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HomeMy WebLinkAbout2012-10-11MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING THURSDAY, OCTOBER 11, 2012 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 Councilmember Cindy Finerty Councilmember Jan C. Harnik Mayor Pro Tem William R. Kroonen Mayor Robert A. Spiegel Also Present: John M. Wohlmuth, City Manager David J. Erwin, City Attorney Robert W. Hargreaves, Assistant City Attorney Rachelle D. Klassen, City Clerk Bo Chen, City Engineer Lauri Aylaian, Director of Community Development Martin Alvarez, Director of Economic 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 Stephen Y. Aryan, Risk Manager Jason Finley, Supervising Plans Examiner Casey Hartman, Battalion Chief, Palm Desert Fire/Riverside Co. Fire Dept./Cal Fire Bill Sullivan, Asst. Chief, Palm Desert Police/Riverside Co. Sheriff's Dept. Grace L. Mendoza, Deputy City Clerk III. ORAL COMMUNICATIONS - A (CLOSED SESSION ITEMS) MR. GREG HATTON, of the firm of Hatton, Petrie & Stackler, Newport Beach, CA, and representing Lawrence Pasternack, addressed the City Council regarding the matter of Pasternack v. City of Palm Desert, et al., on today's Closed Session agenda. He explained that Mr. Pasternack owns the lot immediately adjacent to MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Lot 9 of Tract 25296-7. He provided a booklet of exhibits presenting his client's position regarding the Closed Session matter. He went on to provide an overview of the exhibits contained in the booklet and cited numerous zoning violations that are present at the Bighorn development, particularly as it relates to Mr. Pastemack's property. It was noted that Mr. Pastemack is also taking legal action against Bighorn and the builder/developers on his own lot that he purchased without knowledge of the fact of existing zoning violations on it. Mr. Hatton went on to observe that the Bighorn Homeowners Association allows placement of improvements on lots without reference to Palm Desert zoning ordinances, even though they are required to pay close attention to them under Article 4, Section 5 of their own CC&Rs (Covenants, Conditions, and Restrictions). He called particular attention to the Bighorn testimony under Tab 6 of the booklet, that being of Bighorn Development's Vice President Carl Cardinalli, who is also a member of the Homeowners Association, head of the Architectural Landscape Control Committee, the designated broker for their in-house realty company, Bighorn Properties, and he is also President of Bighorn Golf. He said that statement made it very clear that Bighorn doesn't care about Palm Desert's zoning laws, and it was very concerning to Mr. Pasternack. He went on to relate specifics about the setback violations, view - shed violations, etc. He closed by emphatically urging the City Council to instruct its City Attorney to enforce its zoning laws, specifically as they relate to Bighorn. Mr. Erwin noted that Mr. Hatton had requested that his letter of October 8 be given to City Council, and it has been provided to each Councilmember. MS. MARGARET G. WANGLER, whose office is located at 74-130 Country Club Drive, Palm Desert, stated she is the Attorney for Bighorn Homeowners Association, another defendant in the same litigation City Council will be discussing in its Closed Session today. She pointed out that their CC&Rs do not require the Association to enforce the City's setbacks; the CC&Rs say that the owners shall be subject to them. As the Association, their role is to make an aesthetic judgment on the plans that are submitted and how they fit in to the whole development, the golf course, etc. Once those plans are approved, they go to the City, which makes its judgment on them according to its own requirements and ordinances. She was also aware that there is an issue as to whether or not there are, indeed, setbacks applicable to the area in question. Lastly, she wanted to point out that it was a mis- characterization that the Homeowners Association didn't care about the City or its requirements, because that was not the case. She said they liked to think of themselves as partners in approving and facilitating construction of homes in Bighorn and in the City. IV. ADJOURN TO CLOSED SESSION r .IM .11 Request for Closed Session: nu A. Conference with Legal Counsel regarding existing litigation pursuant to ..r Government Code Section 54956.9(a): 2 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 1. Pasternack v. Fagel, Bighorn, and City of Palm Desert, Riverside County Superior Court, Case No. INC 1206949 B. Conference with Legal Counsel regarding significant exposure to litigation pursuant to Govemment Code Section 54956.9(b): Number of potential cases: 2 On a motion by Kroonen, second by Finerty, and 5-0 vote of the City Council, Mayor Spiegel adjourned the meeting to Closed Session at 3:14 p.m. He reconvened the meeting at 4:02 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 - Mayor Robert A. Spiegel VII. INVOCATION - Councilmember Cindy Finerty VIII. ORAL COMMUNICATIONS - B A. PRESENTATION OF ANIMAL ADOPTION FEATURE. None B. GENERAL ORAL COMMUNICATIONS. 1. MR. EDWARD SCHILLER, representing Western Golf Properties and a resident of Pitahaya Street in Palm Desert, said he'd been working in golf management since 1986, with both Landmark Golf and with Western Golf Properties. Today he asked for City Council's future consideration of going out to bid for the Desert Willow Management Contract. He believed the reasons that would make this prudent is that the contract has not been out to bid for over 10 years, and the competitive bid process could save the City several hundreds of thousands of dollars from current market contracts. He noted the current contract between the City and Kemper Sports is $894,840/year, plus an incentive fee of 5% over $6,000,000 gross revenue, which he estimated at $1,100,000 to $1,200,000 per year. He recognized that there are five key employees deducted from that contract, but local competitive contracts in the marketplace for an 18- hole golf course today are SilverRock at $90,000 and Indian Wells (36-hole facility) at $260,000, with incentive fees if the golf course has 3 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 a positive profit margin. He related that Western Golf had been in business for the last 27 years in Southern California and managed golf courses nationwide. Through its history, they've developed over 100 golf courses and have a proven record in celebrated facilities, with expertise in golf management to offer great insight to smart business practices and operational efficiencies in order to deliver quality conditions, exceptional guest service, and bottom -line results. He said Western Golf's corporate office was located in Southern California and has a staff member minutes away from Desert Willow, and they manage several properties in the region, such as Pelican Hill Golf Club, Oak Creek Golf Club, TPC Valencia, and Ocean Trails (currently Trump National). He hoped the City Council would consider his presentation, noting that he'd previously met with Mr. Wohlmuth and that in April this year staff was directed to work out a new contract for the upcoming year. However, he requested that the City reconsider that action and go out to bid. He believed there could be a pleasant surprise in store, or it would be proven that the current contract is a good one. Mayor Spiegel thanked Mr. Schiller and said Council would discuss this with Mr. Wohlmuth. ON .r 11111111 2. MR. STEVE FINGER, Palm Desert, CA, said he was once arrested iiii in Civic Center Park and charged with unlawful assembly by the contracted Palm Desert Police Department. One week ago, he attended a candidates' forum with several dozen other interested citizens who wanted to hear from the candidates. He said the candidates also wanted to hear the attendees' concerns, which they appreciated. He added for the record that he was a happy Palm Desert resident; it's a beautiful city with ample shopping and entertainment, with an active Police Force. He recalled being taken into custody almost one year ago exactly, but as a citizen of the U.S. from this city, like millions of other citizens, had issues on his mind. He just thought that if he presented the issues, he'd be provided with more solutions. However, over the course of five days, nearly 400 other concerned citizens came to visit their group with a 24-hour open-door policy — nearly 10 times the amount who came to the candidates' forum. He said their issues were those of residents being foreclosed upon illegally, the consequent homelessness, and the pollution that will soon blow in from the Sentinel Plant to harm their health and possibly cripple this area's tourist trade. These were issues that local politicians can address. He said the police action that closed their forum outside was detrimental, because it dissuaded no many citizens from speaking out; and in that regard, it surely was an error. Secondly, it cost the City more than $100,000 to collect less so than $2,000 in fines. He stated that because the Police were directed 4 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 not to give a dispersal order, their operational plan did not include issuing citations. Unfortunately, the objective was arrests, and in fact, that was the first night he'd ever spent in jail. This was followed by his going to seven hearings and spending five days in a Motel 6 in order to be on time each of the four days of his trial, with his case being dismissed. He had not been unlawfully assembled; he had and has the right to speak. Perhaps it was just a matter of miscommunication between a citizen like himself and the Councilmembers. Therefore, he wanted to make it clear that he would like to mark the occasion on November 1 by reopening the forum to: 1) Show the City that it does not object to its citizens' right to free speech; 2) provide opportunity for many to exercise it. For the record, he would not be asking for sleeping accommodations but would like the event to start at 3:00 p.m. and go to 9:00 p.m., a short time so people can come after work. He understood that the permit was only needed if more than 30 people were to attend but didn't think there would be that many, at least until they see their elected City Council stand up for and guarantee their freedom of speech. He invited Councilmembers all to participate and hear what those who attend his forum have on their minds. He intended to apply tomorrow for an open forum permit on November 1 from 3:00 p.m. - 9:00 p.m. in the same parking lot he occupied previously. He asked if there would be any objections and if he could count on the Council's support in this matter. Mayor Spiegel said the Brown Act prohibited the Council from providing a specific response, but for the event Mr. Finger just described didn't foresee any objections. 3. MR. KENNETH DORAN, Palm Desert, CA, stated he'd sent an e-mail last Friday to the Human Resources Department, requesting the job description for the Tourism and Marketing Manager position. He noted that the City Council approved this position back in May, but when he received the City's response on Monday, it stated this document doesn't exist. He believed anyone with a reasonable expectation would know that document existed in this five months' time. Further, he wasn't told when the document would be available and was very frustrated. He said the document wasn't proprietary in any way and wondered what the problem could be, observing that whenever a job announcement is made, a description of the position must be provided. He asked for direction from Council as to when that document would be available. Mayor Spiegel said Mr. Doran would receive a call from the phone number provided on the Speaker Card. 5 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 4. MS. LOUISE FASANA, Desert Cancer Foundation, 74-091 Larrea Street, Palm Desert, CA, thanked the City Council for its support and proclamation she'd been pleased to accept on behalf of "Paint El Paseo Pink" at a recent Council Meeting. Today she invited everyone here to the event this Saturday, October 13, on El Paseo to support free breast cancer screenings, mammography, and other diagnostic services for residents of the Coachella Valley. She said they didn't believe that anyone without insurance should go without these preventative measures that absolutely save lives. Further, she said they were deeply honored this year to have Councilmember Jan Hamik as their Honorary Chairperson for the event and looked forward to the City Council's and the Palm Desert community's support. 5. MR. LEW STEWART addressed the City Council about its Closed Session today, where legal counsel was consulted on two cases under California Government Code 545956.9(b), noting that when they came out from the Closed Session, there was no report to be given. When he read through that particular section of the Code, he recognized the possibility that this could be used to hide instances of fiscal irresponsibility brought on by bad policy decisions. In an election season, he hoped this wouldn't be the case. He hoped that if the City was being sued because of bad policy decisions, such as what happened with the $17 million of funds from the Redevelopment Agency, it would be brought out — even though it could be a very controversial political issue. He hoped this wouldn't be hidden from citizens during an election season. Mayor Spiegel responded that there were no decisions made during today's Closed Session, so there was nothing to report. IX. AWARDS, PRESENTATIONS, AND APPOINTMENTS A. PRESENTATION TO RECOGNIZE ROBYN S. RITCHEY FOR HER CONTRIBUTIONS TO THE CITY OF PALM DESERT AND ITS BUILDING BOARD OF APPEALS & CONDEMNATION, 1995 - 2012 (Continued from the meeting of September 27, 2012). Ms. Ritchey was unable to be present for this recognition. Therefore, the engraved crystal clock will be forwarded to her separately. 6 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 B. PRESENTATION OF PROCLAMATION, DECLARING THE WEEK OF OCTOBER 10 - 16, 2012, AS "WORLD HOMELESS WEEK" IN THE CITY OF PALM DESERT. On behalf of the City Council, Mayor Spiegel presented the proclamation to Darla Burkett, Executive Director of the Coachella Valley Rescue Mission (CVRM). MS. BURKETT expressed sincere appreciation for the recognition and thanked the City Council and the ongoing support from the City, noting that the Rescue Mission is serving over 600 meals every day, and they're very grateful. Last month they placed 27 families back into independent living situations, with CVRM housing all people from all cities in the Coachella Valley. C. REQUEST FOR APPROVAL OF RECOMMENDATION FOR THE CITY OF PALM SPRINGS CITY COUNCIL TO REAPPOINT ROLF HOEHN AS THE CITY OF PALM DESERTS REPRESENTATIVE TO THE PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION FOR A THREE-YEAR TERM, JULY 2012 - JUNE 2015. Mayor Pro Tem Kroonen moved to, by Minute Motion, recommend that Rolf Hoehn be reappointed by the Palm Springs City Council as the City of Palm Desert's Representative to the Palm Springs International Airport Commission for a three-year term, July 1, 2012, through June 30, 2015. Motion was seconded by Finerty and carried by a 5-0 vote. D. REQUEST FOR ACCEPTANCE OF LETTER OF RESIGNATION FROM PALM DESERT YOUTH COMMITTEE MEMBER TYLER NEWCOMB AND APPOINT JESSICA KOZLAK TO THE VACANCY ON THE COMMITTEE. Councilmember Finerty moved to, by Minute Motion: 1) Accept the letter of resignation from Palm Desert Youth Committee Member Tyler Newcomb with very sincere regret; 2) appoint Jessica Kozlak to the Palm Desert Youth Committee to fill the aforementioned vacancy (term Dec. 31, 2012). Motion was seconded by Benson and carried by a 5-0 vote. X. CONSENT CALENDAR A. MINUTES of the Regular City Council Meeting of September 27, 2012. Rec: Approve as presented. 7 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 B. CLAIMS AND DEMANDS AGAINST THE CITY TREASURY - Warrant Nos. 50, 51, 54, 57, 58, 60, 61, 63, 64, 67, 68, 69, and 72. Rec: Approve as presented. C. CLAIM AGAINST THE CITY (#712) by Malaquias Ramos in an Unspecified Amount. Rec: By Minute Motion, reject the Claim and direct the City Clerk to so notify the Claimant. D. APPLICATION FOR ALCOHOLIC BEVERAGE LICENSE by Mario's Italian Cafe VII, Inc., 73-155 Highway 111, Palm Desert. Rec: Receive and file. E. ART IN PUBLIC PLACES COMMISSION MINUTES for the Meeting of July 18, 2012. Rec: Receive and file. F. REQUEST FOR AUTHORIZATION to Destroy and Dispose of All Remaining Obsolete Blank Checks for the Desert Willow Golf Resort and Palm Desert Recreational Facilities Corporation Checking Accounts. Rec: By Minute Motion, direct staff to destroy and dispose of the remaining obsolete blank checks for the Desert Willow Golf Resort and the Palm Desert Recreational Facilities Corporation checking accounts. G. REQUEST FOR AUTHORIZATION to Solicit Bids for the Civic Center Sheriffs Substation HVAC Upgrades (Contract No. C32000A, Project No. 763-11). Rec: By Minute Motion: 1) Authorize staff to solicit bids for the Civic Center Sheriffs Substation HVAC Upgrades; 2) declare existing HVAC equipment as surplus and authorize its disposal — funds for the Civic Center Sheriff's Substation HVAC Upgrades are available in Account No. 450-4161-415-4001. 8 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 H. REQUEST FOR APPROVAL of Lease Agreement Between the City of Palm Desert and The Altum Group to Lease Suite No. 210 of the Parkview Professional Office Complex, 73-710 Fred Waring Drive. Rec: By Minute Motion, approve Lease Agreement Between the City of Palm Desert and The Altum Group for Suite No. 210 of the Parkview Professional Office Complex and authorize the Mayor to execute same. I. REQUEST FOR ACCEPTANCE OF BID for Printing of the 2013 City Calendar (Contract No. C323001. Rec: By Minute Motion: 1) Accept the bid from Pride Industries, Roseville, California, for printing of the City's Annual Calendar - 2013 in the amount of $15,165.63; 2) authorize the Mayor to execute same — funds are available in the 2012-2013 Marketing Budget, Account No. 110-4417-414-3091. J. REQUEST FOR APPROVAL of a Purchase Order in an Amount Not to Exceed $1,000 for the Relocation of a Boulder at the Palm Springs Art Museum -Palm Desert and Appropriation of $25,060 for Project Costs Above the City Manager's Authorized Approval (Project No. 872-12). Rec: By Minute Motion: 1) Approve a Purchase Order payable to Palm Springs Art Museum in an amount not to exceed $1,000 to relocate a boulder as part of the Palm Springs Art Museum -Palm Desert Improvements Project (Project No. 872-12); 2) receive estimated revenue to the General Fund from the Palm Springs Art Museum in the amount of $19,060 that will be held in a Trust Account and utilized to defray costs associated with Contract No. C31880 upon project completion; 3) transfer $15,000 from contingency to base for Contract No. C31880 with Zeus Construction, Palm Desert, California, in the amount of $169,060, which is $4,060 in excess of the City Manager's approval; 4) appropriate $25,060 from the Unobligated General Fund for Project No. 872-12, Palm Springs Art Museum -Palm Desert Improvements, and transfer to Account No. 110-4800-454-3885 for this purpose. K. REQUEST FOR ACCEPTANCE OF WORK for Contract No. R30570A — Neighborhood Stabilization Program (NSP) Home Rehabilitation Project Located at 74-131 El Cortez Way (Mostar Construction, Fontana, CA) (Joint Consideration with the Successor Agency to the Palm Desert Redevelopment Agency). Rec: By Minute Motion, accept the work as complete and authorize the City Clerk to file a Notice of Completion for the subject project. 9 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 L. REQUEST FOR ACCEPTANCE OF WORK for Contract No. R30570B — Neighborhood Stabilization Program (NSP) Home Rehabilitation Project Located at 77-115 Florida Avenue (AA Max Quality Construction, Indio, CA) (Joint Consideration with the Successor Agency to the Palm Desert Redevelopment Agency). Rec: By Minute Motion, accept the work as complete and authorize the City Clerk to file a Notice of Completion for the subject project. M. REQUEST FOR ACCEPTANCE OF WORK for Contract No. C31720 — Replacement and Modification of the Kitchen Air Conditioning at Desert Willow Golf Resort (Quality Mechanical Professionals, Inc., El Cajon, CA). Removed for separate consideration under Section XI, Consent Items Held Over. Please see that portion of the Minutes for Council discussion and action. N. REQUEST FOR ADOPTION of Statutory Exemption and Filing of Notice of Exemption for the Section 29 Retention Basin Repair Project. Rec: By Minute Motion, adopt the Statutory Exemption for the Section 29 Retention Basin Repair Project and authorize the Director of Public Works to execute and file the Notice of Exemption with the Riverside County Clerk. O. REQUEST FOR APPROVAL of a Complete Street Closure on El Paseo Between Highway 74 and Ocotillo Drive and to Permit Consumption of Alcoholic Beverages on City Property at a Special Event to Benefit the "Behind A Miracle" Fund-raiser - November 17, 2012. Rec: By Minute Motion, approve a permit to temporarily close streets and sidewalks owned by the City on El Paseo, located between Highway 74 and Ocotillo Drive, and to allow the consumption of alcoholic beverages within this area for the "Behind A Miracle" Fund-raiser on November 17, 2012. 10 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 P. REQUEST FOR APPROVAL of the 1st Annual Martha's Village Thanksgiving Day 5K Run/Walk on November 22, 2012, Including Closure of Public Streets. Rec: By Minute Motion, approve the 1st Annual Martha's Village Thanksgiving Day 5K Run/Walk, including closure of El Paseo, subject to approval of the Public Works Department. Mr. Erwin requested that Item M be removed for separate consideration under Section XI, Consent Items Held Over Upon a motion by Finerty, second by Kroonen, and 5-0 vote of the City Council, the remainder of the Consent Calendar was approved as presented. XI. CONSENT ITEMS HELD OVER M. REQUEST FOR ACCEPTANCE OF WORK for Contract No. C31720 — Replacement and Modification of the Kitchen Air Conditioning at Desert Willow Golf Resort (Quality Mechanical Professionals, Inc., El Cajon, CA). Councilmember Finerty moved to, by Minute Motion, continue this item to the meeting of October 25, 2012. Motion was seconded by Kroonen and carried by a 5-0 vote. XII. RESOLUTIONS None XIII. ORDINANCES A. For Introduction: None B. For Adoption: 1. URGENCY ORDINANCE NO. 1250 - AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTION 10.16.090 OF THE PALM DESERT MUNICIPAL CODE - TRAFFIC REGULATIONS AND ENFORCEMENT. Mr. Erwin noted this item was placed on the agenda to give the City Manager and Police Department the authority to either remove or relocate automobiles that may be in the way based upon any construction, installation of utilities, or special events. The City has special events coming up in the fall and staff wanted to get this on the 11 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 books. Responding to question about why this Ordinance wasn't already in place, he said it wasn't one that was picked up in the normal review. Mr. Wohimuth explained that for the Golf Cart Parade, staff posted "No Parking" notices one or two days prior to the event to avoid having people park or drive on the street and allow people to sit on the sidewalk to watch the parade. Last year there was a situation where someone parked near a bar and took a taxi home, leaving his vehicle ovemight. When that person came back to retrieve their car, the parade was going on. The purpose of the Urgency Ordinance is to allow staff to clear the parade route if necessary, because currently law enforcement didn't have that authority. Councilmember Harnik moved to waive further reading and adopt Urgency Ordinance No. 1250. Motion was seconded by Finerty and carried by a 5-0. XIV. NEW BUSINESS A. CONSIDERATION OF REQUEST, AUTHORIZING THE CITY MANAGER TO GRANT EXCEPTIONS TO PALM DESERT MUNICIPAL CODE SECTION 25.64.040 — USES PERMITTED SUBJECT TO TEMPORARY USE PERMIT — FOR VARIOUS PRIVATE EVENTS HELD AT THE PALM SPRINGS ART MUSEUM IN PALM DESERT (THE GALEN) FOR A PERIOD OF FIVE YEARS. Councilmember Harnik moved to, by Minute Motion, approve for a period of five years: 1) Authorization for the City Manager to execute on behalf of the property owner Temporary Use Permit (TUP) Applications for events held by the Palm Springs Art Museum in Palm Desert (The Galen); 2) an exception to Palm Desert Municipal Code Section 25.64.040 - Uses Permitted Subject to Temporary Use Permit- permitting the Palm Springs Art Museum in Palm Desert (The Galen) located at 72-567 Highway 111, to have more than 10 special events per year that require TUPs. Motion was seconded by Finerty and carried by a 5-0 vote. B. CONSIDERATION OF DRAFT DESIGN GUIDELINES FOR THE EL PASEO SHOPPING DISTRICT AND DIRECT STAFF TO SOLICIT INPUT FROM THE BOARD OF THE EL PASEO BUSINESS IMPROVEMENT DISTRICT BEFORE PREPARING FINAL GUIDELINES. Ms. Aylaian stated that in June 2012, the City Council asked staff to prepare design guidelines particularly for El Paseo to entice business owners to take use of the public right-of-way where it did not impinge upon public safety and be able to provide outdoor dining as a way to better engage the outdoor experience for shoppers. Staff was tasked with coming back at this meeting with recommendations, which have been drafted and is in Council's packet. 12 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 In summary, staff recommended that there be a process by which business owners are allowed to have outdoor dining on the sidewalk, including into the public right-of-way through a permit process. There are limitations, particularly on the width of sidewalk clearance that needs to be left available for pedestrians and shoppers. The key dimension staff is recommending is an 8-foot clear walkway, and where there is more space available, staff would issue permits to allow businesses to take advantage of the public right-of-way for dining. Staff will review the proposed dining barricades, tables, chairs, planters, umbrellas, and other amenities to ensure they meet aesthetic standards and not impinge upon the visibility or the operation of neighboring businesses. Additionally, where street furnishings like benches and trash cans are provided by a private business, they will be kept on the private property, but where they are provided by the City, staff would like them to be uniform in design and style for a consistent theme to extenuate the unique architecture and furnishings of the businesses themselves. Staff is scheduled to meet with the Merchants on El Paseo to discuss these items and get their input. Staff requested Council's input, but also to delay final action on this matter until they have the El Paseo Business Improvement District's input and recommendations. MR. JOHN WESSMAN, Palm Springs, CA, stated that part of the reason the Council was hearing this session was because they requested outdoor dining when they presented their restaurant remodeling plan for the building next to Starbucks on El Paseo. He understood staff is recommending a minimum 8-foot clear walkway, stating he finds himself in a catch 22 situation, because they were proposing to have sliding doors that opened up10-feet wide with three different openings on the building where dining can be moved out into the sidewalk. However, the Health Department in California has different rules, in that if a restaurant has an exposed kitchen/dining, sliding doors are not allowed, but are allowed to have one swinging door into the outside from the restaurant in the three openings. Where they would have had three panels that would have slid back and totally open to the sidewalk for the diners, which is seen in Europe and other places, they can't do it because of the way the restaurant is designed. He said the kitchen is a presentation kitchen where one can see the cooks cooking pizza in the pizza oven, etc. He said the Health Department nixed their idea and now they will have to install fixed panels with just one door, and the minimum they will be able to live with would be four feet, which only provides them a 6-foot clearance in front of the restaurant. If the Ordinance is adopted for an 8-foot clearance, he hoped the Council will allow the Planning Director or someone at staff level to make a decision on whether or not there was a hardship case cause by something he just talked about with the Health Department. He would like to be able to go out to 6-feet in order to have four or five feet behind the handrail, because now they will have to come through the single door and the table and chairs will have to be between the new glass doors, and three 13 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 feet wasn't enough room. He realizes they couldn't change the Health Department's mind, but hoped the City Council will look at that. Ms. Aylaian asked that the Council receive and file the draft guidelines, direct staff to work with the El Paseo Improvement District Board, and return with their recommendation. Councilmember Finerty stated the City needs to come up with a plan to effectively deal with pedestrians smoking on the sidewalk without it impinging on the restaurant patrons dining experience. She would like to ensure the City Council had the final say and be able to call up any case that is appealable or approved by the Architectural Review Commission (ARC). Ms. Aylaian responded the process was already in place. Councilmember Benson said she didn't notice anything that addressed the hours of operation, bearing in mind the east and west end of El Paseo where there is adjacent housing, i.e., Sandpiper Development and further down by Augusta Restaurant was Shadow Mountain. Additionally, she believed there needs to be something more definitive with regards to outdoor entertainment, because the area is highly sensitive to outdoor noise. Ms. Aylaian explained the design standards are intended to reflect design only. Anyone that wanted to provide any type of outdoor or indoor entertainment would still have to go through the regular approval processes that's in place with a Conditional Use Permit (CUP) or a Temporary Use Permit (TUP). She said entertainment was controlled separately from the design standards. In response to the hours of operation, staff identified in the rules and regulations that cafe's not open earlier than 7:00 a.m. or later than midnight. Councilmember Benson stated that noise carrying into a residential area at midnight is what worried her, because the City will have complaints if there is a loud party at midnight. Ms. Aylaian agreed to review the hours of operation. She noted that Councilmember Harnik mentioned there could be concern with Starbucks or coffee shops that generally opened sooner than 7:00 a.m. Therefore, staff will need to review the hours of operation and see how that will work in the El Paseo setting where there are residential concerns as well. Additionally, staff will look to the El Paseo Merchants for recommendations and discuss the matter further internally. Councilmember Harnik stated another item discussed was the use of paper products and the intent to cut down on waste. However, the City had places like Starbucks and Coffee Bean who have outdoor dining and almost always 14 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 use their own paper cups. She said staff needed to address that item in this - Ordinance. Ms. Aylaian responded staff can look at ways to control the waste so it doesn't migrate to other businesses or overflow trash cans, and look at things operationally by requiring restaurants to police their own trash cans in their immediate area. Staff requested this item be continued to the November meeting pending the feedback from the El Paseo Business Improvement District. Councilmember Finerty moved to, by Minute Motion, receive and file draft guidelines, directing staff to return for City Council action at its meeting of November 15, 2012, after obtaining a recommendation from the Board of the El Paseo Business Improvement District. Motion was seconded by Kroonen and carried by a 5-0 vote. C. REQUEST FOR APPROVAL OF SILENT DOWN PAYMENT ASSISTANCE LOANS FROM THE PROGRAM INCOME OF THE BUILDING EQUITY GROWTH IN NEIGHBORHOOD GRANT (BEGIN) AND HOUSING MITIGATION FUND IN AMOUNTS NECESSARY TO SECURE AN AFFORDABLE HOUSING COST, NOT TO EXCEED A TOTAL OF $35,000, ASSOCIATED WITH A DIRECT SALE IN DESERT ROSE (APN 634-061-036). Ms. Moore stated this house is one that a resident decided to sell. The City has a qualified buyer needing down payment assistance from the BEGIN and Housing Mitigation Fund until staff resolves the issue with the Department of Finance with respect to the housing asset. She noted funds were available that are not drawn from the General Fund. Councilmember Finerty moved to, by Minute Motion: 1) Approve Silent Down Payment Assistance Loans from the Program Income of the Building Equity and Growth in Neighborhood Grant (BEGIN) not to exceed a maximum of $30,000 and from the Housing Mitigation Fund not to exceed $5,000 in order to secure an affordable housing cost, pursuant to California Health and Safety Code Section 50052.5 for the direct sale of APN 634-061-036 in Desert Rose; 2) approve the Affordable Housing Restriction and Lien Agreement ("AHRLA") in favor of the City of Palm Desert ("City"), substantially as to form, and authorize the Mayor to execute same; 3) authorize the Director of Finance to draw monies from the relative funds to facilitate the transaction; 4) authorize the City Manager or his designee to execute and finalize any documents necessary to effectuate the actions taken herewith — funds are available in the BEGIN Fund, Account No. 214-4494-464-3901, and Housing Mitigation Fund, Account No. 214-4490-466-3901. Motion was seconded by Harnik and carried by a 5-0 vote. MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 D. REQUEST FOR APPROVAL OF A SILENT DOWN PAYMENT ASSISTANCE LOAN FROM THE PROGRAM INCOME OF THE BUILDING EQUITY GROWTH IN NEIGHBORHOOD GRANT (BEGIN) IN AN AMOUNT NECESSARY TO SECURE AN AFFORDABLE HOUSING COST, NOT TO EXCEED $10,000, ASSOCIATED WITH A DIRECT SALE IN DESERT ROSE (APN 634-062-013). Ms. Moore noted this item was similar to the previous item on the agenda; however, there was only one funding source with this loan. Mayor Pro Tem Kroonen moved to, by Minute Motion: 1) Approve a Silent Down Payment Assistance Loan from the Program Income of the Building Equity and Growth in Neighborhood Grant (BEGIN) in an amount necessary to secure an affordable housing cost, not to exceed $10,000, pursuant to Califomia Health and Safety Code Section 50052.5, as amended from time to time, for the direct sale of APN 634-062-013 in Desert Rose; 2) approve the Affordable Housing Restriction and Lien Agreement ("AHRLA") in favor of the City of Palm Desert ("City"), substantially as to form, and authorize the Mayor to execute same; 3) authorize the Director of Finance to draw monies from the relative fund to facilitate the transaction; 4) authorize the City Manager or his designee to execute and finalize any documents necessary to effectuate the actions taken herewith — funds are available in the BEGIN Fund, Account No. 214-4494-464-3901. Motion was seconded by Finerty and carried by a 5-0 vote. XV. CONTINUED BUSINESS A. REQUEST FOR DIRECTION RELATED TO A -FRAME AND PEDESTAL SIGNS (Continued from the meetings of August 23 and September 27, 2012). Principal Planner Tony Bagato stated this item has been continued several times, most recently to discuss the idea of having pedestal signs versus A -frame signs. Staff met with three members of the El Paseo Merchants to discuss and review photographs of pedestal signs that are currently around El Paseo and throughout the City. Currently A -frame signs are prohibited, which was discussed. The representatives at the meeting believed the need for these signs had disappeared now that El Paseo was busier; therefore, they focused on whether or not they should still be allowed in the summer. He said there wasn't a preference between an A -frame and pedestal signs, so long as there was a criteria that made them attractive. Additionally, creating a City seal process where staff approved the signs and placed an identifying sticker would make it easier for law enforcement to take action on those without one. This process would require a Zoning Ordinance Amendment, which staff can prepare at the direction of the Council as part of the Zoning Update. It can be a separate action item to modify the Pedestrian -oriented Signs Section to allow pedestal, A -frame, or even an 16 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 easel type of sign during the summer (June through October). Additionally, where there is one tenant in a vacant multi -tenant building, a sign would be allowed to help that one tenant show it was open. Mayor Pro Tem Kroonen said he was present at the meeting, and it was interesting that there was a quick consensus of agreement among the parties there representing The Gardens, the west end of El Paseo, and a private small-business owner. He was pleased to see people in agreement as to what might be appropriately done. Mayor Pro Tem Kroonen moved to, by Minute Motion, direct staff to modify Palm Desert Municipal Code Section 25.68.080(G) — Pedestrian -oriented Signs. Motion was seconded by Harnik and carried by a 5-0 vote. B. REQUEST FOR DIRECTION TO STAFF ON THE ADMINISTRATION OF CITY COUNCILMEMBER BENEFITS (Continued from the meetings of August 23 and September 27, 2012). Mr. Erwin stated the City had not received a response from Fair Political Practices Commission (FPPC) and asked that this item be continued to the next regular meeting. Councilmember Finerty stated the majority of the Council wanted a committee to review City Council's compensation package. The Council heard loud and clear their recommendation and accepted the recommendation regarding salary. Additionally, the Committee's recommendation regarding medical benefits would be fair and equitable for all Councilmembers as well. She said the Council needed to demonstrate leadership this evening and moved to vote that medical benefits be for Councilmembers only. Councilmember Finerty moved to, by Minute Motion, approve Medical Insurance Benefits for Councilmembers only. Motion was seconded by Benson. Councilmember Harnik said it was nice to show leadership, but the Council must abide by the law and therefore must wait for an FPPC rule. Councilmember Finerty said the Council can make its own decision and show its willingness to be fair to all parties and let the community know where each Councilmember stands, because they are entitled to know, and should the FPPC decide something else down the road, a future Council can address it. She said this Council had waited long enough, the public had spoken, the compensation committee had spoken, and thought there was just reluctant Councilmembers who wanted benefits for their dependents. She said it was time to be fair to everyone and stop Palm Desert taxpayers supporting dependants health insurance. 17 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Mayor Pro Tem Kroonen stated he was the one member of the City Council who had not derived any benefit out of this portion of the compensation package, and he preferred to stick with the City Attorney's recommendation and wait until it had more information on the legal surroundings of this matter. Councilmember Benson suggested placing this item on the next agenda if the Council didn't vote this evening, because it would be the last agenda before a new Council is seated, and she didn't think this item should be held over for a new Council to vote on. Councilmember Harnik suggested an amended motion to wait for an FPPC decision before voting on this item. Councilmember Finerty asked that her motion be voted on. Mayor Spiegel called for the vote, and the motion FAILED on a 2-3 vote, with Harnik, Kroonen, and Spiegel voting NO. Mr. Erwin requested this item be continued to the next regular agenda. Mayor Pro Tem Kroonen, moved to, by Minute Motion, continue this item to the meeting of October 25, 2012. Motion was seconded by Harnik and carried by a 3-2 vote, with Benson and Finerty voting NO. C. REQUEST FOR APPROVAL OF SOLID WASTE AND RECYCLE ROUTE CHANGE FOR PALM DESERT RESORTER, PALM VALLEY COUNTRY CLUB, AND DESIGNATED RESIDENTIAL AREAS (Continued from the meetings of September 13 and September 27, 2012). Ms. Riddle stated this item was continued from the September 13 meeting where the Council requested that staff obtain feedback from residents in the designated areas south of Highway 111. A letter was sent out notifying residents of the proposed change along with a postcard that asked three questions. The results were that 193 residents indicated the proposed change would not impact them, and 168 preferred to keep their service day on Monday. Of those comments, some noted they had gardening and social activities where they generated more trash on the weekend, thus would like to keep the Monday service. For those residents who primarily live in that area, the majority have a side and rear yard and can accommodate the containers. However, that condition doesn't exist for a lot of the homeowners in the Palm Valley Country Club or the Palm Desert Resorter. Additionally, they have conditions that prevent them from enlarging their central trash enclosure area. Given the different conditions that exist for the various areas, staff is still proposing the change be approved. 18 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Mayor Pro Tem Kroonen asked if Palm Valley and Palm Desert Resorter part of the Incorporated City of Palm Desert, and asked if their Building standards not require them to have sufficient space/storage capacity for trash. Ms. Riddle explained they were older communities, and she wasn't aware of what conditions existed at that time, but they would probably not be approved today. Now, with new projects, she is responsible in determining whether they have proper enclosures and what type of system the project is proposing. She didn't believe trash situations were reviewed the same way it's handled now. Mayor Spiegel said the Resorter used to have service on Monday and then it was changed to Thursday. The problem is that the two places have rentals and the people there on the weekends didn't know what to do with their trash, which is why they preferred the Monday service. Mayor Pro Tem Kroonen said he had a weekend vacation home in another community that had no trash pick up service, and he solved that problem by packing the trash and taking it home in the best of the good old boy scout fashion. Therefore, he was not interested in knowing that a group of citizens will be inconvenienced, at best, by having their service changed to inconvenience others for whom sufficient fore -planning was not done. Mr. Wohlmuth pointed out there was two points to this issue. First, the law the City abided by in the State of California for recycling and waste was substantially changed in 1989 under AB 939; prior to that, the same conditions didn't exist for trash and recycling service. He said Palm Valley and Palm Desert Resorter were built prior to 1989. The second issue is that the current Municipal Code does not permit people to pack up trash and take it away, because they mostly take it to the park bins; there is a lot of illegal dumping. The purpose is to not have a system that impacts the parks and commercial bins throughout the City. Mayor Pro Tem Kroonen said he appreciated the explanation. Mayor Spiegel asked if it was possible to have everyone's trash on Monday. Ms. Riddle responded it was reviewed, but Burrtec had some concerns with that, because in order to implement the original change requested by the City, they had to impact residents in other jurisdictions. She said in order to provide service to everyone on Monday, they would have to go to another resident in another community and impact them, and obviously, they will not be in favor. Councilmember Harnik noted she saw Burrtec trucks every day, so it wasn't that it was one day they could do all the pick ups. After reading the letter 19 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 from Palm Desert Resorter, if service is changed to Monday, it appeared the City will receive a lot of Transient Occupancy Tax (TOT) judging by the amount of short-term rentals they have, which was great news. Mr. Wohlmuth explained that all of this started in Palm Desert when it negotiated and modified the Franchise Agreement with Burrtec five years ago. He said it was a positive move to be able to track the waste and recycling just in Palm Desert, because if a truck left Palm Desert and picked up recyclables in a neighboring community it was difficult to get an accurate tonnage. At the time the City negotiated the Franchise Agreement, Palm Desert was below the current 72% diversion rate. After the Franchise Agreement was executed, Burrtec started implementing it two years ago. He said that in order to implement, they had to go to neighboring communities and modify their Monday and Thursday services to be able to provide the trucks and manpower to just serve Palm Desert. In this case, staff requested keeping everything the same, but moving Palm Valley and Palm Desert Resorter back to Monday. Burrtec indicated they had the equipment, but not the manpower. Hence, the concept would be that the manpower to pick all trash in these two areas on Monday, there would be overtime. In Burrtec's case for Monday's and Thursday's service, the manpower would work four hours a day instead of their normal eight hours to pick up Less Thursday accounts, which is where the problem lies, and since Palm Desert started this, it's hard to unravel it. Councilmember Harnik commented that Burrtec worked with the City to help with the recycle program. Ms. Riddle agreed. Councilmember Harnik moved to, by Minute Motion, approve the route change for Palm Desert Resorter and Palm Valley Country Club from Thursday to Monday service day and designated residential areas south of Highway 111 to north of Grapevine and east of Highway 74 to west of Cook Street from Monday to Thursday service day. Motion was seconded by Spiegel and carried by a 4-1 vote, with Finerty voting NO. XVI. OLD BUSINESS A. REQUEST FOR AWARD OF CONTRACT TO TERRA NOVA PLANNING & RESEARCH, INC., IN THE AMOUNT OF $45,360 FOR UPDATE OF BOTH THE CITY'S 2014-2021 HOUSING ELEMENT AND THE LAND USE ELEMENT OF THE PALM DESERT GENERAL PLAN AS REQUIRED BY THE STATE OF CALIFORNIA (CONTRACT NO. C32130). Assistant Planner Kevin Swartz stated that on September 21, 2012, staff sent out a new Request for Proposal (RFP) for the update of both the Housing Element and Land Use Element. The RFP was sent out to the same three firms that originally responded to the RFP. Terra Nova was the only firm that submitted a new proposal at a cost of $45,360. Staff reviewed 20 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 the proposal and qualifications and believed that Terra Nova was well suited to perform the professional services to update both the Housing Element and Land Use Element of the Palm Desert General Plan. Councilmember Harnik stated Council just received a letter from Jean Laurin -Lawrence Castaneda & Associates stating they felt excluded from the process by the way the RFP was sent out. Mr. Swartz said he had not received a copy of the letter. Ms. Aylaian responded she received a copy of the letter and reviewed it. She said no one was excluded from responding to the RFP, stating that staff clarified in the RFP that the referenced projects should be projects performed by the actual firm submitting the proposal, and she understood the letter to say that because their firm had not performed any of this work, they felt excluded. Mayor Pro Tem Kroonen moved to, by Minute Motion: 1) Award the subject contract, subject to such minor technical changes as the City Attomey may deem necessary, to Terra Nova Planning & Research, Inc., Palm Desert, California, in the amount of $45,360 for update of both the City's 2014-2021 Housing Element and the Land Use Element of the Palm Desert General Plan; 2) authorize the Mayor to execute same — funds were approved in the FY 2012-2013 Budget under Professional Services, Account No. 400-4470-412-3090. Motion was seconded by Spiegel and carried by a 5-0 vote. XVII. PUBLIC HEARINGS A. CONSIDERATION OF MODIFICATIONS TO THE PRIOR APPROVALS FOR VILLA PORTOFINO (SOUTHWEST CORNER OF PORTOLA AVENUE AND COUNTRY CLUB DRIVE) INCLUDING: A CONDITIONAL CERTIFICATE OF COMPLIANCE TO CONFIRM THE PRIOR SUBDIVISION OF A PORTION OF THE PROPERTY; A TENTATIVE TRACT MAP; A MODIFIED PRECISE PLAN; AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT; AND ARCHITECTURAL ELEVATIONS FOR 72 NEW CONDOMINIUM / VILLA UNITS ON LOT NO. 5 OF THE PROPOSED MAP, Case Nos. DA 11-516. PP 98-21 Amendment No. 2. and TTM 36404 (VP Builders, LLC / Country Club Drive Investors, LLC, Applicants). Assistant Planner Kevin Swartz stated that on February 25, 1999, the City Council approved Ordinance No. 907 for a Senior Housing Development Agreement, a General Plan Amendment, a Change of Zone, and Precise Plan for a Health and Wellness Resort known as Villa Portofino. The project consisted of 161-bed skilled nursing facility, a 150-bed assisted living facility; 288 villa units, and 182 casita units. Some time between 2001 and 2004, the prior property owner submitted a condominium plan to the Department of 21 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Real Estate without City approval. When recorded with the County of Riverside, the condominium plan resulted in unapproved parcels, which still exist today. He displayed and reviewed the original plan and how the parcels were divided. He went on to say that today there are three property owners, but only VP Builders/Family Development and Country Club Drive Investors have submitted an application to move forward. The original entitlements with regards to density, unit count, setbacks, building height, and parking will remain the same as previously approved. The site consists of a clubhouse, 36 casita units, and 84 condominium units, which he displayed on a site map. Councilmember Harnik asked what was the significance of the villa units without the red lines around it. Mr. Swartz responded that those units were built under the old developer who filed bankruptcy, and those units sat vacant for a couple of years. He said Family Development now owns those units, completed them, and has begun to sell them. The ones outlined in red indicate ownership. He went on to say the two property owners are requesting to bring the property back into compliance by amending the Development Agreement to include ownership, amending the CC&Rs, construction of the Temporary Emergency Vehicle Access Road, bonding for Portola Avenue Improvements and a Secondary Access Road, creating City -approved parcels through a Conditional Certificate of Compliance, approving a new Tentative Tract Map, and coming to a conclusion regarding the unapproved pad elevations on the 11.21-acres parcel abutting Casablanca. The Applicants will also provide one improvement bond for completion of Portola Parcel Improvements and the Secondary Access Permanent Improvements. The Applicants have agreed to complete the bonding improvements within two years of recordation of the Development Agreement and Final Map. With regards to the unapproved pad height elevations on the southern 11.21 acre parcel, the original mass grading plan elevations ranged from 214 to 216 feet, which were approved in 2000. Today, the proposed preliminary grading plan shows the pad height elevations ranging from 215 to 217 feet, which was about a two -feet difference. Staff's only issue with the proposed pad elevations is from complaints driven from residents within Casablanca. He said VP Builders/Family Development notified the City that they have a signed agreement with Casablanca regarding the proposed pad heights. Since JJL Property Investments owns a portion of Lot 2 and is not part of these entitlements, staff requested a letter from Casablanca Homeowners Association acknowledging that construction or removal of the dirt may not commence within several years. Attached to the staff report is that letter from Casablanca. Since receiving this letter, residents from Casablanca spoke at the Planning Commission who still have concerns with the pad heights. Since JJL Property Investments owns a portion of Lot 2 and is not part of this approval, according to the City Attorney, the City cannot condition 22 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 the Applicant to restore the pad heights to the elevations shown in the preliminary gradingplan, which is attached to the map. Casablanca HOA has an agreement with Family Development to stabilize and maintain the pads, and if it becomes an issue, the City will involve Code Enforcement. He displayed the new Tentative Tract Map and pointed out that Lot 1 is owned by Family Development and Lot 2 is owned by JJL Investment and Family Development. He pointed out where the temporary emergency future secondary road on Portola Avenue will be located and must be installed before any new building permit is issued. Family Development is also proposing 72 new condominium villa units on Lot 5 where there are six buildings and within each is twelve units. The height and density are consistent with existing buildings, the only difference is those existing villas have a horseshoe shape and the new ones are rectangular, because they will include garages. Staff is recommending approval of the modifications to the Precise Plan, Amended and Restated Development Agreement, the new Tentative Tract Map No. 36404, the Conditional Certificate of Compliance, and the new 72 villa units. Councilmember Finerty asked what protection was in place for Casablanca owners to lower the berm. Mr. Swartz responded the only protection is that construction could not occur until those pads are graded down to the preliminary grading plan, which shows an elevation of 214-216 feet. Further responding, he said it was currently at 220-222 feet, and it could be one or ten years before permits are pulled. Councilmember Finerty asked if staff gave consideration to conditioning the project to having the berm reduced before anything is done. Mr. Swartz explained there are two owners involved with this property; Family Development owning the common area of the Lot, and JJL Property Investment owning the area where the building pads are located. He said according to the City Attorney, staff cannot condition the project to reduce the berm because the owner, JJL Property Investment is not part of the proposed entitlements at this time. Mayor Spiegel stated he and Mayor Pro Tem Kroonen went to look at the properties, and the only area they viewed was where they were building on Lot 5 and didn't discuss the other areas. He questioned why everything was being combined. Mr. Swartz said the Application was for the whole Tentative Tract Map to legalize all the parcel. Further responding, he explained Lot 5 is where the owners are proposing to build, but the owners are proposing a new tract map, and the tract map is the whole project. 23 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Councilmember Finerty stated the owners need to remove the berm before the Council considers approving the entire map. MR. RUDY HERRERA, VP Builders, LLC/Family Development, Applicant, stated he has worked closely with Jerry Robinson of Country Club Investors, the owners of Lots 3 and 4, who was unable to attend this evening. He thanked the Planning Director, City Engineer, City Attorneys, City Manager, and staff for all their hard work in getting this project before the City Council. He said it was safe to say this has been the most difficult entitlement process of his career, and believed staff felt the same. At the beginning of the entitlement process there were three property owners, VP Builders, JJL Investments, and Country Club Investors who were going to work together to resolve and clarify the various issues. However, several months ago, JJL Investments, the owner of the 40 airspace units in Lot 2 stopped communicating with him, Mr. Robinson, and the City. He said that despite the lack of communication and cooperation from Mr. Tom Tokheim, they did not changed any aspects of the original proposal from when they started the process. The lack of communication and cooperation left no other alternative but to move forward without Mr. Tokheim. At some point in the future, Mr. Tokheim can pursue his entitlements on Lot 2, and any outstanding issues can be addressed at that time. He acknowledged receiving a letter from Ms. Plotkin, a homeowner in Casablanca with regard to the grading of Lot 2. While they are in full support of reducing the pad heights, Lot 2 was not part of this submittal. When an application for Lot 2 is submitted, the pad heights can be addressed. However, as a partial owner of Lot 2, he supported the lowering of the pad heights. In the meantime, they have worked closely with the homeowners association to reach an agreement to maintain the property for blow sand, debris, and security. He noted the berm may be unsightly, but it was not a life -safety issue. It was brought to his attention that a letter was received by Council from Ms. Donna Brown; however, that letter had no pertinent value to the current application. He said they knew what the issues were, but could never have imagined to what level, stating they had to deal with compliance to the tract map, status of the Development Agreement, completion of Portola Improvements, CC&Rs completion, secondary emergency access, maintenance agreements for a traffic signal, landscaping, retention and drainage easements, Water Quality Management Plan issues, relations with the Casablanca homeowners to the south, and pad heights. The well -detailed staff report and Planning Commission Minutes shows the issues were plentiful and complex. Each and every one of the issues were complicated, but he felt confident they have been resolved, and happy that staff believed they have been addressed and resolved as well. With the City Council approving the Application, it will be the last step in closing out a very long list of outstanding issues that have been plagued by this development for years. He said approval of the project will give the City certainty of public improvements and life -safety issues. He 24 as MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 asked to reserve the right to rebuttal any items that may be brought up during the public comment. Mayor Spiegel questioned why the Applicant didn't just present Lot 5 to the City Council. MR. HERRERA responded that at the time the Mayor and Mayor Pro Tem went out to look at the site, the issue was rooftop decks; it wasn't addressing tract map issues. He said they weren't trying to mislead anyone, but at that time they were there specifically to address rooftop decks, and they have decided at this time to not pursue the rooftop decks. Councilmember Finerty asked how the Applicant can be certain that the berm was not a life -safety issue when the berm was so high that someone could just go over into a neighborhood (Casablanca) and commit a crime. MR. HERRERA agreed that if they were Spiderman they could certainly leap from the berm over the wall, but the distance between the top of the berm and the wall is almost 25 feet, which would be a very big jump. Councilmember Finerty said it was unfortunate, but there have been instances where they have been creative enough to use ladders. MR. HERRERA said ladders could be used with or without the berm. Councilmember Harnik stated one of the letters mentioned that the Applicant had left a green construction fence up at Brava. MR. HERRERA confirmed the fence had been removed. Councilmember Harnik noted the Council had just addressed an issue of land use with the City having to comply with RHNA numbers. She noticed this application satisfied a range of housing types, codes and policy, programs, densities, and affordabilities that accommodate existing and future residents across all socioeconomic sectors of the community, which are things the City had to address and comply with, because of State mandated RHNA numbers. She would be disappointed if the Council prohibited a property owner from doing the right thing on their property, because there is a squabble with another co-owner of a parcel of that property, who was basically holding the Applicant hostage from going forward with the development. Mayor Pro Tem Kroonen questioned why the berm couldn't be taken care of now. MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 MR. HERRERA responded it was a land -use issue between the other land owner and Family Development where they can't reach an agreement; therefore, he couldn't go onto the property with this issue. Mayor Spiegel declared the public hearing open and invited public testimony FAVORING or OPPOSING this matter. MS. DIANA PLOTKIN, 73730 Calle Bisque, noted she had sent a letter to the City Council expressing a strong concern over the berm. She said the berm puts Casablanca residents who live closes to Monterey Avenue in danger of people getting into the complex, stating she personally chased away three men trying to get over the wall. She knew of incidents of burglary in the complex, but couldn't say they used the berm to get in, but by it existing puts the danger to the complex and residents. She said it was a simple request, because the berm is illegal, and it should have never been that high. She said it was up to Palm Desert City Council and the Department of Building and Safety to cite the owners and make them take the berm down, but it hasn't been done. She asked that before anything goes forward that the berm be removed, because it was illegal; it is seven to eight feet higher than what City Code requires according to the Planning Department. She said it was a good project, and she was not opposed to it, but simply wants the berm reduced to eliminate the danger and blight. Responding to question about the height of the wall, she said it was five feet high. MS. GAIL CHRISTIANSEN thanked the City Council for its support for the last five years in going through this whole ordeal. As a result of Council support, they first met with Family Development a year ago. Throughout this past year there have been several meetings and conference calls with Family Development, the Casablanca HOA Board and their Attorney. She was pleased to inform the Council they have a signed agreement with Family Development with regards to pad heights, pad height elevations, setbacks, maintenance of the properties, stabilization of the soil, and future landscaping in the Villa Portofino Development. She said with the agreement in place, it was a benefit to all that the proposed development went forward. With the completed buildout of the Villa Portofino Development, following the parameters described in the agreement, all of their issues will be permanently resolved. Therefore, the Casablanca HOA fully supported the approval of this development and the buildout. Mr. Erwin explained the Notice of the Public Hearing was given for two different times. One hearing was noticed for 4:00 p.m. and the other for 6:00 p.m. He asked that the public hearing be kept open and continue the hearing to the next regular meeting. He said the Council can approve the project tonight, including the first reading of the Ordinance, and staff can wait until 6:00 p.m. to see if anyone showed up to speak, and they will be advised 26 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 that they can speak at the next regular meeting, because the hearing will continue to be open. Councilmember Harnik commented that it was amazing how convoluted this case has been since it first started. She asked when the berm was built. MR. HERRERA responded he didn't know, but it was probably done during the prior ownership several years ago; the berm was inherited in Lot 2. Mayor Spiegel said the problem with the berm was the sewer line underneath. It was his understanding the sewer line has to be lowered in order to comply with the height of the berm. Mr. Erwin explained the sewer line related to the pad heights more than it related to the berm. He agreed the sewer line was too high, but the elevations now may still allow it to be utilized; however, it was more of an engineering question. Mr. Greenwood said the pad heights can be lowered to the heights being proposed without modifying the sewer line and it may be possible to lower it one more foot without affecting the design of the sewer. MR. HERRERA stated they worked closely with the Casablanca homeowners in several focused group meetings at Villa Portofino, where they discussed site -line studies and showed where the pads are today and where they are proposed in the future, taking into account the sewer issue, and they are in favor of the pad heights proposed today. Councilmember Finerty reiterated the berm issue needed to be addressed before anything was approved, because it had gone on for so long. She said it was unfortunate the Applicant inherited the problem, but they knew what they were dealing with, and the City needs to stick to its guns and have the berm lowered. Mr. Erwin asked if the Council intended to approve the project that it be approved subject to the City Attorney or staff to make minor modifications necessary in the document. Councilmember Finerty moved to deny the Application until such time that all the owners come up with a solution to remove the berm. Motion was seconded by Benson and it FAILED on a 2-3 vote with Harnik, Kroonen, and Spiegel voting NO. Mayor Pro Tem Kroonen asked if the Council can include a provision in the motion that the effective time or date of the action does not take place until such time there is evidence that the berm problem has been solved. 27 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Responding to question, he confirmed he was speaking in relation to the whole thing, not just Lot 2. Mayor Spiegel asked what was the problem with the developer lowering the berm. Assistant City Attorney Bob Hargreaves explained the City had been working on this for a long time, and it's the biggest land use mess the City has ever faced because of what the prior developer did in terms of illegally subdividing. The attempt here with the actions presented is to go back and approve what has been done, so that even the people who have bought there have legal Lots. Arguably, the Tots there are not legal, because they are all subject to an illegal subdivision. He said there have been an incredible number of different issues, including the berm, but unfortunately, the third property owner would not cooperate in the process. Therefore, at this point, everyone is trying to square away 95% of the problem, and the City couldn't force Family Development or anyone else right now to deal with the berm. Of course the City Council can decide to not approve the Application, but then it will have a big land use mess there. Additionally, if the City does not approve the Application, Family Development couldn't move forward to sell lots, and there is no way to move the development forward. Mayor Spiegel asked if Lot 5 can be divorced from the rest of the map, because that's where the Applicant wants to start building. Mr. Hargreaves responded that what needed to be done is to grab that whole map, including the part that hasn't been approved, and basically justify retroactively all the subdivisions, which is what is being done with the Certificate of Compliance, understanding that it wasn't done the first time. The goal now is to bless it all, including Lot 2 where the berm is. Further responding, he said Family Development owns the common area, and the third owner owns the Lot. It's a situation that shouldn't exist, but because of foreclosure and everything else, it's a total mess, and the City needs to get what is currently out there squared away. If the berm was really a safety issue or public hazard, the City can look into a Code Enforcement action to try to get the owner to remove the berm or possibly file a lawsuit, but he and Mr. Erwin would need to examine those issues, which would be a way to address that particular claim. Mr. Erwin stated Council may direct him to look at the possibility of a lawsuit, but it's been difficult dealing with the owner that owns part of Lot 2 who has not cooperated. However, it may take a lawsuit filing to force that issue, but he would certainly advise the Council prior to filing it. Mayor Spiegel asked if the Council should continue this item. 28 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Mr. Erwin suggested that if Council wished to approve or whatever, he will follow up on the berm issue to try to solve it. He didn't believe he could enforce any condition on a Tentative Tract Map to remove the berm when there was no other application for that part of the map. Councilmember Harnik explained the Council was trying to fix the problem with the recorded parcels with the County of Riverside. Mr. Erwin recalled for the Council this was a project that went back many years by the original developer named LaMelza who threatened to sue the City for millions of dollars in the process. Mr. LaMelza signed agreements with the City alleging that he owned all the property, but he didn't. He said a number of parcels were financed by different financial institutions who have foreclosed. There were several financial institutions involved, and the City was trying to clean up this mess. Mayor Pro Tem Kroonen said he understood there is a long and difficult history to this project, and it appeared it was unlikely that the other owner of Lot 2 would cooperate in remediation of the problem of the berm, unless this Council took definitive action to insist that it be resolved; otherwise, the berm will be there forever. He was inclined to move forward along the direction that the City Attorney was suggesting. Mayor Pro Tem Kroonen moved to waive further reading and, subject to the City Attorney and staff making any such minor modifications as may be necessary to perfect the instruments for this purpose: 1) Pursuant to Section 25.37.050 of the Palm Desert Municipal Code, find that the Development Agreement is consistent with the General Plan as described in the findings of City Council Resolution No. 2012 - 67 and pass Ordinance No. 1251 to second reading, approving Development Agreement 11-516; 2) adopt Resolution No. 2012 - 67, approving modifications to Precise Plan 98-21, a Conditional Certificate of Compliance, Tentative Tract Map 36404, and architectural elevations for 72 new condominium/villa units, subject to attached conditions (City Attorney looking at legal solutions [e.g. Code Enforcement] for remediation of the berm issue on Lot 2, with information to be returned at the next reading of the Ordinance at the next meeting before any action can be taken by Applicants). Mayor Spiegel explained Mayor Pro Tem Kroonen's motion was to approve the Application this evening to a second reading that will happen at the next City Council meeting if the Council received the information needed to decide what it will do about the berm. Mr. Erwin said he was hearing enough comments from the Council that they are concerned about a safety issue, and he may be able to come up with a definitive answer. 29 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 Councilmember Benson asked if the motion included that nothing would be done until the City Attorney finalized Mr. Hargreaves' suggestion on the legal part. Mayor Pro Tem Kroonen agreed that was his intent. Mr. Erwin explained this Ordinance will go to the next City Council meeting for its second reading and nothing happens until then. Councilmember Harnik seconded the motion, and it carried by a 5-0 vote. Councilmember Harnik, Mayor Pro Tem Kroonen, and Mayor Spiegel remained in the Council Chamber until 6:01 p.m. to wait for public testimony in the matter. With no further testimony offered, the public hearing was closed. XVIII. REPORTS AND REMARKS A. CITY MANAGER 1. city Manager Meeting Summaries for the Period of September 17 - 28, 2012. With City Council concurrence the City Manager Meeting Summaries were received and filed. 2. Plant Palette Condition - Median Country Club Drive Mr. Wohlmuth noted that from Councilmember Harnik's request at the last meeting about the plant palette and its condition in the median along Country Club Drive, he'd met with Mr. Greenwood and Landscape Manager Spencer Knight about the matter. Mr. Knight will be performing a review of that location and proposing a modification plan for the Country Club Median between Cook Street and Portola Avenue. He will take a look at the plant material that has aged and find material that isn't as high -maintenance and with a maturation process longer than one to two years before becoming "woody." 3. ICMA Conference Mr. Wohlmuth said he'd just returned from the International City/County Management Association (ICMA) Conference in Phoenix earlier this week. He related that a lot of the discussion nationally was on things the City of Palm Desert is already doing; there was a strong promotion for an Art In Public Places Program, which has been in place in the City for 15-20 years. He said it was refreshing to find things other cities are doing that they believe to be innovative when Palm Desert was already a veteran in the area. 30 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 B. CITY ATTORNEY None C. CITY CLERK None D. PUBLIC SAFETY 1. Fire Department None 2. Police Department None E. MAYOR AND MEMBERS OF THE CITY COUNCIL 1. City Council Requests for Action: a) Councilmember Benefits — Councilmember Benson wished to reiterate for the City Attorney to check on the Fair Political Practices Commission (FPPC) again, in view of the next City Council Meeting being the last before the election on November 6. She said there could be three new members after that date and an answer was deserved in order to vote on the matter before that occurs. Mayor Pro Tem Kroonen pointed out that there are two meetings taking place before the new Council is seated, and Ms. Klassen confirmed that the election won't be certified until the end of November, with the Council to be reorganized by the first regular meeting in December. Councilmember Benson responded that she wanted it to be decided at the October 25 Meeting, because the voters are entitled to know how some of the candidates stand on the issue, especially since many run on a platform of transparency. She felt this issue was very much related to transparency in the City, and it should, therefore, be decided at the next meeting. 31 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 b) Political Sianage — Councilmember Harnik said she didn't want to create a problem to solve a problem, but during this election season, there are a lot of political signs around — not even so much for candidates running for Palm Desert City Council but all across the Coachella Valley. In view of what the Cities of La Quinta and Indio are doing, she asked for the opportunity to visit the issue. Perhaps Palm Desert didn't need to make any changes, but maybe it could, just so the process is cleaned up. She felt most of the issues she's seen are from races outside Palm Desert. 2. Citv Council Consideration of Travel Reauests and Reports: a) Enerav Summit 2012 — Councilmember Harnik said she attended the Summit held in Palm Springs last week. There was a lot of great information disseminated, and one of the results coming out of it was confirmation that the area has solar, wind, and geothermal, but a coordinated effort for its use is lacking. Additionally, she said there isn't sufficient infrastructure in place that will allow making the most of all those renewable energy sources. b) Mobility 21 — Councilmember Harnik reported that she'd taken a day trip to this seminar, which was conceming infrastructure with roads, bridges, and the need to keep them repaired and keep improving them. 3. City Council Committee Reports: None 4. City Council Comments: None 5. Suaaested Items for Future Citv Council Meetina Aaendas: None XIX. ADJOURNMENT With City Council concurrence, Mayor Spiegel recessed the meeting at 5:42 p.m. in order to allow reopening of Public Hearing Item A at 6:00 p.m. for any parties wishing to provide public testimony. Note: Councilmembers Benson and Finerty left the meeting at this time. 32 MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING OCTOBER 11, 2012 With no public testimony offered at 6:00 p.m. for Public Hearing Item A, and with City Council concurrence (Benson, Finerty ABSENT), Mayor Spiegel closed said Public Hearing and adjourned the meeting at 6:01 p.m. ATTEST: RAG`HEL E D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA ROBERT A. SP)GEL'YOR 33