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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 01/08/2008 - PLACEMENT OF NEWS RACKS IN THE PUBLIC RIGHT-OF-WAY DATE: January 8, 2008 WORK SESSION ITEM STAFF: Kelly DiMartino FORT COLLINS CITY COUNCIL Tracy Dyer SUBJECT FOR DISCUSSION Placement of News Racks in the Public Right-of-Way. GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED The City's current permit system for encroachments into the public right-of-way does not adequately address the unique circumstances and challenges related to the regulation of news racks. City Staff has developed a proposed Ordinance which specifically regulates the placement of news racks in the public right-of-way. Staff has drafted the Ordinance in a manner that addresses the needs expressed by the publishers who will be affected by the Ordinance while still resolving health, safety and aesthetic issues which exist with the City's current Ordinance and its enforcement. Despite these efforts,the publishers have also developed an alternative proposal which better meets their needs to maintain their unique identities. Staff believes that the City's proposed Ordinance better addresses the concerns of Downtown business and protects the interests of the entire community. The purpose of the work session will be to review the proposals and seek Council direction on final preparation of an ordinance for Council's consideration at an upcoming regular meeting. 1. Does Council wish to rectify existing deficiencies related to placement of news racks in the right-of-way? 2. Does Council support an ordinance which requires all publications to be placed in news condominiums in downtown Fort Collins? 3. Does Council wish to further pursue the voluntary agreement proposed by the publishers group? 4. What additional information does Council need? BACKGROUND THE ISSUE In May 2006,the Downtown Business Association(DBA)requested assistance from the City of Fort Collins in addressing concerns about the appearance and frequent maintenance neglect of the news racks in downtown(Attachment 1). City staff periodically also receives complaints from residents and businesses outside the downtown area about the growing number of news racks that are appearing along sidewalks and in other public rights-of-way. January 8, 2008 Page 2 News racks include newspaper boxes which sell local newspapers (Coloradoan, Denver Post, Northern Colorado Business Report, etc.), as well as boxes which distribute free publications (Thrifty Nickel, Scene, Homes and Land, etc.). The downtown area,including the area near the Post Office,Safeway,etc.has more than 200 individual boxes. The core downtown area(between Mason and Remington, Magnolia and Jefferson, including Walnut)currently has 177 racks in 16 different locations. Other news racks in the public right-of-way are located throughout the community, generally on street corners. CURRENT ENFORCEMENT Current City Code (Attachment 2) states that news racks must receive an annual encroachment permit from the City. However,the requirement for an annual permit has not been enforced and,as a result, publications have historically been able to take out one permit for multiple locations that remains in effect in perpetuity. As a result,many of the existing news racks,both in and outside of the downtown area, are not properly permitted or properly located. In addition, City Code does not specifically address issues unique to news racks such as: • Securing methods—the need to safely anchor the news racks without tethering to trees,bike racks or other stationary objects. • Safe offset distances — the need to maintain appropriate clearance for pedestrians and motorists. • Reasonable spacing — the need to establish reasonable distance requirements between identical publications. • Conditions of maintenance—the need for objective criteria to define appropriate levels of maintenance (i.e., reasonably free of rust and corrosion, unbroken, free from trash and graffiti, etc.) Currently, the only regulations are that, like any encroachment, news racks must not constitute a nuisance or destroy or impair the use of the property by the public or constitute a traffic hazard. Due to limited resources, Engineering staff responds to complaints about violations of the existing ordinance, but has not proactively enforced the permit system. On a temporary basis, staff is prepared to devote additional resources to transition into a new permitting system. However, no ongoing resources have been identified to maintain a higher level of enforcement on an ongoing basis. Staff is recommending specific requirements be adopted to address the unique circumstances and challenges related to regulation of news racks. City staff has worked with the Downtown Business Association,the Downtown Development Authority and local publishers to find possible solutions that will balance free speech rights and improve the aesthetic appearance in the downtown area. January 8, 2008 Page 3 HISTORY In 2000, the City worked on a news rack ordinance, but in the face of strong opposition from the publishers,the issue was dropped. Later that year,Gannett offered to install condo-style news racks in the downtown area in exchange for control over other publications' placement in the racks. This option was strongly opposed by other publishers and was also dropped. Since that time, there has been a rapid and uncontrolled increase in the number of news racks in public rights-of-way in the downtown area. In 2001, there were 40 news racks along College Avenue between Olive and LaPorte. Today,there are nearly 200 news racks in the downtown area. The uncontrolled placement of these news racks detracts from the appearance of the downtown area, making them a liability for the business and retail community. This situation also makes it difficult to clean sidewalks, and can be hazardous to the health, safety and welfare of downtown residents, employees and customers. THE PROCESS City staff,the Downtown Business Association and the Downtown Development Authority invited representatives from all publications to attend stakeholder meetings in March and August 2007. At those meetings, staff presented a proposal to place news condominiums in the downtown area, and to limit the number of boxes that could be clustered together in all areas outside of downtown. At the August meeting, there was general agreement from the publishers in attendance that changes need to occur in downtown Fort Collins. People were seeking further clarification on maintenance of the condos and the system that would be used to designate spaces within the condominiums,but, with one exception, people appeared willing to accept the condominiums in the downtown. There was strong opposition to having a limited number of boxes per cluster outside of the downtown area, and as a result, that provision was removed from the Ordinance being developed by staff. The proposed Ordinance(Attachment 3)was scheduled to come before Council on Sept. 18,2007. In early September, Coloradoan publisher Christine Chin, with support from The Loveland Daily Reporter-Herald and USA Today,requested that consideration of the proposed news rack Ordinance be postponed in order for them to develop an alternate proposal for news rack management. The City Manager removed this item from the September 18 agenda and the publishers were granted additional time. They have developed a proposal which calls for publishers to place their news racks in"corrals"under a Voluntary Agreement(Attachments 4-11). Photographs of news condominiums and news corrals are included in Attachment 12. CITY PROPOSED ORDINANCE The proposed Ordinance(Attachment 3)is designed to address both the uncontrolled placement and maintenance of news racks. It is based on similar ordinances in other communities, including Denver and Boulder. Following are the key components of the proposed Ordinance: • Newspapers and publications will be allowed only in designated news condominiums in the downtown area between Mason and Remington,Magnolia and Jefferson,including Walnut. January 8, 2008 Page 4 Condominiums may be placed on opposite comers at the intersections of Olive and College, Oak and College,Mountain and College,and LaPorte/Pine and College,as well as one at the intersection of Walnut and Linden. Exact locations will be identified following adoption of the Ordinance. • The condominiums will be purchased by the Downtown Development Authority(DDA)and the City of Fort Collins. The DDA has authorized $100,000 toward the purchase of the condominiums, contingent upon a$25,000 contribution from the City. • Condominium units will have space to accommodate all existing publications,plus limited room for expansion. • Maintenance for the exterior of the condominiums will be covered by the City as part of the existing contract with Parks Maintenance. Publishers will be responsible for maintaining the interior of their space, as well as covering costs for labeling of the publication spaces and securing pay mechanisms (as needed). • Based on feedback from the publishers, spaces in the condominiums will be designated through a lottery system. If space is available, a publication may have more than one spot at an intersection. Once additional applications are submitted, a publication with more than one spot will be required to release such spot. • Fees for permits will be $10 per spot in the condominium per year. The fee has been kept at a minimal cost so as to not create an undue hardship on the publishers or discourage distribution in multiple locations. The Ordinance also makes changes to improve the maintenance and regulation of news racks outside the downtown area. These changes are in the areas of permitting and placement of news racks. Currently, publications take out one permit for an unlimited number of locations, and although existing Code states that the permits should be renewed annually, this has not been past practice. Instead, permits have remained in place since the initial purchase, unless revoked due to maintenance, safety or some other hazard. The new system will require publications to obtain a permit for each location and renew it annually. Fees for permits will be $10 per location per year. This applies to all locations, not just the downtown condominiums. This is consistent with other encroachment permits,in which permits are required to be taken out per location,not per applicant. The $10 per location fee does not cover the cost of staff time to process the permit, visit the requested location, or other administrative costs,but it will provide a more consistent fee structure to that of other encroachment permits. In addition, an annual permit process will provide better information so that the Engineering Department can respond more appropriately when complaints are issued. The intent is to do some proactive enforcement, although on a very limited based. The proposed Ordinance includes several regulations and safety criteria specific to the placement, appearance and maintenance of news racks outside the downtown area. For example, news racks cannot be placed within two feet of the edge of a roadway,within three feet of any marked pedestrian crosswalk, within five feet of any fire hydrant, any emergency facility, or on any portion of a January 8, 2008 Page 5 pedestrian access ramp for disabled persons. The proposed Ordinance also requires that news racks be secured either by weight or other approved securing mechanisms. The original Ordinance drafted by staff included a stipulation that no more than five news racks may be located in one cluster outside the downtown. The publishers raised strong objections to the five rack limitation, and based on their feedback, this requirement was removed from the proposed Ordinance. During the outreach meetings with the publishers, several people suggested that this Ordinance should focus only on the downtown area. However, while the problems are most obvious in the downtown area,safety and maintenance issues related to news racks exist citywide,and as such,staff recommends that the Ordinance include limited regulations for placement of news racks in any City right-of-way. PUBLISHERS PROPOSED VOLUNTARY AGREEMENT Publishers who distribute their publications through news racks in downtown Fort Collins have jointly prepared a voluntary agreement to address issues of concern raised by the City relating to news rack location, maintenance, and aesthetics. The details of this voluntary agreement are outlined in Attachments 4 through 11, which have been provided by the publishers. The following summary about what the Voluntary Agreement will do was provided by the publishers group: • Establish a voluntary means to control the placement of news racks in the Old Town area. • Establish a rapid response team to handle complaints. • Establish standards for the condition of racks. • Preserve the City's existing ability to protect public safety related to news rack placement and maintenance. • Explicitly define safety limitations on placement of racks. • Establish a private sector,not governmental,solution to issues raised now or in future. • Avoid entangling city administration in legally precarious decisions on the allocation of space in news rack "condominiums." • Avoid the legal pitfalls of curtailing the distribution of constitutionally protected publications. • Maintain choices for readers and citizens of Fort Collins. Multiple questions remain about how the Voluntary Agreement from the publishers would address maintenance, proliferation of boxes, and funding. As a result, City staff, the Downtown Business Association and the Downtown Development Authority, strongly support the original proposed Ordinance. A resolution from the DBA and a survey of DBA members are attached (Attachment 13). January 8, 2008 Page 6 CONCLUSION The problem which needs to be addressed in the downtown area relates to both the maintenance and the proliferation of individual news racks. The draft Ordinance addresses both and funding is in place to support this option. ATTACHMENTS 1. Letter from Downtown Business Association with photos of existing news rack conditions 2. City Code Chapter 23 Relating to Encroachments on Public Property 3. Proposed Ordinance Amending Chapter 23, Article III of the Code of the City of Fort Collins for the Purpose of Adding a Division Regarding Encroachment Permits for News Racks Attachments 4-11 — Proposed Voluntary Agreement Packet from Publishers 4. Cover letter summarizing the proposal 5. Draft Voluntary Agreement 6. Highlights of Proposed news racks regulations 7. Rapid response proposal outline, flow chart, and management committee 8. List of affected publications 9. Frequently Asked Questions from Publishers 10. Estimates for corral cost and corral location information 11. Examples of corrals 12. Photo comparison of news rack condominiums and corrals 13. Resolution in support of proposed Ordinance from the DBA with DBA membership survey Attachment 1 : Letter from Downtown Business Association with photos of existing news rack conditions . _ F � 4, May 26, 2006 v �", u ; i Darin Atteberry, City ;✓tanager jug"Tyt:55 ASSOCIAiIO,y Citv of Fort Collins r PO Box 580 Fort Collins, CO 80522-0580 RE : Downtown Mews Racks Darin : The Downtown Business Association respectfully requests the City' s assistance in addressing concerns about the appearance, frequent maintenance neglect and ;rowing number of news racks in the downtown . With increasing competition from outlying commercial areas, the downtown area cannot afford to lose a competitive edge by allowing its aesthetic appearance to be diminished. This is a growing concern for the DBA as the number of news racks increase in the area. At last count, we identified at least 160 news racks located between Magnolia and LaPorte Ave . Photographs of the condition of some of these news racks are included with this letter. Graffiti, trash, and general neglect by the ol.vners of these news racks is impacting the visual appearance of the downtown . ~ We understand that an attempt was made several years ago to address this matter, but concerns about violations of free-speech rights ultimately forced the discussion to be set aside by the City. We have evaluated the situation and have found other communities nationwide and in Colorado including Boulder, Denver. and Steamboat Springs, for example, which have successfully implemented aesthetic controls over news racks by employing solutions such as multi-unit communal racks, corrals that screen existin_ racks, or a combination thereof y1'e he . ieye there is an opportunity to find middle ground that balances free speech rights and aesthetic appearance, and we would like to work with local publishers and the City to find a solution that is bc. I cial and acceptable to all. We believe that local publishers should share the same concern as our member bus ; resses bf.cause their success and our member business success are not mutually exclusive . kk'c both need people circulating through the downtown area as frequently as possible, and anything that detracts from the consumer' s positive perception of the area or deters them from visiting affects the bottom- line of the ledger for all of us . In discussions on this subject with the Downtown Development Authority. Chip Steiner indicated his support for taking a funding request to the DDA Board of Directors for costs associated with solving, this aesthetic concern . The foundation of a partnership is emerging, and we encourage you to engage the City and join us in efforts to address this issue . The Downto�%n Business Association offers to serve as the facilitator between all affected parties in this discussion , and without the City ' s participation we recognize that the most effective solutions are not likely to be realized . Thanks for your time and consideration . Sincerely, David Short, Executive Director Downtown Business Association Cc : Chip Steiner i9 Old Town Square Swte 230 Fort Collins. CO 80524 tel 970. 484.6500 9 fax 970. 484. 2069 FREE r : ./ems v. ./,lam IA Vow4%4 —'`- f VIP V4110, dr v. , Nil7TjJT�t S __ or �+y� � �' -� , 'fir "1l - " }l � 's _ ��" -'•. � � 1 ... . r .� t L 7 - V_ ti - _ n�rrto �� h ��ti:. kja It 'FfJ' I G�'C� t .•�4h��` i�:.jF'.r ,_.c w ' N.af�'� ,v,4 1• , l+^N�`t+r:.r� . -' It _ Oki low r -VIP _.cam,; HOMES .. �1 r i.. . . - ^r 'J :I f t ate ` `/�J •��.. +� ___._\� Tom• - - isOt eo- P�v i J �- � ram . � T7 '�•��, �� • ' st wl ot 1 ( j 1 • .t'4cYt - t FF . tom a k .�y ! 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Mf L VI _ ft,a,tL ' l CIO Ink Awwr Al tq. ae r }• • _ . ]_ F li i 41 !!! )i} its •, ,� - .• .. -IF Am w. 1 r `F ��ti,E •JI t I t..' ';Ij ~ • `` •r t' y . III& YTOP40 w .r WF N Imp 41;04 IF .r IF Fey A- OFF 10 IF Now r : , FF 1. �� • M ' �- '.. mot r fAlf fop FF ` Lys T r •` �� • ` . Zu. rsi`�' .I __�rOa:3w'+istY....:a1.4•• - y .,.S:�.W ; Y is is Attachment 1 : Letter from Downtown Business Association with photos of existing news rack conditions . _ F � 4, May 26, 2006 v �", u ; i Darin Atteberry, City ;✓tanager jug"Tyt:55 ASSOCIAiIO,y Citv of Fort Collins r PO Box 580 Fort Collins, CO 80522-0580 RE : Downtown Mews Racks Darin : The Downtown Business Association respectfully requests the City' s assistance in addressing concerns about the appearance, frequent maintenance neglect and ;rowing number of news racks in the downtown . With increasing competition from outlying commercial areas, the downtown area cannot afford to lose a competitive edge by allowing its aesthetic appearance to be diminished. This is a growing concern for the DBA as the number of news racks increase in the area. At last count, we identified at least 160 news racks located between Magnolia and LaPorte Ave . Photographs of the condition of some of these news racks are included with this letter. Graffiti, trash, and general neglect by the ol.vners of these news racks is impacting the visual appearance of the downtown . ~ We understand that an attempt was made several years ago to address this matter, but concerns about violations of free-speech rights ultimately forced the discussion to be set aside by the City. We have evaluated the situation and have found other communities nationwide and in Colorado including Boulder, Denver. and Steamboat Springs, for example, which have successfully implemented aesthetic controls over news racks by employing solutions such as multi-unit communal racks, corrals that screen existin_ racks, or a combination thereof y1'e he . ieye there is an opportunity to find middle ground that balances free speech rights and aesthetic appearance, and we would like to work with local publishers and the City to find a solution that is bc. I cial and acceptable to all. We believe that local publishers should share the same concern as our member bus ; resses bf.cause their success and our member business success are not mutually exclusive . kk'c both need people circulating through the downtown area as frequently as possible, and anything that detracts from the consumer' s positive perception of the area or deters them from visiting affects the bottom- line of the ledger for all of us . In discussions on this subject with the Downtown Development Authority. Chip Steiner indicated his support for taking a funding request to the DDA Board of Directors for costs associated with solving, this aesthetic concern . The foundation of a partnership is emerging, and we encourage you to engage the City and join us in efforts to address this issue . The Downto�%n Business Association offers to serve as the facilitator between all affected parties in this discussion , and without the City ' s participation we recognize that the most effective solutions are not likely to be realized . Thanks for your time and consideration . Sincerely, David Short, Executive Director Downtown Business Association Cc : Chip Steiner i9 Old Town Square Swte 230 Fort Collins. CO 80524 tel 970. 484.6500 9 fax 970. 484. 2069 FREE r : ./ems v. ./,lam IA Vow4%4 —'`- f VIP V4110, dr v. , Nil7TjJT�t S __ or �+y� � �' -� , 'fir "1l - " }l � 's _ ��" -'•. � � 1 ... . r .� t L 7 - V_ ti - _ n�rrto �� h ��ti:. kja It 'FfJ' I G�'C� t .•�4h��` i�:.jF'.r ,_.c w ' N.af�'� ,v,4 1• , l+^N�`t+r:.r� . -' It _ Oki low r -VIP _.cam,; HOMES .. �1 r i.. . . - ^r 'J :I f t ate ` `/�J •��.. +� ___._\� Tom• - - isOt eo- P�v i J �- � ram . � T7 '�•��, �� • ' st wl ot 1 ( j 1 • .t'4cYt - t FF . tom a k .�y ! 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Mf L VI _ ft,a,tL ' l CIO Ink Awwr Al tq. ae r }• • _ . ]_ F li i 41 !!! )i} its •, ,� - .• .. -IF Am w. 1 r `F ��ti,E •JI t I t..' ';Ij ~ • `` •r t' y . III& YTOP40 w .r WF N Imp 41;04 IF .r IF Fey A- OFF 10 IF Now r : , FF 1. �� • M ' �- '.. mot r fAlf fop FF ` Lys T r •` �� • ` . Zu. rsi`�' .I __�rOa:3w'+istY....:a1.4•• - y .,.S:�.W ; Y is is • Attachment 2: City of Fort Collins Code pertaining to encroachments Fort Collins Municipal Code and Charter CHAPTER 23 PUBLIC PROPERTY DIVISION 3. ENCROACHMENTS Sec. 23-81. Permit required; application. Any person desiring to place or erect a building, fence, barrier, post or other obstructions or encroachments within any City-owned property or any street, avenue, alley, sidewalk, highway or public right-of-way in the City shall file a written application for a permit upon a form prepared and provided by the City. The provisions of this Division shall not apply to special events as defined in § 23.5-2 of this Code. • (Code 1972, § 95-22; Ord. No. 11, 2001, § 1, 2-6-01; Ord. No. 048, 2004, § 1, 4-6-04; Ord. No. 210, 2006, § 1, 1-16-07) Sec. 23-82. Contents of application. (a) The application for a permit shall contain the following: (1) The applicant's name, address and telephone number; (2) The location of the proposed encroachment, obstruction or other structure; (3) The type of encroachment, obstruction or other structure; (4) The purpose of the proposed encroachment, obstruction or other structure; (5) A statement that the applicant agrees to abide by the provisions of this Division. (6) A description of the proposed encroachment sufficient to fully inform the City Manager of the character and physical attributes of the encroachment as necessary for the City Manager to perform a complete and competent investigation of the application under the criteria contained in Subsection 23-83(a). • (7) The anticipated duration (tern) of the proposed encroachment. (8) Evidence of the applicant's ability and willingness to provide liability insurance insuring the City in a sum not less than one million dollars ($1,000,000.), proof of which insurance shall be provided to the City prior to issuance of the permit, unless the requirement to provide such insurance is waived by the City Manager. (b) If the proposed encroachment is for the purpose of serving food and/or beverages for consumption within the encroachment area as an extension, accessory or complement to an adjoining business, the application shall also contain: (1) Evidence of the applicant's ability and willingness to provide liability insurance insuring the City in a sum not less than one million dollars ($1,000,000.), proof of which insurance shall be provided to the City prior to issuance of the permit; and (2) A statement that the applicant is the fee owner of the real property directly adjoining the property upon which the encroachment is sought, or, if the applicant is not the fee owner of such real property, then the adjoining property owner's written consent to the encroachment. (Code 1972, § 95-22; Ord. No. 11, 2001, § 2, 2-6-01; Ord. No. 158, 2001, 11-6-01; Ord. No. 048, 2004, § 2, 4-6-04; Ord. No. 210, 2006, § 2, 1-16-07) Sec. 23-83. Investigation of application information; fee; permit modification and revocation. (a) The application shall be made to the City Manager. The City Manager shall make or cause to be made an investigation of the information contained in the application and prior to the issuance of a permit. In order for an application for an encroachment for the purpose of serving food and/or beverages as referenced in Subsection 23-82(b) to be approved, the applicant for the proposed encroachment, obstruction or other structure must be the fee owner of the real property directly adjoining the property upon which the encroachment is sought, or must have obtained and submitted with the application the written consent of such fee owner. In order for an application for an encroachment for wireless telecommunication equipment or facilities (as those terms are defined in Article 5 of the Land Use Code) to be approved, the applicant must show to the satisfaction of the City Manager that the applicable criteria contained in Section 3.8.13 of the Land Use Code have been met. Additionally, the proposed encroachment, obstruction or other structure shall not, in the judgment of the City Manager, constitute a nuisance or destroy or impair the use of the property by the public or constitute a traffic hazard. No permit shall be issued unless the City Manager determines that the foregoing criteria have been met. In investigating the application, the City Manager may consult with such City departments as he or she deems necessary to determine whether the application should be approved. If the City Manager determines that the property proposed for the encroachment permit is not needed for use by the public and that all submittal requirements of the application are complete, the City Manager may issue the permit for such duration and upon such other terms and conditions as the City Manager determines are necessary to protect the public welfare. As a condition of the issuance of any permit for the purpose of serving food and/or beverages, as referenced in Subsection 23-82(b), the permittee shall annually provide to the City Manager proof of uninterrupted liability insurance coverage in the amount required in said Subsection, naming the City as an insured party. (b) Modification of a permit shall be required of the applicant if there is any change in the size or configuration of the area that is the subject of the permit and/or any change to any structure that was required or specifically authorized by the City upon the issuance of the permit. (c) At the time of issuance of a permit hereunder, and at the time of any modification of such permit, the applicant shall pay a fee to help defray the costs incurred by the City in processing and administering the permit including, without limitation, the cost of inspecting the premises that are the subject of the application. The amount of said fee shall generally be determined by the City • Manager, pursuant to the provisions of Article I of Chapter 7.5; provided however, that the amount of the fee for encroachments for newsracks or other constitutionally protected speech shall be fixed at ten dollars ($10.)per year. (d) Encroachment permits issued pursuant to this Division are authorized under Article Xl, Section 10 of the Charter. Accordingly, any such permit shall be revocable at the pleasure of the City Council or the City Manager, whether or not such right to revoke is expressly reserved in such permit. The applicant shall not be entitled to the refund of any fee upon such revocation. (e) If the encroachment is for newsracks, the City Manager's decision whether to issue or deny issuance of the permit shall be made within fifteen (15) days following the date that a complete application was submitted to the City. With the exception of newsracks, no privately owned, unattended displays designed or intended to convey a meaning or message shall be permitted as encroachments under this Division. (Code 1972, § 95-23; Ord. No. 11, 2001, § 3, 2-6-01; Ord. 158, 2001, 11-6-01; Ord. No. 210, 2006, § 3, 1-16-07) Sec. 23-84. Notice to remove encroachment. (a) Whenever any encroachment, obstruction or structure is made or located • contrary to the terms of the permit or without a permit or at such time as the permit is revoked as provided for in this Division, the City Manager shall give notice to the person who made or located such encroachment, obstruction or structure or caused or permitted it to be done or who owns or controls the premises with which such encroachment, obstruction or structure is connected to remove such encroachment, obstruction or other structure. It shall be removed within ten (10) days after notice. (b) It shall be unlawful for any person to continue any encroachment, obstruction or other structure for a period of ten (10) days after receipt of the notice provided for in this Section. (Code 1972, § 95-24; Ord. No. 11, 2001, § 4, 2-6-01) Sec. 23-85. Noncompliance with notice; removal of encroachment. (a) If any notice given under § 23-84 is not complied with, the City Manager is hereby authorized and empowered to cause the removal of the encroachment, obstruction or structure. (b)Upon completion of such removal, the City Manager shall certify to the Financial Officer the cost of such removal, and the Financial Officer shall send by certified mail addressed to the owner of the premises with which the obstruction is connected a notice of such removal and the cost incurred for such work, together with a statement that the cost of the work will be assessed against the owner's lot, tract or parcel of land if such cost is not paid to the City within ten (10) days after mailing of such notice. (c) If such person fails to make payment within the ten-day period, the City shall make the assessment by ordinance against the lot, tract or parcel of land in connection with which the encroachment, obstruction or structure was made, and such assessment shall be certified to the County Treasurer for the purpose of having it placed upon the tax rolls and collected in the manner provided for the collection of general taxes. (Code 1972, § 95-25) Sec. 23-86. Penalty. The failure of any permittee to comply with the terms of such permit or to vacate the permitted premises upon revocation of the permit, whether for cause or without cause, shall be deemed to constitute a violation of the Code and shall be punishable in accordance with § 1-15. (Ord. No. 11, 2001, § 5, 2-6-01) DRAFT Attachment 3: Proposed Ordinance Amending Chapter 23, Article III of the Code adding a division regarding encroachment permits for news racks . • ORDINANCE NO. 2007 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 23, ARTICLE Ill OF THE CODE OF THE CITY OF FORT COLLINS FOR THE PURPOSE OF ADDING A DIVISION REGARDING ENCROACHMENT PERMITS FOR NEWSRACKS WHEREAS, the Council recognizes that the use of City rights-of-way is historically associated with the sale and distribution of newspapers and other publications, and that it is in the public interest to encourage the widespread distribution of such publications; and WHEREAS,the uncontrolled placement or poor maintenance of newsracks in City rights-of- way detracts from the appearance of the rights-of-way and surrounding areas and can be hazardous to the safety and welfare ofpersons using such rights-of-way,including pedestrians,persons entering and leaving vehicles and buildings, and persons providing essential utility, traffic control and emergency services; and WHEREAS,the City's current permit system for encroachments does not adequately address The unique circumstances and challenges related to the regulation of newsracks; and and WHEREAS, the Council wishes to adopt a new set of regulations pertaining to newsracks; • WHEREAS, such system should include a requirement that, in certain areas of the City that tend to be especially congested and/orthat haveparticular architectural orhistoric significance,such as the downtown area,newsracks should,as funding becomes available,be contained in one or more central locations by means of a newsrack condominium; and WHEREAS, if the number of applications for newsrack permits exceeds the number of available locations, permits should be issued on a fair and reasonable priority basis of selection. NOW, THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Chapter 23, Article III of the Code of the City is hereby amended by the addition of a new Division 5 to be entitled "Newsracks" to provide as follows: DIVISION 5. NEWSRACKS See. 23-96. Intent and purpose. The purpose of this Division is to secure and promote the public health, safety and general welfare ofpersons using City rights-of-way by regulating the placement, appearance, size and servicing of newsracks in such rights-of-way. Nothing in this 9/25/07 changes • 1 Division is intended to discriminate against, or interfere with the publication, circulation, or distribution of any printed material that is constitutionally protected. See. 23-97. Definitions. The following words and phrases, when used in this Division, shall have the meaning respectively ascribed to them unless the context otherwise clearly indicates: Bus Stop shall mean the area immediately adjacent to any marked bus stop, consisting of a ten (10) foot wide strip parallel to the roadway measured from the curb or,where there is no curb,the edge of the pavement, and running from the bus stop sign for forty feet in the opposite direction of the flow of traffic. City right-of-way shall mean an area dedicated to public use or impressed with an easement for public use, which is owned or maintained by the City and is primarily used for pedestrian or vehicular travel. City right-of-way shall include but not be limited to,the street,gutter,curb, shoulder, sidewalk, sidewalk area,parking or parking strip, and any public way. Newsrack shall mean any self-service or coin operated box, container, storage unit or other dispenser installed, used or maintained for the display, distribution or sale of a newspaper,magazine,periodical,or other similar printed material. A space in a newsrack condominium is considered a newsrack if the context so implies. Newsrack condominium shall mean a newsrack that is made of metal or other material acceptable to the City,uniformly colored and that has space for two or more periodicals, each of which is separately permitted under the provisions of this Division. Perminee shall mean the person responsible for placing and maintaining a newsrack in a public right-of-way or for occupying a space in a newsrack condominium. Person shall mean any person or entity including, but not limited to, a corporation, limited liability company, partnership, unincorporated association, or joint venture. Roadway shall mean that portion of a street that is improved, designed, or ordinarily used for vehicular travel. Sidewalk shall mean any surface provided for the use of pedestrians. Street shall mean all the area dedicated to public use for public street purposes and shall include, but not be limited to,roadways, tree-lawns and sidewalks. 9/25/07 changes -2- Tree-lawn shall mean the area between the sidewalk and the curb of any street or, where there is no sidewalk, the area between the edge of the roadway and the property line adjacent thereto. Tree-lawn shall also include any area within a roadway that is not open to vehicular travel. See. 23-98. Encroachment permit required. 1t shall be unlawful for any person to erect, place, operate or maintain any newsrack or utilize any space in any newsrack condominium on City-owned property or any City right-of-way without first obtaining a permit from the City Manager approving the location or occupation of such newsrack. A newsrack that is in place but has not been authorized by a valid permit issued by the City may be removed by the City without notice. The City Manager's decision whether to issue or deny issuance of a newsrack permit shall be made within fifteen (15)days following the date that a complete application has been submitted to the City, or with respect to applications filed under§ 23-103(b)below,such decision shall be made by February 29, 2008. See. 23-99. Application for permit. The owner of a newsrack for which a permit is sought and any person seeking to utilize any space in a newsrack condominium must submit to the City Manager a • signed application in writing upon a form provided by the City and, except with respect to newsrack condominiums, a certificate of insurance with a limit of at least one million dollars per occurrence, showing the City as an additional insured, covering any liability arising out of the operation and maintenance of the newsrack. The insurance carrier must be rated B+ or better. The application must contain: (1) the name and address of the applicant; (2) the proposed location of the newsrack or newsrack condominium; and (3) the signature of the applicant. Sec. 23-100. Permit. Permits shall be issued for each newsrack and are not transferrable and will be valid for one(1)year unless earlier revoked pursuant to § 23-108 of this Division or pursuant to Article IX, Section I 1 of the City Charter. Sec. 23-101. Issuance of a permit. No permit may be issued unless the applicant has filed a written statement with the City Manager, in a form satisfactory to the City Attorney,agreeing to indemnify • and hold harmless the City, its officers and employees, from any loss, liability, or 9/25/07 changes -3- damage, including expenses and costs, for bodily or personal injury or properly damage sustained by any person as a result of the installation, use, or maintenance of a permitted newsrack within the City. Each permittee shall pay an annual fee of ten dollars ($10.)per permit prior to the issuance or renewal of the permit. Sec. 23-102. Public safety criteria for placement of newsracks. The following regulations shall apply to all newsracks placed in whole or in part upon, in or over any portion of City-owned property or City right-of-way: (a) No newsrack maybe placed, installed, used or maintained: (1) within two (2) feet of the curb face of or pavement edge of any roadway; (2) within three(3) feet of any marked pedestrian crosswalk or entrance to any public transit shelter; (3) within five (5) feet of any fire hydrant, fire call box,police call box, or any other emergency facility; (4) on any portion of a pedestrian access ramp for disabled persons; (5) within five (5) feet of any of the following: parking meter posts, traffic control cabinets, bicycle parking racks, public telephone enclosures,kiosks,public works of art,entrances to any sidewalk cafe enclosure or any portion of a driveway; (6) on any portion of a tree grate,manhole cover,meter and/or valve box cover,vent cover for underground utilities or on any granite or other decorative sidewalk without special approval by the City Manager; (7) in such mannerthat the effective,clearwidth provided for the passage of pedestrians within the sidewalk portion of City right-of-way fails to comply with the provisions contained in the Larimer County Urban Area Street Standards; (8) within the passenger boarding area of a designated bus stop. (9) on landscaped areas or other pervious surface unless a concrete pad has been installed on such surface,pursuant to a permit issued by the City Manager; (10) when such installation, use, or maintenance endangers the safety of persons or property; 9/25/07 changes -4- (11) when such site or location is used for public utility purposes,public transportation purposes, or other public or governmental use incompatible with newsracks; (12) when such newsrack unreasonably interferes with or impedes: a. the now of pedestrian or vehicular traffic, including parked or stopped vehicles, the ingress to or egress from any residence or place of business; or b. the use or maintenance of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said location. (b) Newsracks must not be secured to the surface upon which they are situated by bolts,but must instead be secured by weight or other anchoring device approved by the City Manager. (c) It shall be unlawful for any person,other than an employee or contractor of the City who is taking action pursuant to this ordinance, to move a newsrack without the authorization of the owner of the newsrack. • (d) It shall be unlawful for any person to deface a newsrack. (e) No newsracks shall be permitted in mid-block locations unless the City Manager determines that the placement of newsracks at such location: (1) does not impede vehicular or pedestrian travel; (2) does not cause a health and safety concern for the traveling public such as a tripping hazard or sight distance issue; (3) is not within three hundred (300) feet of any other newsrack; (4) will not cause damage to any City property; (5) does not impede any irrigation system to private or City property; (6) provides room to place the newsrack at least two (2)feet behind the walk and not in the tree-lawn between the walk and the curb; (7) will not be secured to any City property, such as sign posts, street light poles, signal light poles or trees; • (8) will not be secured to any private property, such as fences or trees. 9/25/07 changes -5- (f) If the number of newsracks at a location must be reduced for any reason, the last permitted newsrack shall be the first to be removed,and so on,with the first permitted the last to be removed. Any newsrack so removed shall be permitted at the nearest available location acceptable to the permittee without the imposition of a new permit fee. (g) No newsrack may be placed, installed, used or maintained within the boundaries of the area identified exclusively for newsrack condominiums as shown on Figure A below. Within this area the City Manager shall identify locations for the placement of newsrack condominiums. No more than one (1) set of condominiums may be placed on each side of an intersection, and such condominiums must be cater-comer from one another. (INSERT FIGURE) Sec. 23-103. Allocation of spaces in newsrack condominiums; selection method. Spaces in newsrack condominiums shall initially be allocated by the City Manager through an application process during the period from February 1,through February 29, 2008. Following the initial process, the City's process of allocation shall include the giving of notice via the City's website and the procedure set out in subparagraph (c) below. The allocation and selection method for newsrack condominiums placed within the City right-of-way will be subject to the following provisions: (1) In the area identified exclusively for newsrack condominiums as shown on Figure A,the number of condominium spaces available will determine how many publications will be allowed therein. (2) Initial applications for spaces in newsrack condominiums shall be submitted between February I and February 15,2008. Spaces in newsrack condominiums shall be allocated on an equal priority basis and the permittees shall be randomly selected by the drawing of lots under the administration of the City Manager in a manner that is equitable and fair to all potential permittees. (3) After the initial allocation of spaces in newsrack condominiums,the public shall be notified via the City's website when a location becomes available for occupation. Persons seeking to occupy the available spaces shall have fourteen (14) calendar days from the date of the notification to submit 9/25/07 changes -6- • applications for any such location. If more applications are received in that period than can be accommodated at the location,all such applications shal I be put on an equal priority and the permittees shall be randomly selected by the drawing of lots under the administration of the City Manager in a manner that is equitable and fair to all potential permittees. Any applications that are not granted through the foregoing process or that are submitted after the fourteen(14)day period has expired shall be granted on a space available, first come first served basis. (4) If a publication has one(1)newsrack that has been permitted at a newsrack condominium location, it may obtain a permit for a second newsrack only after all other publications requesting initial permits have been issued. (5) If a publication requests a permit at a newsrack condominium location where it has no permitted newsracks but there are two (2) or more permitted newsracks of another publication,the publication with multiple newsracks must remove as many newsracks as necessary to allow for the placement of the new newsrack, provided that no publication shall be required to remove all of its permitted newsracks from such location. (6) The spaces in a newsrack condominium will be determined by the City Manager with the offered for sale publications generally located in upper • areas and the free publications generally located in the lower areas in order to better assist the customers in insertion of coins into coin boxes. The spaces in a newsrack condominium will be allocated by the City Manager based upon whether the publication is a paid publication or a free publication and otherwise shall be randomly selected by the drawing of lots under the administration of the City Manager in a manner that is equitable and fair to all potential permittees. Sec. 23-104. Construction, size, appearance and maintenance of newsracks. (a) Newsracks must be constructed in such manner as to withstand normal wear and tear and extreme weather conditions and must be finished in such a way as to provide easy and safe access by pedestrians using the public streets and sidewalks. (b) Newsracks must be constructed and painted or colored in a manner that allows them to be maintained free of rust,graffiti,or other signs of outdoor wear and tear or abuse. (c) Newsracks that in whole or in part rest upon, in or over any City right-of- way must comply with the following standards: (1) Newsracks must not exceed forty-two (42) inches in height when • located within twenty (20) feet of a curb line or, if there is no curb, 9/25/07 changes -7- within twenty(2) feet of the edge of the traveled way. At any other location, they must not exceed fifly-seven (57) inches in height. Newsracks must not exceed twenty-four (24) inches in depth, and thirty (30) inches in width. (Newsrack condominiums are exempt from the foregoing limitations.) (2) No newsrack may be of such size as to visually obstruct the safe movement of traffic,pedestrians or bicyclists. (3) No newsrack may be used to advertise anything other than the newspaper or periodical sold therein. (4) Each newsrack not affixed to a newsrack condominium shall have affixed to it in a readily visible place, so as to be seen by anyone using the newsrack, a notice containing the name and address of the permitlee and the telephone number of a working telephone service for reporting a malfunction, securing a refund,or giving the notices provided for in this Division. Notices affixed to newsrack condominiums need contain only the name and telephone number of the City office which is responsible for the maintenance of the newsrack condominium, regardless of the number of permittees actually utilizing said newsrack condominium. (5) Each newsrack must be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack must be serviced and maintained no less than once per week so that: a. it is reasonably free of dirt and grease; b. it is reasonably free of chipped, faded,peeling and cracked paint in the visible painted areas; c. it is reasonably free of rust and corrosion; d, any clear plastic or glass parts thereof, through which the publications therein are viewed,are unbroken and reasonably free of cracks,dents,blemishes and discoloration; e. any paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading; f. it is free from trash and graffiti; and g. all structural parts thereof are intact. 9/25/07 changes -8- Sec. 23-105. Handicapped accessibility requirements. All newsracks shall comply with the requirements of the Americans with Disabilities Act (ADA) and the regulations adopted thereunder and all regulations adopted by the City regulating handicapped accessibility. Sec. 23-106. Revocation of existing permits. Permits are hereby revoked that are in place in the public right-of-way on February 29, 2008. Sec. 23-107. Violations. (a) Upon determination by the City Manager that a newsrack has been installed, used or maintained in violation of the provisions of this Division, the City Manager may revoke the permit and remove the newsrack or may order the permittee to correct the offending condition. Any such order to correct an offending condition may be issued by telephone or sent by facsimile transmission, or by registered mail, return receipt requested to the permittee. The order must describe the offending condition, suggest actions necessary to correct the condition, and establish a date for compliance that is not be less than ten(10)working days from the date that the order is sent or telephoned to the permittee. The order must inform the permittee of the • right to appeal. The City Manager may remove the offending newsrack and revoke the permit if the permittee does not remove the newsrack or if the offending condition is not cured by the date set for compliance in the order. The City Manager must cause an inspection to be made of any corrected condition of a newsrack or of a newsrack that is reinstated after removal under this Section. (b) Whenever the City Manager finds a newsrack that does not have affixed to it the name and telephone number of the permittee, the City Manager must make reasonable efforts to ascertain who the permittee is and notify the permittee of the violation. (c) Any impounded newsrack shall be treated as unclaimed property and disposed of by the City if not claimed within thirty(30)working days. Sec. 23-108. Appeals. Any person or entity aggrieved by a finding,determination,notice,order or action taken under the provisions of this Division may appeal to the City Manager as provided in Chapter 2, Article Vl, of the City Code. • 9/25/07 changes -9- See. 23-109. Abandonment. Any newsrack located on City right-of-way which remains empty for a period of thirty(30)continuous days after the City has notified the permittee of such condition, will be deemed abandoned. The City Manager may remove any abandoned newsrack from the City right-of-way and, unless the newsrack is claimed within thirty (30) days, the City Manager may dispose of the abandoned newsrack or sell the abandoned newsrack at an auction as unclaimed property. Introduced, considered favorably on first reading, and ordered published this 18th day of September,A.D. 2007,and to be presented for final passage on the 2nd day of October,A.D. 2007. Mayor ATTEST: City Clerk Passed and adopted on final reading on the 2nd day of October, A.D. 2007. Mayor 4 i I EST: City Clerk 9/25/07 changes -10- Figurc- A. 010 I a s � _ .•. s' �f..# _ a ': pp ! • t fl P . ... ti iy>s ; f i � ... � . s 5 q _ ♦ OTT 4 + s x y m� 10 ILI � ixe �� Attachment 3 : Proposed Ordinance Amending Chapter 23 , Article III of the Code adding a division regarding encroachment permits for news racks . ORDINANCE NO . , 2007 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 23 , ARTICLE III OF THE CODE OF THE CITY OF FORT COLLINS FOR THE PURPOSE OF ADDING A DIVISION REGARDING ENCROACHMENT PERMITS FOR NEWSRACKS WHEREAS , the Council recognizes that the use of City rights-of-way is historically associated with the sale and distribution of newspapers and other publications, and that it is in the public interest to encourage the widespread distribution of such publications; and WHEREAS , the uncontrolled placement or poor maintenance ofnewsracks in City rights-of- way detracts from the appearance of the rights-of-way and surrounding areas and can be hazardous to the safety and welfare ofpersons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, and persons providing essential utility, traffic control and emergency services; and WHEREAS , the City' s current permit system for encroachments does not adequately address the unique circumstances and challenges related to the regulation of newsracks ; and WHEREAS , the Council wishes to adopt a new set of regulations pertaining to newsracks; and WHEREAS , such system should include a requirement that, in certain areas of the City that tend to be especially congested and/or that have particular architectural or historic significance, such as the downtown area, newsracks should, as funding becomes available, be contained in one or more central locations by means of a newsrack condominium ; and WHEREAS , if the number of applications for newsrack permits exceeds the number of available locations, permits should be issued on a fair and reasonable priority basis of selection . NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Chapter 23 , Article III of the Code of the City is hereby amended by the addition of a new Division 5 to be entitled "Newsracks" to provide as follows : DIVISION 5 . NEWSRACKS Sec. 23-96. Intent and purpose. The purpose of this Division is to secure and promote the public health , safety and general welfare of persons using City rights-of-way by regulating the placement, appearance, size and servicing of newsracks in such rights-of-way. Nothing in this 9/25/07 changes 1 Division is intended to discriminate against, or interfere with the publication, circulation, or distribution of any printed material that is constitutionally protected. See. 23-97. Definitions. The following words and phrases, when used in this Division , shall have the meaning respectively ascribed to them unless the context otherwise clearly indicates : Bass Stop shall mean the area immediately adjacent to any marked bus stop, consisting of a ten ( 10) foot wide strip parallel to the roadway measured from the curb or, where there is no curb, the edge of the pavement , and running from the bus stop sign for forty feet in the opposite direction of the flow of traffic . City right-of-way shall mean an area dedicated to public use or impressed with an easement for public use, which is owned or maintained by the City and is primarily used for pedestrian or vehicular travel . City right-of-way shall include but not be limited to, the street, gutter, curb, shoulder, sidewalk, sidewalk area, parking or parking strip, and any public way. Newsrack shall mean any self-service or coin operated box , container, storage unit or other dispenser installed, used or maintained for the display, distribution or sale of a newspaper, magazine, periodical, or other similar printed material . A space in a newsrack condominium is considered a newsrack if the context so implies. Newsrack condoninium shall mean a newsrack that is made of metal or other material acceptable to the City, uniformly colored and that has space for two or more periodicals, each of which is separately permitted tinder the provisions of this Division . Permittee shall mean the person responsible for placing and maintaining a newsrack in a public right-of-way or for occupying a space in a newsrack condominium . Person shall mean any person or entity including, but not limited to, a corporation, limited liability company, partnership, unincorporated association, or joint venture . Roadivay shall mean that portion of a street that is improved, designed, or ordinarily used for vehicular travel . Sidewalk shall mean any surface provided for the use of pedestrians. Street shall mean all the area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, tree-lawns and sidewalks . 9/25/07 changes -2- Tree-lawn shall mean the area between the sidewalk and the curb of any strcet or, Where there is no sidewalk, the area between the edge of the roadway and the property line adjacent thereto . Tree- lawn shall also include any area within a roadway that is not open to vehicular travel . Sec. 23-98. Encroachment permit required . It shall be unlawful for any person to erect, place, operate or maintain any newsrack or utilize any space in any newsrack condominium on City-owned property or any City right-of-way without first obtaining a permit from the City Manager approving the location or occupation of such newsrack . A newsrack that is in place but has not been authorized by a valid permit issued by the City may be removed by the City without notice. The City Manager' s decision whether to issue or deny issuance of a newsrack permit shall be made within fifteen ( 15 ) days following the date that a complete application has been submitted to the City, or with respect to applications filed under § 23- 103 (b) below, such decision shall be made by February 29, 2008 . Sec. 23-99. Application for permit. The owner of a newsrack for which a permit is sought and any person seeking to utilize any space in a newsrack condominium must submit to the City Manager a signed application in writing upon a form provided by the City and , except with respect to newsrack condominiums, a certificate of insurance with a limit of at least one million dollars per occurrence, showing the City as an additional insured , covering any liability arising out of the operation and maintenance of the newsrack . The insurance carrier must be rated B+ or better. The application must contain : ( 1 ) the name and address of the applicant ; (2) the proposed location of the newsrack or newsrack condominium ; and ( 3) the signature of the applicant . Sec. 23- 100. Permit. Permits shall be issued for each newsrack and are not transferrable and will be valid for one ( 1 ) year unless earlier revoked pursuant to § 23 - 108 of this Division or pursuant to Article IX , Section 11 of the City Charter. Sec. 23- 101 . Issuance of a permit. No permit may be issued unless the applicant has filed a written statement with the City Manager, in a form satisfactory to the City Attorney, agreeing to indemnify and hold harmless the City, its officers and employees, from any loss, liability, or 9/25/07 changes -3 - damage, including expenses and costs, for bodily or personal injury or property damage sustained by any person as a result of the installation , use, or maintenance of a permitted newsrack within the City. Each permittee shall pay an aTmual fee of ten dollars ($ 10.) per permit prior to the issuance or renewal of the permit . Sec. 23- 102. Public safety criteria for placement of newsracks. The following regulations shall apply to all newsracks placed in whole or in part upon, in or over any portion of City-owned property or City right-of-way: ( a) No newsrack may be placed, installed, used or maintained : ( 1 ) within two (2) feet of the curb face of or pavement edge of any roadway; (2) within three (3 ) feet of any marked pedestrian crosswalk or entrance to any public transit shelter; (3 ) within five (5) feet of any fire hydrant, fire call box , police call box , or any other emergency facility; (4) on any portion of a pedestrian access ramp for disabled persons ; (5 ) within five (5) feet of any of the following : parking meter posts, traffic control cabinets, bicycle parking racks, public telephone enclosures, kiosks, public works of art, entrances to any sidewalk cafe enclosure or any portion of a driveway; (6) on any portion of a tree grate, manhole cover, meter and/or valve box cover, vent cover for underground utilities or on any granite or other decorative sidewalk without special approval by the City Manager; ( 7) in such manner that the effective, clear width provided for the passage of pedestrians within the sidewalk portion of City right-of-way fails to comply with the provisions contained in the Larimer County Urban Area Street Standards; (8) within the passenger boarding area of a designated bus stop . ( 9) on landscaped areas or other pervious surface unless a concrete pad has been installed on such surface, pursuant to a pen-nit issued by the City Manager; ( 10) when such installation, use, or maintenance endangers the safety of persons or property; 9/25/07 changes -4- ( 11 ) when such site or location is used for public utility purposes, public transportation purposes, or other public or governmental use incompatible with newsracks ; ( 12) when such newsrack unreasonably interferes with or impedes : a. the flow of pedestrian or vehicular traffic, including parked or stopped vehicles, the ingress to or egress from any residence or place of business ; or b . the use or maintenance of poles, posts, traffic signs or signals, hydrants, mailboxes, or other objects permitted at or near said location . (b) Newsracks must not be secured to the surface upon which they are situated by bolts, but must instead be secured by weight or other anchoring device approved by the City Manager. (c) It shall be unlawful for any person, other than an employee or contractor of the City who is taking action pursuant to this ordinance, to move a newsrack without the authorization of the owner of the newsrack. (d) It shall be unlawful for any person to deface a newsrack . (e) No newsracks shall be permitted in mid-block locations unless the City Manager determines that the placement of newsracks at such location : ( 1 ) does not impede vehicular or pedestrian travel ; (2) does not cause a health and safety concern for the traveling public such as a tripping hazard or sight distance issue; (3 ) is not within three hundred (300) feet of any other newsrack; (4) will not cause damage to any City property; (5 ) does not impede any irrigation system to private or City property; (6) provides room to place the newsrack at least two (2) feet behind the walk and not in the tree- lawn between the walk and the curb; (7) will not be secured to any City property, such as sign posts, street light poles, signal light poles or trees ; ( 8) will not be secured to any private property, such as fences or trees. 9/25/07 changes -5 - ( f) If the number of newsracks at a location must be reduced for any reason , the last permitted newsrack shall be the first to be removed, and so on, with the first permitted the last to be removed . Any newsrack so removed shall be permitted at the nearest available location acceptable to the permittee without the imposition of a new permit fee. (g) No newsrack may be placed, installed, used or maintained within the boundaries of the area identified exclusively for newsrack condominiums as shown on Figure A below. Within this area the City Manager shall identify locations for the placement of newsrack condominiums. No more than one ( 1 ) set of condominiums may be placed on each side of an intersection, and such condominiums must be cater-corner from one another. (INSERT FIGURE) Sec. 23- 103 . Allocation of spaces in newsrack condominiums ; selection method. Spaces in newsrack condominiums shall initially be allocated by the City Manager through an application process during the period from February 1 , through February 29, 2008 . Following the initial process, the City' s process of allocation shall include the giving of notice via the City' s website and the procedure set out in subparagraph (c) below . The allocation and selection method for newsrack condominiums placed within the City right-of-way will be subject to the following provisions : ( 1 ) In the area identified exclusively for newsrack condominiums as shown on Figure A , the number of condominium spaces available will determine how many publications will be allowed therein . (2 ) Initial applications for spaces in newsrack condominiums shall be submitted between February 1 and February 15 , 2008 . Spaces in newsrack condominiums shall be allocated on an equal priority basis and the permittees shall be randomly selected by the drawing of lots under the administration of the City Manager in a manner that is equitable and fair to all potential permittees. (3 ) After the initial allocation of spaces in newsrack condominiums, the public shall be notified via the City' s website when a location becomes available for occupation . Persons seeking to occupy the available spaces shall have fourteen ( 14) calendar days from the date of the notification to submit 9/25/07 changes -G- applications for any such location. If more applications are received in that period than can be accommodated at the location, all such applications shall be put on an equal priority and the permittees shall be randomly selected by the drawing of lots under the administration of the City Manager in a manner that is equitable and fair to all potential permittees. Any applications that are not granted through the foregoing process or that are submitted after the fourteen ( 14) day period has expired shall be granted on a space available, first come first served basis. (4) If a publication has one ( 1 ) newsrack that has been permitted at a newsrack condominium location, it may obtain a permit for a second newsrack only after all other publications requesting initial permits have been issued . ( 5 ) If a publication requests a permit at a newsrack condominium location where it has no permitted newsracks but there are two (2) or more permitted newsracks of another publication, the publication with multiple newsracks must remove as many newsracks as necessary to allow for the placement of the new newsrack, provided that no publication shall be required to remove all of its permitted newsracks from such location . (6) The spaces in a newsrack condominium will be determined by the City Manager with the offered for sale publications generally located in upper areas and the free publications generally located in the lower areas in order to better assist the customers in insertion of coins into coin boxes. The spaces in a newsrack condominium will be allocated by the City Manager based upon whether the publication is a paid publication or a free publication and otherwise shall be randomly selected by the drawing of lots under the administration of the City Manager in a manner that is equitable and fair to all potential permittees. Sec. 23- 104. Construction, size, appearance and maintenance of newsracks. (a) Newsracks must be constructed in such manner as to withstand normal wear and tear and extreme weather conditions and must be finished in such a way as to provide easy and safe access by pedestrians using the public streets and sidewalks . (b) Newsracks must be constructed and painted or colored in a manner that allows them to be maintained free of rust, graffiti , or other signs of outdoor wear and tear or abuse. (c) Newsracks that in whole or in part rest upon, in or over any City right-of- way must comply with the following standards : ( 1 ) Newsracks must not exceed forty-two (42) inches in height when located within twenty (20) feet of a curb line or, if there is no curb, 9/25/07 changes -7- within twenty (2 ) feet of the edge of the traveled way. At any other location , they must not exceed fifty-seven (57) inches in height . Newsracks must not exceed twenty-four (24) inches in depth, and thirty (30) inches in width . (Newsrack condominiums are exempt from the foregoing limitations.) (2) No newsrack may be of such size as to visually obstruct the safe movement of traffic , pedestrians or bicyclists . (3) No newsrack may be used to advertise anything other than the newspaper or periodical sold therein . (4) Each newsrack not affixed to a newsrack condominium shall have affixed to it in a readily visible place, so as to be seen by anyone using the newsrack, a notice containing the name and address of the permittee and the telephone number of a working telephone service for reporting a malfunction, securing a refund, or giving the notices provided for in this Division . Notices affixed to newsrack condominiums need contain only the name and telephone number of the City office which is responsible for the maintenance of the newsrack condominium , regardless of the number of permittces actually utilizing said newsrack condominium . (5 ) Each newsrack must be maintained in a neat and clean condition and in good repair at all times. Specifically, but without limiting the generality of the foregoing, each newsrack must be serviced and maintained no less than once per week so that : a. it is reasonably free of dirt and grease; b. it is reasonably free of chipped, faded, peeling and cracked paint in the visible painted areas; c . it is reasonably free of rust and corrosion ; d . any clear plastic or glass parts thereof, through which the publications therein are viewed, are unbroken and reasonably free of cracks, dents, blemishes and discoloration ; e. any paper or cardboard parts or inserts thereof are reasonably free of tears, peeling or fading; f. it is free from trash and graffiti ; and g. all structural parts thereof are intact . 9/25/07 changes -8- Sec. 23405. Handicapped accessibility requirements. All newsracks shall comply with the requirements of the Americans with Disabilities Act (ADA) and the regulations adopted thereunder and all regulations adopted by the City regulating handicapped accessibility. Sec. 23406. Revocation of existing permits . Permits are hereby revoked that are in place in the public right-of-way on February 29, 2008 . Sec. 23- 107. Violations. (a) Upon determination by the City Manager that a newsrack has been installed, used or maintained in violation of the provisions of this Division, the City Manager may revoke the permit and remove the newsrack or may order the permittee to correct the offending condition . Any such order to correct an offending condition may be issued by telephone or sent by facsimile transmission, or by registered mail , return receipt requested to the permittee. The order must describe the offending condition, suggest actions necessary to correct the condition , and establish a date for compliance that is not be less than ten ( 10) working days from the date that the order is sent or telephoned to the permittee. The order must inform the permittee of the right to appeal . The City Manager may remove the offending newsrack and revoke the permit if the penmittee does not remove the newsrack or if the offending condition is not cured by the date set for compliance in the order. The City Manager must cause an inspection to be made of any corrected condition of a newsrack or of a newsrack that is reinstated after removal under this Section. (b) Whenever the City Manager finds a newsrack that does not have affixed to it the name and telephone number of the penmittee, the City Manager must make reasonable efforts to ascertain who the permittee is and notify the permittee of the violation . (c) Any impounded newsrack shall be treated as unclaimed property and disposed of by the City if not claimed within thirty (30) working days. Sec. 23- 108. Appeals. Any person or entity aggrieved by a finding, determination, notice, order or action taken under the provisions of this Division may appeal to the City Manager as provided in Chapter 2 , Article VI, of the City Code. 9/25/07 changes -9- See. 23- 109. Abandonment. Any newsrack located on City right-of-way which remains empty for a period of thirty (30) continuous days after the City has notified the permittee of such condition , will be deemed abandoned . The City Manager may remove any abandoned newsrack from the City right-of-way and, unless the newsrack is claimed within thirty (30) days, the City Manager may dispose of the abandoned newsrack or sell the abandoned newsrack at an auction as unclaimed property. Introduced, considered favorably on first reading, and ordered published this 18th day of September, A.D . 2007, and to be presented for final passage on the 2nd day of October, A.D. 2007 . Mayor ATTEST : City Clerk Passed and adopted on final reading on the 2nd day of October, A. D . 2007 . Mayor .ATTEST : City Clerk 9/25/07 changes - 10- ir I it Figure - 4fill ! \- : 4 1 ♦ � 1 it s• A i fif a t'. t sr�' iiP is s r - ' - — — '--�sAlo-i— rr Av wit tA ar � t 1 weitis fit i6s, ♦ ' - � ! eft IL it r.+ ♦ � _ ,r ( VF - 7 �t r f' d- ' . Ira _ 44 it 'IMF: it Ok .`c Is ti. r � 0 _ ; �- � -± � �` =i � C � t ram°• �� :.i..` 1 - ' eq � •. . F- _ t ��. V •. � � ,. 4 �.. '� . 1 i' sl (t. V {J♦EfiY 1 � t -._j � � ;� .� tg.] f . , { IJL in w lcvpl'� It .. i ml \ -. , \ �` . . �� - M+♦ {. t . ~ , ! - . sty mill a lY R Attachment 4: Cover letter summarizing the proposal . • LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. B88 SHERAIAN STREET WASHINGTON,D.C. NEw YORR PHIIADELPHIA DENVER SUITE 370 DENVER,CO 80203 (303)376-2400 PHONE (303)37&2401 FAX ww Akslaw.com (303)376-2406 cbeall Jskslaw.com January 2, 2008 The Hon. Doug Hutchinson Members of the City Council Mayor, City of Fort Collins City of Fort Collins c/o City Hall West 300 LaPorte Avenue Fort Collins, Colorado 80521 Re: News Rack Regulation in Fort Collins, Colorado Dear Mayor Hutchinson & City Council Members: This law firm represents the coalition of publishers in Fort Collins who have banded • together to form a Voluntary Agreement with respect to regulation of news racks in this community. This letter summarizes the publishers' proposals in response to the efforts of City Staff to curtail news racks in the downtown area of Fort Collins. Although we have not been provided with a copy of City Staff s proposal,' we understand that it will be presented to the City Council at the council's work session on January 8, 2008. This letter, and the accompanying supporting materials, are intended to address what we expect City Staff to propose during the work session. Of course, representatives of the publishers' coalition, as well as undersigned counsel, will be present during the work session to respond to any questions or requests for further information, should the City Council so desire. 1. What is the problem? The publishers' coalition understands that there are two principal "problems"that have prompted City Staffs proposal to expand the City's regulation of news racks in Fort Collins. I We understand that City Staffs proposed ordinance will not be made available for public review until January 3,2008,the day after the deadline by which,as we were informed by City Staff,these materials from the publishers' coalition should be submitted to the City Council. Although the draft of the Voluntary Agreement already has been shared with City Staff,and others,the publishers' coalition has not been given the same courtesy of • a review of the materials that City Staff intends to present. 100017560;vi) LEVINE SULLIVAN KOCH & SCHULZ,L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 2 of 9 Publishers' Presentation These problems are: (1) a perception that existing news racks are unsightly, and (2)the growth in the number of news racks in the downtown area. City Staff also have asserted that there is a concern relating to "public safety." However, this ill-defined issue seems not to be a real issue. The City has no record whatsoever of any injury or accident caused by any news rack in Fort Collins.2 Moreover,the City's existing ordinance regulating news racks—Ft. Collins Mun. Code, § 23-83(a)—gives the City all the authority it needs to ensure that news racks are placed in locations that do not undermine public safety or otherwise interfere with traffic. II. What are the options? The following options are available to the City to address the perceived problems: a) Rely on, and actually enforce,the City's existing ordinance. b) Adopt City Staff s proposal. c) Adopt proposal by publisher's coalition. Each of these options is addressed below. A. Current ordinance. The Fort Collins Municipal Code currently requires all owners of news racks to obtain an "encroachment"permit from the City if the news rack owner wishes to place its news rack in the traditional public forum of the public sidewalks or other publicly owned property. See Ft. Collins Mun.Code, § 23-81. This ordinance already provides the City Manager with the authority to ban news racks that "constitute a nuisance or destroy or impair the use of the property by the public or constitute a traffic hazard." See id., § 23-83(a). The ordinance also permits the City Manager to impose terms and conditions on any encroachment permit that the City deems "are necessary to protect the public welfare." See id. This language is more than sufficient to provide the City with authority to control news rack locations that it deems to present a public safety hazard,or that otherwise impair the public's use of public property. Thus, under the current ordinance, the City has the authority to Z The Coloradoan recently made a public records request of the City,under the Colorado Open Records Act,seeking all documents relating to any complaint or incident involving newsracks. No records were produced by the City documenting any public safety incident. (00017560;v I) LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 3 of 9 Publishers' Presentation refuse to grant encroachment permits for news racks located in red-curbed zones,or news racks that block the egress of pedestrians. In addition, this language also is sufficient to allow the City to take action against dilapidated news racks that might present a public health threat or a public nuisance by attracting debris or refuse. The publishers note that the City has historically failed to make use of the powers it already possesses under the encroachment ordinance. As a result, a recent canvass of news racks in the downtown area uncovered several news racks for which the City had never issued a permit. Despite the lack of such permits, the City has allowed those news racks to continue to operate. Although the existing ordinance certainly gives the City all the power it needs to police any health and safety issues related to news racks, the language admittedly does not give the City • authority to police the aesthetics of the news racks, or to mandate the use of City-owned "condominiums." Because it is only this aesthetic power that is absent from the current ordinance,the publishers' coalition is left to conclude that the sole basis for City Staff s proposal is to regulate aesthetics.3 B. City Staffs proposal. As indicated above, City Staff has not provided us with a copy of the draft ordinance they wish to have the City Council adopt. We understand, however, that City Staff's ultimate proposal will be based in large measure on the draft ordinance that was published last fall and which called for a system of newspaper"condominiums"owned and/or maintained by the City or the Downtown Development Authority. To the extent that City Staff s proposed ordinance continues to require the use of"condominiums" for newspaper distribution in the Old Town area, the publishers' coalition objects to that proposal. Among the objections of the publishers' coalition are the following: ✓ City Staffs proposal reduces from sixteen (16) to nine (9)locations where newspapers may be distributed in the traditional public forum of the public sidewalks in the Old Town area. 3 In addition,as discussed further below,because the aesthetic vision of City Staff requires a substantial reduction in the number of locations for news racks,the other obvious purpose behind City Staff s proposal is to achieve a gross reduction in the number of newspaper vending points,not just news rack locations,in the downtown • area. 100013560M 1 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 4 of 9 Publishers' Presentation ✓ Even in the nine remaining locations in Old Town allowed under City Staff s proposal, certain existing publications will be unable to obtain vending slots because there will not be as many vending points for the two classes of publications in the City's new condominiums as now exist on the sidewalks at those locations.° ✓ Prior versions of City Staff s proposed ordinance failed to account for the fact that particular publishers in Fort Collins use multiple news racks for their various publications, and as a result, the allocation system proposed by City Staff will prevent such multi-publication publishers from displaying all of their publications in the proposed condominiums. ✓ The condominiums proposed by City Staff will have inadequate window space for tabloid-style newspapers,making it impossible to properly display such publications, of which there are already at least five that currently use news racks in the Old Town area. ✓ City Staff s proposal eliminates the ability of publishers to brand their distribution points through the use of distinctive color schemes or logos. ✓ With the condominiums required by City Staffs proposal, publishers no longer will be ale to use the space below their news racks' display windows to advertise promotions, special sections, and community happenings. ✓ The publishers' experiences in other communities is that newspaper condominiums on public sidewalks are instant magnets for graffiti and other vandalism. Such abuse will result in either extensive maintenance/clean-up costs for the City, or an even worse visual appearance if the vandalism is not removed. ✓ Because the condominiums will be owned and maintained by the City, publishers will be at the mercy of City maintenance employees to address defective equipment in the condominiums. This aspect has in other communities resulted in publishers' customers becoming disaffected with the publisher because of 4 The City's proposed two-bank condominium design will mean that several publishers will be excluded from the condominiums to be placed at the Perkins and Beaujo's location. In addition,a total of at least 61 news rack vending slots will be entirely eliminated by the City's reduction from sixteen to nine condominium locations. ;00017560;v 1) LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 5 of 9 Publishers' Presentation disrepair in the condominium even though the publisher is in no position to fix the problem. ✓ Prior versions of the proposed ordinance required publishers to indemnify the City for all claims resulting from any injury caused by the condominiums,even though the publishers have no ability to control the design or maintenance of the condominiums. ✓ Ultimately,the use of condominiums represents the homogenization of newspaper distribution in Fort Collins, and thus, a capitulation to the impulse to"Levittown" even this most individualistic activity. It is also a substantial intrusion of the government into the traditionally private sphere of free speech distribution in the public square. • Fundamentally,the publishers' coalition believes that City Staffs desire to force publishers into bulky, graffiti-attracting, ill-designed, insufficient condominiums is misguided and unnecessary. No other business in Fort Collins has been forced to distribute its wares through City-owned facilities, and newspaper publishers should not become the first. Nor has City Staff come anywhere near the requisite showing of need for such condominiums to constitutionally justify the City's mandating their use in Fort Collins. See Pagan v. Fruchey, 492 F.3d 766, 778 (6th Cir. 2007) ("It is Glendale's obligation to provide something in support of its regulation, and we do not find ourselves free to hold that obligation has been discharged based on principles of common sense or obviousness, especially where, as here, all do not agree as to what is obvious or a matter of common sense. A judicial pronouncement that an ordinance is consistent with common sense hardly establishes that it is so.") Although news rack condominiums will certainly achieve City Staffs obvious goal of reducing the number of news racks in Old Town, they will not beautify the City, and they come at an exorbitant cost compared to the alternatives. C. Proposal from Publishers' Coalition. In response to the original proposed ordinance promoted by City Staff this fall, a coalition banded together, comprising all of the publishers who distribute their publications through news racks in Fort Collins. This coalition worked collaboratively to develop a multi- pronged approach on the issues raised by City Staff. • ;oom 7560:,1) LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 6 of 9 Publishers' Presentation First, and immediately, because neither City Staff nor anyone from the Downtown Development Authority or the Downtown Business Association had conveyed a single complaint to local publishers about the state of their news racks in the Old Town area,the publishers launched an immediate clean up of their news racks. In addition, certain other publishers have moved forward with plans to replace and update their news racks. (Other publishers have, for cost reasons,been forced to delay planned purchases of new news racks because such purchases will be unnecessary if the City moves to its mandatory condominium program.) Next, the publishers also developed a Rapid Response Team to deal with news rack complaints on a going-forward basis. Publishers have distributed flyers in the Old Town area, making availability the contact telephone number for this Rapid Response Team. This aspect of the publishers' efforts is intended to be ongoing, and a demonstration of the publishers' commitment,as active participants in the business community, to do their fair share to contribute to the well-being of the downtown area. And finally, the publishers also have—through hard negotiation amongst themselves— developed their Voluntary Agreement. The Voluntary Agreement commits the publishers to a system of news rack corrals in the downtown area, and to an internal,non-governmental process for the allocation of space in those news rack corrals. The Voluntary Agreement was built on the premise that news rack corrals allow publishers to maintain their individual brand identity through their own individual news racks,but with the concomitant obligation that such news racks must be well maintained and meet minimum standards of appearance. The publishers believe the system of news rack corrals at the sixteen locations which the marketplace already has determined are the most efficient places for newspaper distribution will contribute to the City's announced goals because they will organize and rationalize the placement of news racks at those locations. The corrals also will provide the City with an opportunity—at less than half the cost for news rack condominiums—to create a distinctive "look and feel"through the use of a distinctive iron-work design. The use of locally designed corrals also will provide the City with an opportunity to keep the dollars spent on this project local by hiring local iron workers to fabricate the corrals. In a concession to City Staff's insistence that any Voluntary Agreement must incorporate the location limitations of the draft ordinance that had been proposed this past fall, the publishers also have adopted the limitation provisions that were outlined in that draft. These limitations ensure that all of the public safety requirements that were inherent in the prior power of the City ;000nseo;vp LEVINE SULLIVAN KOCH & SCHULZ. L.L.P. Mayor Doug Hutchinson& Members of the City Council January 2, 2008 Page 7 of 9 Publishers' Presentation Manager, through the encroachment permitting process, are now made explicit through the provisions of the Voluntary Agreement. In addition, the publishers also have made it clear in the Voluntary Agreement that news racks which present a public safety hazard can and will be immediately removed, either by the management committee that is to be established under the Voluntary Agreement, or by the City itself, if the City so chooses. The Voluntary Agreement calls for publishers to share amongst themselves the costs of maintaining, and cleaning, the news rack corrals. Moreover,because of the design of the corrals —typically as curved pieces of wrought iron or steel—they are far less likely to become billboards for graffiti, as would be the case with news rack condominiums. In any event, to the extent the corrals, or the news racks themselves,become defaced with graffiti,the publishers under the Voluntary Agreement have committed to promptly removing such vandalism at their own cost. • Perhaps most important for the City is the facet of the Voluntary Agreement that extricates the City Manager, and City employees in general, from the legally perilous task of allocating news rack space in the Old Town area. Thus, the Voluntary Agreement provides for a private,non-governmental system for allocating space and resolving disputes among the publishers, including any new publishers who wish to join the agreement. This private dispute resolution process is to be operated by the publishers through a management committee elected from their own members, and as a result, the publishers believe that this dispute resolution process will be far more collaborative and productive than the adversarial system that will necessarily result from City management of new rack location decisions. Of course,as a system of private, non-governmental arbitration, the Voluntary Agreement's structure will ensure that the City is not drawn into expensive First Amendment litigation over news rack issues. The Voluntary Agreement as currently drafted is self implementing, and no change to the current encroachment ordinance need be enacted. Because the City would own the news rack corrals, and the management committee under the Voluntary Agreement would police the corrals, either the City or the management committee would have the authority to remove unpermitted news racks that attempted to free ride on the corrals. Moreover,through the City Manager's current authority to impose conditions on encroachment permits to protect public safety and welfare, the City could implement a policy that no encroachment permits would be issued in the Old Town area other than at news rack corrals. Such a policy would ensure that no news racks outside the corrals— such as at mid-block locations—would be permitted, and thus, any such unpermitted,uncorraled news racks could be immediately removed. • ;000175W,1) LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 8 of Publishers' Presentation Of course,to the extent the City Council feels it necessary, it could enact a modification to the current encroachment ordinance that acknowledges the system of news rack corrals for the Old Town area. Alternatively,the publishers' coalition has no objection to making the City an explicit party to the Voluntary Agreement, should the City Council so desire, and with whatever level of participation in the operation of the agreement that the council prefers. III. Conclusion In addition to this summary description of the Voluntary Agreement, we have assembled a number of additional materials for the City Council's consideration, including most importantly the text of the Voluntary Agreement itself. These additional materials include answers to a set of"frequently asked questions,"responding to some of the most frequent issues that have been raised during our discussions of this proposal. Ultimately,the publishers' coalition believes that the City can achieve any legitimate purpose in the regulation of news racks through the current encroachment ordinance. However, to the extent the City Council believes it should implement a new system of news rack regulation, the best alternative is the publisher's proposal for a private, non-govemmental process of collaborative allocation of news rack space in less-expensive, easy-to-maintain, locally produced news rack corrals. City Staff s untenable alternative effort to shrink the number of news racks in the Old Town area by forced migration to bulky, expensive, ill-suited news rack condominiums is destined for failure. We appreciate the opportunity to make this presentation in advance of the work session on January 8, 2008, and we look forward to responding to any questions or concerns that you may have at that meeting. 0001 7560;v1) LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Mayor Doug Hutchinson & Members of the City Council January 2, 2008 Page 9 of 9 Publishers' Presentation Very truly yours, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By Christopher P. Beall Attachments: • A. Copy of Voluntary Agreement B. "FAQ's on publishers' Voluntary Agreement C. Bullet points on City regulation of news racks D. Flow chart of Rapid Response Team and management committee assignments E. List of affected publications F. Preliminary estimate of corral costs G. Copies of photos showing news rack corrals in operation cc: City Manager Darin Atteberry City Attorney Steve Roy Members of the Publishers' Coalition • 00017560;v1} Attachment 5: Draft voluntary agreement. Version 5 DRAFT • VOLUNTARY AGREEMENT for the distribution of Newspapers/Periodicals on Sidewalks and other Public Places in FORT COLLINS, COLORADO January_, 2008 I. Purpose The purpose of this Voluntary Agreement is to provide for reader-friendly distribution of newspapers,periodicals, and other similar publications, including advertising publications, (herein called "newspapers"), in the public forum safely,using sidewalk-appropriate equipment that presents a clean,neat appearance. The Parties to this Agreement intend to advance this Purpose voluntarily without regard to whether any provision herein may or may not be enacted or enforced by municipal ordinance. • 11. Parties to this Agreement a. The Parties to this Voluntary Agreement are the Publishers/Distributors whose authorized distribution representative or other employee has signed an attached signature sheet ("Publishers/Distributors"), as well as the Fort Collins Downtown Development Authority("DDA") and the Fort Collins Downtown Business Association ("DBA"). The authorized representatives of the DDA and DBA will serve in "at large"capacities in this Agreement. A Publisher/Distributor who is a Party to this Agreement agrees to abide by the terms herein, including the requirements and restrictions for the use of Special Equipment. b. In order to communicate among the Publishers/Distributors distributing their newspapers in the public forum, the Publisher/Distributors agree that it is essential for each Publisher/Distributor to provide(by the start date of this Agreement) a current e- mail and fax number to the Management Committee, as defined below, listing the management person for that Publisher/Distributor responsible for street sales for each newspaper that the Publisher/Distributor intends to distribute in the public forum. Each Party also agrees to cooperate with the Management Committee to maintain a current communications list. Each Party will provide a current name and contact point and promptly communicate changes directly to the Management Committee when necessary. • When a newspaper's distribution in Fort Collins is handled by a distributor and not by 100018683;vi) FORT COLLINS VOLUNTARY AGREEMENT employees of the publication itself, the Publisher and the Distributor will be responsible for providing current e-mail and fax addresses for the Distributor's manager and the Publisher's circulation manager. C. Notice by means of this e-mail and/or fax list from the Management Committee will be accepted by all Publishers/Distributors who sign this Agreement as sufficient notice from the Management Committee for any maintenance or removal request under this Voluntary Agreement. A "Final Notice," as provided for below, will also include a paper notice that will be printed on the letterhead of the Management Committee designee and posted conspicuously on the equipment in question. a. In addition to any other meetings that may be called by the Management Committee,the full body of Parties to this Agreement will gather at least once a year for an annual meeting at which vacant seats on the Management Committee may be filled and at which the Parties may consider any other business that the Management Committee deems appropriate for consideration of the Parties as a whole. III. Boundaries of this Agreement This Voluntary Agreement applies to the distribution of newspapers throughout the city limits of Fort Collins, Colorado. The boundaries for the use of"Special Equipment Sites," as defined below, in the Old Town downtown business district,are prescribed by the red line marked on the map attached to this Agreement under Tab A. IV. Term of this Agreement This Voluntary Agreement will commence on 12008. The Agreement will continue for a term of two (2)years and will renew automatically for successive two-year terms thereafter unless notice of termination is served. The Agreement may be terminated at any time when a majority of the Parties then subscribing to the Agreement give ninety(90) days notice of their intent to terminate the Agreement, whereupon the Agreement will terminate of its own accord on the ninety-first day following the issuance of the notice of intent to terminate by that Parry who constituted the deciding majority vote with respect to the question of terminating the Agreement. (00018683:0) -- -- — - Page 2 -- • FORT COLLINS VOLUNTARY AGREEMENT V. Definitions a. Management Committee 1. As used in this Voluntary Agreement, the term"Management Committee"refers to the body delegated to operate this Agreement by the Parties hereto. 2. The Management Committee will comprise representatives of the three categories of publications participating in the Agreement, and one representative each from the DDA and the DBA,as follows: two representatives of daily newspapers, two representatives of weekly or semi-weekly newspapers, two representatives of monthly or semi-monthly newspapers, and one representative each from the DDA and the DBA. A Publisher/Distributor who publishes or distributes more than one kind of newspaper may elect at its discretion which category it wishes to represent on the Management Committee, but no Publisher/Distributor may hold more than one seat on the Management Committee. The representatives of the DDA and the DBA will have full • voting rights on the Management Committee and will have the right to monitor compliance with this Agreement, and lodge complaints concerning possible violations,by the other Parties, and each may provide feedback whenever appropriate to the Management Committee concerning the implementation of this Agreement. However, the DDA and the DBA will not be required, as a result of their participation in this Agreement or on the Management Committee, to undertake any of the maintenance or repair duties herein assigned to the Management Committee, unless the DDA or the DBA so choose. 3. Except for the initial terms of the staggered members of the Management Committee, the members of the Management Committee will serve for two (2) year terms, with the option to seek reelection at the conclusion of their terms. After the initial selection of Management Committee members, the election of representatives of the three categories of Publishers/Distributors will be in staggered sequence, with one representative from each category being selected each year. As a result, after the initial selection of six Publisher/Distributor representatives, each year the terms of three Management Committee members will expire. In the event that a Publisher/Distributor seat on the Management Committee becomes vacant and no appropriate Party comes forward to fill that seat, the Management Committee will continue to operate as before, albeit with one fewer member. • (00018683:vl) ----- --- - Page 3 -- ---- — ---- FORT COLLINS VOLUNTARY AGREEMENT 4. The Management Committee will select among itself a chairperson, and that chairperson will be responsible for sending out notices and communications on behalf of the Management Committee. b. Newspaper As used in this Voluntary Agreement,the term"newspaper"refers to a specific periodical publication of regular frequency, be it daily, weekly,monthly, or some other period, that is published or distributed by a Party. In this context, a single Publisher/Distributor may have multiple"newspapers" that it publishes or distributes. For purposes of this Agreement,a publication that appears under a single masthead but with multiple editions, such as a daily and a Sunday edition, will be considered a single newspaper,but publications that appear under separate mastheads even though they are published by the same Publisher will be considered separate publications. c. Priority As used in this Voluntary Agreement, the term "priority"refers to the agreement of the Parties hereto to manage the use of newsrack sites based on the principle that to the greatest extent possible all newspapers will be given space to distribute within Special Equipment Sites, including newcomers. However, in the event space is limited, the Parties agree that the content-neutral and reader-friendly principle of a "first come, first served" system, and the related principle of respecting the locations currently in use by current publishers,will control the initial allocation of spaces for newsrack locations in Special Equipment Sites. The Parties mutually agree that these principles for priority in the public forum market for news, information and advertising should be preserved and respected by any plan affecting the distribution newspapers. For this reason, newsracks already in place at a location will have priority when Special Equipment Sites are established. In the event that there is insufficient space in a corral at a Special Equipment Site to accommodate all of the newspapers that were located at the site when it was first established or all of the newspapers that thereafter wish to be located at the site, the Management Committee will attempt to negotiate a mutually acceptable allocation of spaces. In the event that an agreement cannot be reached,however, the Management Committee will allocate spaces within a corral at a Special Equipment site using a lottery system among the various categories of newspapers under the system of proportional representation more fully described below. d. Proportional Representation Reference to "proportional representation" means the system of allocating limited newsrack space in corrals at Special Equipment Sites when the Parties are unable to reach mutual agreement on how such limited space should be assigned. This system is based on the number of newspapers in each category of distribution frequency under this Agreement, i.e., (1) daily, (2)weekly or semi-weekly, or(3) monthly or semi-monthly. For each category of distribution frequency, as identified by the Parties on their Signature (00018683,v1) — — -- — ----- Page 4 -- • FORT COLLINS VOLUNTARY AGREEMENT Pages, the Management Committee will determine the proportion of that category as a fraction of all newspapers being distributed under this Agreement. The Management Committee will then use those proportions to allocate the number of newsracks in a corral that is oversubscribed. Thus, for example, and solely for purposes of illustration, if there are ten daily newspapers, five weekly or semi-weekly newspapers, and ten monthly or semi-monthly newspapers being distributed under this Agreement, a corral that has ten newsrack spaces would be divided to allow for four daily newsracks, two weekly or semi-weekly newsracks, and four monthly or semi-monthly newsracks. In calculating the proportional representation in an oversubscribed corral, the Management Committee will round the proportions down to the nearest whole number. Once the proportional number of newsracks are determined for each category of newspaper, the Management Committee would conduct a lottery among the newspapers within each category. e. Special Equipment Reference to"Special Equipment" includes,but is not limited to Corrals and the Individual Trademark Newsracks that are defined by the specifications below. By mutual agreement, the Parties may add other types of equipment to this category as design and manufacturing developments occur, especially in response to security needs. Only newsrack equipment defined here as "Special Equipment"will be permitted for use • within Special Equipment Sites. Special Equipment is specifically described as follows: 1. Corrals: Corrals are three-sided post and rail fixtures constructed from cast iron or steel and designed to `corral" or hold Individual Trademark Newsracks,defined below. Corrals will be built with a rail, or rails, horizontally across the back and sides of the fixture at a height that allows Individual Trademark Newsracks to be affixed to the rail by using a metal U-bolt that fits through the back of the newsrack cabinet. Corral posts will be fixed to the sidewalk by the use of four bolts through each corral post. 2. Individual Trademark Newsracks Individual Trademark Newsracks are owned by a Publisher/Distributor,painted or colored with the trademark colors that announce that Publisher/Distributor's presence to the reader and are designed to provide street-worthiness, security and ease of maintenance, including safe use by readers and safety for pedestrians and wheelchair users. A Publisher/Distributor may choose to distribute different newspapers from the same Individual Trademark Newsrack. • (00018683 vt) — Page 5 — — -- — — FORT COLLINS VOLUNTARY AGREEMENT VI. Requirements for Placement of Newspaper Distribution Equipment The Parties mutually agree that many types of locations in Fort Collins may be appropriate for the use of newspaper distribution equipment. Under this Voluntary Agreement, and except for Special Equipment Sites in the Old Town downtown business district, Publisher/Distributors will have freedom to select the particular location for their newsracks, so long as the Publisher/Distributor agrees to the maintenance conditions set out herein and the following location restrictions. Newsracks will not be placed: a. Within two (2) feet of the curb face of or pavement edge of any roadway; b. Within three (3) feet of any marked pedestrian crosswalk or entrance to any public transit shelter; c. Within five(5) feet of any fire hydrant, fire call box, or police call box; d. On any portion of a pedestrian access ramp for disabled persons; e. On any portion of a tree grate,manhole cover,meter or valve box cover,vent cover for underground utilities; f. Within the passenger boarding area of a designated bus stop; or, g. In any location that would then leave less than four(4) feet for pedestrian passage on a sidewalk. Newsracks must be secured in some fashion. In Special Equipment Sites, the Individual Trademark Newsracks may be secured by U-bolts to the fixture of the corral, or by some other similar means that is adequate to attach the newsrack to the corral. Outside of Special Equipment Sites with corrals, chaining or weighting of newsracks are acceptable methods of securing the equipment. The Publisher/Distributor for each newspaper will be responsible for securing each newsrack. However, no newsrack will be chained to parking meters, utility poles,bus stop signs, traffic direction signs, or trees. VII. Special Equipment Sites a. The Parties have mutually agreed upon the location of Special Equipment Sites in the Old Town downtown business district, bearing in mind the following criteria: (1)proximity to public mass transit services, (2)historical presence of numerous newsracks, (3) use of the area by significant numbers of pedestrians,and (4) frequent use for public gatherings or parades. The locations of these initial Special Equipment Sites agreed upon by the Parties are reflected in the district map attached at Tab A. Special Equipment Sites may be added by reaching a mutual agreement at the instigation of any Party, as provided for below. 100018683.0) -- ------ - Page 6 — -- ------ • FORT COLLINS VOLUNTARY AGREEMENT b. For each Special Equipment Site, the Management Committee will determine how space within a newsrack corral is to be allocated. First, it will inquire as to whether each Publisher/Distributor then using a newsrack at that location wishes to remain at the Special Equipment Site. Next,the Management Committee will attempt to accommodate each newspaper whose Publisher/Distributor wishes to remain at that location,so long as the location limitations of Section VI, above,are met. The Parties intend that all newspapers in place at the time of this Agreement should be accommodated at each Special Equipment Site as much as possible. The Management Committee will make every reasonable effort to accomplish this, including expansion of the space used for distribution or the creation of additional nearby Special Equipment Sites. To the extent, however, that there is not enough space for all historical newspapers at a particular Special Equipment Site,the Management Committee will work with all the Publishers/Distributors who have historically distributed at that site to reach a mutual agreement regarding allocation of newsrack space. In the event that agreement cannot be reached, the Management Committee will use a lottery system based on proportional representation to allocate the spaces in a corral. After conducting such a lottery, any displaced historical newspaper will have first priority for subsequent vacancies at that Special Equipment Site, without regard to frequency of publication. Any displaced • newspaper will also have first priority at the next Special Equipment Site that is created without regard to frequency of publication,except as between newspapers already in place at the next Site. C. After all historical newspapers at a Special Equipment Site are accommodated, and to the extent there is space remaining in a site for additional newsracks, the Management Committee will send an e-mail or fax notice to all Publishers/Distributors giving them the opportunity to request space at the site. Upon receipt of a request for space at a Special Equipment Site, the Management Committee will allocate the space according to the priority principle of first-come, first-served. In the case of a Publisher/Distributor new to the location, "first come, first served"refers to the time when the Management Committee receives the request for the space. The Management Committee will make every reasonable effort to accommodate requests. If all requests cannot be accommodated, the Management Committee will establish a waiting list for that Special Equipment Site. d. A Publisher/Distributor may at any time request a new space at an already- established Special Equipment Site. The Management Committee will make every reasonable effort to accommodate such requests. If the Management Committee cannot grant the request, it will establish a waiting list for new spaces at that Special Equipment Site and place the requesting newspaper on that waiting list. • (00018683:v1) ---- — — Page 7 FORT COLLINS VOLUNTARY AGREEMENT e. Before vacating a space at a Special Equipment Site, a Publisher/Distributor will notify the Management Committee. The Management Committee will then offer the vacant space to the next newspaper on the waiting list, if there is one. f In the event the Management Committee determines that a new Special Equipment Site should be established, in addition to any of the initial Special Equipment Sites agreed to herein, the Management Committee will follow the procedures outlined above for allocating newsrack space within the new site. The decision to locate a new Special Equipment Site is within the discretion of the Management Committee, which will consider the factors listed in Section VII.a., above,as well as any request that the Management Committee might receive from the City of Fort Collins or the business community within the Old Town area for such a new Special Equipment Site. Any decision by the Management Committee to establish a new Special Equipment Site may be overturned by the Parties through a two-thirds majority vote of all the Parties then subscribing to the Agreement. VIII. Purchase of Special Equipment a. Corrals Corrals will be purchased by the Management Committee,using funds contributed for that purpose by the City of Fort Collins,the DDA, or any other interested entity. In the absence of sufficient funds for the purchase of corrals, the Parties hereto will not be required to purchase corrals on their own,but instead will use only Individual Trademark Newsracks at the designated Special Equipment Sites, The Management Committee will be responsible for the installation of any corrals purchased, using funds for that purpose assessed from the Parties locating their newsracks within each such corral. The Management Committee will be responsible for policing the installation of newsracks within a corral, and will have authority to take whatever steps it deems necessary to ensure that newsracks within a corral are safely secured. The Management Committee also will be responsible for maintaining and repairing,to the extent necessary, any corral. To the extent such maintenance or repair requires the expenditure of funds, those funds will be collected by the Management Committee through an assessment from the Parties locating their newsracks at the affected corral. b. Individual Trademark Newsracks Each individual Party will be responsible for the purchase of any Individual Trademark Newsrack that it wishes to use for its newspapers at a Special Equipment Site, or elsewhere within Fort Collins. Each Party using an Individual Trademark Newsrack will be responsible for the maintenance and upkeep of its units. (00018683v1) ---------- Page 8 ----- ------- — • FORT COLLINS VOLUNTARY AGREEMENT IX. Size and Maintenance Requirements a. The Publishers/Distributors subscribing to this Voluntary Agreement concur that a chief goal of this Agreement, aside from providing for the distribution of newspapers to readers, is to keep newsracks in good working order 24 hours a day, seven days a week and to maintain the good appearance of news distribution throughout Fort Collins. This applies equally to Special Equipment Sites and to all other newsrack locations. b. All newsracks, including Individual Trademark Units, that are used for the distribution of newspapers within Fort Collins under this Voluntary Agreement must comply with the following design restrictions: 1. If the newsrack is placed within two(2) feet of a curb line, or if there is no curb within two(2) feet of the edge of the traveled way,the newsrack will not exceed 43 inches in height when located. 2. At any other location, any newsrack must not exceed 57 inches in height when located. 3. All newsracks must not exceed 24 inches in depth and 30 inches in width. • 4. Newsracks to be located in a corral must have one-inch diameter holes in the back of the cabinet to allow for U-bolts to be inserted for the secure installation of the newsrack to the corral. 5. No newsrack may be of such size as to create an unsafe visual impairment of the line of sight of passing traffic,bicyclists, or pedestrians. 6. Every newsrack will have affixed to it the name, address, and working telephone number of the Publisher/Distributor responsible for that newsrack for the purpose of reporting malfunctions, requests for refunds and complaints as to uncleanliness. Every corral will have affixed to it the name, address and working telephone number of a designee of the Management Committee for the purpose of reporting complaints. c. Each Publisher/Distributor subscribing to this Voluntary Agreement concurs that each of its newsracks, no matter where it is located within Fort Collins,must be maintained in a neat and clean condition and in good repair at all times. Each Publisher/Distributor agrees to the following maintenance requirements for its newsracks: 1. Each newsrack must be serviced no less than once per week. 2. Each newsrack will be maintained to be reasonably free of dirt and grease. 3. Each newsrack will be reasonably free of chipped, faded, peeling, or cracked paint in the visible painted areas. 4. Each newsrack will be reasonably free of rust and corrosion. • (00018683:0) -- - --- --- Page 9 FORT COLLINS VOLUNTARY AGREEMENT 5. No newsrack will have any broken glass or plastic in its viewing door, and each newsrack will be maintained so as to ensure a clear and clean display window, free of cloudy appearance, graffiti, or handbills. 6. Each newsrack, including its structural supports,will be free from trash and graffiti. 7. All structural parts of a newsrack will be maintained intact and in good working order. 8. Any newsrack that is no longer being used by its Publisher/Distributor will be promptly removed from its location. 9. All newsracks will comply with the requirements,to the extent applicable, of the federal Americans with Disabilities Act ("ADA"), and any applicable regulations adopted thereunder, as well as all regulations adopted by the City of Fort Collins related to handicapped accessibility. d. The Management Committee will maintain the finish on the corrals, the structural integrity of the corrals, and the mounting of the corrals to the pavement. The Management Committee also will monitor and maintain the security of the U-bolts or other devices holding newsracks to the corral rails. The Management Committee also will remove any newsrack or distribution device that is placed in a corral or a Special Equipment Site by a person or entity who is not a Party to this Agreement. Each Party will be individually responsible for the maintenance of its own newsracks within a corral or Special Equipment Site. e. The Management Committee will continuously monitor the Old Town downtown business district and will provide e-mail or fax notice of any problems it observes within one business day of its discovery of the problem to appropriate Publishers/Distributors. The Management Committee also will process complaints from any interested person, including the City of Fort Collins, the Downtown District Association,or the Downtown Business Association, concerning any newsrack anywhere in the City, and will direct such complaints by email or fax notice within one business day of receipt to the appropriate Publisher/Distributor. f The Management Committee will develop a "rapid response team" that will be under the authority of the chairperson of the Management Committee, who will have authority to dispatch the rapid response team to any newsrack site to address any complaints or concerns, as it deems appropriate. 9- The Parties acknowledge that any equipment presenting a clear and present danger to the public, such as,by way of example, a newsrack that is in the vehicular t00018683;0) --- — - Page 10 --------- ---- • FORT COLLINS VOLUNTARY AGREEMENT right-of-way, may be removed summarily from harm's way by the Management Committee's rapid response team or the City of Fort Collins, provided that immediate notice is given to the Publisher/Distributor. X. Complaint Process The Management Committee will process any complaint concerning a violation of the obligations of this Voluntary Agreement, including violations of the maintenance standards herein, as well as any other complaint it receives concerning newsracks within Fort Collins, as follows: a. Upon receipt of a complaint, or upon observation on its own of a potential violation of the provisions of this Voluntary Agreement or an issue of concern relating to a newsrack of a Party, the Management Committee will determine whether it should issue a notice of potential violation of this Agreement to the appropriate Publisher/Distributor, requiring the Publisher/Distributor to take steps to correct the potential violation within ten (10) days of the notice. If the Management Committee determines that a complaint does not raise an issue of a potential violation of this Agreement,but that nevertheless, • the Parties ought to work cooperatively to address the concerns raised in the complaint, the Management Committee will work informally with the appropriate Publishers/Distributors to address the complainant's concerns. b. Upon receipt of a notice of a potential violation of this Voluntary Agreement, if the Publisher/Distributor believes that it has not violated the provisions of the Agreement, it may—within the 10-day period provided in the Management Committee's notice of potential violation—request in writing a meeting before the Management Committee concerning the alleged violation. Such meeting must be held within ten (10) days of the Publisher/Distributor's request for a meeting. C. At the meeting on the alleged violation, the Management Committee will consider any information offered by the Publisher/Distributor, and any other person who may have an interest in the matter, including, if applicable, the original complaining party. The Management Committee will determine whether a violation of this Voluntary Agreement has occurred, and if so, it will issue a notice to cure the violation within five (5) days of the hearing. The notice to cure will require that compliance with its mandates be completed within five (5) days of the date of the notice to cure. • 100018683;v1) Page 11 FORT COLLINS VOLUNTARY AGREEMENT d. If the complaint to be considered at a meeting by the Management Committee is against a newsrack operated by a Publisher/Distributor who is a member of the Management Committee, that member of the Management Committee will recuse himself/herself from the Management Committee and will not participate in the committee's consideration of the complaint. e. If a Publisher/Distributor refuses to comply with a notice to cure within the five (5) days specified in the notice,the Publisher/Distributor will be deemed to have terminated his participation in this Voluntary Agreement and will no longer be permitted to participate in the benefits of this Agreement. In such circumstances,the Management Committee will issue a"Final Notice"of termination from this Agreement to the Publisher/Distributor and will remove all newsracks of that Publisher/Distributor located in any corral or Special Equipment Site. The newsracks removed by the Management Committee will be promptly delivered to the appropriate Publisher/Distributor. .r The decisions of the Management Committee on all matters before it, including a determination that a Publisher/Distributor has failed to comply with a notice to cure,will be final and binding, with no right of appeal to any judicial authority. Such decisions are and will be treated by the Parties as a form of private arbitration, subject to the finality and respect accorded under the Colorado Uniform Arbitration Act. XI. New Members to the Agreement a. The Parties mutually agree that any person desiring to distribute a newspaper in Fort Collins should have access to the benefits, and obligations, of this Voluntary Agreement. The Parties do not intend for this Agreement to constitute an unreasonable barrier to entry into the market for any person desiring to distribute a newspaper in Fort Collins. b. Any person wishing to participate in this Voluntary Agreement may so indicate by sending a letter to the Management Committee,who will then distribute the letter to all Parties then subscribing to the Agreement. Following such notice to the Parties, the person wishing to join this Voluntary Agreement must execute a new signature page, and that person will then be deemed to be a Party subscribing to the Agreement. (00018683;vl) — ----------- — Page 12 -- ---- • FORT COLLINS VOLUNTARY AGREEMENT C. Any person joining this Voluntary Agreement after its commencement on 2008, will be entitled to consideration for location of newsracks within Special Equipment Sites only on a first-come, first-served basis, and if no space is available within an existing Special Equipment Site, the new participant in the Voluntary Agreement will be placed on a waiting list, as described above. The new participant's entry into this Voluntary Agreement will not be deemed to create a right to displace Parties whose existing newsracks are located in a Special Equipment Site. XII. Signatures Each Publisher/Distributor will receive a complete copy of this Voluntary Agreement with a separate signature page for each Publisher/Distributor, with such signature page designating the name of the publication(s) or the distribution company,the individual's name,the date of the signature,the person whom the Publisher/Distributor designates as its official representative for purposes of this Voluntary Agreement,the names of the newspapers that the Publisher/Distributor wishes to distribute under this Agreement, and the frequency type of each such newspaper. The authorized representative of the Publisher/Distributor will sign one original of the signature page and return that by First Class Mail to Christopher P. Beall, Levine • Sullivan Koch& Schulz, L.L.P., 1888 Sherman Street, Suite 370, Denver, Colorado, 80203, who then will be acting on behalf of the yet-to-be-formed Management Committee. Upon the election of the Management Committee,Mr. Beall will convey all copies of such signature pages to the designee of the Management Committee, who will then assume responsibility for maintaining the archive of signed agreements. This Voluntary Agreement, including all signature pages, will be maintained as a public document, available for inspection by any person who so requests. Persons signing on behalf of Publisher/Distributors warrant that they have informed the person responsible for such decisions for the corporate owner of the publication and have received explicit authority to make these commitments and sign this Agreement. • [0001 8683;0) ---- --- -- - -- Page 13 FORT COLLINS VOLUNTARY AGREEMENT Sienature Pate Agreed and Accepted by: Dated: (Name) Designated Representative: (Title) Name: Title: On Behalf of the Following Publications: Tel.: Fax: Email: (Name of newspaper) Frequency type: (Name of newspaper) Frequency type: (Name of newspaper) Frequency type: (Name of newspaper) Frequency type: (Name of newspaper) Frequency type: (Name of newspaper) Frequency type: (00018683M) - ------- Page 14 Attachment 6 : Highlights of proposed news rack regulations. LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. • WASI]INGTON,D.C. NEIX YORK PHILADELPHIA DEN,ER M E M O R A N D U M To: Fort Collins City Council FROM: Christopher P. Beall CC: Publishers' Coalition DATE: January 2, 2008 SUBJECT: Bullet points for discussion of Fort Collins news rack regulation The following is a list of points, along with the substantive supporting information, for discussions the Fort Collins City Council in connection with the City Staffs plan to curtail news rack distribution in the Old Town area through the use of mandatory city-owned news rack condominiums. 1. Newspaper publishers are part of the community, business people who make • valuable contributions, and their businesses are being, sing,led out for interference. Publishers who distribute their products through news racks are no different than any other local business who sell their wares in the city, and their news racks are effectively their stores. There is no other business in Fort Collins that has been forced into using City-owned storefronts. Every other business in Fort Collins is permitted to control for itself what kind of signage and what kind of appearance it wants to maintain in its storefront, but the City's proposal will eliminate that ability for publishers. Under the City's plan,publishers would not be able to use their storefronts, i.e. their news racks,as they do now, as a place for advertising or promotional information, or even the distinctive trademark colors of their brand. Imagine telling First National Bank that it could not use its distinctive color scheme for its bank branch on South Mason Street,or telling Mugs Coffee Lounge that it could not display a poster for the Race For The Cure in its storefront window on South College Street, or telling The Cupboard kitchen specialty store that it is not allowed to advertise the Fort Collins Symphony in its storefront window. The City would never reasonably suggest such restrictions for other businesses,but it is doing so with this plan for publishers' stores. 2. The City's preference for condominium news racks is not the answer: Tbev are too expensive, too likely to attract graffiti, and never able to solve the City's purported trash complaints. The City's proposed ordinance requires all publishers distributing their . publications in Old Town to use modular condominium distribution points. City {00019672,11 Staff has informed the publishers,however, that the City doesn't have the money to afford these condominium racks, and must therefore rely upon funding from outside sources. City Staff also has indicated that the condominiums are too small to display tabloid-layout publications. The history of the use of such condominiums in other communities is that they are magnets for graffiti and trash. Moreover, there is little likelihood that already overburdened workers for the Parks & Recreation Department will have the time and inclination to perform the virtually daily clean-up that will be required for these condominiums. The history in other communities is that condominiums become the abandoned step-child of the maintenance responsibilities for the municipal works assigned to them. Moreover, because of their design, especially when they are used by free publications, they often are used as mere trash receptacles, thereby compounding the trash problem that the City says its plan will solve. 3. The City could manage the current permit scheme more effectively. Discussions with City Staff in connection with developing the publishers' proposal has revealed that the City has not maintained accurate or complete records of the permits required under the current ordinance. Moreover, the City has not effectively policed news racks under the current ordinance, such that the City routinely ignores or is ignorant of existing problems under the encroachment ordinance. Because the City is not proposing to add any new administrative or enforcement staff'under City Staffs new ordinance, there is no reason to believe that the past lack of enforcement will change with the new regime. 4. The City's plan is intended to interfere with free speech riehts by reducine the total number of news racks. Discussions with City Staff in connection the publishers' proposed locations of news rack corrals has revealed that the true aim of the City's new ordinance is to reduce the total number of news racks in the downtown area. This bottom line means that the real goal of the proposed ordinance is to interfere with the free speech rights of publishers, as well as the rights of citizens to receive information of their choosing. 5. The publishers' plan is more likely to succeed because it is voluntary and cooperative. The publisher's Voluntary Agreement has a much higher probability of success because its essential virtue is its voluntary nature. Forcing publishers into condominiums that they don't like, didn't ask for, and for which they aren't responsible is not a recipe for success. On the other hand, the publishers who have banded together to create a cooperative arrangement among themselves and in which they have invested their own time and prestige are far more likely to be invested in the success of the City's mission of improving the appearance of the downtown area. 100018e72;vi1 -2- • 6. The publishers' plan avoids constitutional issues. One of the important defects of the City's proposal is that it puts City officials in the role of deciding who gets to distribute newspapers in the Old Town area, and where. In fact, the vague and nebulous language of the City's previously proposed ordinance—which vests virtually unbridled discretion in the City Manager with the only caveat being that the City Manager must act "fairly"— is quintessentially unconstitutional. A long line of court cases have struck down news rack regulations for vesting unbridled discretion in municipal decision- makers. One of the best examples of such a decision is the famous U.S. Supreme Court decision from 1988 in the case of City of Lakewood v. Plain Dealer Publishing Company. In that case, the U.S. Supreme Court stated "our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessary of first applying fir, and being denied, a license. . . . At the root of this long line of precedent is the time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship" The City's plan is bound to prompt litigation by disappointed newspaper distributors. The publishers' plan, however, avoids that risk by vesting the decision as to news rack location with the private, voluntary group of publishers. • Because these private decisions are made among publishers who have agreed to cooperate among themselves and to use private dispute resolution, there is no risk to the City that it will become entangled in constitutional litigation over decisions about the locations of news racks. 7. The publishers' plan achieves an important goal of vesting decision-makine in private sector. Rather than continuing a "Nanny-state" approach to this issue, the publishers' proposal means that the publishers will take ownership of the solution and will be responsible for solving their own problems. • y00018e12,17 -3- Attachment? : The rapid response proposal outline, flow chart, and management committee. Rapid Response Process • Management Committee Recommendations... Per the Voluntary Agreement a Management Committee needs to be identified. See page (3) of the agreement. The committee should consist of 2 representatives of dailies, 2 reps. of weekly/bi- weeklies and 2 reps. of monthly publications, along with one representative each from the DDA and DBA. The initial term of the management committee is 2 years after which elected MC reps will serve 1 year terms. Recommended ManaEement Committee Representatives: Dailies: Fort Collins Coloradoan Loveland Reporter Herald Weeklies: Thrifty Nickel Rocky Mountain Chronicle Monthly: NCI Scene Magazine • In addition to the Management Committee—we need to assign a quarterly liaison for the Rapid Response Team. See the attached flow-chart to understand the role of this liason. Recommended Rapid Response Liaison: • Kathy Jack-Romero checking w/ the phone company to see if calls can be forwarded from the hotline # to the designated liaison phone line number (changed quarterly). Quarter One: Fort Collins Coloradoan Quarter Two: Thrifty Nickel Quarter Three: NCI Quarter Four: Rocky Mountain Chronicle The Rapid Response liaison will be working closely with the Rapid Response Team to ensure that complaints are handled in a timely manner and to the satisfaction of the Management Committee. This team is responsible for physically resolving the complaint about any and all news racks in Old Town. Recommended Rapid Response Team: Fort Collins Coloradoan Fort Collins Now • Thrifty Nickel 1 Fort Collins Publishers' Coalition Rapid Response Process Call is placed to the hotline. 498-4111 *Message indicates frequency for checking the messages. Day 1 M.C. Rep. checks the messages and Emails to the RRT decides which level will be copied to the to move the call to. Publisher& Mngmnt Committee. Day 1 Publisher/Distributor Rapid Response Team *graffiti, issues involving coin, *trash in/around rack, dirty anything that will cost $ to rack, papers falling out of repair rack, etc.. E confirmation that issue Dav 3 Email confirmation that issue lved w/i 48 hours. To is resolved w/i 48 hours. To and to R.R. Rep. M. C. and to R.R. Rep. R.R. Rep. physically checks the rack to Day 4 ensure that issue is resolved. Repair Complete Repair Not Complete "Thank you" email Notify M.C. to begin the to RRT, Pub & M.0 Complaint Process (page 11 voluntary agreement) 2 Fort Collins Publishers' Coalition Attachment 8 : Affected publications . Affected Publications Those publications with more than 9 racks will lose distribution points under the proposed ordinance. Others may lose locations because there isn't enough room in a condo. Publication Type (paid/free) # of racks Apartments Blue Book Free 1 Apartments for Rent Free 3 Auto Mart Free 4 Business Report Paid 8 Coloradoan Paid 9 Coloradoan Connection Free 4 Denver Post Paid 5 Fort Collins Now Free 12 Homes& Land Free 14 Homes Illustrated Free 6 Hotel/Motel Coupons Free 1 La Tribuna Free 2 • Loveland Reporter-Herald Paid 1 Mountain Gazette Free 2 Names& Numbers Free 1 New Home Finder Free 5 Next Free 3 Northern Colorado Homes Free 14 Real Estate Book/Mature Living Free 6 Remax Alliance Free 3 RH Weekly Free 4 Rocky Mountain Chronicle Free 13 Rocky Mountain Collegian Free 1 Rocky Mountain News Paid 5 Scene Magazine Free 16 Senior Living Choices Free 1 The Tribune Paid 11 Thrifty Nickel Free 16 Ticket on the Street Free 2 USA Today Paid 5 Wall Street Journal Paid 1 Wheels Free 1 Your Health Magazine Free 1 • 100018693.0 1 Fort Collins Publishers' Coalition Attachment 9: "Frequently Asked Questions" re: the proposal by the publishers ' coalition. LEVINE SULLIVAN KOCH & SCHULZ,L.L.P. • WASHINGTON,D.C. NFv Yom P13H ADELPHIA DENY R M E M O R A N D U M To: Fort Collins City Council FROM: Christopher P. Beall CC: Publishers' Coalition DATE: January 2, 2008 SUBJECT: Answers to "Frequently Asked Questions" Concerning the Fort Collins Publishers' Coalition Voluntary Agreement In discussions of the Voluntary Agreement developed by the Fort Collins Publishers' Coalition, a number of questions have frequently been raised by City Council members, members of City Staff, including the City's legal counsel, and other members of the community. The publishers have, therefore, developed the following set of answers to these"FAQ"s: • 1. Where are all the corrals going to be located? There are currently 16 clusters of news racks in the downtown area. The publishers' coalition proposes a similar number of clusters, with some movement to account for the fact that the City has only recently realized that a few of those clusters are placed in inappropriate locations. 2. How will the corral system prevent the"clutter" of too many news racks in a single location? Clutter is in the eye of the beholder. With the addition of corrals, news racks will be clustered in a more orderly fashion, with a neatly defined outline. The experience in other communities is that news racks in corrals improve the visual appearance of the streetscape. In any event, the subjective view of City Staff that the current news rack locations are "cluttered" is not an enforceable standard. The constitutional protection for news racks requires objective standards based on significant government interests, such as public safety. Aesthetics is among the significant government interests that courts have sometimes recognized to justify news rack regulation. However, because it depends, as they say, on the eyes of the beholder and can easily be manipulated in a discriminatory fashion, courts require that any aesthetic standard must be objective. 3. How many racks are there currently? How many in the city's draft ordinance? What is the impact? Currently, we have 43 paid and 137 free news racks. City Staff s proposal allows for 9 locations with 6 paid and 12 free publications per condominium. That allows for a total of 56 • talolalss..I) Frequently Asked Questions About Fort Collins Voluntary Agreement paid racks and 108 free racks. In addition, however, because the marketplace already has determined that certain locations are more efficient for publishers than others, and thus more popular than others, more than just the 29 free news racks over and above the available 108 free slots in City Staffs plan will be excluded from the Old Town area. We estimate that at least ten(10)news racks at locations where condominiums would be installed will be excluded under City Staffs plan, including at least two (2)paid racks. In addition, another sixty-one (61)other racks will be entirely eliminated because City Staffs plan requires a decrease from 16 to 9 distribution locations in Old Town. 4. How would renegade publishers be treated if they put their racks outside a corral? If the renegade publisher has signed the Voluntary Agreement, then it will have agreed to keep its news racks within the corrals, and its failure to do so will result in the news racks being removed by the Voluntary Agreement's management committee. If the renegade publisher has not signed the Voluntary Agreement, the management committee will call and ask that the box be moved. Under most circumstances,publishers will comply, especially if this is a new publisher trying to start up in Fort Collins. An important incentive for new publishers to come under the Voluntary Agreement is the assistance the management committee will give in finding good locations for new news racks. The publishers' coalition has no desire or intention to shut new publishers out. Finally,to the extent the renegade news rack has been placed in a location without a permit from the City, the City can remove the news rack under the existing ordinance. In addition, to the extent that the City imposes conditions on news rack permits for the Old Town area that require the placement of news racks within corrals, the City can ensure that no renegade news racks will be placed outside of the corrals. 5. Will the publishers' treatment of"renegade" publishers violate the First Amendment or antitrust laws? Because the publishers' Voluntary Agreement is a private,non-governmental arrangement, it cannot be deemed to be a First Amendment violation. Only the government can violate First Amendment rights. Moreover, because of the manner in which the Voluntary Agreement was developed, as a collaborative response in opposition to government regulation, the courts will not construe the Voluntary Agreement to be de facto or collective state action. As for antitrust laws, the collective action of the publishers' coalition is not"per se"anti- competitive because membership in the Voluntary Agreement is open to any publisher who wishes to participate. In addition, any barrier to entry in the market for newspaper distribution in Fort Collins that might be created by the Voluntary Agreement are subject to the "rule of reason"doctrine, which weighs whether the Voluntary Agreement is pro- competitive or anti-competitive. Because the Voluntary Agreement ensures that there are more points of distribution available to publishers than would be the case under City Staff s restrictive condominium proposal, the Voluntary Agreement will necessarily be deemed to be pro-competitive. (00018145A) -2- Frequently Asked Questions About • Fort Collins Voluntary Agreement 6. What are the publishers' obligations who are selected to serve on the management committee for the Voluntary Agreement? The management committee members are charged with implementing the operation of the Voluntary Agreement and the Rapid Response Team, including resolving disputes over news rack locations in the corrals and assisting publishers in finding news rack locations that are effective for their publications. The management committee members are also charged with pro-actively seeking to ensure that news racks in Fort Collins, and especially in the Old Town area, are properly maintained and do not become dilapidated or abandoned. Because the management committee is the public face of the Voluntary Agreement, the management committee members are expected to put aside their natural competitive instincts and work for the advancement of all Fort Collins publishers, not just the advantage of their particular publication. 7. How would the publishers' coalition measure success of the Voluntary Agreement? The publishers' coalition believes that the most important metric of the success of the Voluntary Agreement is whether publishers are able to effectively distribute their publications. The answer to this question will depend on whether the total amount of publications distributed through news racks in the Old Town area remains the same or increases after the implementation of the Voluntary Agreement. Additional measures of success will be whether the management committee is able to establish a record of prompt response to complaints concerning news racks, and whether such complaints diminish or disappear following implementation of the Voluntary Agreement. • 8. How quickly will publishers address dirty, trashed racks? News racks are labeled with a hotline phone number and email address. Publishers regularly service their own racks, and under the Voluntary Agreement, the management committee will pro-actively work to ensure that problem news racks are dealt with. The Rapid Response Team is committed to addressing dirty, trashed racks within 48 hours of receiving a report of a problem. News racks that are defaced with graffiti or whose mechanical equipment is vandalized or otherwise damaged will be cleaned or repaired quickly by the pertinent news rack owners. The Voluntary Agreement specifies that a news rack that remains in disrepair despite warnings from the management committee will be removed by the management committee. 9. How will the publishers meet the request of the Downtown Business Association to have clearly defined standards for cleaning the boxes inside& out. Even the City's proposed ordinance does not specifically define standards for cleaning news racks in the condominiums. Moreover, the publishers' experience with municipally owned news rack condominiums in other communities is that municipal works rarely take seriously an obligation to keep empty condominium rack clean and free of debris. That being said, the Voluntary Agreement clearly requires publishers to keep their news racks clean and free of debris. Moreover, the Voluntary Agreement gives the management committee authority to remove news racks where the applicable publisher fails to adequately maintain the racks. • 100018145;v1 -3- Frequently Asked Questions About Fort Collins Voluntary Agreement 10.Will the City be able to remove news racks that present a clear and present danger to public safety? The City already has this power, and it will remain so under the Voluntary Agreement. "Clear and present danger" is a legal term that is variously defined,but in this context, it means that the news rack is placed so that there is an imminent danger of physical injury to a person or damage to property. The two most typical examples are that a news rack has been pushed into the roadway, threatening drivers and vehicles, or that the metal has been torn open, creating a sharp edge that might hurt a passerby. The power to remove a news rack peremptorily is limited and must be followed by immediate notice. Nonetheless, it means that the City has the power to eliminate serious dangers when they exist. 11. How will encroachment permits work in the future? The process for encroachment permits remains the same under the Voluntary Agreement. The City may, however, wish to more rigorously enforce the permit process than it has in the past, and it may also wish to use the power it already has to impose conditions on the issuance of an encroachment permit to ensure that renegade news racks are not placed outside of corrals in the Old Town area. 12.What is the definition of a "neglected" rack? A news rack is treated as "neglected," and therefore subject to removal by the management committee under the Voluntary Agreement, if it has not been used for distribution of a publication within the last 30 days. 13.What happens when a publisher doesn't want to be part of the Voluntary Agreement? Does there need to be a separate ordinance that covers them or do they just not get to be downtown? All of the publishers who distribute their publications through news racks in the downtown area already have agreed to participate in the Voluntary Agreement. Moreover, because of the significant incentives for publishers to participate in the Voluntary Agreement, the coalition believes that it will be highly unlikely that any publisher refuses to participate. Nevertheless, if a new publisher arrives in Fort Collins and objects to the Voluntary Agreement, or if a current publisher wishes to withdraw from the agreement, that publisher still must comply with the current provisions of the encroachment ordinance. That ordinance already allows the City to restrict the location of new news racks based on public welfare considerations. Thus, even without any new ordinance, the City can ensure that all news racks in the downtown area meet the location limitations contained in either the Voluntary Agreement or the September draft of City Staff s proposed ordinance. 14.What happens to governmental authority with a voluntary agreement? Does the City still have regulatory power? The City already has significant authority under the encroachment ordinance, and that authority is not diminished in any way by the Voluntary Agreement. Moreover, the City always has had, and it continues to have, the power to remove an imminent threat to public safety, or to remove a news rack if it has become a genuine nuisance. For example, if a 10001 s 1 as;v i I -4- Frequently Asked Questions About • Fort Collins Voluntary Agreement publisher is no longer using its machine to distribute its newspapers, but has just left it there, the abandoned news rack no longer has First Amendment protection. 15. How does the Voluntary Agreement relate to liability issues? Will the publishers' coalition provide liability insurance or is the city still liable? This question is a red herring. The City would not be liable for injuries caused by a publisher's privately owned individual news rack. In obvious recognition of that fact, the City does not now require publishers to indemnify or insure the City for injuries caused by the publishers' own news racks. (This is most likely because so far as the publishers are aware, the City has never encountered such a claim.) As for claims arising from injuries caused by the corral structures, the liability risk is no different for these structures than is the risk from bus stop benches,bicycle racks, or street lamp poles. The City does not require third parties to provide liability insurance or indemnification for their use of these city-owned structures, and there is no reason why the City should impose such a requirement for news rack corrals. 16. Who owns the corrals? The publishers' coalition anticipates that because the City would purchase the corrals—as it intends to purchase the proposed news rack condominiums— the corrals would be owned by the City. • 17. Aren't news rack condominiums more aesthetically pleasing than as corrals? The publishers' coalition disagrees. As with any subjective assessments of aesthetics, others may feel that news rack condominiums are more visually pleasing. The publishers' coalition, however,believes that news rack condominiums are unsightly because of their massive size, their height (which is taller that current news racks), their monochromatic appearance, and especially because they become such attractive targets for defacement and graffiti. 18.Who will make the decision on what the corrals look like? Because the corrals will be paid for by the City, the publishers' coalition anticipates that the City will have the final approval of any design for the corrals. 19. Aren't news rack condominiums better for weekly or monthly publications? No. Independent publications need to establish their own brand identities just as much as daily newspapers. The best way to do so is to maintain a distinctive appearance for the publication's distribution point, i.e., its news racks. The distinctive news racks of publications such as the Thrifty Nickel and the Rocky Mountain Chronicle are proof positive that brand awareness is crucial to such publications. Moreover, for free publications that are printed in a tabloid format, such as the Chronicle, the proposed condominiums will be entirely unsuitable for display of the publication. The display slots in these condominiums will not allow the tabloid-shaped publications to display their front pages. • {0001s]45.,1] -5- Frequently Asked Questions About Fort Collins Voluntary Agreement And finally, the proposal to go from 16 locations to 9 will dramatically affect several weekly and monthly publications which depend on the broad availability of their publications in the Old Town area. For example, Scene will lose 44% of its distribution points under City Staff's proposal. Thrifty Nickel will lose 36%of its distribution points. 20. Why can't the City eliminate privately owned news racks from the Old Town area? The U.S. Supreme Court has made clear that municipalities must tread carefully when attempting to regulate the distribution of constitutionally protected publications, and under no circumstances may a municipality ban all newspaper distribution from a particular area. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 753 (1988); City of Cincinnati v. Discovery Network, 507 U.S. 410, 417-18 (1993);see also Ex parte Jackson, 96 U.S. 727, 733 (1878)("Liberty of circulating is as essential to [freedom of expression] as liberty of publishing, indeed, without the circulation, the publication would be of little value.");Lovell v. City of Griffin, 303 U.S. 444,452 (1938)(same). Even when dealing with regulation short of a complete ban, other court decisions have made clear that City Staffs proposal to substantially reduce the amount of news rack distribution in the Old Town area on the basis of ill-defined and subjective aesthetic concerns is constitutionally impermissible: • Southern New Jersey Newspapers, Inc. v. State of NJ Dept of Transp., 542 F. Supp. 173, 187 (D.N.J. 1982) ("Even assuming the honor boxes have some negative impact on appearance, the court agreements with the sentiment that `the First Amendment requires that we tolerate a certain amount of speech in forms that are not soothing to the ear or pleasing to the eye."')(quoting John Donnelly & Sons v. Campbell, 639 F.2d 6,23 (1st Cir. 1980) (Pettine, J., concurring)). • Gannett Satellite Info. Network, Inc. v. Town of Norwood, 579 F. Supp. 108, 114 (D. Mass. 1984) ("The fact that newsracks are entitled to full First Amendment protection, coupled with their use in a public forum, requires that this Court be especially certain that any regulation of the newsracks is precise and narrowly drawn."). • Providence Journal Co. v. City of Newport, 665 F. Supp. 107, 115-17 (D.R.L 1987) ("[I]n the urban environment, to paraphrase Justice Brennan, the court `must be convinced that the city is seriously and comprehensively addressing aesthetic concerns.' If newsracks alone are banned and no further steps appear likely, `the commitment of the city to improving its physical environment is placed in doubt."') (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 531-32 (1981) (Brennan, J., concurring)). • Chicago Newspaper Publishers Assn v. City of Wheaton, 697 F. Supp. 1464, 1470 (N.D. Ill. 1988) ("Aesthetic judgments are necessarily subjective, and Wheaton cannot simply raise the banner of aesthetic interest, and then leave it to this court to determine not only how the ordinance advances those interests, but why a total ban is necessary.") (quotation omitted). 100018145,v1 -6- Attachment 10 : Estimates for corral cost and corral location information Corral Location Information Publisher Presentation to Fort Collins City Council January 8 , 2008 City Recommendations • 3 ft is the recommended distance from all curbs , electric access panels , fire hydrants , light/ power poles . • 11 / 02 / 07 : Publishers and DDA representative walked with Tracy Dyer to review existing locations and identify new locations meeting safety guidelines . • 12 /21 / 07 : Josh Johnson , Kathy Jack - Romero worked with Tracy Dyer ( city inspector/engineer ) to determine which proposed locations are prohibiting emergency/fire access . 1 City Recommendations • Tracy Dyer walked the Old Town streets and locations with an representative from PFA . It was determined that the city has a number of areas that are not — but need to be red - curbed ( thereby losing parking spaces for Old Town merchants ) . • The recommended locations are based on what the future red curbs of Old Town will / should reflect . Corral Locations • City recommendations were taken into consideration and therefore limited the corral length for many of the existing 16 locations — some locations will need to reduce the number of racks or relocate them to other locations . • 3 existing locations were eliminated — in front of Lil Nic ' s , in front of Nature ' s Own , & City Drug Front • 5 new locations were identified and are included in the proposal to accommodate all existing racks and future growth . 2 Locations Needing To Be Limited / Relocated • Some of our current locations pose problems due to mid - block locations and proximity to existing fire hydrants . 1 . Aggie location — fire hydrant 2 . Mid - block Linden — mid block 3 . Linden & Walnut - mid block 4 . Tuesday Morning — mid block 5 . City Drug ( College side ) — fire hydrant & red curb 6 . Oak Street — mid block New Locations • Pueblo Viejo ( North ) : 22 ' 0 " = Almost 9 rks • Right Card : 22 ' 0 " = Almost 9 racks • Starbucks : 18 ' 11 " = Almost 9 racks • Alley ( Enzio ' s ) : 15 ' 8 " = Almost 7 racks • Mason St : 13 ' 8 " = 6 racks * estimated rack count is based on 30 per rack . 3 Fixtures/ Publication Comparison Existing Publications/locations We currently have 177 publications at 16 locations . Proposed . . . ProposedThe proposal accommodates 162 publications at 9 The proposal accommodates 164 publications at 18 locations . i uj ti FL �im�hillA�! ! .� T►1lh .� rrli !f , q,a, !!, Proposed Tuesday Morning Re- Proposed Pueblo Viejo NEW Location Location ♦ ; Y 1 1 � 1 yy f fr « k4 Um (r , ; 1 i • � . �_.. ter. _ Proposed Right Card New Location `4 I WEx y S O� I Wv, . Sam ems ,« ! 5 Proposed Starbucks New Location > - a Proposed Alley New Location (, T i -- 6 Closer View of Proposed Alley Location t Proposed Oak St ( North ) Re - location 7 Proposed Mason St New Location jI Of �� 1 _ Proposed Oak St ( South ) Re � Location ir ■ r 'h. �. .-� _ ��..__ � _ter.. - t L / -ram��-- 1� ■ 1 ' �, �a � / 1. 'C... t r Investment Based on an estimate from a local iron monger , we believe the cost of the corrals will be approximately $ 31 , 000 , * Corrals $ 31 , 000 ( 31 corrals needed @ $ 1 , 000 ea ) * Based on corral styles shown under separate cover . 9 Examples of Newspaper " Corral " Systems L ' J H� • m � � 1 l • t 1 s 7 r.„ r r Y • 'l n IL Vol 11 ., . C � 1 Z, M r' _ � l w 4 t 'y w F t y ,\ u � M 1 I rr 1000 pf � r . ,oil Od y .yin wai"�'ajy 3M ' �} * , F Y \ ♦ + y �.1. \.I ti - fiAr Nl dh Ike wt "ark ; . �, � MrlClk.w_a,.kw 'r M.✓.. { " w NIII IN Nift O O A �.m ter, T �. sow r r; 3 � � i f i, . . ._ .. .f Now KKK, KKK 1f Or .ew" S M • �. -- T w . * I.ISO . : dw Ad d do 1 �t ! ddpd- _ 4 diddld ., soft � �, Attachment 12 : Photo comparison of news rack condominiums and corrals Newsrack Condominiums r _ ifs , r ,Y t 3 1 - Pearl Street , Boulder � t :rt • . ter. FC Transit CTR Newsrack Condominiums 4 , _. it rr ---- Q „cpaper Mdgaiinils Nit - rA . r _32rif T•j . . _ S y�� }. b Steamboat Springs NIS ff POST - 99 -- ROCKY MOLPNTAJN NEWS s re. t i . f j � j .4 •rJ t. V 1111111 / 11111 � f l l l l 1 / 1 1 1 � - 1 1 Iilll { 1111111 ' tllll � 1 i � 1 1 1 � � 1111111111111 11111111 � 1 - - • 1111111 . . 1 . 1111 ! 111 1 - - . 111 . . 1111 1 / 111111 / 1 / 1 / 1 / ! t • 1 � � � � 1 1 . ' ' ' ' ' • 111111111 • • � 11 1 1 1 t 111 II . 1 1 • 1 - 1 1 1 1 1 1 Newsrack Corrals i x f \ Wx; Front View �w - P AYE' FREE f � : is r}j �: . 4 • t v S � r Attachment 13: Resolution in support of proposed ordinance from the DBA with DBA survey . � 333 3 � � 1 BUSINESS ASSOCIATION RESOLUTION NO. 2007=01 OF THE DOWNTOWN BUSINESS ASSOCIATION OF FORT COLLINS , COLORADO BOARD OF DIRECTORS SUPPORTING THE USE OF NEWSPAPER CONDOMINIUMS IN THE CENTRAL BUSINESS DISTRICT WHEREAS , the Fort Collins Downtown Business Association , a 501 (c)6 membership organization governed by an elected Board of Directors ; and , WHEREAS , the DBA has worked with the City of Fort Collins , the Fort Collins Downtown Development Authority, and with the publishers of newspapers and other periodic publications on the development of a plan to improve the appearance of the central business district and the distribution of said newspapers and other publications ; and , WHEREAS , in its deliberations , the DBA staff and the DBA Board of Directors has considered a variety of solutions to the clutter of existing periodical distribution boxes , including proposals from the publishing industry . NOW THEREFORE , BE IT RESOLVED THAT THE FORT COLLINS DOWNTOWN BUSINESS ASSOCIATION BOARD OF DIRECTORS unanimously supports the acquisition and installation of uniform condominium boxes for the purpose of distributing newspapers and other periodicals in the central business district and recommends the same to the City of Fort Collins and the Fort Collins Downtown Development Authority. ADOPTED this day of December, 2007 . Kevin Jones , President / Atfesf : ' Tom JWatrous , Secretary 19 Old Town Square Suite 230 Fort Collins, CO 80524 tel 970.484.6500 fox 970.484.2069 3 a� z a U ti O O 3 � 3 c� Z o � r /� s l- ��J cn O 0 z O En Cd 00 O 3 n i J G v c 1 r 1 411 IT U t � ` CSIS , �l f V ec t #1 aS Q u � sib z cn ca IF 0 U N � tr O 3 � 3 O C� 4 itth O 1 T o 1 ICU a j cn r 0 \ \ � z 0 U N 3 3 Cd � x 41111) qtmioim U 4 Cj t 0 NN s co n vi , 0 1 p es 0 \ 0 U _ s Cj 04 3 a� z 0 U N U O 3 r \ % t 4 i Z o � N C o to N A �, CNP h t, s-' Jim � o r , � . !i t:. �. s7; f ` ' e a lie, Ott t 11�� ,'• ft pi)4, KK ti♦♦ two 1;Ao,r t " ROI lei tt , '41W Ott let. rya . . , i��o : ��' : �'•` ,�� on moloi of V "•• — i� V� : 4 Ic OIL— _ I few, s ' ` A. !'' `.,- gie., io. 4 . IS . _; - ,ob !!• III � :. ` t . t be 91 1,♦ • fay • : i �Yf? . . ;, , •- %-: ;.t' is it .ti