Council agenda includes concepts for Balboa Branch library and fire station, closed session on potential litigation related to proposed mooring rent

By SARA HALL

The Newport Beach City Council has a varied and interesting agenda tonight.

At tonight’s meeting (Tuesday, May 14), council will consider: Design concepts for Balboa Branch library/Fire Station no. 1 replacement project; consider terminating a contract for a commercial solid waste hauler; policy amendments to help the public discern if a communication is official or personal, and a license agreement for installation and operation of an electric watercraft charging station at Marina Park. During closed session, council will discuss potential litigation against the city related to the proposed mooring rent increase.

Up last on the agenda, during regular business, council will review the leading concepts and recommend a design for the Balboa Branch library/Fire Station no. 1 replacement project, located at 100 and 110 East Balboa Blvd., on the Balboa Peninsula.

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Renderings by COAR Design Group/Courtesy of City of Newport Beach

Concept renderings of the different options and architectural styles for the Balboa Branch library and Fire Station facility

Based on the input received at previous Board of Library Trustees and Parks, Beaches & Recreation Commission meetings, the architect has produced and refined three different floor plans and two architectural styles for review. With direction from council, staff and the design team will complete production of final plans, permits and entitlements for the project.

The original 566-square-foot Balboa Branch library was constructed in 1929 at the northeast corner of Balboa Boulevard and Island Avenue. The building was eventually expanded by about 4,500 square feet in 1952. A decade later, the 3,423-square-foot fire station was added.

Both facilities were evaluated and rated in poor condition in 2021. As part of the city’s Facilities Financial Plan, the existing Balboa library and fire station are scheduled for replacement with a planned construction start in 2025.

Staff and a council working group met to understand the needs and programming for the proposed new facilities. The goals of the process include:

–Reviewing the site trees’ health for future viability.

–Providing a modern fire facility with accommodations for four staff members and two apparatus bay parking spots.

–Providing a modern, right-sized neighborhood branch library with a well-designed children’s room, work and study areas, up-to-date technology and improved sight lines.

–Trying to work in a neighborhood recreation component that complements the library (playground).

–Trying to find/include additional on- and off-site public parking spaces.

–Including an outdoor programming area.

–Improving access.

–Trying to include an area for beach/area maintenance equipment and material/emergency supply storage.

–Maintaining the existing sewer line in easement.

On Jan. 10, 2023, council approved a professional services agreement to COAR Design Group for the design of the project.

With the identified goals in mind and based on feedback from the Library Board and PB&R meetings, staff is presenting three options for proposed layouts. Each alternative varies slightly in the square footage for the various uses, the number of trees, and planned on-site and street parking spaces.

Option 1 layout orients the facility along Balboa Boulevard with public parking and the library entrance off Bay Avenue. Option 1A was developed to remove the public works storage bay, but otherwise follows the layout orientation of Option 1. Option 2 layout orients the facility along Island Avenue with access to the parking lot from Balboa Boulevard and Bay Avenue.

The proposed themes are “cottage house” or “natural modern” styles.

If council directs staff tonight to continue moving forward with the project, it’s estimated that design and permitting would take approximately one year and construction beginning in the last quarter of 2025.

With the new facility design concepts now complete, a rough construction cost is estimated at $16 million, based on recent regional construction values and market conditions.

Also during regular business, council will consider terminating a contract for a commercial solid waste hauler.

Council initially considered ending the non-exclusive franchise agreement with Key Disposal & Recycling, Inc., on March 26, but, following a passionate plea from the company, they ultimately continued the item until a future meeting (which was continued once more until the May 14 date).

At the time, councilmembers commended the Key Disposal officials for speaking out at the meeting, but also emphasized the need for the company to resolve the compliance issues and provide the specific documentation required by the city.

At that same March meeting, council unanimously agreed to terminate another non-exclusive franchise agreement for commercial solid waste with Haul-Away Rubbish Service Co.

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Newport Beach utilizes a non-exclusive commercial franchise waste hauling system for the collection of municipal solid waste, recyclables, organic waste and construction and demolition debris. Council previously approved a model agreement amending the 2020 franchise agreement to include explicit state diversion compliance requirements and revised insurance requirements for franchisees.

City staff regularly reviews franchise haulers to ensure compliance to the 2020 agreement.

CalRecycle, the state agency responsible for managing statewide recycling and waste management programs, has placed Newport Beach under a corrective action plan (CAP) due to the city failing to meet waste diversion requirements established by state laws that set statewide waste diversion targets for organics, green waste and food scraps, and recyclable waste. Under the CAP, the city is required to demonstrate “significant progress” in meeting the waste diversion requirements established by the legislation.

Staff reported at the March meeting that both Haul-Away Rubbish Service Co. and Key Disposal & Recycling, Inc., failed to comply with multiple terms in the 2020 franchise agreement, which prompted the request for termination. The city issued notices of intention to terminate both contracts on March 8.

According to Charles Springer, the city’s refuse manager, Key Disposal failed to comply with 10 terms of the 2020 franchise agreement and did not provide the city-requested deliverables after issuing the notice of default. Key Disposal officials attempted to cure the default, but either did not supply what was asked or did not supply sufficient response to four of the seven items listed, Springer said at the March meeting.

According to the staff report for tonight’s item, Key Disposal has been unable to fulfill the outstanding requirements. As a result, staff is recommending termination of Key Disposal’s 2020 franchise agreement.

Earlier in the meeting, during closed session, council will confer with legal counsel on one matter. According to the agenda, on April 22, Elise Kern with the law firm of Palmieri, Hennessey & Leifer, LLP, confirmed that Chris Benzen is inclined to pursue litigation against the City of Newport Beach if the council increases the rent for moorings, as recommended by the Harbor Commission.

The agenda also notes that the sole purpose of this closed session matter is to discuss the potential litigation and not to discuss the actual recommendation regarding mooring rental rates. Any change to mooring rental rates will be considered during a future open council meeting.

During the regular meeting, on the consent calendar (items considered routine and usually voted in one motion without discussion unless a councilmember pulls the item), council will consider amending several policies to help the public discern if a communication is official or personal.

The U.S. Supreme Court recently provided guidance regarding steps public entities can take to help ensure that the public can discern when an elected or appointed public official, officer, employee or consultant is communicating on behalf of the public entity or in their personal capacity. City staff is recommending several policy amendments to align with Supreme Court guidance.

In the report for tonight’s item, staff referenced the recent case of Kevin Lindke, who filed a lawsuit against Port Huron, Mich., City Manager James Freed and alleged that his free speech rights were violated. The lawsuit was prompted after Freed deleted Lindke’s comments and eventually blocked Lindke from his personal Facebook profile. Lindke alleged that because Freed sometimes posted job-related posts on his personal Facebook account that the activity was therefore state action and that deleting and blocking Lindke’s responses violated Lindke’s First Amendment right to free speech.

On March 15, the Supreme Court ruled that for a communication by a government official to constitute official action: The official must have “actual authority to speak on behalf of the [entity] on a public matter,” which ensures the conduct is actually attributable to the public entity; and the official must have “purported to exercise that authority” (i.e., the official is speaking in furtherance of the official’s responsibilities, rather than speaking with the official’s own voice).

“While the line between private and public speech can be difficult to draw, the Supreme Court opinion offers guidance regarding steps that can be taken to help the public discern between private and public speech,” the staff report reads.

For example, if Freed’s page had been labeled as “personal” or included a disclaimer that the view expressed were his own, there would be a heavy presumption that all the posts on that account were personal.

Based on the Supreme Court guidance, Newport Beach city staff is recommending amending council policies to:

–Clarify that members are only authorized to convey information that is: Authorized by a council policy or applicable law; factual in nature (e.g., about city programs, projects and other city business), or an official position or policy of the city that has been approved by the City Council as a body. Additionally, the policy provides that when communicating a personal statement or opinion, a member may not use official city email addresses or stationery and is required to make it clear that the communication is personal (i.e., “the views expressed are strictly my own”).

–Designate who may communicate with the media on behalf of the city; how that information may be distributed and requiring the use of disclaimers for personal communications.

–Provide that private social media accounts and emails may not be used for city communications; only city-owned and controlled social media platforms and email may be used to officially communicate on behalf of the city, and require the use of disclaimers for personal communications.

Also on the consent calendar, council will consider a license agreement with Aqua Superpower (USA), Inc., for installation and operation of an electric watercraft charging station at Marina Park.

The staff report for the item notes that “with the growing popularity of electric vehicles on the streets, and the push toward reducing environmental impacts by reducing emissions, electric watercraft is a fast-growing industry.” Charging stations will be needed to address battery needs for these types of watercraft.

If approved, Aqua Superpower would install, maintain and operate electric watercraft charging equipment, open to the public, on the docks at Marina Park, located at 1600 West Balboa Blvd. The company’s stations allow electric vessels to charge in 20-90 minutes, on average, according to the staff report.

The proposed initial term of the agreement is eight years, with three additional five-year options. The license fee is proposed to be set at $3,000 per year, payable in equal quarterly installments, and adjusted annually by the change in the Consumer Price Index. Profit sharing calculated as a percentage of the revenues from the electric watercraft charging station shall be paid to the city, with 10% of the gross profit up to $10,000, and 15% of the gross profit more than $10,000 shall be paid, less the license fees paid for the quarter and cost of the electricity.

The council agenda is available online here. The closed session starts at 4 p.m., followed by the regular meeting at 6 p.m.

The meeting can be watched live on the local NBTV channel (Spectrum 3 or Cox 852) or on the city’s website here.

Members of the public may speak in person in council chambers (there is not a remote or online option to participate).

Questions and comments can be submitted in writing for City Council consideration by sending them to the city clerk at cityclerk@newportbeachca.gov. To give the council adequate time to review comments, written comments were submitted by 5 p.m. on May 13 (the day before the City Council meeting). Correspondence received by this deadline were uploaded to the agenda packet by May 13 at 5:30 p.m. and can be viewed here.

Material received after the deadline and prior to 2 p.m. today (the day of the meeting) will be provided to the council in hard copy and will be available to the public at the meeting.

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Sara Hall covers City Hall and is a regular contributor to Stu Newport.


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