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HomeMy WebLinkAbout13 - Change Kiosk at the Newport PierITEM 13 TO: Members of the Newport Beach City Council FROM: Dave Kiff, Assistant City Manager • SUBJECT: Use of the Change Kiosk at the Newport Pier RECOMMENDED (1) Authorize the Mayor to execute an agreement with the Newport Beach ACTION: City Employees Federal Credit Union that authorizes the NBCEFCU to install and operate an automatic teller machine at the kiosk near the Newport Pier; and (2) Authorize the Director of Public Works to execute an encroachment permit for restaurant menu display at the kiosk. BACKGROUND: The kiosk that greets residents and visitors near the Newport Pier parking area is home to a change machine and several areas upon which fliers can be posted. In recent years, business entities and others have proposed using the kiosk - situated on City -owned land — for commercial or visitor - serving ventures, including the installation of an automated teller machine (ATM) and an interactive touch - screen computer system highlighting visitor information. Newport pier Change Kiosk Page 2 Typically, any use of City-owned non - residential land for a for -profit purpose is subject to Council Policy F -7 which obligates the City to: "...seek revenue equivalent to the open market value of the highest and best use, and, whenever possible the City shall conduct an open bid or proposal process to insure the highest financial return." Council Policy F -7 Policy F -7 allows the City to not go to bid, to use an appraisal, or to obtain fair market value if the City finds that: • •Redevelopment of the property would require excessive time, resources, and costs which would outweigh other benefits. • This property provides an essential or unique service to the community that might not otherwise be provided were full market value of the property be (sic) required. •The property serves to promote other goals of the City such as affordable housing, preservation of open space, or marine - related services. Two Proposals I - Credit Union ATM. About four months ago, the Newport Beach City Employees Credit Union ( "Credit Union') asked if the City would consider placing a CU- operated ATM at the kiosk. CU members were interested both in increasing employees' access to CU ATMs and in earning a small revenue stream from any transaction fees levied on non -CU use of the ATM. Several dozen city employees either work by or travel by the Newport Pier area on a daily basis. The CU would install and manage the ATM at the CU's expense and, after a period of two years, pay the City: • $0.25 for each fee -based transaction above 1,500 fee -based transactions per month. • $0.50 for each fee -based transaction above 2,000 fee -based transactions per month. For example, in a month (after May 2003) where the ATM had 2,205 fee -based transactions, the City would receive $227.50 in rent. The last time the City was approached by private ATM firms (1998), the two companies proposed payment schemes based on meeting a use threshold (1,000 transactions per month) or after crossing an expense threshold (installation, maintenance, insurance, and monitoring costs). These two firms would have paid the City $778.75 per month (with the City responsible for maintenance) or about $260 per month (with the private company responsible for maintenance) for a 2,205 - transaction month. Because we do not yet know the extent of a new ATM's fee -based transactions at the Pier Kiosk, the proposed License Agreement (Attachment A) allows the City and the Credit Union to "reopen" this rental provision at 36 months. We recognize that the rent proposed from the Credit Union agreement may be less than market rate, but we have put forth the recommended action in this manner and believe that this situation warrants an exception to Policy F -7 because it provides an essential service to City employees. The License Agreement was reviewed and approved by the City Attorney's Office and the Credit Union's representatives. Page 3 II — Menu Board. The City s tenants at the Newport Pier restaurant (Newport Pier Seafood and Sushi) have asked the City Manager to permit them to post their menu at the change kiosk so that potential patrons can review the restaurant's selections prior to walking the length of the pier. This use - since it may directly enhance our tenant's patronage at the restaurant - seems an appropriate use consistent with our interest in maximizing revenue from our income properties. If the Council agrees with this use, the City shall manage any posting of menus via the existing encroachment permit process outlined within Council Policy L -6 (Private Encroachments in Public Rights -of -Way - see Attachment B). The initial encroachment permit, if issued to Newport Pier Seafood, may, at the Director of Public Works' discretion, require the restaurant to purchase, install, and maintain a weatherproof wall- mounted enclosure for any menus. In order to respect the rights of other area restaurants to use the kiosk for menu postings once Newport Pier Seafood's menu is posted, the City will consider further encroachment permits for menu placement on the kiosk as long as the kiosk remains: • Aesthetically attractive; • Free of damaged, torn, or outdated menus; It is unlikely that we will receive such requests since other area restaurants have the benefit of sidewalk or frontage menu placement. Only Newport Pier Seafood has the task of drawing walkers out the length of the pier to review the restaurant's menu. THIS AGENDA This Agenda Item asks the City Council to approve an Agreement with the ITEM: Newport Beach City Employees Federal Credit Union to install and operate an ATM at the change kiosk at the Newport Pier and to authorize the Director of Public Works to follow Council Policy L -6 in issuing an encroachment permit for a menu posting at the same kiosk. ATTACHMENTS: Attachment A - Proposed License Agreement for an ATM at the Newport Pier Change Kiosk Attachment B - Council Policy Lr6 City of Newport Beach License Agreement For Automated Teller Machine Location This license agreement ( "License ") for an Automated Teller Machine is entered into this day of May, 2001 by the CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "the City ") and Newport Beach City Employees Federal Credit Union, a federally chartered Credit Union (hereinafter referred to as "the Credit Union "). Recitals WHEREAS, the Credit Union was created by City employees, restricts membership to City employees and retirees, and exists solely for the benefit of City employees and retirees and their financial and credit needs; and WHEREAS, the Credit Union has requested that the City place an Automated Teller Machine ( "ATM ") at the Newport Pier at an existing change kiosk so that City employees can have a convenient alternate location to access their funds without paying non - Credit Union ATM surcharges; and WHEREAS, the City and the Credit Union desire to enter into a License Agreement which memorializes the manner in which the City and the Credit Union will address issues arising from the operation of the ATM. NOW THEREFORE, in consideration of the mutual understandings and agreements set forth the City and the Credit Union agree as follows: I. Definitions "ATM" means an Automated Teller Machine. "ATM site" means the City change machine kiosk located near the base of the Newport Pier at McFadden Square as shown on Exhibit "A ". "Service Charge" means a transaction fee, transaction charge, or other cost levied by the Credit Union against an ATM transaction made at this ATM. II. License to Install and Operate ATM Grant of License. Subject of the terms and conditions of this License, the City of Newport Beach, hereby grants the Credit Union the exclusive license and authority to install and operate an ATM at the ATM site. The City agrees that the Credit Union shall be permitted access to the ATM site. The Credit Union shall seek and obtain initial access to any telephone lines, communications lines and electrical facilities that will support the ATM.. Once the ATM is installed and Newport Pier ATM Credit Union — City License May 22, 2001 Page 2 operating, the City agrees that the Credit Union shall have access to these lines and facilities to the extent that the City controls access to these lines. In consideration of the license granted by the City and under the terms and conditions set forth in this License, the Credit Union agrees to install and operate an Automated Teller Machine at the ATM site. III. Installation and Operation of ATM (a) The Credit Union shall be responsible for the complete installation of the ATM. These responsibilities shall include but are not limited to the development of plans, procurement of required permits and payment of permit fees, all structural modifications to the existing kiosk structure, electrical, lighting, signage, and communications connections and modifications, installation of air conditioning unit, and repainting of the entire kiosk with colors approved by the City. The Credit Union will be responsible for the installation of a single steel service door and security hardware necessary to provide access for the maintenance and operation of the ATM. The installation shall be designed and completed in such a manner that it does not prohibit the City from any future installation of equipment deemed necessary to provide information to the public. A licensed and bonded contractor will perform all work. The Credit Union agrees that it shall be responsible for continuously operating the ATM. (b) The City hereby authorizes the Credit Union or its authorized agents to enter the ATM site for the purposes of maintaining and operating the ATM. The Credit Union shall be responsible to maintain the ATM in good and safe state of repair. Whenever the ATM ceases to be operational for any reason, Credit Union shall commence repairs within 24 hrs and diligently pursue repairs to assure continuous operation of the ATM. Credit Union shall comply with all laws, regulations and ordinances applicable to the installation, operation and security of the ATM site. The Credit Union shall bear the cost for such modification to the ATM site if the compliance with the laws, regulations and ordinances is solely required for the ATM site and related to it specifically. The Credit Union shall have the option to terminate this License if it chooses not to under take the required modification. (c) The City agrees not to install a competing ATM at the Kiosk at any time when the Credit Union's ATM is in place. IV. Rent (a) On the 24th month after the effective date of this License, the City and the Credit Union shall review the number of monthly transactions subject to a service charge at the ATM. From the 24th month after the effective date of this License onward, rent paid to the City shall be as follows: Newport Pier ATM Credit Union — City License May 22, 2001 Page 3 (1) When the amount of monthly transactions subject to a service charge exceeds 1,500 in any Mbnth, the Credit Unlbn shall commence payment to the City of $0.25 per transaction for all transactions subject to a service charge over 1,500 transactions per month but less than 2,001 fee -based transactions per month; plus (2) When the amount of monthly transactions subject to a service charge exceeds 2,000 in any month, the Credit Union shall commence payment to the City of $0.50 per transaction for all transactions subject to a service charge over 2,000 transactions per month. For example, if the ATM produces 2,205 transactions subject to a service charge in any one month after May 2003, the City shall receive $227.50 (an amount equal to $0.25 multiplied by 500 plus $0.50 multiplied by 205) in rent for that month. The same formula shall apply to any month after May 2003 during the term of this License where transactions subject to a service charge exceed 1,500 during that month. (b) This section of the License may be renegotiated at either the City's request or the Credit Union's request 36 months after the effective date of this License. If either party is interested in renegotiating rent under this section, the City or the Credit Union shall provide the other party with written notice of its intent to renegotiate rent within thirty (30) days of the 36th month of this License. V. Term and Termination This License shall be effective as of the date first appearing above and shall continue for a period of sixty months from such date. Thereafter, the term, of this License shall be renewed automatically each year for a one (1) year period unless either Party gives the other Party notice of its non - renewal in writing at least thirty (30) days prior to the annual automatic renewal date. The Credit Union may at its option, upon thirty- (30) days prior written notice to the City, remove the ATM from the ATM site. Upon expiration or termination of the License the Credit Union shall be responsible for the removal of the ATM and shall be further responsible for any and all repairs or modifications necessary to return the ATM site to its original state. If during any 12 -month period the ATM is not operational for more than 30 days, the City may terminate this License and Credit Union shall remove the ATM and return the ATM site to its original condition. Newport Pier ATM Credit Union — City License May 22, 2001 Page 4 VI. Hold Harmless The Credit Union shall indemnify, defend and save and hold harmless the City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of the Credit Union, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this License. This indemnity shall apply even in the event of negligence of the City, or its employees or other contractors, excepting only the sole negligence or willful conduct of the City, it officers or employees and shall include attorney's fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorney's fees and any action on or to enforce the terms of this License. VII. Representation The undersigned Chairman of the Board of Directors hereby represents that the Credit Union's Board of Directors has authorized him to sign and execute this document on the Credit Union's behalf. The Chairman's signature on this document binds the Credit Union to follow the terms and conditions of this License. IN WITNESS THEREOF, the parties have caused this License to be executed by their duly authorized officers on the day and year first written above. Newport Beach City Employees City of Newport Beach Federal Credit Union Michael Pisani Chairman of the Board Newport Beach City Employees Federal Credit Union 425 Old Newport Blvd Suite A Newport Beach, California 92663 Homer Bludau City Manager City of Newport Beach 3300 Newport Blvd Newport Beach, California 92663 Attest: LaVonne Harkless City Clerk Newport Pier ATM Credit Union — City License May 22, 2001 Page 5 Approved as to Form Robin Clauson Assistant City Attorney City of Newport Beach Newport Pier ATM Credit Union — City License May 22, 2001 Page 6 Exhibit A Diagram of the Newport Pier Kiosk Area L -6 PRIVATE ENC4OACHMENTS IN PUBLIC RIGHTS -OF -WAY It is the general policy of the City that the public rights -of -way are to be reserved for public use or open space; and that the rights of the public, present and future, are not to be diminished by the installation of private improvements within the public rights -of- way. Categories of private encroachments and improvements are listed below, together with the permit requirement for each category. A. Private encroachments prohibited. 1. Structural encroachments not otherwise listed; including, but not limited to, fences, walls, patios, raised planters, etc., which encroach in excess of 1 foot into the public right -of -way, or exceed 3 feet in height, measured from the top of curb elevation /or from sidewalk elevation where sidewalk exists. 2. Driveway approaches not conforming to Council Policy L -2. 3. Ocean front street end, or Bay front street end improvements not conforming to Council Policy L -8. 4. Ocean front alley end improvements not conforming to Council Policy L -8. 5. Modifications to original design concepts approved by the City. 6. Private signs except as provided for in the Building Code. 7. Lighting. 8. Parkway surfacing of loose rock, gravel, or any surfacing other than standard or colored/ textured concrete or flat stone /brick installed at grade and grouted. 9. Private dwellings and appendages including raised patios and decks, except as provided for in this section and the Building Code. 10. Pay telephones and private mail carrier drop boxes. 1 L -6 B. Private encroachments requiring an encroachment permit and if applicable an encroachment agreement from the Public Works Department and General Services Department approval. 1. Tree planting and removal. 2. Shrub planting and removal. 3 Median landscaping. If, in the opinion of the General Services Department, the approved planting is not being maintained for view and safety clearance, Chapter 10.50, "Public Nuisance Abatement," of the Municipal Code shall be used to remove offending plant material. The permit applicant shall reimburse the City of Newport Beach for the value of any City tree removed by this process. This value will be determined by the City Arborist using the International Society of Arboriculture's "Guide for Plant Appraisal." C. Private encroachments requiring an encroachment permit and if applicable an encroachment agreement from the Public Works Department. 1. Drive approaches conforming to Council Policy L -2. 2. Standard sidewalks. 3. Carriage walks. 4. Parkway surfacing (standard or colored/ textured concrete or flat stone /brick) installed at grade (subject to General Services Department review for tree well location). 5. CATV and public utility facilities. 6. Structural encroachments not otherwise listed; including, but not limited to, fences, walls, patios, raised planters, etc., which encroach 1 foot or less into the public right -of -way. If, however, in the opinion of the Public Works Department, the nature or location of this type of encroachment is such that Council review is warranted, the Department may forward the item to the Council for action. 2 L-6 7. Mailboxes, when required by the U.S. Postal Service. The front of mailbox shall be aligned in the same vertical plane as the back of the curb. Mailbox base construction length shall not exceed the length of the mailbox, or 24 inches, whichever is less. 8. The placement of utility pedestals shall be at the back of sidewalks on arterials and major pedestrian thoroughfares without zero setbacks. In the commercial areas there shall be at least 4 feet of clear sidewalk width and /or pedestals shall be placed in the parkway outside of walk area. 9. When connecting to or relocating public utilities. D. Private encroachments requiring an Encroachment Permit from the Public Works Department and subject to the execution of an agreement for non - standard improvements. 1. Structural encroachments not otherwise listed which do not exceed 3 feet in height, including, but not limited to fences, walls, and raised planters in public rights -of -way in areas that are more than 8 feet behind the face of curbs on the following streets: a. Santa Ana Avenue from Cliff Drive to Fifteenth Street. 2. Permitted Structural Encroachments on Balboa Island along South Bay Front, North Bay Front, Grand Canal, and East Bayfront are as follows: a. Planters that do not exceed 1 foot in height located within 2' -6" of the back of existing sidewalk, planted with ground cover and shrubs not to exceed 2 feet in height measured from sidewalk elevation; b. Fences with a minimum setback of 2' -6" from back of sidewalk. i. For patios constructed at grade elevation to 1' above sidewalk grade elevation, Fences may be 3' high above sidewalk grade in conformance with Building and Planning Code Regulations. 3 L -6 ii. For patios constructed greater than 1' above sidewalk grade elevation, Fences must be set back a minimum of 3' from back of sidewalk, not exceed 2' -6" in height above the patio, have at least 40% visibility through them, and not to exceed 4' in height above existing public sidewalk grade. C. Patios with a minimum setback of 2-6" from the back of sidewalk. i. Raised Patios are permitted provided they have a maximum height of 2-6" above sidewalk grade, are set back a minimum of 2' -6" from back of sidewalk, and provided all bulkhead deadman and tiebacks supporting the Bay front bulkhead are replaced "If required by the Public Works Department" in conformance with the requirements of the Public Works Department; Stairs located a minimum of 2' -6" from back of sidewalk. 3. Structural encroachments not otherwise listed which do not exceed three (3) feet in height, including, but not limited to fences, walls, patios and raised planters in public rights -of -ways in areas that are five (5) feet behind the face of curb on the following streets: a. Southerly side of West Bay Avenue between 8th Street and 15th Street. If, in the opinion of the Public Works Department, the nature or location of this type of encroachment is such that Council review is warranted, the Department may forward the application to the City Council for original action. The City Manager is authorized to execute, on behalf of the City, agreements for non- standard improvements which are entered into pursuant to this section or other authorization. E. Private encroachments not requiring a permit: 1. Parkway lawn and ground cover. 2. Parkway sprinkling systems. n L -6 3. Use of public streets and projections over public property which are covered by the Uniform Building Code under a valid building permit issued by the City. F. Application for any permit as required by this policy shall be filed with the Public Works Department on a form to be provided by the City and shall show the proposed planting or work and the nature thereof. If the application is for a permit required under Section A, it shall be forwarded to the City Clerk for submission to the City Council. If the application is for a permit under Section B, it shall be processed by the General Services Department. Drawings for encroachment permits requiring City Council review shall be prepared to scale. Plan and elevation drawings shall accurately depict location, height, and extent of the proposed encroachments. No building permit shall be issued on a parcel whose access requires City Council review for an encroachment permit on public property, until said encroachment permit has been issued. G. Variances from the strict application of this policy shall not be granted unless individual circumstances indicate that approval will be consistent with the public interest. Adopted - August 25,1964 Amended - February 14,1972 Amended - August 11, 1975 Amended - February 9,1981 Amended - November 23,1981 Amended - October 27,1986 Amended - January 26,1987 Amended - July 13,1987 Amended - February 13,1989 Amended - August 14,1989 Amended - November 27,1989 Amended - December 9,1991 Amended - December 14,1992 Amended - July 12,1993 Amended - January 24,1994 Amended - May 9,1994 Amended - February 27,1995 Amended - February 26,1996 Amended May 8, 2001 5