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HomeMy WebLinkAbout2009-11-12MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING THURSDAY, NOVEMBER 12, 2009 CIVIC CENTER COUNCIL CHAMBER 73510 FRED WARING DRIVE, PALM DESERT, CA 92260 I. CALL TO ORDER - 3:00 P.M. Mayor Spiegel convened the meeting at 3:00 p.m. II. ROLL CALL Present: Councilmember Jean M. Benson Councilman Jim Ferguson Mayor Pro Tem Cindy Finerty Councilman Richard S. Kelly Mayor Robert A. Spiegel Also Present: John M. Wohlmuth, City Manager/RDA Executive Director David J. Erwin, City Attorney Justin McCarthy, ACM for Redevelopment Stephen Y. Aryan, Assistant to the City Manager Rachelle D. Klassen, City Clerk Bo Chen, City Engineer Russell Grance, Director of Building & Safety Lauri Aylaian, Director of Community Development Paul S. Gibson, Director of Finance/City Treasurer Janet M. Moore, Director of Housing Mark Greenwood, Director of Public Works Frankie Riddle, Director of Special Programs Bill Hunley, Battalion Chief, Palm Desert Fire/Riverside Co. Fire Dept./Cal Fire Andrew Shouse, Asst. Chief, Palm Desert Police/Riverside Co. Sheriff's Dept. III. ORAL COMMUNICATIONS - A (CLOSED SESSION ITEMS) None MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 IV. ADJOURN TO CLOSED SESSION Request for Closed Session: Conference with Real Property Negotiator pursuant to Government Code Section 54956.8: 1) Property: Lease Property - Parkview Professional Office Complex - 73710 Fred Waring Drive, Suite No. 100, Palm Desert Negotiating Parties: Agency: John M. Wohlmuth/Paul S. Gibson/City of Palm Desert Property Owner: City of Palm Desert Other Parties: George Hanover Under Negotiation: x Price x Terms of Payment 2) Property: Lease Property - Parkview Professional Office Complex - 73710 Fred Waring Drive, Suite No. 101, Palm Desert Negotiating Parties: Agency: John M. Wohlmuth/Paul S. Gibson/City of Palm Desert Property Owner: City of Palm Desert Other Parties: Paul Golden / George Turner Under Negotiation: x Price x Terms of Payment 3) Property: Lease Property - Parkview Professional Office Complex - 73710 Fred Waring Drive, Suite No. 208, Palm Desert Negotiating Parties: Agency: John M. Wohlmuth/Paul S. Gibson/City of Palm Desert Property Owner: City of Palm Desert Other Parties: State of California, Department of Food & Agriculture Under Negotiation: x Price x Terms of Payment 4) Property: 42135 Kansas Street (APN 637-033-001), Palm Desert Negotiating Parties: Agency: Justin McCarthy/Mark Greenwood/City of Palm Desert/ Palm Desert Redevelopment Agency Property Owner: Fannie Mae/Brian Barr, Broker Under Negotiation: x Price x Terms of Payment 5) Property: APN 628-130-015 Negotiating Parties: Agency: John M. Wohlmuth/Lauri Aylaian/City of Palm Desert/ Palm Desert Redevelopment Agency Property Owner: Barracuda, LLC Under Negotiation: x Price x Terms of Payment 2 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 6) Property: APN 628-130-008 Negotiating Parties: Agency: John M. Wohlmuth/Lauri Aylaian/City of Palm Desert/ Palm Desert Redevelopment Agency Property Owner: David Nelson Under Negotiation: x Price x Terms of Payment 7) Property: APN 628-120-005 Negotiating Parties: Agency: John M. Wohlmuth/Lauri Aylaian/City of Palm Desert/ Palm Desert Redevelopment Agency Property Owner: Roger Snellenberger Under Negotiation: x Price x Terms of Payment Conference with Legal Counsel regarding existing litigation pursuant to Government Code Section 54956.9(a): a) PDCC Development LLC, Petition for Bankruptcy, United States Bankruptcy Court, Central District of California Conference with Legal Counsel regarding significant exposure to litigation pursuant to Government Code Section 54956.9(b): Number of potential cases: 2 On a motion by Ferguson, second by Finerty, and 5-0 vote of the City Council, Mayor Spiegel adjourned the meeting to Closed Session at 3:01 p.m. He reconvened the meeting at 4:00 p.m. V. RECONVENE REGULAR MEETING - 4:00 P.M. A. REPORT ON ACTION FROM CLOSED SESSION. None VI. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA - Councilman Richard S. Kelly VI1. INVOCATION - Councilmember Jean M. Benson VIII. ORAL COMMUNICATIONS - B MR. DANIEL COOVER, representing the Joslyn Senior Center, Palm Desert, displayed photographs of the Pancake Breakfast and Car Show hosted by the Senior Center last Saturday to benefit the Meals On Wheels Program with $1,250 in proceeds. He and the staff of the Senior Center personally thanked Ms. Riddle, 3 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 former Senior Management Analyst Patricia Scully, Peter Rittenhouse, and the City's Youth Committee for their involvement in organizing and executing the event, and Councilman Kelly and Mr. Wohlmuth for attending. Plans were to make it an annual event with a Pancake Breakfast on the Saturday prior to Veterans Day, hopefully again with the Youth Committee's help. MS. MIKA MOULTON addressed the City Council as Founder and Executive Director of Christopher's Clubhouse, a non-profit organization in the Coachella Valley, providing comprehensive community safety and empowerment programs for children and families to keep them safe from predatory crimes. She announced that their first annual "Light Of Hope Awards" event was being held on Saturday, January 30, in honor of what would have been her son Christopher's 25th birthday. Christopher was abducted and murdered by a repeat offender when he was 10 years old, and she founded the organization in order to prevent such voracious crimes from continuing to happen. The Awards event will honor the tireless Coachella Valley volunteer instructors in each community who provide the comprehensive training to local children. She asked for the City Council's patronage and attendance at the January 30 event at the Rancho Las Palmas Resort to show its support for the children and the prevention of predatory crimes against them; invitations would be forthcoming. MR. ED KRAUS of Palm Desert and representing the Palm Desert Resorter Homeowners Association, said he'd sent the City Council an invitation to the Association's first showing of its desertscape project. Streetside grass removal had taken place on one complete tract of 40 homes, and the City's response had been great. He noted that Councilman Kelly planned to attend this Saturday's presentation. The Association was very pleased to be involved with the conservation process, getting grass away from the streets and also making it look beautiful. He extended an invitation to the rest of the City Council to come take a look in the future. Mayor Spiegel commended the Resorter for its efforts. IX. AWARDS, PRESENTATIONS, AND APPOINTMENTS A. PRESENTATION OF PROCLAMATION DECLARING WEDNESDAY, NOVEMBER 18, 2009, AS "NATIONAL PHILANTHROPY°' DAY IN THE CITY OF PALM DESERT. On behalf of the City Council, Mayor Spiegel presented the proclamation to Peter Rittenhouse, Treasurer of the Desert Communities Chapter of the Association of Fundraising Professionals (AFP). 4 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 B. PRESENTATION TO RECOGNIZE CITY OF PALM DESERT EMPLOYEE FOR EXEMPLARY SERVICE - OCTOBER 2009. On behalf of the City Council, Mayor Spiegel made a presentation honoring Lisa Ream for the outstanding performance of her duties for the City. He went on to comment that Ms. Ream was the City's Recycling Technician and reminded everyone that the City would be hosting one of its two-day Shredding Events for residents free of charge at the Civic Center tomorrow and Saturday, 7:30 a.m. - 11:30 a.m. C. PRESENTATION TO THE CITY COUNCIL BY THE ABRAHAM LINCOLN ELEMENTARY SCHOOL AFTER SCHOOL PROGRAM. MS. JILL GARNER, Principal of Abraham Lincoln Elementary School, and MS. KARLY MEZA, Director of the YMCA After School Program at Lincoln Elementary, provided a status report on the Program to the City Council. Sincere appreciation was offered to the City for its financial and moral support. A printed report was provided, which is now on file and of record with the City Clerk's Office. Highlights included that the Program was in its fifth year, with enrollment at Lincoln being 739 students, of which 82% were on the Free and Reduced Lunch Program. The Hispanic and Latino population is 75%, and the English Language Learner population is 34%. This year Lincoln Elementary continued to meet and exceed all of the AYP targets in all subgroups that the Federal Government maintains for schools across America. Total enrollment in their After School Program is 98 students, of which 63 were tested in Grades 2 - 5, with 30 students (48%) at advanced or proficient level in English Language Arts. Additionally, of the same test group, 63% were at advanced or proficient level in Mathematics. It was noted that they were very excited about all their test scores that would not be possible without the City's tremendous support. Students would always take with them the benefits received in the After School Program, help with homework, along with the opportunity to participate in activities that complement the school day — sports, art, ballroom dancing, character development (i.e., honesty, respect, caring, and responsibility) — and parent involvement is strongly encouraged. MISS EHIZOGIE IGBINEDION, Lincoln Elementary School Student, read her essay about why the Lincoln - YMCA After School Program meant so much to her, how she'd been helped with her schoolwork and been able to enjoy the many other activities. It also helped her parents to know she was in a safe place every day after school. She thanked the City of Palm Desert for providing funds this program and if asked, would give it a grade of 100+++. 5 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 D. PRESENTATION TO THE CITY COUNCIL BY THE PALM DESERT CHARTER MIDDLE SCHOOL AFTER SCHOOL PROGRAM. MR. JOHN KAZMER, a.k.a. "Coach Kaz," because he'd been a basketball coach for 32 years, addressed the City Council as Coordinator of the Palm Desert Charter Middle School (PDCMS) After School Program. MS. SALLIE FRASER, PDCMS Principal, joined him at the podium. MR. KAZMER explained that the Program incorporated some of the techniques he'd developed and used with the basketball camps he'd conducted over the years to include the concept of C.L.A.S.S.: Character, Loyalty, Attitude, Self Respect, and Sportsmanship. When Ms. Fraser heard about Mr. Kazmer's C.L.A.S.S. concept, she contacted him to be part of the After School Program. He went on to relate that their daily schedule is as follows: — Students out of school at 2:30 p.m. and come to After School, first enjoying snacks they bring from home until 2:50 p.m. — At 2:50 p.m. Coach Kaz provides a thought for the day to the students. — From 3:00 p.m. - 4:00 p.m. is Tutoring, with two tutors in the Library for Math, Humanities, all the different classes, and students are working directly with the teachers who give them their grades. — At 4:05 p.m. the After School Program provides snacks to the students. — After snacks until 5:00 p.m. are the Enrichment Programs, which are continuing to grow: Art, Japanese Culture, Cooking, Ceramics, Knitting, Sports, Crafts, Music, Dance, Robotics, and Digital Photography. — 5:00 p.m. is Play Time, and students can either play sports games or watch first -run G-rated movies. Currently, they're setting up the Punt, Pass and Kick Competitions at PDCMS, and they're also going to do Junior Olympics this year, which was very exciting, and City Councilmembers will be provided with an advance invitation to participate. He commended the Lincoln - YMCA Program for getting the After School Students on the right track, and he further commended PDCMS Administration and the City for their tremendous support of this outreach. He, too, had been changed for the better as a result of coordinating this program, noting that he was proud to know all 149 students by their first names, introducing three of them with him today — Charlie - 6th Grade, Jennifer - 7th Grade, and Victor - 8th Grade. He related that Victor was a three-year participant who had been able to improve his educational performance tremendously, being named to the Honor Roll in the first quarter of this school year, something that he hadn't accomplished before. The Program is based on respect and character issues, then focuses on study skills and grades. He provided a 2009-2010 first quarter grade comparison, with 149 students getting 5 grades each for a total of 745 grades. Of the 745, there were 308 - A's, 230 - B's, 130 - C's, 58 - D's, and only 19 - F's. 6 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 Seven students were straight -A students, including Jennifer Jenkins here today; 67 of them made the Honor Roll, and 57 made his "Movin' On Up" distinction, which recognizes students who are showing steady improvement in their grades. Students who still need extra help were given encouragement and tutored extensively. He offered sincere appreciation to the City Council and to Ms. Fraser for all the support and said more financial statistics would be provided in the next quarterly report to the After School City Staff Liaison Frankie Riddle. He looked forward to the City's continued support of this worthy Program. MS. FRASER also offered her sincere thanks to the City Council, adding that it makes a huge difference at her school. She noted that approximately 41 % of their enrollment participates in Free and Reduced Lunch, meaning they don't qualify for a lot of extra funding, this combined with many budget cuts doesn't allow for many extras. Without the City's help, the After School Program would not be possible, and it makes a tremendous difference in the lives of the 149 students who participate. Some come all five days, some come anywhere in between one and five days. The objective is to improve their grades, give them confidence, and help them with good manners and respect. She emphasized that the students were all individuals, not statistics, and they were all better off for the City's help. Mayor Spiegel added that PDCMS has the highest grade average of any school in the Coachella Valley, and which just received a $10,000 grant from Intel, one of three schools in the entire United States, along with $100,000 worth of equipment. He congratulated Ms. Fraser for this accomplishment. With City Council concurrence, Mayor Spiegel recessed the meeting from 4:26 p.m. to 4:28 p.m. in order for all the students in attendance today to exit the Council Chamber. X. CONSENT CALENDAR A. MINUTES of the Regular City Council Meeting of October 22, 2009 Rec: Approve as presented. B. CLAIMS AND DEMANDS AGAINST THE CITY TREASURY - Warrant Nos. 98, 99, 102, 103, and 107. Rec: Approve as presented. 7 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 C. CLAIM AGAINST THE CITY (#651) by Michelyn Flynn in the Amount of $500,000. Rec: By Minute Motion, reject the Claim and direct the City Clerk to so notify the Claimant. D. COMPLIANCE ANALYSIS AND INVESTMENT REPORTS for the Months of June 2009, July 2009, and August 2009 (Joint Consideration with the Palm Desert Redevelopment Agency). Rec: Receive and file. E. APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE by Casa Mendoza Mexican Cuisine & Bar, 36901 Cook Street, Suites 3 & 4, Palm Desert. Rec: Receive and file. F. CITY COMMITTEE AND COMMISSION MEETING MINUTES. 1. Art In Public Places Commission Meeting of September 16, 2009. 2. Audit, Investment & Finance Committee Meetings of June 23, 2009, and July 28, 2009. 3. Cultural Resources Preservation Committee Meeting of September 29, 2009. 4. Landscape Beautification Committee Meeting of August 19, 2009. 5. Marketing Committee Meetings of May 19, 2009, and May 27, 2009. Rec: Receive and file. G. REQUEST FOR EXTENSION of Contract with D. W. Nicholson, LLC, d.b.a. Desert Building Services to Perform Janitorial Services at the Henderson Community Building for One Year in the Amount of $16,200 (Contract No. C22161A). Removed for separate consideration under Section XI, Consent Items Held Over. Please see that portion of the Minutes for Council discussion and action. H. REQUEST FOR ACCEPTANCE OF WORK for Contract No. C28660 — 2009 Citywide Restriping Project (Project No. 564-09) (Orange County Striping Services, Inc., Orange, CA). Rec: By Minute Motion, accept the work as complete and authorize the City Clerk to file a Notice of Completion for the subject project. 8 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 I. REQUEST FOR AUTHORIZATION to Release Improvement Security for the Colonnade and Accept a One-year Maintenance Bond - Case No. PP 07-08 (Desert El Paseo, LP/Harkham Family Enterprises, LP, Applicant). Rec: By Minute Motion, authorize the City Clerk to release the Improvement Security for the Colonnade (PP 07-08) and accept a One-year Maintenance Bond. J. REQUEST FOR AUTHORIZATION to Release the Performance Bond for Tract Map No. 32420 and Accept a One-year Maintenance Bond (Brava Development Group, LLC, Applicant). Rec: By Minute Motion, authorize the City Clerk to release the Performance Bond for Tract Map No. 32420 (Brava) and accept a One-year Maintenance Bond. K. REQUEST FOR APPROVAL of a Mayoral Dinner Recognizing the Official Visit of Presidente Municipal Ing. Alejandro Bravo Abarca of Palm Desert's Sister City of lxtapa-Zihuatanejo. Rec: By Minute Motion, approve a Mayoral Dinner in an amount not to exceed $1,400 to be held on Saturday, November 14, 2009, recognizing the official visit of Presidente Municipal Ing. Alejandro Bravo Abarca of Palm Desert's Sister City of Ixtapa-Zihuatanejo — funds are available in the City Council Local Meetings Account, N o . 110-4110-410-312 5 . L. REQUEST FOR APPROVAL of the Sale, Possession, and Consumption of Wine and/or Spirits at the Joslyn Cove Senior Center's Fiscal Year 2009- 2010 Sponsored Events. Rec: By Minute Motion, approve the sale, possession, and consumption of wine and/or spirits at the Joslyn Cove Senior Center's FY 2009-2010 Sponsored Events, as enumerated on the accompanying staff report. M. INFORMATIONAL UPDATE Regarding Application for Designation as Bicycle -friendly City from the League of American Bicyclists. Rec: Receive and file. Mayor Spiegel requested item G be removed for separate action under Section XI, Consent Items Held Over. Upon a motion by Ferguson, second by Finerty, and 5-0 vote of the City Council, the remainder of the Consent Calendar was approved as presented. 9 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 XI. CONSENT ITEMS HELD OVER G. REQUEST FOR EXTENSION of Contract with D. W. Nicholson, LLC, d.b.a. Desert Building Services to Perform Janitorial Services at the Henderson Community Building for One Year in the Amount of $16,200 (Contract No. C22161A). Mayor Spiegel stated the City sent someone every day of the week to clean the Henderson Building, and in talking to president of the Palm Desert Chamber of Commerce Barbara deBoom, she indicated cleaning was only needed twice a week. He said cutting a few days may be a savings. He asked Director of Finance Paul Gibson to review the matter and make the necessary adjustments. Councilman Ferguson moved to, by Minute Motion, approve extension of the subject contract with D. W. Nicholson, LLC, d.b.a. Desert Building Services to perform janitorial services for the Henderson Community Building for one additional year in the amount of $16,200 — funds are available in Account No. 510-4195-495-3698, with staff to determine the frequency of the cleaning schedule in order to achieve a savings. Motion was seconded by Spiegel and carried by a 5-0 vote. XII. RESOLUTIONS A. RESOLUTION NO. 09-76 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, SUPPORTING EXTENDED PRODUCER RESPONSIBILITY - CALIFORNIA UNIVERSAL WASTE RULE. Ms. Riddle stated this Resolution was to encourage legislation for manufacturers to become responsible when producing items, so that local jurisdictions/residents didn't have to pay for end -of -life disposal of materials. Councilman Kelly moved to waive further reading and adopt Resolution No. 09-76. Motion was seconded by Finerty and carried by a 5-0 vote. B. RESOLUTION NO. 09-77 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, RESCINDING RESOLUTION NOS. 08-101, 07-72, AND 02-8, ADOPTING A TRAVEL EXPENSE REIMBURSEMENT POLICY FOR OFFICIAL CITY BUSINESS BY ELECTED/APPOINTED OFFICIALS AND CITY EMPLOYEES. Mr. Aryan stated the proposed Resolution signified revisions to the City's Travel Policy by City officials and employees. The proposed policy followed the guidelines and underlying intent of Assembly Bill 1234 (AB 1234) by introducing certain requirements related to reimbursements. Some of the most noteworthy modifications to the proposed policy include the following: 10 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 1) The introduction of the per diem funding model for meals and lodging reimbursement, with the exception that lodging costs associated with a conference or educational events can be reimbursed at the published group rate; 2) prohibit reimbursement for any traveling companions accompanying an Official or Employee; 3) travel associated with nonexclusive categories and expenses now required prior approval by the City Council in an open meeting. Staff recommended approval of this Resolution to provide greater transparency on travel related expenditures. Councilman Ferguson stated he thought it was extremely onerous to require the City Council, which typically only approved Out -of -State travel, to have to approve in State travel that would include Los Angeles, Riverside, San Diego, or a League Dinner in Temecula. If special meetings have to be called every time someone traveled 50 to 70 miles or get on a plane to lobby for a Bill in Sacramento, the Council would have a lot of special meetings. He said the danger was letting the pendulum swing too far back in the oppositive direction, that the Council would have a travel policy that's more onerous than practical. Councilman Kelly thought maybe the City Manager could suggest a way to solve a problem where the City had an emergency for lobbying purposes. Mayor Pro Temp Finerty added the language could state "emergency" or "urgency." Mayor Spiegel stated he was recently asked by the California Board of Education to attend their annual conference in San Diego scheduled for December 3-5, 2009. He is due to speak on Wednesday, December 3, which would require him to stay in San Diego Tuesday night and return Wednesday after his presentation. With the City Council not holding a meeting between now and December 3, that travel would have to be approved this evening. Mr. Wolhmuth agreed, stating that if the policy was approved, the Mayor's travel to San Diego would have to be approved this evening. Mayor Pro Tem Finerty stated the Council may not always have the opportunity to hold City Council meetings when these issues came up. She asked if there was an option where the City Manager had some type of authority to approve these matters. Mr. Wohlmuth responded the City Council didn't have to approve each in State travel as it did Out -of -State Travel. The issue was to make sure adequate funds were available in the Council's travel or local meetings budget. He said as long as there were adequate funds and Council abided 11 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 by the policy, he could sign off on any travel within the State of California for Councilmembers. Mayor Pro Tem Finerty stated the City Manager will work with the Finance Director to ensure adequate funds are available, so that Council didn't over budget. Mayor Pro Tem Finerty moved to waive further reading and adopt Resolution No. 09-77, as amended to include that travel within the State of California to be approved by the City Manager, subject to budget availability for same. Motion was seconded by Kelly and carried by a 5-0 vote. C. RESOLUTION NO. 09-78 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, ADOPTING AN EXPENSE REIMBURSEMENT POLICY FOR LOCAL MEETINGS/EVENTS ATTENDANCE BY ELECTED/APPOINTED OFFICIALS AND CITY EMPLOYEES. Mr. Aryan stated the proposed Resolution signified adopting a distinct policy for reimbursement associated with local meetings/events attended by City Officials and Employees. The proposed policy follows the guidelines and underlying intent of AB 1234, which provides greater clarification in determining authorized expenses similar to the previously approved Travel Policy; it prohibits reimbursements for traveling companions. However, travel companions can be reimbursed for City hosted events. Staff recommended approval of proposed Resolution. Responding to question, he said an example of a City -hosted event was the upcoming Mayoral Dinner Recognizing the Official Visit of Presidente Municipal Ing. Alejandro Bravo Abarca of Palm Desert's Sister City of Ixtapa-Zihuatanejo. He pointed out a companion can attend, but it will be a taxable item. Further responding, he said it would be the same for the City's Holiday Party. Councilman Kelly stated the main difference was that one had a choice to pay for a City -sponsored event or be taxed. Mr. Aryan agreed. Councilman Kelly moved to waive further reading and adopt Resolution No. 09-78. Motion was seconded by Ferguson and carried by a 5-0 vote. XIII. ORDINANCES For Introduction: None 12 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 For Adoption: None XIV. NEW BUSINESS A. REQUEST FOR AUTHORIZATION TO ISSUE A REQUEST FOR QUALIFICATIONS (RFQ) SEEKING ARTISTS FOR THE PUBLIC ART COMPONENT AT THE PALM DESERT AQUATICS CENTER, AND APPROVE THREE (3) $1,000 HONORARIUMS TO FINALISTS TO CREATE PROPOSALS (CONTRACT NO. C29310). Responding to question, Public Art Coordinator Deborah L. Schwartz said a design criteria can be provided on the Request for Qualifications (RFQ). Councilman Ferguson stated the aquatic facility had a purpose, and the design should reflect the competitive nature and not have it appear like a playground. Ms. Schwartz agreed to include guidelines in the Request For Qualifications, explain that the pool will also be used for competition, and ask that artists consider that in their proposals. She said Art in Public Places (AIPP) will compare all the qualifications and narrow it down to the top three artists. Staff will then work closely with those selected, who will receive the $1,000 honorarium, to come up with the actual proposal to the Council. Councilmember Benson asked that the art be aquatic in nature. Councilman Ferguson added that it needed to be in par with Olympic Merit, which was basically what the aquatic facility would end up being. Mayor Pro Tem Finerty asked that the guidelines include the term "site specific art." Ms. Schwartz agreed to include that requirement. Councilman Ferguson moved to, by Minute Motion: 1) Authorize staff to issue an RFQ, seeking artists for the public art component at the Palm Desert Aquatics Center to be located in the Date Grove of Civic Center Park; 2) approve an honorarium in the amount of $1,000 each to three finalists to create a design proposal for the artwork for the Palm Desert Aquatics Center —funds are available in Account No. 436-4650-454-3010, with staff directed to provide site -specific guidelines to artists. Motion was seconded by Finerty and carried by a 5-0 vote. 13 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 B. REQUEST FOR APPROVAL OF PARCEL MAP NO. 34211-1, THE RELATED IMPROVEMENT AGREEMENT, AND A DRAINAGE CHANNEL MAINTENANCE AGREEMENT (Matthew Johnson, Wilson Johnson CRE, Inc., Applicant). Mr. Greenwood stated the subject property was located directly west of Cook Street between Gerald Ford Drive and Interstate-10 Freeway. He said this item would have been a routine approval, if not for dispute between the Applicant and neighboring property owner, regarding the alignment of the future Technology Drive. He believed a resolution would soon be reached, but thought the Applicant should speak to this issue first, followed by the neighboring property owner. Councilman Ferguson noted he met with the Applicant on several occasions regarding this map, and with the predecessor in interest of the adjoining property. He was just informed that a settlement or resolution was reached, and if true, he wanted it to be spelled out for the record. MR. MATTHEW JOHNSON, Applicant, 73-134 Bel Air Road, Palm Desert, CA, stated a written agreement was reached, and Director of Planning Lauri Aylaian will read the agreement into the record, so that it can be properly reflected in the Conditions of Approval for the project. He thanked staff for working with him and the neighbor, in terms of the cooperation, because it previously didn't exist. He's looking forward to working with staff, the neighbor, and hopefully build something new and exciting in the years to come. MR. WILLIAM B. TATE, stated he was a partner with the law firm of Bryan Cave, LLP, and they represented the Court Appointed Receiver Pete Wilson, who was in control of the southernly parcel. He said it was a pleasure to work with the Council, specifically the Mayor and staff, because they did a wonderful job in helping them reach an agreement. He thanked the Council for its continued efforts in this matter and pleased that he and Mr. Johnson were able to solve their differences. Ms. Aylaian thanked the neighboring property owners for working through this matter, because it had been hanging over the Department for quite a while. She said a copy of the Conditions will be attached to the Resolution and provided to the City Clerk. For the record, the terms under which the Receiver will agree not to oppose the approval of the Final Map were as follows: A Condition of Approval will be added to Tentative Parcel Map 34211 (TPM 34211) and any additional phased parcel map related to TPM 34211, requiring that: 1) Technology Drive be realigned to a position where the full improvement of Technology Drive will be located on the area shown on the Final Map as the Designated Remainder, which realignment shall be reasonably satisfactory to the Southern Property owner; 2) To the extent that 14 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 any portion of Technology Drive must be located on the Southern Property in order to transition such realignment, then (A) Technology Drive will be extended further north on the Designated Remainder in the same proportion, and (B) any portion of the Designated Remainder lying to the south of Technology Drive will be deeded (lien -free) to the owner of Southern Property; and 3) The full improvements of Technology Drive be paid for and completed to the satisfaction of the Director of Public Works by the owner of the Designated Remainder. The following Conditions of Approval of TPM 34211, expressly subject to the terms of this letter agreement: 1) Department of Community Development Condition No. 6; and 2) Special Condition No. 16. Councilman Ferguson moved to, by Minute Motion, 1) Waive further reading and adopt Resolution No. 09-79, approving Parcel Map No. 34211-1 and the Improvement Agreement related thereto; 2) by Minute Motion, authorize the City Manager to execute a related Drainage Channel Maintenance Agreement, with Resolution No. 09-79 amended as presented for the record. Motion was seconded by Finerty and carried by a 5-0 vote. C. REQUEST FOR APPROVAL OF ACTIONS RELATED TO AN EXCHANGE OF REAL PROPERTY WITH DESERT SANDS UNIFIED SCHOOL DISTRICT. Responding to question, Mayor Spiegel confirmed this action was for a permanent real property exchange, stating the new playground was in, and it was something the City needed to do. Councilman Kelly moved to, by Minute Motion, authorize the Mayor to: 1) Execute an Agreement for Exchange of Real Property with Desert Sands Unified School District (Contract No. C29320); 2) execute a Grant Deed to convey real property; 3) accept two Grant Deeds in the Exchange. Motion was seconded by Ferguson and carried by a 5-0 vote. D. REQUEST FOR AUTHORIZATION TO PROCEED WITH THE TRAFFIC SIGNAL SYNCHRONIZATION PROJECT (CONTRACT NO. C29330, PROJECT NO. 552-10). Councilman Kelly moved to, by Minute Motion, authorize: 1) Staff to issue a Request for Proposals (RFP) from traffic engineering firms to provide traffic signal synchronization timing services in an amount not to exceed $70,000; 2) staff to solicit bids to provide traffic data collection services in an amount not to exceed $10,000; 3) transfer of $80,000 from Account No. 234-4264-422-4001 (Traffic Signal at Frank Sinatra and Gerald Ford) to the Project Account in Traffic Signal Fund 234 (Account Number to be established by the Finance Department). Motion was seconded by Ferguson. Mayor Spiegel stated it seemed like a lot of money, and it had only cost the City $30,000 in the past. 15 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 Councilman Kelly responded this was a new project. Mayor Spiegel called for the vote, and the motion carried by a 5-0 vote. E. REQUEST FOR APPROVAL OF THE 11TH ANNUAL "TURKEY TROT" 5K RUN/WALK TO BE HELD ON NOVEMBER 26, 2009, INCLUDING CLOSURE OF PUBLIC STREETS. MR. ALAN WOODRUFF, President and Coach of the Desert Cities Track Club thanked the Council for the opportunity to return to El Paseo, stating the event was absentee for one year, which was painful; the race was produced last year in the City of Rancho Mirage on Bob Hope Drive. He met with City Staff, complied with traffic plan requirements necessary to obtain approval for the race, but there were still a couple of things that were unclear. One was that he didn't ask to close El Paseo to Portola, he requested Prickley Pear Lane, which was the only differential issue he had with regard to the race course and closure of the road. Mayor Spiegel asked who was paying for the cost associated with police. MR. WOODRUFF responded Desert Cities Track Club would be paying for everything as they had for the past nine years, stating they've never asked the City for any funds. In the past, the police donated their time as a joint marketing effort with the City of Palm Desert, stating the event promoted the City and in exchange two police officers were provided for traffic control. The main issue he wanted to speak about was that when he applied for the permit, he knew a Traffic Plan would be required, which Tops N Barricades would be produced to indicate where the cones and signs would be located and process for collecting them. The Club didn't have a problem with the Traffic Plan, even at a price tag of $2,000; however, they were being asked to include Jersey Barriers for the road closure. He said Jersey Barriers were water -filled barriers at 125 gallons of water for 50 units, which equaled 6,200 gallons of water. He thought the request was overkill, because they are on the street at 7:30 a.m. when there was very little traffic. He noted the Traffic Plan to close Bob Hope Drive in Rancho Mirage for the previous year produced no accidents or fatalities. In addition, the prior eight events had a perfect track record with no police support or traffic control. Mr. Greenwood stated when staff was initially presented with this event, Public Works Department did not require the water -filled barricades. However, after consulting with the Sheriffs Department, Palm Desert Police Department, and City's Risk Manager, they recommended the water -filled barricades as it did with the Golf Cart Parade. He said it protected the City from exposure to liability, which other cities had suffered losses from. He said Public Works supported the Sheriff's and Risk Manager's recommendation. 16 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 Councilman Ferguson asked if the Cancer Walk event required the same type of barricade. Mr. Greenwood responded the Cancer Walk was entirely on the sidewalk, and the Turkey Trot was in the middle of the street. Councilman Ferguson said when he participated in the Turkey Trot in the past, he walked in the middle of the street. MR. WOODRUFF stated the event had come a long way and grown in size. He said the event Councilman Ferguson participated years ago was held in San Pablo Park when it was on the sidewalk. He noted a few years ago Santa Monica was devastated by an insane person that crashed his car into a Farmer's Market, which showed the liability that Santa Monica had. As a race director, he's heard that story about 50 times, but on October 10, 2009, he participated and worked in the Santa Monica 5,000, and the water -filled barriers were not required, or used in the Los Angeles Marathon with 2,500 runners. The Club was okay with everything, even paying the police up front for services rendered, but the cost of the water -filled barriers was an added cost of $2,500 for the trucks, and drivers at double time because of the Holiday, which he believed was overkill. Lt. Shouse stated the water -filled barricades are recommended. He understood they were an additional cost, but he was concerned about pedestrians in the roadway. He said University Park area was suggested as an alternate location for the event, which could reduce some of the cost. Councilman Ferguson suggested the City splitting the cost of the water -filled barricades with the Applicant. Responding to question, Mr. Wohlmuth said the Applicant was informed the City needed paymentforthe police portion, which was $1,170.92, prior to the event. Further responding, he said the race producer was required to supply the equipment for the street. Mr. Greenwood noted only one Public Works Inspector would be on duty during the event, and that person would not get overtime, but exchange his hours later in the week. MR. WOODRUFF stated he inquired about the cost involved with the water -filled barriers and was told it would be $62.50 as far as the gallons, and drivers are double at $85.00 an hour because of the Holiday, but he didn't think the cost would reach $3,100. Councilman Ferguson stated he's attended the event and liked it. He welcomed people walking on a Holiday, and it was great to promote a 17 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 healthy heart and good exercise. He said $3,100 was peanuts compared to what the event was providing to this community. Mayor Pro Tem Finerty suggested placing a "not to exceed" amount. MR. WOODRUFF stated he would try to get the best price, because he would be paying for the other half. Responding to question, he said $2,000 was the cost for the Tops N Barricades Traffic Plan without the water -filled barriers, and an additional $1,000 would be charged to supply the barricades, but he didn't have the estimate yet for the two water trucks with 4,000 gallons of water to fill the water barriers and later take out. He was okay with placing a ceiling cap on the cost. Mayor Pro Tem Finerty was concerned the City had a budget it tried to adhere with a process in place for special events such as this one to avoid going over budget. She asked the City Manger if $3,000 was available in the budget. Mr. Wohlmuth replied $3,000 was not available as extra in the budget, but if Council directed staff to work with the Applicant on the event, staff can coordinate the event with the Applicant. He said the City had some equipment that potentially can be used, which he preferred; Tops N Barricade's still needs to provide an estimate for the additional equipment. He said if the Council directed staff to work with the Applicant to find the most efficient way to share the cost, they will do so. Councilman Ferguson stated the City used to have a Promotion's Committee that paid 50% of the cost for new events that would stimulate special promotions in the City; those events were then required to become self sustained after the third year. He felt the City had given this promoter a hard time the past five years, and the event didn't happen in Palm Desert last year, so he was trying to make up for it by helping out financially. Councilman Ferguson moved to, by Minute Motion, approved the 11 th Annual "Turkey Trot" 5K Run/Walk on November 26, 2009, including closure of El Paseo as proposed, with City Manager and staff to partner with Applicant in providing the required water -filled barriers in the most economical way possible in an amount not to exceed $3,000. Mayor Pro Tem Finerty stated she would be willing to go along with the motion if it included the Applicant work with the City Manager, because it may be done for less than $3,000. She would rather remove the "amount not to exceed" and have the Applicant work with City Manager to put on the event. 18 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 NO. MR. WOODRUFF stated the Club had been in this Valley for 30 years, and the event had two purposes: 1) The Desert Cities Track Club to function as a track club. The annual membership is $30 a year, which had remained the same for 30 years; 2) The Club had provided 22 scholarships to runners from high schools, which no other organizations had accomplished in this Valley. He said the Mayor and Councilman Kelly attended Scholarship Night in the past. He said the event provided a venue that could improve people's lives; even though it sounded hokey, he's had people tell him stories about how the event had made a difference. He appreciated and welcomed the opportunity to work with the City. Councilman Ferguson noted his motion was already on the table, which included a "not to exceed" amount of $3,000 and to negotiate the best deal possible. Responding to comment, he said the best deal couldn't be obtained without working with the City Manager. Mayor Spiegel seconded the motion, and it carried by a 4-1 vote, with Kelly voting F. REQUEST FOR APPROVAL OF THE APPROPRIATION OF FUNDS IN THE AMOUNT OF $92,992 FOR THE COMMUNITY DEVELOPMENT BLOCK GRANT RECOVERY (CDBG-R) PROGRAM. Ms. Riddle noted that funds had been received from the United States Department of Housing and Urban Development (HUD), and staff was now asking for the appropriation of funds already allocated to the City. Mayor Pro Tem Finerty moved to, by Minute Motion, appropriate funds in the amount of $92,992 for the Community Development Block Grant Recovery (CDBG-R) Program. Motion was seconded by Benson and carried by a 5-0 vote. G. CONSIDERATION OF CITY OF PALM DESERT PARTICIPATION IN THE PALM SPRINGS DESERT RESORT COMMUNITIES CONVENTION AND VISITORS AUTHORITY (CVA) JOINT POWERS AUTHORITY (JPA). Mr. Wohlmuth stated this item was placed on the agenda at Council's request. The item is a consideration of continued participation with the Palm Springs Desert Resort Communities Convention and Visitors Authority (CVA). He noted this was not the Business Improvement District (BID), but if Council directed staff, the BID can be before the Council in January/February or perhaps with the upcoming Study Session and considered in February 2010. If Council chose to continue with the CVA, the City wouldn't withdraw. The reason and the importance of this item, is that if Council chose to withdraw, it needed to notify the CVA 13 months prior to officially getting out, which will require the City to pay for its membership through 2010. Staff recommended the City remain with the CVA and 19 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 consider the BID in early 2010. He said staff interviewed the Marriott Desert Springs Resort & Spa, CVA, researched other similar CVA's or communities with CVA's, and without CVA's in our competitive market. Mr. Gibson stated staff met with the Marriott to get their opinion on how it could approach the process if the City decided to withdraw from the CVA. The Marriott indicated they could not handle the City withdrawing from the CVA, in that it would cause more harm than if the City tried to do its own marketing. The Marriott provided statistics on how many leads they had over a period of four years. They received approximately 500 leads of which they received 60,000 room nights. They also received leads to the Marriott Website from the CVA, and it was estimated that 14% of the clicks from the CVA went to the Marriott; however, the number of specific needs booked are unknown, because once in the Website, bookings go through the Marriott's normal process. The Marriott has their own sales force, but the City's participation in the CVA was an intricate part of their marketing. The City's withdrawal would cause harm, because they were already hurting from this economy. Desert Springs was projecting 54% occupancy this year and 50% next year, so this was not the time to withdraw from the CVA. The CEO from CVA indicated that currently on the BID process, 85% of the room nights were currently paying into the 2% BID, which included all the Marriott properties and Embassy Suites. He said Marriott has not received any complains from those already paying the extra 2%. He noted hotels and restaurants, The Living Desert, etc., benefitted from the CVA. He said a copy of all the members of the CVA, aside from hotels, was provided to the Council. Mr. Wohlmuth asked for Council's favorable consideration to remain in the CVA and direct staff to consider the BID in 2010. Mayor Pro Tem Finerty noted the City Manager had checked with the City of New Port Beach who was doing their own marketing and spent $3.5 million. She asked if the occupancy rate information requested had been received. Mr. Wohlmuth answered no, but that the information would be provided for the Study Session. Mayor Spiegel acknowledged that the Council received letters from Gary Cardiff, Judy Vossler, and Chris Brooks, all indicating they would desire the City of Palm Desert to continue as a member of the CVA. The letters are on file and of record with the City Clerks Office. MR. STACEY JOHNSON, President/CEO of The Living Desert (TLD), Palm Desert, CA, stated he's lived here since the end of June this past summer and was still the new kid on the block. He said TLD was proud to be located in the City of Palm Desert, and also proud to be serving the whole Coachella 20 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 Valley. He said the CVA was a good opportunity and good means to getting the word out about its mission and message as well as attracting visitors to the Coachella Valley. He personally used the CVA's website prior to moving and working at The Living Desert, stating it was one of the many websites he used, because it had a diversity of opportunity for both visitors and permanent residents. He said there was strength in numbers, and it was important to participate in the wider community to build its image and brand. In the past 18 months, TLD had more than eleven FAM tours, not only from the United States, but also from the United Kingdom and China. He said 30 groups had developed directly from leads from the CVA in the past 18 months. MR. LEE MORCUS, Marketing Committee member stated he was a resident and restaurant owner, and his first restaurant was founded in Palm Desert 20 years ago. He was also Chairman of the Hospitality Industry and Business Council, Inc. (HIBC), which is the business community arm of the CVA. He was also the immediate past chairman of the Coachella Valley Economic Partnership (CVEP), which one can blame or thank Councilman Ferguson for his involvement with CVEP. He said a year ago CVEP was broke and Councilman Ferguson carried the organization on his back city to city, and a debt of gratitude was owed for his accomplishment. However, a lot of work still remained, and the next step was to get CVEP thriving. He thanked Councilmember Benson for serving on CVEP for20 years during the best and worst of times, Mayor Spiegel for his service the past two years, Mayor Pro Tem Finerty for her engagement and questions, City Manager John Wohlmuth, and staff. He said the hospitality industry is the economic engine and largest generator of tax revenue, direct and indirect, whether it was retail, home construction, people relocating to the Desert, or job creation. In a few months he will ask for the Council to do what's right for the City, Valley, and business community, which was to get on board with the BID. He said the HIBC was in transition and charged with more oversight, government, strategy, development, policy, and direction of the CVA. What was needed now was the steady leadership the Joint Powers Authority (JPA) had provided. He said HIBC will continue to work hard until the numbers improved, but it wasn't about the numbers, it was about believing in the mission of the CVA to market the Valley together with one voice, public and private to the world. He asked the City Council to affirm its participation in the CVA. MR. KEN SCHWARTZ, Marriott Desert Springs General Manager, stated he was pleased to read in the newspaper that there might be a shift to,a more positive momentum toward the CVA. He said throwing away $600,000 wouldn't fill the water barriers needed. He asked the Council not to leave them in an island with a boat that had a hole in it. He said the CVA did an excellent job for the Valley, and this was one of the most difficult times in his 33 years in the hotel business where it was struggling. He said the Marriott 21 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 employed a great number of Palm Desert citizens, supported all Palm Desert businesses, as well as other areas. He said people lodging at the Marriott went across the street to spend money in Palm Desert restaurants, businesses, and The Living Desert. He said the City needed every engine working to drive rooms to its resort, now more than ever, and the CVA was providing that service to the Marriott, even in its current state. He asked the City to remain with the CVA, because it was helping them survive these terrible economic times. He noted City staff was also recommending that Palm Desert continue its participation in the CVA. MR. DAVID HIRSH, Embassy Suites General Manager, and resident of Palm Desert, CA, stated he had spoken before the Council last year when it was considering whether to participate in the BID. In his opinion, he felt this time the Council was faced with a more serious consideration. Some important facts to consider as a resident and operator of a Palm Desert hotel are: First, when the City decided not to participate in the BID, the hotel could have hid behind the Council's decision and done nothing, but instead, his hotel and other key Palm Desert hotels made the decision to voluntarily join the BID and collect and forward those funds to the CVA, because they believe in its purpose and prospects for success. Secondly, he was now serving as a board member on the HIBC along with Gary Cardiff, Cardiff Limousine; Ken Schwartz; Jim Zeltner of the Marriott Courtyard Residence Inn; and Chairman Lee Morcus of the CVA. Thirdly, with approval of the final draft to the new bylaws, the HIBC will surely be transformed from an advisory body to a governing body. He said these new powers will be used to ensure the highest level of performance and accountability from the CVA. For example, committees and subcommittee were formed and comprising general managers, directors of sales, and key hotel and industry members to dive into the strategies, marketing plans, and staffing to ensure they are executed as intended. Fourth, his hotel staff participated in CVA organized events in Los Angeles and San Francisco this year. He was most excited about the CVA's organization of the Special Trade Mission this past month to visit four Canadian cities to meet Canadian contacts and promote the Valley's destination. His director of sales met several key people, which he hoped will generate business directly to his hotel. At this time, the Canadian market represented one of the strongest prospects for new revenues in the hotel, restaurant, and retail establishments of Palm Desert. The CVA put together a well -organized trade mission to help penetrate that market. Because of Palm Desert's continued participation in the JPA, they were one of the hotels selected to go to Canada. He's never been more optimistic about the future of the CVA, specifically because of all the changes he just outlined. He was counting on Council's wisdom when it decided on whether to continue its participation in the CVA, because he could not image a decision, that in one year's time, every Palm Desert hotel could be ejected against its will from the CVA. Major consequences would obviously result, like not benefitting from all hotel booking leads the CVA generated, which included trade shows, FAM 22 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 Tours, Trade Missions, including the one where he is scheduled to go to Washington, D.C. to lobby for more business from that area. The logistical questions are many, in that how many employees would the City have to hire to play these roles, who would make contact with the various planners, travel consortiums, and other agencies; who would make all the trips around the Country to solicit business, and the potential headaches would be endless. He asked the Council to focus on protecting the quality of life in Palm Desert, while continuing its commitment to the JPA and allow the HIBC to effectively govern and maximize the performance of the CVA. Mayor Pro Tem Finerty thanked Judy Vossler and Chief Financial Officer Jermain Presnell-Lowe from the CVA for providing long-awaited answers she had been asking. She noted that her main concern will always be fiscal responsibility and accountability. She was pleased to hear about the leadership and changes made, but she was concerned about the CVA's reserve. It was her understanding from an e-mail received there was approximately $1.3 million in reserves, yet it was looking at a budget of more than $7 million. She had asked what would happen if the money collected from cities plus the 2% BID was not enough, and the answer was that marketing or personnel would be cut, and/or money would be taken from the reserve. She said if the reserve was touched, which was only $1.3 million, it would not last long. She had also asked if there was a plan to grow the reserve and was told "not at this time," and it was to be determined. She encouraged the HIBC to create a plan to grow the reserve, in order for the BID to have the potential for the tremendous success she heard this evening. She affirmed to remain in the CVA to allow the BID, HIBC, and other groups to show what they can do. However, she wants to be kept informed with accountability for how City funds are spent and T.O.T. collected. There was difficulty in getting that quantification of results, and it wasn't until just recently that she was provided with the information. She said Mr. Lee Morcus eloquently described how Councilman Ferguson championed CVEP in getting it up from the ground, and she would like to see a way that Councilman Ferguson can be moved to be the City's representative, because the CVA, BID, and HIBC will need tremendous oversight, and this Council will be asking the tough questions. She suggested the City Council look at changing the current representative, so that it can obtain information needed to ensure the City's money was wisely spent. Mayor Spiegel apologized for not providing enough information, but stated Mayor Pro Tem Finerty had not asked for any. Councilman Kelly stated he was impressed that all the hotels, who had more at stake, were adamant about joining the BID and staying in the CVA. He was also impressed by all the other businesses that were members of the CVA; it seemed that everybody in the hospitality industry was in favor. He said the hospitality industry provided the money and revenue to keep up the 23 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 City's park, police, fire, and streets. From a City standpoint, he liked the idea of having $600,000 for the City's budget, because it equated to five or six sheriff's. He didn't need another Study Session to make a decision, because the Council's been through this for two years and everyone knew what the CVA was all about. He would like to affirm staying in the CVA and join the BID immediately this evening. Councilman Kelly moved to, by Minute Motion: 1) Remain a participating member in the Palm Springs Desert Resort Communities Convention and Visitors Authority (CVA) Joint Powers Authority (JPA); 2) approve joining the Business Improvement District. Councilmember Benson stated she was concerned about waiting until February just to see if internal problems of the CVA were worked out, because she served on the CVA for more than 25 years and knew the organization was attacked from within and torn apart, which caused a lot of disruption. She still saw frivolous spending, stating there was no reason to spend $10,000 to $20,000 to change a name no one wanted changed, which may not be much to some, but it was the fact that it was trying to do something the wrong way. She certainly believed in the CVA and always had, but she was against using the City's sales tax to fund the BID. She was in favor of a Study Session to see how it all sorted itself out. Councilman Ferguson said he couldn't help but note that history had not been favorable to Palm Desert on information regarding the CVA. He didn't know why, but staff was adamantly in favor of withdrawing from the CVA, with the Mayor actually making a motion three years ago to withdraw. The City filed a letter of intent to withdraw, but Mr. Beckelman got on board and the Council decided to stay in the CVA to give him a chance. Then the Council rejected the BID twice because it didn't have enough information about it; some Councilmembers wondered why Council wasn't approached by the CVA. He didn't want to point fingers or look backwards, but he absolutely thought a Study Session was needed. He would love to hear from what his good friend Lee Morcus and Judy Vossler, who are both highly qualified and whom he respected with the utmost authority, but he didn't see what they are saw, which indicated to him that he was not getting the information needed. He and Lee Morcus spent thousands of hours talking about how the economic mission and the hospitality mission were basically one and the same, in that you get people to Palm Desert, they like the area, they get part-time residence, then they move here, and maybe open up a business as well. He said it all came around full cycles and ultimately he felt the two organizations worked well together, but it was probably immature at this point, given the politics. He was sorry the City and he had been a fly in the ointment to make this happen as expeditiously as desired, but the City couldn't join the BID until March. The City will schedule a vote in February, but it must first conduct a Study Session for those Councilmembers who still had questions. He said Mayor Pro Tem Finerty and the late Roy Wilson had 24 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 very poignant questions about the CVA that deserved some answers, and those questions will be put in writing for the City Manager to forward to Chairman Hobert and Chairman Morcus. He said a newspaper article indicated that everyone working together was a better solution than Palm Desert going its own way. Mayor Spiegel seconded the motion. Mayor Spiegel stated Palm Desert lived and died for tourism and everyone understood the number one resource for the General Fund was sales tax, it received one cent for every dollar spent. The number two resource was Transient Occupancy Tax (TOT). Marriott Desert Springs generated $5 million in revenue for the City from hotel occupancy tax, sales tax, etc., and without the Marriott, the City would be in dire straights. The Marriott indicated their hotel business will hurt without the City's participation in the CVA, so he would be voting in favor of remaining in the CVA. He said all the figures and numbers necessary to make a decision were provided in the staff report. He pointed out that he had offered the City's representative position to Mayor Pro Tem Finerty six months prior, but she turned it down. Mayor Pro Tem Finerty agreed Mayor Spiegel had offered the position, but she was also told by him that people there at the CVA were waiting for her, and she would not be well received. She did not feel it would be appropriate, at that time, to take the position. Mayor Spiegel said he guaranteed that wouldn't have happened. Mayor Spiegel called for the vote, and it FAILED on a 2-3 vote, with Benson, Ferguson, and Finerty voting NO. Mayor Pro Tem Finerty, moved to, by Minute Motion: 1) Remain a participating member in the Palm Springs Desert Resort Communities Convention and Visitors Authority (CVA) Joint Powers Authority (JPA) and reconsider the BID in February 2010, after a Study Session discussion with the CVA and the Hospitality Industry and Business Council, Inc. (HIBC), to be held in January 2010; 2) appoint Councilman Ferguson as the City's representative to the CVA effective immediately. Motion was seconded by Benson and carried by a 3-2 vote, with Spiegel and Kelly voting NO. 25 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 H. REQUEST FOR CONFIRMATION OF THE ANNUAL YEAR-END COMMITTEE/COMMISSION APPOINTMENT AND REAPPOINTMENT PROCESS SCHEDULE. Mr. Erwin requested that the City Council determine how to carry out the Committee/Commission appointment and reappointments. Mayor Spiegel stated he was asked the question on whether there were current members who were eligible for reappointment that the Council may want to remove before it conducted interviews for the current openings. He suggested asking the Chairman of the various committees and commissions to inquire with those individuals whose terms were due to expire, if they wised to be reappointed. If they didn't want to be reappointed, it can be another vacancy the Council can fill. Mayor Pro Tem Finerty stated a memo was sent out asking if the Council wished to make any changes in the current Committee/Commission members, and she did not respond at first, but then she received a reminder. She said the City advertised in the Bright Side and the Desert Sun to allow the public and residents know there were openings and encouraged them to apply. She thought it was fair to wait to see who was interested before she decided on whom to reappoint or not; otherwise, it would be disingenuous. She received a memo back from the Mayor stating he didn't want to wait, because three Councilmembers already indicated they didn't want to make any changes. She said the purpose of this item was to affirm the policy on how it made new appointments. She said the City went out to the public and advertised, allowed people time to fill out applications and attend meetings, provided the opportunity for them to explain how they can help the City, and she would not want to circumvent that process. She would like to move forward with the process as outlined by the City Clerk and City Manager in order to have everyone in place to actually start their new jobs in January. Often people are not appointed until February, March, or April. Councilman Kelly stated the Mayor's intent was to see how many actual vacancies there were. He personally didn't see anyone that hadn't done their job, and it would be a good idea to reappoint the people who were up for renewal. Councilman Ferguson stated there were a number of people he would like to see changed and would like to do it through a deliberate process, so he could get the benefit of all Councilmembers point of view. He believed the Brown Act required the process to be done publicly and not by memo or post it notes. He asked that this item be placed on the agenda to avoid violating the Brown Act, which he believed was happening by passing notes to each other behind closed doors. He said a date was in place to make decisions 26 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 or to keep people in committees/commissions before it interviewed those people who have expressed an interest, which was fundamentally unfair. He said the Council should continue to interview as it had for the past 14 years. However, he believed there are some changes to be made to the process, and he would like an opportunity to discuss that with the Council in an open session. Councilmember Benson stated that if the City asked for people to apply, they were owed the right to have an interview. However, the current process should include asking current members who are due to expire, if they want to be reappointed, especially if there are other applicants better qualified. She thought interviewing current members would show that the Council was concern about the job they were doing, and the Council can ask why they would want to be reappointed; the Council can then decide whether or not to reappoint. Mayor Spiegel asked Councilmember Benson if she wanted to interview everyone that was due for reappointment. Councilmember Benson answer yes, stating only if there were applicants who wanted to serve in the same position. Mayor Pro Tem Finerty stated the staff report indicated the process allowed the Council to get the application binder from the City Clerk with all those interested by midweek of November 16, 2009. Councilmembers can then review the candidates, determine which candidates they want to interview, and return their list to the City Clerk, so she can set up the interviews. If there was someone currently serving on a committee/commission that a Councilmember wished to re -interview, it can certainly be done through this process. Mayor Pro Tem Finerty moved to, by Minute Motion, confirm the schedule presented in the accompanying staff memo. Motion was seconded by Ferguson and carried by a 5-0 vote. XV. CONTINUED BUSINESS None 27 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 XVI. OLD BUSINESS A. REQUEST FOR APPROVAL OF THE ADOPT -A -HIGHWAY PROGRAM CRITERIA, ADMINISTRATIVE PROCESS, AND FUNDING FOR IMPLEMENTATION. Councilman Kelly moved to, by Minute Motion, approve the criteria, administrative process, and the expenditure of funds not to exceed $5,000 per year for implementation of the City's Adopt -A -Highway Program — funds are available for litter removal supplies in the Streets Maintenance Small Tools and Equipment Account, No. 110-4310-433-2180, and funds are available for courtesy signs and safety supplies in the Traffic Safety Supplies Account, No. 110-4250-433-2145. Motion was seconded by Finerty and carried by a 5-0 vote. Councilmember Benson questioned why money from the Recycling Funds couldn't be used for this program. Mr. Wohlmuth agreed to have staff review and check if it's appropriate to use Recycling Funds for this expenditure. XVII. PUBLIC HEARINGS A. REQUEST FOR ADOPTION OF RESOLUTION, MAKING CERTAIN FINDINGS RELATIVE TO THE ANNUAL REPORT OF CALCULATION OF GOVERNMENT CODE 66006, DEVELOPMENT IMPACT FEES FOR THE CITY OF PALM DESERT. Mr. Gibson stated that prior to drafting the staff report a copy was provided to the Building Industry Association (BIA) and they have signed off on it. The only item they had an issue, as far as the five-year requirement, was the drainage fund. He said the City had a number of budgeted projects that would expend the City below the five-year test as set by the State code. Mayor Spiegel declared the public hearing open and invited testimony FAVORING or OPPOSING this matter. With no public testimony offered, he declared the public hearing closed. Mayor Pro Tem Finerty moved to waive further reading and adopt Resolution No. 09-80, to make certain findings pursuant to California Government Code Section 66001. Motion was seconded by Ferguson and carried by a 5-0 vote. 28 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 B. CONSIDERATION OF THE REVISION OF CHAPTER 8.36 - REGULATION AND PROHIBITION OF SMOKING - OF THE PALM DESERT MUNICIPAL CODE. Ms. Aylaian stated the draft Ordinance was neither a wholesale change nor groundbreaking overhaul of smoking regulations in the City, stating she would characterize it more of an increment step toward protection of the health of a nonsmoker. More than a year ago, the City Council asked that a subcommittee be formed to examine the balance of smoking regulation between business owners who are interested on one hand and health agencies who were interested on the other. The group which met several times was comprised of business owners, president of the Chamber of Commerce, representatives from Public Health, nonprofit health organizations, enforcers from the police and City Code Enforcement, staff members, and elected officials as well. She said it was fair to say the Ordinance was not wholly endorsed by any one person; it was truly a compromise of the very divergent interests represented on the Committee. She said five key areas the Committee focused on and where deliberation was spent, was smoking around the public entrances to both publicly and private owned buildings, hotels, common areas of apartments, outdoor patios for bars and restaurants, and sidewalks. The recommendations included in the Ordinance for the five areas mentioned are as follows: At the main entrance to buildings that are publicly or privately owned businesses and institutions, smoking will be prohibited within 20 feet of that entrance; for hotels, the discretion will be left up to the hotel owner and management company to designate smoking areas as they believe are appropriate for their property; for apartments, the Ordinance only addresses the multi -family residential units that are owned by the City or Redevelopment Agency, and in those areas, the Committee recommended prohibiting smoking in common areas with the exception that any designated smoking area can be placed near a pool, as long as it took no more than 1/4 of the pool deck area; for outdoor patios at bars and restaurants, which actually tied into the area where smoking is prohibited 20 feet from entrances to businesses. Many of the bars and restaurants have outdoor dining, both a public entrance and separate patio where one went through that patio into the restaurant or establishment, but it was not the main entrance. Smoking will be prohibited strictly within 20 feet of the main entrance. The establishment can then designate smoking area/s on their patios as long as it was not within 20 feet of that public entrance, which will allow nonsmoker to be able to enter into the dining establishment/bar or dine and drink in areas without having to go through a cloud of smoke. It will also provide opportunities for smokers to be able to dine and have drinks in an area where they are not impacting the desire of the nonsmoker. In reference to sidewalks, she said a couple of cities in the State prohibit smoking on public sidewalks, which was an area discussed briefly, and the recommendation was to allow smoking as currently 29 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 permitted on public sidewalks. In addition, the proposed Ordinance would permit smoking in the 20-feet circumference, as long as one was actively passing through. In other words, if someone was walking down the street with a cigarette, that person wouldn't have to distinguish their cigarette every time it was within 20-feet of an entrance. The fiscal impact was twofold, stating the cost of enacting the Ordinance in the area of enforcement would be a direct cost to the City. Secondary, the cost of the economic impact or potential economic impact to businesses, which may be a change in revenue based upon smoking prohibitions. Staff anticipated the cost of enforcement would be minimal, which can be expected after the initial passage of the Ordinance. She said there will be a heightened interest and activity with an increase of calls, in particular Code Enforcement. She may recommend that Code Enforcement perform some shift work, because many of these types of calls will typically come in the evening hours. There are also costs associated with giving notices to all of the businesses and processing applications for shopping centers, which would need to have their designated smoking areas clearly defined, reviewed, and approved by the City; the actual hard costs are relatively nominal. The staff report included information where a host of studies conducted in this area over the past 15- 20 years, cities across the nation, particularly in California have passed increasingly restrictive prohibitions in smoking both at restaurants and bars. The studies reviewed have consistently found, that not only was there no adverse impact on the sales of those establishments, but actually an increase in sales due to the prohibitions or restrictions that were passed. Further information is available and can be found through the website and the studies indicated in the staff report. She would like to add a definition to the draft Ordinance and for the record as follows: "The City shall mean the City of Palm Desert and it's related entities including the Palm Desert Redevelopment Agency and the Palm Desert Housing Authority." When talking about City owned properties or multi -family properties, they are technically owned by Redevelopment Agency and not the City. She received only one e-mail from the public who strongly supported the Ordinance as proposed. Mayor Spiegel declared the public hearing open and invited public testimony in FAVOR of or in OPPOSITION to the proposed Ordinance. MR. SCOTT PAM, Palm Desert, CA, stated his name was misspelled in the June 26, 2008 minutes. He said there was nothing broken with the Smoking Ordinance except that one building did not fit the City Code. The City now required one air conditioner per unit because that was the problem of the dance studio with a smoking establishment next door where there was one air conditioner for both units. He said staff provided a great staff report, but it left out the study of the City of Palm Desert from the people who lived here. He didn't bring in millions to the City, but he did make about $50,000 a year in his home -based business. He said he was an honest guy who obtained 30 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 a business license and home occupancy permit, but based on the proposed Ordinance, he would be deemed a criminal for smoking a cigar or pipe in his apartment, which he thought was reprehensible. He noted a parade of business owners had already opposed a smoking ordinance at the City Council meeting of June 26, 2008, stating this City would be affected. The studies noted in the staff report were not current ones, and they were based on old Environmental Protection Agency (EPA) studies. The EPA study was thrown out of court, because the data was flawed and forged, which he pointed out at the June City Council meeting as well. He felt the City was overstepping its boundaries by telling him what he could and could not do inside the privacy of his own home. He said AIDS' deaths were much higher than second-hand smoke deaths, and it was unconstitutional to tell people what they can and cannot do behind closed doors. He found it reprehensible that he had to stand before the City Council and wonder if he will need to move and take his business to another City in order to enjoy a fine cigar after a nice barbeque steak. The bottom line was that he had a home occupancy permit, gave his business to the City of Palm Desert, lived and prospered in Palm Desert, and would like to continue to do so, but he didn't want to live in fear of his own government. He said if the City wanted to enforce the Smoking Ordinance in public places, which was one thing, but in private residences was overstepping the boundaries. He said the proposed Ordinance was not an equal and fair law. MR. FRANK MOTT, Palm Desert, CA, stated it was ironic freedom of choice was being discussed the day after Veteran's Day, which he thought veterans and freedom was synonymous. He went on to say he's lived in Palm Desert longer than the City Council, he didn't smoke, he didn't have a bottom line to meet, or a constituency to answer to, nor was he endorsing smoking. He came out of hibernation to be an advocate for the founding fathers who were dissenters and stood for freedom of choice. He said some legislators felt these freedoms should be restricted, stating that the restriction of one person's freedom was the restriction of all persons. He said it first started out with no smoking in half a room, and now it's a whole building, and wondered what would be next. He said how can the great outdoors be legislated to "confined space." A better system would be to allow all businesses to put a sign on the front of their building that said smoking and nonmoving, which would allow choice and remove antagonism. He said there was no scientific data to support that outdoor smoking was detrimental to health; there were only conjecture and opinion. In his youth a package of cigarettes was only five cents, and he didn't think they were worth it. Today a pack of cigarettes was $5.00, but they were worth it. If he thought this Ordinance would cure cancer or stop smoking, he wouldn't be present this evening. He wondered how people would feel if this legislative body passed a law that would prohibit protesting, which they can do, what side would people then stand on. In his youth there were plagues called syphilis, gonorrhea, infantile paralysis, and smoking; a cure was found for all except 31 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 smoking. In the future a cure will also be found for HIV, AIDS, and cancer, but smoking will still remain. He asked the Council to keep up its good work, but to remember that man was not made to live in an antiseptic test tube. He said the best way to enforce this Ordinance was to not pass it. He said the proposed 20-foot restriction from entrances with ash trays no longer provided, people will end up distinguishing cigarettes by stepping on them and leaving them on the street; perhaps people will also be cited for littering. Legislation had been passed to stop drugs, Driving Under the Influence (DUI), and guns, yet there were more shootings today than there was in the Wild Wild West. He said if the Council found a law that changed human nature, he would be its strongest advocate. He reiterated there was no scientific data that smoking was harmful, and the Ordinance would not cure cancer or stop smoking, but only create animosity. MR. RONALD COOK, Palm Desert, CA, stated he was a member of the Committee that tried to come up with an Ordinance that was amicable and fair to all parties involved, which was tough to accomplish. He echoed Mr. Mott's comments as far as freedom of choice and rights. He noted he was a nonsmoker all his life, and a fire fighter for 22 years, but because of injuries to his lungs, he was forced to retire. He said the Ordinance was not about a smoke -free environment, but a step in the wrong direction. He believed rights were being picked away and wondered where it would end. He said fireworks and sale of fireworks was illegal, but it didn't make sense to make it legal at certain times. As a Palm Desert business owner, the Ordinance would affect his business negatively, because smokers were a hard-core group that will continue to smoke. He believed his customers will go to Rancho Mirage, Indian Wells, or even further to smoke a cigarette. When the law passed to prohibit smoking indoors, he was supportive of it because of the health benefits to his daughter and family. However, he felt choices were slowly being taken away. During one of the Committee sessions, some of the members expressed a desire to ban smoking in the entire City, which he feared this Ordinance will move toward. The proposed Ordinance will affect four tables in his business, which he feared was only the beginning. He believed everyone deserved to breathe clean air, especially because he had lung issues, but not at the risk of having rights taken away. He was opposed to the Ordinance and thought it was fine just the way it was. He said there were other ways to make this happen without taking people's choices. MR. BRENT SCHMIDMAN, Palm Desert, CA, stated this Ordinance was more about what was best for the City of Palm Desert, but questioned how it would benefit the City. He said the Ordinance was more of a deterrent because it wouldn't bring revenue, visitors, or new residents to the City. He noted he never smoked nor was he interested in being around smoke, but if the Ordinance was adopted, it will devastate his business. His restaurant and bar was off Highway 111 near a very busy parking lot. The smaller 32 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 businesses with patios are right next to the front entrance, but very few are larger than 20 feet, making it difficult to designate a nonmoving area. In his case, he usually had 40 people outside, dining, drinking, and socializing in a healthy manner. He believed the passing of the Ordinance will put him out of business, because he would lose 50% of his business due to the fact that 75% of his revenue was generated after 8:00 p.m. Responding to question, he said his business name was Schmidy's Tavern and was only three '/2 months old, which was why he was passionate about this matter. Unfortunately, his customers are 50% smokers after 8:00 p.m.; therefore, his business would not have an area for them to smoke. Earlier this evening, it was noted how important the hospitality industry was to the City, and he believed the proposed Ordinance would be a negative impact on the industry. He reiterated that not all locations have 20 feet that can be designated to accommodate the proposed Ordinance, and he didn't know how business owners would police such an Ordinance, which would open up a whole separate set of problems. He's already heard his customers talk about going elsewhere like The River, which was only three blocks away. Even though the Ordinance would impact him tremendously, it will also affect the beautiful coffee shops on El Paseo and every public establishment; he felt the Ordinance was not realistic. In addition, he couldn't understand why the City would want to limit business and revenue during these tough economic times, or alienate a significant group of its residents just because they smoked cigarettes. He would at least suggest delaying the Ordinance until the economy improved, which made more sense. He heard staff talk about all the studies done, but he didn't think everyone was realistic about the impact on small businesses and its residents. In summary, he reiterated the Ordinance had no benefits, and this was the time for the Council to help businesses. He asked the Council to delay or not pass the Ordinance. MR. BERT BRUNING, Palm Desert, CA, stated he was the owner of Palm Desert Tobacco and lived in Palm Desert since 1983. He said for the nonsmoker, like the entire City Council, smoking was a nuisance. However, the risk of outdoor exposure to second-hand smoke was a fallacy with nothing to support the Ordinance to get it through; if this was true, smoking would have been banned nationwide years ago. He urged the City Council to do the right thing and delay the Ordinance or get rid of it altogether. With no further testimony offered, Mayor Spiegel declared the public hearing closed. Councilman Ferguson stated he was unable to attend one of the last Ad -hoc Committee meetings and believed Mr. Bruning was the only one who was at that meeting and probably already heard his comments. He said two weeks ago, the Federal Centers for Disease Control found that people with at -risk heart disease could die with one hour or less with second-hand smoke, which was an irrefutable fact. Foremost, for 45 years there's been publishing studies that say Nicotine was not addictive and that tobacco did not cause 33 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 lung cancer, which didn't make them right. He said people can mock, ridicule, and poke fun at the Ordinance, but really they are asking for the ability to blow smoke in his kids face when they went to a book store or the mall, or his family who wants to have dinner in a restaurant; they would have to walk through the smoke and be adversely affected by it. He said the Mayor and he were both former smokers and knew both sides of this argument intimately. He spent a lot of time trying to kick the habit and finally stopped at the age of 40. He said many of the speakers acted like they were victims, but they are actually trying to blow smoke in the face of innocent children that have no business having pollutants blown in their face. He said smog from vehicles, which was particular matter and bigger than ten kilometers, which couldn't even be seen was regulated. In addition, paint with volatile organic compounds is banned. He said virtually everything that goes in the air was regulated except cigarette smoke. He said Palm Desert did not elect to ban cigarette smoking, but he personally would favor one, but in the balance of interest and having been a smoker, he never minded being asked where to smoke as long as he knew what the rules were. He said 87% of Palm Desert residents did not smoke cigarettes, and they don't need the 13% that did to smoke in their face. He said this was a public health and safety issue for him, and the Ordinance was not taking away anyone's rights, or breaking_a golden law, or causing the Second American Revolution, and to wrap yourself in the flag like this was some God-given right, was completely asinine. He said currently people are not allowed to drink in public or be drunk in public, and public health and safety was regulated for a reason. He said this Ordinance was for people to feel good in public places without the nuisance and harassment of second-hand smoke blown in their face, while at the same time giving the smoker, who had every right to enjoy and smoke a cigarette, to have a place to do so where it would not adversely affect someone else. He thought the proposed Ordinance provided a good balance for both the smoker and nonsmoker. Councilman Kelly stated he had not smoked a cigarette for more than 60 years, which made him more pure than his fellow colleagues. Even though he was not a smoker, he represented the smoking people, because he believed in their freedom. He said if skydivers, motorcycle drivers, and cigarette smokers wanted to kill themselves, they ought to have the freedom to do so, which was what he fought for in World War II. He said as long as he didn't affect someone else, he will take his freedom to do what he pleased, which was the American way. He said the proposed Ordinance represented both sides of the matter, and he reiterated that he represented the smoker in the Ad -Hoc Committee and believed he did a good job, because he was very conscious of the tourism industry. He said the Ordinance protected the nonsmoker and still allowed the freedom there for the hospitality industry to survive. He said the Committee worked hard to come up with a compromise that protected both the smoker and nonsmoker, which was why he would support the proposed Ordinance. 34 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 Mayor Pro Tem Finerty stated she too sat in those meetings with Councilman Kelly and Barbara deBoom played a pivotal role in trying to affect a balance. The Committee was able to reach a lot of common understanding, so that the 87% that didn't smoke would be able to enjoy themselves on a patio at a restaurant, or be able to walk out on the mall without going through the fog of smoke. One of the speakers mentioned the City was working off old evidence or old facts, but the Institute of Medicine Report, which came out in October 2009, stated that smoking had long been tied to lung cancer and can also contribute to heart disease. Breathing second-hand smoke can affect blood vessels and possibly face the risk of a heart attack. Second-hand smoke is believed to have caused up to 69,600 early deaths of nonsmokers from heart disease in the United States according to the Centers for Disease Control (CDC). It further stated that 21 States did have statewide smoking bans, and Dr. Thomas Frieden, President of the CDC stated that smoke -free laws didn't hurt business, but prevented heart attacks in nonsmokers. She said a year ago, a Citywide ban was discussed, but it was delayed for a Committee to meet, and all affected parties met to provide input, and a balance was reached, which was why she would support the proposed Ordinance. Councilmember Benson stated she didn't have anything to add that wasn't already said. She worked with the American Cancer Society for numerous years on this issue and believed the proposed Ordinance was a happy balance. She believed business would actually be increased, because the Ordinance will have an adverse effect with the number of nonsmokers and that number will grow each year. She supported the changes made to the Ordinance and applauded the Committee, because it was not an easy task to come up with something that would satisfy the majority. Mayor Spiegel stated he wished the Council had more control of its schools, because he believed that's where the problem started. Students at College of the Desert can smoke on campus, because the College was really not part of the City of Palm Desert. He noted his background was in retail, and he started smoking at the age of 13, but quit because he had pneumonia, otherwise he would have died. He believed in freedom, but what the Committee decided on was the right way to go. He said restaurants should keep smokers away from the front door, so that people don't have to be exposed to smoke. Although he still enjoyed the smell of smoke, his wife hated the smell and stayed away from it. He believed that what the Committee and staff proposed was the right way to go for the City. Councilman Kelly moved to waive further reading and pass Ordinance No. 1200 to second reading, as amended to include definition of "City" to also include the Palm Desert Redevelopment Agency and the Palm Desert Housing Authority, and revising and restating Chapter 8.36 - Regulation and Prohibition of Smoking, of the Palm Desert Municipal Code. Motion was seconded by Ferguson and carried by a 5-0 vote. 35 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 XVIII. REPORTS AND REMARKS A. CITY MANAGER 1. Reauest for Study Session Regarding Desert Willow Lake View Terrace and Kitchen Expansion Project. Mr. Wohlmuth asked for the City Council's concurrence with scheduling a Study Session to discuss the Desert Willow project on Thursday, December 10, at 2:00 p.m., prior to the regular City Council Meeting that day. He noted that there had been some discussion recently about not scheduling Study Sessions on the same day as a Council Meeting, and he requested direction. He also offered that Thursday, December 3, would be another viable time. Mayor Spiegel and Mayor Pro Tem Finerty both stated they have prior commitments on December 3. Councilman Kelly noted he preferred not having a Study Session on the same day as a Council Meeting. Mr. Wohlmuth stated that in the future, staff will try to avoid scheduling Study Sessions on the same day as a Council Meeting, if schedules permit; otherwise, for this project, it will be scheduled on December 10 at 2:00 p.m. With City Council concurrence, a Study Session regarding the Desert Willow Project was scheduled for Thursday, December 10, 2009, at 2:00 p.m. B. CITY ATTORNEY None C. CITY CLERK None D. PUBLIC SAFETY o Fire Department None o Police Department None 36 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 E. MAYOR AND MEMBERS OF THE CITY COUNCIL o City Council Reauests for Action: None o City Council Committee Reports: 1. Coachella Valley Animal Campus — Councilmember Benson reported that at this morning's Animal Campus Commission Meeting, it was requested that representatives take back to their communities a request for more volunteers that are very much needed. Staff at the Campus has been cut drastically, with expectations for more cuts in the future. She encouraged anyone who has some time to spend with the animals to contact the Animal Campus to make arrangements, especially anyone with specific expertise in working with animals and the behavioral assessments. She said the Campus has, a great track record, with many, many adoptions made possible, but there was currently an overload of dogs and cats. o City Council Comments: 1. Veterans Dav Program — Councilman Kelly complimented and thanked staff for organizing and executing an excellent Veterans Day Celebration yesterday at Freedom Park. He said the High School Band was a great feature, and he hoped they could participate again next year. 2. Community Gallery Artist Reception — Councilman Kelly stated he attended the most recent Art Gallery Opening Reception at the Visitor Center on October 26. It was the best attended Reception he recalled ever going to, after going to nearly all of them over the years. He said it was an outstanding showing, the artists were very popular with a great following. 3. Joslyn Cove Senior Center Pancake Breakfast - Car Show — Councilman Kelly added onto the report made by Mr. Coover at the beginning of this meeting, remarking that this event on November 7 was very well attended also. He thanked the Youth Committee for their participation. 37 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING NOVEMBER 12, 2009 XIX. ADJOURNMENT Upon a motion by Ferguson, second by Finerty, and 5-0 vote of the City Council, Mayor Spiegel adjourned the meeting at 6:50 p.m. ATTEST: RA HELL D. KLA SEN, OITY CLERK CITY OF PALM DESERT, CALIFORNIA AL6,u1 ROBERT A. SPILGELL MAYOR 38