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Ordinance 2915CITY OF ALAMEDA ORDINANCE NO. 2915 New Series AMENDING THE ALAMDA MUICIPAL CODE BY REPEALING SECTION 22- (NWSPAPER AN PERIODICAL VENDING MACHINS) OF ARTICLE I (STREETS), CHAPTER XXII (STREETS AN SIDEWALKS) AN ADDING A NEW SECTION 22-7 (NEWSP APERAN PERIODICAL VENDING MACHINS) BE IT ORDAIND by the Council of the City oJ Alameda that: Section 1 The. Alameda Municipal Code is hereby amended by repealing Section 22-7 (Newspaper and Periodical Vending Machines) of Aricle I (Street), ChapterXII (Streets and Sidewalks) in its entirety. Section 2.The Alameda Muncipal Code is hereby amended by adding a new Section 22-7 (Newspaper and Periodical Vending Machines) to Aricle I (Streets) of Chapter XXII (Streets. and Sidewalks) thereof to read: 22-NEWSPAPER AND PERIODICAL VENDING MACHINES. 22-1 Purpose The puroses ofthis section are to: a. Promote the City s substantial interests in preserving and enhancing the public health safety, welfare and convenience by ensuring that the public streets , sidewalks and parkways are not uneasonably obstructed by newspaper and periodical vending machines. b. Recognze and support the use of public streets , sidewalks and parkways as public forums for the sale and distrbution of newspapers and periodicals through vending machines.c. Establish reasonable regulations that balance the right to distrbute information through newspaper and periodical vending machines with the right of persons to reasonably access and use public property. d. Provide for the designation of "Special Newsrack Areas " upon findings that the special circumstances of an area require special design, placement and other standards for newspaper and periodical vending machines in order to promote less congested and more visually appealing public streets , sidewalks and parkways. e. Ensure that the regulations on the time, place and maner of the placement , location and maintenance of newspaper and periodical vending machines set forth in this section are carefully tailored to implement the purposes stated in this section while stil providing ample opportties for the distribution of information through newspaper and periodical vending machines to the public. 22-2 Definitions As used in this section: a. "Newsrack" shall mean any city-authorized self-service or coin operated box container, cubicle, storage unit or other dispenser installed, used or maintained for the display and sale or free distribution of newspapers , news periodicals , commercial handbils , or other publications. b. "Special Newsrack Area" shall mean any area of the City so designated by the City Council upon findings that the special circumstances of the area require special design, placement and other standards for Newsracks. The Council shall designate a Special Newsrack Area by resolution. c. "Special Newsrack Container" shall mean apermanently affixed container or pedestal provided by or onbehalfoftheCity within which shall be the exclusive location for the placement of permitted Newsracks in a Special Newsrack Area. d. "Special Newsrack Insert" shall mean a self-service or coin operated insert, cubicle box , container, storage unit or other dispenser installed , used or maintained within a Special Newsrack Container for the display and sale or free distribution of newspapers , news periodicals , commercial handbils , or . other publications. All Special Newsrack Inserts installed within an approved Special Newsrack Area shall conform to the exact specifications of the approved Special N ewsrack Container for that area. e. "Abandoned Newsrack" shall mean any Newsrack or Special Newsrack Insert , which remains empty for fourteen calendar days. However, a Newsrack or Special Newsrack Insert remainig empty due to labor strke or any temporary or extraordinary interrption of distrbution or publication by the newspaper shall not be deemed abandoned. f. "Pllblic Works Director" shall mean the Public Works Director or the Director designated agent. 22-3 Standards and Prohibitions for Newsracks a. No person shall install, use or maintain any Newsrack or Special Newsrack Container which rests on, projects onto , into or over any part of the roadway. Roadway shall mean the paved travelway curb to curb. b. No person shall install, use or maintain any Newsrack or Special Newsrack Container which in whole or in part rests on or projects over any sidewalk when such installation, use or maintenance endangers the safety of persons or property, or when such site or location is used for public utility purposes , public transportation puroses or other government use , or when such Newsrack or Special Newsrack Container uneasonably interferes with or impedes the flow of pedestrian or vehicular traffc the ingress into or egress from any residence, place of business , or the use of poles posts , traffic signs or signals , hydrants , mailboxes , parking meters , or other objects permitted at or near the location. For the purposes of this ordinance , " sidewalk" is defined in section 22-16.1 of the Municipal Code. c. No Newsrack shall exceed five (5') feet in height , thirty (30") inches in width, or two (2') feet in depth. d. Newsracks or Special Newsrack Containers shall only be placed near a curb or adjacent to the wall of a building. No portion of any Newsracks or Special Newsrack Containers placed near the curb shall be placed less than eighteen (18") inches or more than twenty-four (24") inches from the edge of the curb. Newsracks and Special Newsrack Containers placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six (6") inches from the wall. No Newsrack or Special Newsrack Container shall be placed or maintained on a sidewalk opposite a newsstand, or another Newsrack or another Special Newsrack Container. e. Newsracks , which otherwise conform to the provisions ofthissubsection, may be chained, bolted or otherwise attached to any pole or standard located within the public right-of-way, provided that any such rack shall be removed immediately upon request ofthe City Engineer Public Works Director when removal is in the public interest or when the rack is subject to seizure pursuant to subsection 22.522-f. Newsracks may be chained or otherwise attached to one another provided that there is a thee foot (3') space between each fifteen feet (15') of News racks. g. Newsracks or Special Newsrack Containers may be installed using recessed tie down concrete rack holders , or other methods subject to the approval of the Public Works Director. h. No Newsrack or Special Newsrack Container shall be placed, installed, used or maintained: 1. Within any neighborhood that is zoned residential; 2. Within five feet (5') of the curb retu of any signalized intersection; 3. Within fifteen feet (15') ofthe curb retu of any unsignalized intersection; 4. Withi three feet (3') of any fie hydrant , fire call box , police call box or other emergency facilty; 5. Within thee feet (3 ') of any drveway; 6. Withi fifteen feet (15') to the rear of any sign marking a designated bus stop, or three feet (3') ahead of such marking or designation where another pole or standard , which conforms to the provisions of this subsection, is located within ten feet (10') of each marking or designation; 7. Within three feet (3 ') of any bus bench; 8. At any location whereby the clear space for the passageway of pedestrians is reduced to less than six feet (6' 9. Within three feet (3') of any area improved with lawn, flowers , shrbs or trees. 1. No Newsrack or Special Newsrack Container shall be used for advertising signs or publicity puroses other than that dealing with the display, sale or purchase of the newspaper or periodical sold therein. j. Each Newsrack, Special Newsrack Container, or Special Newsrack Insert shall be maintained in a neat, painted, graffti-free and clean condition and in good repair at all times and shall be cleaned on a regular basis. For example, without limitation every Newsrack, Special Newsrack Container, or Special Newsrack Insert shall be reasonably free of dirt and grease , be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, have no broken or cracked plastic or glass pars , and have no broken structural parts. k. Every person who places or maintains a Newsrack or Special Newsrack Insert within the public right-of-way in the City of Alameda shall install a permanent (i. reasonably vandal proof) plaque or sticker on the Insert, no smaller than a standard business card (i.e. approximately two inches (2") by three inches (3")), specifying hislher name , current address and curent phone number affixed thereto in a place where such information maybe easily seen. 1. Abandoned Newsracks or Special Newsrack Inserts may be removed pursuant to subsection 22-5 of this ordinance ifthe owner of the Newsrack or Special Newsrack Insert fails to remedy the violation to the satisfaction of the Public Works Director. Furher , the City may revoke the encroachment permit ofthe Abandoned Newsracks. m. It shall be unlawful to locate a Newsrack within a Special Newsrack Area. n. It shall be unawful to locate a Special Newsrack Insert within a Special Newsrack Container without first obtaining an encroachment permit as outlned herein. 22-Special Newsrack Areas a. The City Council hereby. finds that special circumstances require special design, placement and other standards for newsracks Special NewsrackContainers and Special Newsrack Inserts located within certain areas of the City; and such areas are hereby designated as "Special Newsrack Areas. b. In order to designate an area as a Special Newsrack Area, a wrtten request must be made to the Development Services Director by either an established business association or retail shopping center or by sixty percent of the property owners within a proposed Special Newsrack Area. The request must identify the boundares of the proposed Special Newsrack Area and the locations of each Special Newsrack Container. The boundaries of the Area and locations ofthe Containers must be approved by the Public Works Director. The request must also identify a funding source and plan for the purchase , installation, maintenance , and enforcement of any Special NewsrackContainersand Special Newsrack Inserts. c. In determining whether to designate an area as a Special Newsrack Area, the City Council wil also consider the characteristics of an area, including but not limited to: whether the area is in a downtown area; is congested with street futue and other sidewalk encroachments , automobiles and other means of travel competing with pedestrians for the public space; and whether special standards for the design and location of newsracks is appropriate to help create a less congested and more visually appealig environment for those who come to the area. d. The City Council shall determine whether ai area should be designated as a Special Newsrack Area and shall do so by resolution. e. Notwithstanding any contrar provisions in this section, the following special standards shall apply to Special Newsrack Inserts and placement of publications in Special Newsrack Containers within any Special Newsrack Area: 1. No Special Newsrack Inserts shall be located in a Special NewsrackArea except in City approved Special Newsrack Containers at locations approved by the Public Works Director. In order to be able to place a Special Newsrack Insert within the Special Newsrack Container, the owner must first obtain an encroachment permit in accordance with subsections 22.6 through 22- 2. The Special Newsrack Insert shall meet the special design standards established by the City and on fie with the Permit Center. The name and/or logo of the publication shall be on the front face of the Special Newsrack Insert only and shall be displayed in the color white or an alternate color approved by the Public Works Director. 3. A plan designating the locations of City approved Special Newsrack Containers shall be on fie with the Permit Center. f. Within thirty days from the effective date of a resolution designating a Special NewsrackArea, or as soon as practicable thereafter, the Public Works Director shall establish a date (the "cut-off date ) by which existing Newsracks shall be removed and application shall be made to the Permit Center for every Special Newsrack Insert proposed to be located in the Special NewsrackArea. No application shall be considered that is fied later than the cut-off date established for that area. The Public Works Director shall give notice of the cut-off date by publication once in a newspaper of general circulation in the City. The Public Works Director shall also make a reasonable effort to mail notices ofthe cut-off date to the owners and/or distributors of Newsracks existing within the Special Newsrack Area; provided however, that failure to provide mailed notice to any person shall not invalidate any action taken pursuant to this section. 22-5 Abatement of Violation a. The City has discretion in deciding whether to relocate or seize Newsracks or Special Newsrack Inserts that are in violationofthis ordinance. The City may move thenon- compliant Newsrack or SpecialNewsrack Inserts to another location nearby or may seize the Newsrack or Special Newsrack Inserts in accordance with the procedures set forth below. If the City (or its designated agent) chooses to relocate the non- compliant Newsrack to a locationwithin fifty yards , the owner wil not be notified. A Newsrack or Special Newsrack Container that is placed in a Special Newsrack Area in violationofthisordinancewilnotbe moved to another location by the City but wil be seized in accordance with the procedures set forth below. b. Before any Newsrack, Special Newsrack Container or Special Newsrack Insert is seized, the owner shall be notified and given ten (10) calendar days to remedy the violation or to appear at the offce of the Public Works Director to contest seizure in an informal admnistrative foru. c. Notwthstanding the provisions of subsections (a) and (b) above, prior notice of seizure is not required where the Newsrack, Special Newsrack Container or Special Newsrack Insert poses a danger to pedestrans or vehicles , provided notice of the seizure and opportnity to contest is given the owner within ten (10) calendar days ofthe seizure. d. Owners shall be notified of the seizure of a Newsrack, Special Newsrack Insert, or Special Newsrack Container within ten (10) calendar days of seizure. An owner shall have ten (10) days from the date notice was mailed to file an appeal with the Public Works Director stating why the owner believes the seizure was made in error. Within fifteen (15) calendar days of receiving an appeal , the Public Works Director shall render a wrtten decision as to whether the Newsrack or Special Newsrack Insert violated this section. e. Seized Newsracks , Special Newsrack Containers or Special Newsrack Inserts shall be retained and may be recovered by their owner within thirty (30) calendar days from their seizure upon payment by the owner of the cost of removal and storage. If the Public Works Director determined that the seizure was made in error, the owner wil not be charged for the cost of the removal or storage and may place the Newsrack Special Newsrack Container or Special NewsrackInsert in its previous location. f. Newsracks , Special Newsrack Containers or Special Newsrack Inserts which have been seized and are not claimed within thirty (30) calendar days shall be deemed abandoned and maybe disposed of or destroyed by City or its designated agent. g. In addition to the seizure. and abatement remedies described above the City may also pursue civil and/or criminal remedies. For purposes of a criminal action, violations ofthis ordinance constitute a misdemeanor. 22-6 Liabilty Coverage a. Each owner ofa Newsrack or Special NewsrackInsert shall , within thirty (30) days of the effective date of this section, fush to the Permit Center a certificate that the owner has then in force public liabilty .and property 4amage insurance , naming the City as . an additional insured, in an amount not less than three hundred thousand ($300 000.00) dollars minimum liability combined single limit (bodily injur and property damage) per person and per occurence. The owner shall provide and keep in force the policy of public liability insurance durng such time as it continues to locate any Newsrack or Special Newsrack Insert within the City. The evidence of insurance filed with the. City shall include a statement by the insurance carer that thy (30) days notice shall be given to the Citybefore any cancellation. Copies of these policies or certificates evidencing the same shall be filed with the City Clerk.b. Every person who.places , maintains or causes the placement or maintenance of a Newsrack or SpeciaLNewsrack Insert in the public right-of-way shall file a written statement with the City Clerk satisfactory to the. City Aitomey whereby he/she/it agrees to hold harmless , defend, and indemnfy the City, its City Council , boards and commissions , officers and employees from any loss or liability or damages , including expenses and costs for bodily or personal injury related to or caused by the Newsrack or Special Newsrack Insert, and for property damage sustained by any person as a result of the installation, use or maintenance of such Newsrack or Special Newsrack Insert. Such statement shall be filed no later than thirty (30) days after the effective date of this section. 22-7 Encroachment Permit - Requirement for Special Newsrack Area a. In addition to complying with subsection 22-6 regarding Liability Coverage, in order to place a Special Newsrack Insert within a Special Newsrack Container an owner must first obtain an encroachment permit and pay all applicable permit fees. b. Unless sooner suspended or revoked , the term of the encroachment permit shall be for one year. The permit owner shall pay an annual renewal fee as set forth in the Master Fee Resolution. c. Encroachment permits are non-transferable and may not be sold , assigned , or otherwise transferred. If the Public Works Director determnes that a Special Newsrack Insert in a Special Newsrack Area has been Abandoned , the City (or its designated agent) may revoke the encroachment permit and issue that permit to another publication. d. The City wil use its best efforts to approve an application for an encroachment permit within fifteen (15) calendar days of receipt of the application if the type of Special Newsrack Insert and the location(s) proposed meet the standards set forth in this ordinance. e. If an application is disapproved, in whole or in par , the Public Works Director shall notify the applicant(s) in writing and by explaining the reasons for denial of the encroachment permit. The applicant(s) shall have fifteen (15) calendar days from the mailing of such notice to file an appeal of the decision with the Permit Center. The City Clerk shall schedule the appeal before the City Council who may reverse, affrm or modify the decision so long as such action is in conformity with the provisions of this ordinance. 22-Encroachment Permit---Allocation of Space within Special Newsrack Container a. In the event that there are more applications for Special Newsrack Inserts than there are spaces in a particular Special Newsrack Container or in a particular Special Newsrack Area, then the Public Works Director shall issue permits as set forth below. b. The Public Works Director shall allocate spaces in Special Newsrack Containers as follows: 1. First priority shall be given to daily publications; 2. Second priority shall be given to twice weekly publications; 3. Third priority shall be given to weekly publications; 4. Four priority shall be given to publications published less than weekly but more than monthly; 5. Fifth priority shall be given to publications published monthly or less frequently. c. In the event of a tie in any of the above categories , the following rules shall apply to break that tie. 1. No publication may receive a space in the particular Special Newsrack Container until the other publications that have applied for a space in that Container have had an opportunty to select a space in at least one Container within the Special Newsrack Area. 2. In the event that this does not break the tie, no publication may receive more than one space for a Special Newsrack Insert in any particular Special Newsrack Container until the other publication that applied for a space in that Container has had the opportity to select a space.3. Finally, if a tie stil exists , priority shall be given to the publication that has been historically located" closest to the location where the Special Newsrack Container wil be placed. Prior to designating an area as a Special Newsrack Area, the City (or its designated agent) wil completed a surey of the Area in order to identify the location of every publication s freestanding Newsrack in the Area. The publication which is "historically located" closest to the Special N ewsrack Container according to the City s (or its designated agent's) survey wil take priority in selecting a space within that Container. Section 3.This Ordinance shall be.in full force and effect from and after the expiration ofthirty (30) days from the date of its final passage. Attest: Lara Weisiger, City l City of Alameda , the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the 20 day of Januar, 2004 by the following vote to wit: AYES:Councilmembers Daysog, Gilmore , Kerr, and , Matarrese - 4. NOES:None. ABSENT:Mayor Johnson - 1. ABSTENTIONS:None. IN WITNESS , WHEREOF , I have hereunto set my hand and affixed the official seal of said City this day of Januar, 2004. Lara Weisiger , City lhk City of Alameda \ - .