vendors have been selected by the City to administer the program. The contract expense for program -wide administration by the vendor will be paid by the City.
However, specific vendor charges for individual account transactions that vary according to the investment actions taken by each employee, such as fees or commissions for trades, will be paid by each employee.
The City’s Defe rred Compensation Committee, or its successor committee, will have the authority to determine investment options that will be available through the plan.
G. Deferred Compensation
Each employee shall have a deferred compensation account set up by the City a nd subject to the rules of IRS Code section 457 to which s/he may make contributions.
The City shall contribute to each employee’s deferred compensation account each pay period as follows:
1. Effective June 22, 2019, the City shall contribute twenty-one dollars and sixty - seven cents ($21.67) per pay period to each employee’s deferred compensation account.
2. Effective the first day of the pay period which includes July 1, 2020, the City shall contribute an additional twenty-one dollars and sixty-seven cents ($21.67) per pay period to each employee’s deferred compensation account for a total of forty-three dollars and thirty-five cents ($43.35) per pay period to each employee’s deferred compensation account.
3. Effective the first day of the pay period which includes July 1, 2021, the City shall contribute an additional twenty-one dollars and sixty-seven cents ($21.67) per pay period to each employee’s deferred compensation account for a total of sixty -five dollars and two cents ($65.02) per pay perio d to each employee’s deferred compensation account.
Under federal law, there is an annual maximum contribution which may be made to an employee’s IRS Code section 457 account. Although the City will be making contributions to employees’ accounts each pay period, it is the employees’ responsibility to track their total contribution amount. If an employee’s account contributions reach the annual 457 maximum, the City will stop making contributions for the remainder of the calendar year and will not owe the e mployee any additional compensation related to this section.
All bargaining unit employees in paid status for the entirety of the pay period following City Council adoption of the MOU will receive a one-time lump sum deposit of $2,000 into their deferred compensation account. The parties intend and understand that this lump sum payment is non-pensionable and will not be reported to CalPERS. 7-23
3. 21 NBFMA MOU 2019-20222022-2026
H. Tuition Reimbursement
Maximum tuition reimbursement for NBFMA members shall be $1,500 per fiscal year.
College Courses
NBFMA members attending accredited community colle ges, colleges, trade schools or universities may apply for reimbursement of one hundred percent (100%) of the actual cost of tuition, books, fees or other student expenses for approved job–related courses. Reimbursement is contingent upon the successful completion of the course. Successful completion means a grade of "C" or better for undergraduate courses and a grade of "B" or better for graduate courses. All claims for tuition reimbursement require the approval of the Human Resources Director.
Non-College Courses
NBFMA members attending job-related classes, courses, and seminars given by recognized agencies, organizations or individuals other than accredited college institutions may apply for reimbursement of one hundred percent (100%) of the actual cost of tuition, parking fees, travel and lodging expenses. Unit members who must stay in lodging to attend such classes, courses or seminars because of their location are required to seek single occupancy governmental rates (at GSA rates) when booking lodging for the class, course or seminar. Reimbursement for more than single occupancy governmental rates will be provided only if such rates are not available and if approved by the Fire Chief.
Job-related courses and seminars will be considered pre -authorized in the following areas: management and supervision, oral and written communications, conflict resolution, fire ground operations, rescue systems, legal issues, media relations, risk management, EMS, health and safety, apparatus o perator, auto extrication, fire prevention, arson investigation, and critical incident stress management.
Reimbursement is contingent upon the successful completion of the course.
Successful completion means a document or certificate showing successful completion of the class or seminar. All claims for tuition reimbursement require the approval of the Fire Training Chief before submittal to Human Resources.
I. Annual Physical Examinations
All NBFMA members shall participate in the Department Fitness Program as outlined in Department SOP.
J. Physical Conditioning Equipment/Apparel
City shall provide workout apparel for each NBFMA member, to be replaced on an “as needed” basis. NBFMA members shall wear City provided workout apparel when working out on duty.
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22 NBFMA MOU 2019-20222022-2026
SECTION 5. MISCELLANEOUS PROVISIONS
A. Reductions in Force/Layoffs
The provisions of this section shall apply when the City Manager determines that a reduction in the work force is warranted because of actual or anticipated reductions in revenue, reorganization of the work force, a reduction in municipal services, a reduction in the demand for service or other reasons unrelated to the performance of duties by any specific employee. Reductions in force are to be accomplished, to the extent feasible, on the basis of seniority within a particular Classification or Series and this Section should be interpreted accordingly.
Definitions
a. "Layoffs" or "Laid off" shall mean the non -disciplinary termination of employment.
b. "Seniority" shall mean t he time an employee has worked in a specific Classification within a Series calculated from the date on which the employee was first granted regular status, subject to the following:
i. Credit shall be given only for continuous service (as described in the next paragraph) subsequent to the most recent appointment to regular status in the Classification or Series;
ii. Seniority shall include time spent on industrial leave, military leave and leave of absence with pay, but shall not include time spent on any other authorized or unauthorized leave of absence.
iii. For purposes of determining layoffs within any Classification, seniority shall mean the time an employee has worked within any Classification within the Series.
c. "Classification" shall mean one full time position identical or similar in duties and embraced by a single job title authorized in the City budget and shall not include part -time, seasonal or temporary positions. Classifications within a Series shall be ranked according to pay (lowest ranking, lowest pay).
d. In this bargaining unit, there is one "Series" made up of one classification represented by the Association – Fire Battalion Chief.
e. In this bargaining unit, since the Series consists of only one classification (Battalion Chief) "Bumping Rights", " Bumping" or "Bump" shall mean the right of a Battalion Chief who is subject to layoff to displace a less senior employee in a lower Classification which he/she has held in the Department.
No employee shall have the right to Bump into a Classification for which the employee does not possess the minimum qualifications such as specialized 7-25
1. 23 NBFMA MOU 2019-20222022-2026
education, training or experience, provided, however, the City shall allow an employee to become re-certified as an EMT or a paramedic in the event the employee's certification has expired due to promotion to another position.
An employee has the right to "Bump" into only those positions the employee has previously held with the Department.
Procedures
In the event the City Manager determines to reduce the number of Battalion Chiefs, the following procedures are applicable:
a. Battalion Chiefs shall be laid off in inverse order of seniority; b. A Battalion Chief shall have the right to Bump a less senior em ployee in a lower ranking Classification which he/she has held within the Department if he/she has more seniority which includes time in class as a Battalion Chief and lower classifications held within the Department. An employee who has Bumping Rights sh all notify the Department Director within seven (7) working days after notice of layoff of his/her intention to exercise Bumping Rights.
c. In the event two or more Battalion Chiefs are subject to layoff and have the same seniority, they shall be laid off in inverse order of their position on the eligibility list or lists from which they were appointed. In the event at least one of the employees was not appointed from an eligibility list, the Department Director shall determine the employee(s) to be laid off.
Notice
Employees subject to lay-off shall be given at least thirty (30) days advance notice of the layoff or thirty (30) days pay in lieu of notice. In addition, employees laid off will be paid for all accumulated paid leave, holiday leave (if any).
Re-Employment
Regular employees who are laid off shall be placed on a Department re - employment list in reverse order of layoff. Re -employment lists will be valid for two (2) years. The re -employment list shall remain in effect until exhausted by removal of all names on the list. In the event a vacant position occurs in the Classification which the employee occupied at the time of layoff, or a lower ranking Classification within a Series, the employee at the top of the Departmen t re - employment list shall have the right to appointment to the position, provided, he or she reports to work within seven (7) days of written notice of appointment. Notice shall be deemed given when personally delivered to the employee or deposited in the U.S. Mail, certified, return receipt requested, and addressed to the employee at his or her past known address. Any employee shall have the right to refuse to be placed on the re -employment list or the right to remove his or her name from the re-employment list by sending written confirmation to the Human Resources Director.
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4. 24 NBFMA MOU 2019-20222022-2026
Demotion
Regular employees who are demoted because of reduced staffing levels shall be placed on a Department promotional list in reverse order of demotion. This promotional list shall remain in effect until exhausted by removal of all names on the list.
Severance Pay
Regular employees who are laid off shall, as of the date of lay -off, receive one week severance pay for each year of continuous service with the City of Newport Beach, but in no case to exceed ten (10) weeks of severance compensation.
B. Fire Suppression Staffing Levels
Move-up and move-down coverage shall be used to staff the fire suppression battalion chief position in the absence of available battalion chiefs.
C. Staff Assignment Schedule
NBFMA members assigned to staff positions shall have the option to work a 5/40, 4/10 or 9/80 schedule; the staff member and the Fire Chief must mutually agree to the schedule selected prior to it becoming effective. The Fire Chief retains the right to assign the staff member to a different schedule, or deny the member’s request for a change of schedule, if the Fire Chief determines that the member is not able to perform their job duties or the ope rational needs of the department are not being met.
Employees will be given 2 weeks’ notice if the Fire Chief determines a change in schedule is needed in order to minimize disruption of the member’s personal/professional obligations. In addition, occasionally and at the discretion and approval of the Fire Chief, unit employees (who are all FLSA exempt) working a 4/10 or 9/80 schedule may adjust their regularly scheduled day off if such change does not disrupt departmental operations.
D. Consecutive Shifts
Members shall be limited to working four (4) 24-hour shifts in a row, after which time the employee shall not work during the next consecutive 24-hour shift. Additional consecutive shifts may be permitted with Fire Chief or designee approval, based upon exigent circumstances.
E. Requirement to Live Within 150 Miles of City Limits
Employees hired as full -time unit members on or after July 1, 2019 are required to live within 150 miles of the City limits.
Signatures on the following page
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5. 6.
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Executed this _____ day of June, 20224-9.
FOR THE NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION:
I
By: ----------------Brian McDonough, President
By: ----------------Justin Carr , Vice-President
FOR THE CITY OF NEWPORT BEACH:
By:
Diane B. DixonKev in Muldoon , Mayor
APPROVED AS TO FORM:
BY: - - ----------------
Peter J. BrownCha rles Sakai, Special Counsel
ATTEST:
By: ____________ _
Leilani Brown, City Clerk
25 NBFMA MOU 2019 20222022-2026
Represented Positions Grade Step Hourly Rate Monthly Rate Annual Salary Fire Battalion Chief, 112 Hours 01 1 51.27$ 12,442$ 149,310$ 2 53.83$ 13,064$ 156,764$
3 56.52$ 13,715$ 164,580$
4 59.35$ 14,403$ 172,830$
5 62.32$ 15,123$ 181,479$
Fire Battalion Chief, Staff 04 1 77.17$ 13,376$ 160,517$ 2 81.04$ 14,046$ 168,555$
3 85.09$ 14,749$ 176,982$
4 89.34$ 15,485$ 185,822$
5 93.81$ 16,261$ 195,127$
Fire Battalion Chief, 80 hours 05 1 71.78$ 12,442$ 149,309$ 2 75.37$ 13,064$ 156,764$
3 79.12$ 13,715$ 164,580$
4 83.09$ 14,403$ 172,831$
5 87.25$ 15,123$ 181,479$
Hourly pay rates rounded to the nearest hundredths. Monthly and annual pay rates rounded to the nearest dollar.
NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION
MOU Term: July 1, 2022 ‐ June 30, 2026
2.0% Cost of Living Adjustment
Effective the pay period following July 1 (July 2, 2022)
EXHIBIT A
7-29
Represented Positions Grade Step Hourly Rate Monthly Rate Annual Salary Fire Battalion Chief, 112 Hours 01 1 52.30$ 12,691$ 152,296$ 2 54.91$ 13,325$ 159,899$
3 57.65$ 13,989$ 167,872$
4 60.54$ 14,691$ 176,287$
5 63.57$ 15,426$ 185,109$
Fire Battalion Chief, Staff 04 1 78.72$ 13,644$ 163,727$ 2 82.66$ 14,327$ 171,927$
3 86.79$ 15,043$ 180,522$
4 91.12$ 15,795$ 189,538$
5 95.69$ 16,586$
199,030$
Fire Battalion Chief, 80 hours 05 1 73.22$ 12,691$ 152,296$ 2 76.87$ 13,325$ 159,899$
3 80.71$ 13,989$ 167,871$
4 84.75$ 14,691$ 176,288$
5 88.99$ 15,426$ 185,109$
Hourly pay rates rounded to the nearest hundredths. Monthly and annual pay rates rounded to the nearest dollar.
NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION
MOU Term: July 1, 2022 ‐ June 30, 2026
2.0% Cost of Living Adjustment
Effective the pay period following July 1 (July 15, 2023) 7-30
Represented Positions Grade Step Hourly Rate Monthly Rate Annual Salary Fire Battalion Chief, 112 Hours 01 1 53.35$ 12,945$ 155,342$ 2 56.01$ 13,591$ 163,097$
3 58.80$ 14,269$ 171,230$
4 61.75$ 14,984$ 179,813$
5 64.84$ 15,734$ 188,811$
Fire Battalion Chief, Staff 04 1 80.29$ 13,917$ 167,002$ 2 84.31$ 14,614$ 175,365$
3 88.53$ 15,344$ 184,133$
4 92.95$ 16,111$ 193,329$
5 97.60$ 16,918$
203,010$
Fire Battalion Chief, 80 hours 05 1 74.68$ 12,945$ 155,341$ 2 78.41$ 13,591$ 163,097$
3 82.32$ 14,269$ 171,229$
4 86.45$ 14,984$ 179,813$
5 90.77$ 15,734$ 188,811$
Hourly pay rates rounded to the nearest hundredths. Monthly and annual pay rates rounded to the nearest dollar.
NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION
MOU Term: July 1, 2022 ‐ June 30, 2026
2.0% Cost of Living Adjustment
Effective the pay period following July 1 (July 13, 2024) 7-31
Represented Positions Grade Step Hourly Rate Monthly Rate Annual Salary Fire Battalion Chief, 112 Hours 01 1 54.41$ 13,204$ 158,449$ 2 57.13$ 13,863$ 166,359$
3 59.98$ 14,554$ 174,654$
4 62.98$ 15,284$ 183,409$
5 66.14$ 16,049$ 192,587$
Fire Battalion Chief, Staff 04 1 81.90$ 14,195$ 170,342$ 2 86.00$ 14,906$ 178,872$
3 90.30$ 15,651$ 187,815$
4 94.81$ 16,433$ 197,196$
5 99.55$ 17,256$
207,071$
Fire Battalion Chief, 80 hours 05 1 76.18$ 13,204$ 158,448$ 2 79.98$ 13,863$ 166,359$
3 83.97$ 14,554$ 174,653$
4 88.18$ 15,284$ 183,410$
5 92.59$ 16,049$ 192,587$
Hourly pay rates rounded to the nearest hundredths. Monthly and annual pay rates rounded to the nearest dollar.
NEWPORT BEACH FIRE MANAGEMENT ASSOCIATION
MOU Term: July 1, 2022 ‐ June 30, 2026
2.0% Cost of Living Adjustment
Effective the pay period following July 1 (July 12, 2025) 7-32
Current Year 1 Year 2 Year 3 Year 4 Total Contract
Cost of Living Adjustment 2.00% 2.00% 2.00% 2.00%
Other Proposals
Scholastic Pay for Masters Degree -
Signing Bonus $2,000/member
Disability Premiums Paid by the City
Baseline Compensation
Base Pay $704,311 $14,086 $28,454 $43,109 $58,058 $143,708 Supplemental Pays 91,864 7,080 9,059 11,078 13,136 $40,353 Overtime 403,827 8,077 16,315 24,717 33,288 $82,397 Pension Contribution 115,127 3,061 5,424 8,002 10,632 $27,119 Cafeteria Plan 94,536 - - - - $0
Other City Paid Benefits 2 63,909 1,199 2,345 3,515 4,708 11,768 SubTotal $1,473,574 $33,502 $61,598 $90,422 $119,822 $305,344 Proposals
Signing Bonus - 8,000 - - - 8,000
Disability Premiums - 4,598 4,690 4,783 4,879 18,950 SubTotal - 12,598 4,690 4,783 4,879 26,950
Total 1,473,574$ 46,100$ 66,287$ 95,205$ 124,701$ 332,294$ Base Salary Increase 3 2.00% 4.04% 6.12% 8.24%
Total Compensation Increase 3.13% 4.50% 6.46% 8.46%
Total Ongoing Compensation Increase 4 2.59% 4.50% 6.46% 8.46% 1 Costs shown in year two reflect the cumulative budget impact in each year as compared to the current budgeted amounts. 2 Includes Medicare, compensated absences, employee assistance program, phone allowances, life insurance, and retiree health savings. 3 Percentage shown in each year is as compared to current base salary, not the prior year. 4 Measured based on the total of all pay and benefits. Percentage shown in each year is as compared to current total compensation, not the prior year.
There are 4 FTE positions in this group.
Cumulative Impact on Employee Compensation
Notes
7.00%
City of Newport Beach
Fire Management Association - Tentative Agreement
May 24, 2022
Key Contract Terms
Summary of Proposal Cost 1
1% Deduction Eliminated
ATTACHMENT B
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8-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 8
CONSENT ITEMS
ITEM NO. 1 MINUTES OF APRIL 21, 2022
SUMMARY: Draft minutes from the April 21, 2022, meeting of the Planning Commission.
The Planning Commission considered the draft minutes and suggested edits from a member of the public. The amended minutes were approved by the following vote:
AYES: Ellmore, Klaustermeier, Kleiman, Koetting , Lowrey, Rosene and Weigand
NOES: None
ABSENT: None
ABSTAIN: None
ACTION: Approved with edits
PUBLIC HEARING ITEMS:
ITEM NO. 2 NEWPORT BEACH TENNIS CLUB DEVELOPMENT AGREEMENT EXTENSION (PA2022-038)
Site Location: 1602 East Coast Highway
SUMMARY: The City and Golf Realty Fund, Managing Owner (“GRF ”), entered into a Development Agreement (“Agreement”) in 2012 to ensure the orderly redevelopment of the Newport Beach Tennis Club site over time with a replacement tennis facility, visitor accommodations, and 5 single-family homes (“Approved Project”). The term of the Agreement is 10 years and it will expire on September 23, 2022, if no action is taken. The Agreement provides GRF the vested right to implement the Approved Project provided it is incompliance with the approved entitlements and development standards specified in the Newport Beach Country Club Planned Community for the Tennis Club site. The Agreement also requires GRF to provide certain public benefits.
GRF requests a 10-year extension.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232, [email protected]
PREPARED BY: Jim Campbell, Deputy Community Development Director, [email protected]
PHONE: 949-644-3210
TITLE: Planning Commission Agenda Report for May 12, 2022 --
Planning Commission Agenda Report for May 12, 2022
May 24, 2022
8-2
ACTION: The Planning Commission opened the public he aring and c ontinued the item to May 26, 2022.
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene and Weigand
NOES: None
ABSENT: None
ABSTAIN: None
ITEM NO. 3 JULIETTE’S CAFÉ AND MARKET (PA2022-018)
Site Location: 1501 Westcliff Drive
SUMMARY: A conditional use permit to establish a 3,584-square foot retail and food service, no late hours with a Type 41 (On-Sale Beer and Wine) Alcoholic Beverage Control (ABC) license (“Project”) within a vacant tenant space previously occupied by a retail bank.
The Project will include 530 square feet of interior net public area and a 1,200-square- foot outdoor patio area. There are no late hours (after 11:00 p.m.) and no dancing or live entertainment area proposed. The application also includes a request to reduce the code required parking by 20 parking spaces.
ACTION: The Planning Commission conducted a public hearing and approved the project as recommended by the following vote:
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene and Weigand
NOES: None
ABSENT: None
ABSTAIN: None
ITEM NO. 4 AMORE FOR DOGS (PA2021-217)
Site Location: 20332 Riverside Drive
SUMMARY: A minor use permit request to establish a small -scale dog rescue operation (i.e., an “accessory commercial kennel”) in conjunction with an existing single - family residence. The scope of work would include the following: (1) Demolishing existing detached a ccessory kennels; (2) Installing seven 60 -square-foot prefabricated kennels (totaling 420 square feet); (3) Remodeling an existing detached 504-square-foot dog wash and laundry building; and (4) Remodeling an existing 1,312-square-foot single-family residence and office area. Also included is a request to reduce the required off -street parking for both the residential and commercial uses.
ACTION: The Planning Commission conducted a public hearing and approved the project as recommended with a minor change to the conditions of approval by the following vote:
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene and Weigand
NOES: None
ABSENT: None
ABSTAIN: None
Planning Commission Agenda Report for May 12, 2022
May 24, 2022
8-3
ITEM NO. 5 RITZ-CARLTON RESIDENCES (PA2021-296)
Site Location: 900 Newport Center Drive
SUMMARY: Request for a coastal development permit, vesting tentative tract map, modification permit, conditional use permit and site development review to convert up to 30% of the hotel rooms at the VEA Newport Beach, (formerly the Ma rriott Resort and Spa) into hotel branded residences pursuant to City Council Policy K -4 and Director’s Determination No. DD2021 -001. The new 22 -story building would include up to 159 units and provide amenities including a spa, pool, event lawn and gym/fitness center. A new 5-level, 408-space subterranean parking structure would be constructed beneath the new residential building. A new 6-level (4-levels below ground & 2 -levels above ground) 400 -parking space parking structure will replace the existing hotel parking structure in substantially the same location and continue to serve the VEA Newport Beach hotel. This item may not be appealed to the California Coastal Commission and is only appealable to the City Council.
ACTION: The Planning Commission conducted a public hearing and approved the project as recommended with a minor change to the conditions of approval by the following vote:
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene and Weigand
NOES: None
ABSENT: None
ABSTAIN: None
ITEM NO. 6 SENATE BILL 9 IMPLEMENTATION CODE AMENDMENT (PA2021-277) Site Location: Citywide
SUMMARY: Senate Bill 9 Implementation Code Amendment - Amendments to Title 19 (Subdivisions) and Title 20 (Planning and Zoning) establ ishing regulations to implement Government Code Sections 65852.21 and 66411.7 that went into effect on January 1, 2022. Specifically, the amendment would allow ministerial subdivisions and the construction of up to two units for lots that are designated for single-family use.
Commissioner Rosene recused himself due to a conflict.
ACTION: The Planning Commission opened the public hearing and continued the item to May 26, 2022.
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, and Weigand NOES: None
ABSENT: None
ABSTAIN: Rosene
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NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 9
ABSTRACT:
Per Section 1102 of the City Charter, the City Manager is to submit the budget to the City Council at least 35 days prior to the beginning of the fiscal year, which is July 1. After reviewing the budget and making such revisions as it may deem advisable, t he City Council shall determine the time for the holding of the public hearing and publish a notice in an official newspaper not less than 10 days prior to said hearing. The Charter requires the City Council to adopt an annual budget each year on or before June 30.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Schedule a public hearing of the City’s Proposed Budget for Fiscal Year 202 2-23 for June 14, 202 2, and direct the City Clerk to publish a notice of said hearing in accordance with Section 1102 of the Newport Beach City Charter.
DISCUSSION:
The City’s Charter requires that the City Council adopt an annual budget each year on or before June 30. Staff has provided the Council with copies of the preliminary budget document and it is available for public review on the City’s website at:
https://www.newportbeachca.gov/government/departments/finance/city-budget-salary
Staff recommends that the City Council set the date for the public hearing on the Fiscal Year 2022-23 budget for June 14, 2022. The public hearing would be noticed for and held during the regular Council meeting.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Scott Catlett, Finance Director/Treasurer - 949-644-3123, [email protected]
PREPARED BY: Shelby Burguan, Budget Manager
[email protected]
PHONE: 949-644-3085
TITLE: Set Public Hearing Date to Adopt Fiscal Year 2022-23 Budget --
Set Public Hearing Date to Adopt Fiscal Year 2022-23 Budget May 24, 2022
9-2
FISCAL IMPACT:
The Fiscal Year 2022-23 proposed budget is balanced, b ut subject to change based on the City Council’s final recommended action.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as d efined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed accor ding to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
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NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
May 24, 2022
Agenda Item No. 10
ABSTRACT:
On June 8, 2021, the City Council approved the 2020 Urban Water Management Plan and the Water Shortage Contingency Plan , both of which are required by the State of California (State). These water plans support long-term water resource planning. At that time, staff committed to updating the water conservation code found in Chapter 14.16 of the Newport Beach Municipal Code.
Utilities Department staff is now presenting and requesting approval for needed updates to the Municipal Code. The updates include feedback received from the November 30, 2021, City Council Study Session, compliance to current State requirements, a review of best practices from other local agencies, modernization, and incorporated feedback from the previous 2015-era drought. The timing of the Municipal Code update is also with the anticipation of further water conservation needed given the current statewide drought.
The significant updates include a name change, now known as the Water Conservation and Water Supply Shortage Program, removing 2013 as the baseline water year, including new State requirements, permanently restricting landscaping watering from 9 a.m. to 5 p.m., updating the process and procedure for declaring water shortages, increasing the water shortage levels from one to six, and updating the requirements within each shortage level.
RECOMMENDATION:
a) Conduct a public hearing;
b) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
c) Waive full re ading, direct the City Clerk to read by title only, i ntroduce Ordinance No. 2022-13, An Ordinance of the City Council of the City of Newport Beach , California, Amending Chapter 14.16 of the Newport Beach Municipal Code Pertaining to Water Conservation and Supply Level Regulations, and pass to second reading on June 14, 2022.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Mark Vukojevic, Utilities Director - 949-644-3011, [email protected]
PREPARED BY: Mark Vukojevic, Utilities Director
PHONE: 949-644-3011
TITLE: Ordinance No. 2022 -13: Amendment to Municipal Code Chapter
14.16, Water Conservation and Water Supply Shortage Program --
Ordinance No. 2022-13: Amendment to Municipal Code Chapter 14.16, Water Conservation and Water Supply Shortage Program
May 24, 2022
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DISCUSSION:
The City of Newport Beach’s Water Conservation Code, Municipal Code Chapter 14.16, was last updated in 2015, during the last drought. Over the past few years, several State requirements have changed and staff has planned to update th e Municipal Code. The updates include feedback r eceived from the November 30, 2021 , City Council Study Session, compliance to current State requirements, a review of best practices from other local agencies, modernization , and incorporated feedback from the previous 2015 -era drought. The propo sed updates are underlined and highlighted using a track -changes feature within Attachment B.
General updates for Municipal Code Section 14.16:
The water supply shortage levels have been increased from four to six levels Updates made to the Findings and Purpose section
Definitions have been deleted, updated, or modernized Edits made to permanent mandatory water conservation requirements Edits made to the restrictions and exemptions within each shortage level Clarifications to the relief from the compliance program Clarifications to the enforcement program
Specific and significant updates:
The code has been renamed to “Water Conservation and Water Supply Shortage Program.”
The year 2013 has been removed from the definition of base (water) amount.
Instead, the base (water) amount “year” will be specified in a resolution when declaring a water shortage. (14.16.020)
A new permanent restriction has been added which prohibits daytime landscape watering (i.e. sprinklers) from 9 a.m. to 5 p.m. (14.16.040B) The permanent restriction which obligates the response time to repair leaks has been changed from seven days to three days. (14.16.040E) A permanent restriction has been added which prohibits the indiscriminate running of water which is wasteful and without reasonable purpose. (i.e. water running from a hose.) (14.16.040R)
The procedure for the determination, declaration, notification, and implementation of a water supply shortage has been updated and is further described in the body of this report. (14.16.050)
A new Level Five Water Supply Shortage category and associated requirements have been created (carved out of the previous Level Four) which is also known as a Severe Shortage. This is compliant with the Water Shortage Contingency Plan. (14.16.100)
A new Level Six Water Supply Shortage category and associated requirements have been created (carved out of the previous Level Four) which is also known as a Catastrophic Shortage. This is compliant with the Water Shortage Contingency Plan. (14.16.110)
Ordinance No. 2022-13: Amendment to Municipal Code Chapter 14.16, Water Conservation and Water Supply Shortage Program
May 24, 2022