ORDINANCE NO. 3946
ORDINANCE OF THE COUNCIL OF THE CITY OF SANTA ROSA, ESTABLISHING
THE SANTA ROSA TOURISM BUSINESS IMPROVEMENT AREA
THE PEOPLE OF THE CITY OF SANTA ROSA DO ENACT AS FOLLOWS:
Section 1.
a) Pursuantto the Parking and BusinessImprovement Area Law of 1989, Streetsand HighwaysCodeSections36500, etseq. (Law), May,25, 2010, thisCounciladoptedResolution No. 27641 entitled " RESOLUTION OF THE COUNCIL OF THE CITY OF SANTA ROSA
DECLARING ITS INTENTION TO ESTABLISH A TOURISM BUSINESS IMPROVEMENT
AREA IN THE CITY OF SANTA ROSA, TO PROVIDE FOR THE LEVYING OF
ASSESSMENTS ON SPECIFIED LODGING BUSINESSES CONDUCTED WITHIN SUCH
AREA, DESCRIBING THE BOUNDARIES OF THE PROPOSED AREA, THE
AUTHORIZED USES TO WHICH THE PROPOSED REVENUES SHALL BE PUT, THE RATE OF SUCH ASSESSMENTS, FIXING JULY 13, 2010 AT 4 :00 P.M. AND JULY 20, 2010 AT 5:00 P.M. AS THE DATES FOR A PUBLIC MEETING AND A PUBLIC HEARING
TO BE HELD BY THE COUNCIL TO CONSIDER THE ESTABLISHMENT OF SUCH
AREA AND THE LEVY OF ASSESSMENTS, AND AUTHORIZING AND DIRECTING THE GIVING OF NOTICE," declaring its intention to form a businessimprovement areawithin the boundariesof the City of SantaRosa, to be known asthe "SantaRosa Tourism Business Improvement Area," providingfor thelevy of anassessmentandchargeto beimposedtherein, fixing thetimesandplacesfor apublic meetingandapublic hearing, andgiving noticeof the meeting andhearing.
b) Resolution No. 27641 was duly published, and copies thereof were mailed as provided by the Law.
c) As specifiedin ResolutionNo. 27641apublicmeetingpursuantto Government .
CodeSection54954.6 concerningtheformationof theareaandthelevy of assessmentswasheld on July 20, 2010, before this Council in the Council Chamberat 100 SantaRosa, SantaRosa. d) As specifiedin ResolutionNo. 27641apublic hearingpursuantto Government CodeSection54954.6 concerningtheformationof theareaandthelevy of assessmentswasheld on July 27, 2010, before this Council in the Council Chamber at 100 SantaRosa, SantaRosa. e) At the public hearing all protests, both written and oral, made or filed, were consideredand duly overruled and denied, and this Council determined that there was no majorityprotestto theformationof theAreawithin themeaningof Section36523of theLaw. f) With respect to Government Code Section 87103 and Section 18707.4 of Title 2, Division 6 of the California Code of Regulations, the Council finds, and declares (i) that the personsserving on the Advisory Board designatedby this Ordinance are appointed to represent andfurthertheeconomicinterestoflodgingownersandotherbusinessesthatrelyupontourist Attachment - 1
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visits to the City of Santa Rosa, ( ii) that these members are required to have this economic interest, ( iii) that decisions madeby the Advisory Board will not have a reasonably foreseeable financial effect on any other economic interest held by the members, other than the economic interesttheyareappointedto represent, and (iv) thedecisionsof theAdvisory Boardwill financiallyeffectthemember'seconomicinterestin amannerthatis substantiallythesameor proportionally the sameasthe decision will financially effect a significant portion of the persons the member was appointed to represent.
Section 2. Chapter 6 -56 Article IV, pertaining to the creation of the Santa Rosa Tourism BusinessImprovement Area, is addedto the SantaRosaCity Code to read asfollows:
CHAPTER 6 -56 Article IV.
SANTA ROSA TOURISM BUSINESS IMPROVEMENT AREA
6- 56. 260 Authority.
This chapteris adoptedpursuantto the "ParkingandBusinessImprovementAreaLaw of 1989," Sections36500 et seq. of the California Streetsand Highways Code, and Resolution No. 27641 adoptedby the Council on June 8, 2010. Suchresolution was published and mailed asprovided by law, and public meetings and hearings thereonwere held by the Council on July 20, 2010, and July 27, 2010, at which time all personsdesiring to be heard, and all objections or protestsmadeor filed, werefully heardandconsidered. TheCouncilduly concludedthehearing on July 27, 2010, and determined that protests objecting to the formation of the Area had not beenreceived from the owners of lodging businessesin the proposedArea which would pay 50 percent or more of the Assessments proposed to be levied. The Council finds that the Assessmentslevied on owners of lodging businessespursuant to this Chapter arebasedupon the estimatedbenefit to the owners of assessedlodging businesseswithin the Area, and that all owners of lodging businessesin the Area againstwhom Assessmentsareproposed to be levied will be benefited by the expenditure of funds raised by the Assessments. 6- 56. 270 Definitions.
Except where the context otherwise requires, as used in this Chapter:
Administrative Fee" means a fee equal to the actual costs of collection and administration, not to exceed two percent ( 2 %) of the amount of Assessments collected, which the Tax Collector is entitled to retain from the Assessments collected.
Advisory Board" meansthe advisory board designatedby the City Council pursuant to this Chapter.
Annual Report" meansthe annualreport required by Section 36533 of the Law.
Area" meansthe SantaRosa Tourism BusinessImprovement Area createdby this Chapter and as delineated in 6- 56. 280.
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0 Assessment" meansthe levy imposed by this Chapter for the purpose of funding activities and programs promoting tourism in the Area.
City" shall mean the City of SantaRosa.
Council" meansthe SantaRosaCity Council.
Contractor" meansa non - profit or for -profit entity with which the City contractsto carry out the services, activities, and programs to be funded by revenuesfrom Assessments.
Lodging" meansany accommodation consisting of one (1) or more rooms or other living spaceswhich areoccupiedor intendedor designedfor occupancyby Transientsfor dwelling, lodging, or sleepingpurposes. Suchterm includes any hotel, inn, tourist home or house, motel, studiohotel, bachelorhotel, lodginghouse, roominghouse, apartmenthouse, dormitory, public or private club, mobile home or housetrailer at a fixed location, or other similar structureorportion thereof. Theterm "Lodging" doesnot includeanorganizedcamp, as that term is defined in Section 18897of the Health and Safety Code, or any establishment operatedby apublic or non - profit entity exclusivelyfor thepurposeof providingtemporary shelter for the homeless.
Marketing Activities" meansactivities designedto market the Area as a tourist destination, includingtheexpenditureof fundsto placeadvertisingin anymedia, conductpublic relations campaigns, perform marketing research, promote conventions and trade shows, and fosterimprovedcontactswithin thetravelindustry, for thepurposeof promotingtourismwithin the Area.
Occupancy" meanstheuseorpossession, or theright to theuseorpossession, of any oneor moreroomsorportionthereof, or otherliving space, in anyLodgingfor dwelling, lodging, or sleepingpurposes.
Operator" meansthepersonwhois theownerof aLodgingbusiness, whetherin the capacity of an owner, lessee, sublessee, mortgageein possession, or licenseeof the real property upon which the Lodging businessis located, or other capacity. When the Operatorperforms his or her functions through a managing agentof any type or characterother than an employee, the managing agent shall also be deemed an Operator for the purposes of this article, and shall have the same duties and liabilities as his or her principal. Compliance with the provisions of this articleby eithertheprincipalor themanagingagentshall, however, beconsideredcomplianceby both. For purposes of the imposition of Assessments pursuant to 6- 56. 300, the term " Operator of a Lodging establishment" shall include persons or entities who manage the rental of individual residential units to Transients, even if suchunits arenot owned by such Operator.
Parking and BusinessImprovement Area Law of 1989" or "Law" meansthe provisions of CaliforniaStreets `andHighwaysCodeSections36500to36551, astheynowexistorare hereafteramended. Businessesin theAreashallbesubjectto anyamendmentsto theLaw.
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Person" meansan individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.
Rent" meansthe consideration charged, whether or not received, for the occupancy of a spacein a Lodging valued in money, whether to be received in money, goods, labor, or otherwise, including all receipts, cash, credits, property, and servicesof any kind or nature, without deduction therefrom whatsoever.
SantaRosaTourism BusinessImprovement Area" meansthat areacreatedby this Chapterasabusinessimprovementareapursuantto theParkingandBusinessImprovementArea Law of 1989.
Santa Rosa Tourism Business Improvement Area Fund" or " Fund" means the fund created pursuant to 6- 56. 320 of this Chapter.
Tax Collector" meansthe Tax Collector of the City.
Transient" meansany personwho exercisesoccupancyor who is entitled to occupancy by reasonof concession, permit, right of access, license, or otheragreementfor aperiodof thirty 30) consecutivecalendardaysor less, countingportionsof calendardaysasfull days. Any such person so occupying space in a Lodging shall be deemed to be a Transient until the period of thirty ( 30) dayshasexpired unlessthere is an agreementin writing betweenthe operator and the occupantproviding for a longer period of occupancy. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered. 6- 56. 280 Area Established — Description.
Pursuantto the Parking and BusinessImprovement Area Law of 1989, aparking and businessimprovement areais hereby established, to be known asthe "SantaRosaTourism Business Improvement Area." The boundaries of the Area are the same as the boundaries of the City.
6- 56. 290 Authorized Uses.
The purpose of forming the Area as a business improvement area under the Law is to provide revenueto defray the costsof services, activities, andprograms that promote and encouragetourism within the Area, which will benefit the Operatorsof Lodging establishments paying Assessments in the Area through the promotion of the scenic; recreational, cultural, and otherattractionsin theArea. Revenuesfrom Assessmentsshallbeusedto conductMarketing Activities designed to increase overnight visits to the Area. Revenuesfrom Assessmentsmay also be used for programs, services, and activities inside or outside the Area, if such programs, services, and activities are designed to promote and encourage overnight visits to the Area.
Revenuesfrom Assessmentsmay also be usedto pay or reimburse administrative costsincurred bytheContractorortheCityin connectionwiththecreationoftheAreaandtheongoing administrative costs associated with the Marketing Activities. Administrative costs paid or Ord. No, 3946
reimbursed pursuant to this 6 -56 - 4. 290 shall not be subject to the limit set forth in 6- 56. 310; provided, however, that the City' s reimbursement for Assessment collection costs is limited as provided in 6- 56.310. Revenuesfrom Assessmentscollected in the Area may not be used for any purposes other than those set forth above.
6- 56. 300 Imposition and Collection of Assessments.
a) EachOperatorof aLodgingestablishmentshallpayasanAssessmentasum equal to three percent ( 3 %) of the Rent chargedby the Operator. b) Each Operator of a Lodging establishmentsubject to assessmentunder this Chapter shall, on or before the last day of the month following eachcalendarquarter, or at the end of any shorterreporting period that may be establishedby the Tax Collector, make a return to theTax Collector, on formsprovidedby theTax Collector, of thetotalrentschargedby the Operator and the amount of Assessments owed for such calendar quarter. At the time the return is filed, the full amount of Assessments owed for such calendar quarter shall be remitted to the Tax Collector.
c) The Operator of a Lodging establishmentsubject to assessmentunder this Chapter shallbesolelyresponsiblefor payingall Assessmentswhendue. Notwithstandingtheforegoing, in the event that the Operator of a Lodging establishmentelectsto passon someor all of the Assessmentto Transient customersof the Lodging establishment, the Operator of the Lodging establishmentshall separatelyidentify or itemize the Assessmenton any documentprovided to a customer. Assessmentslevied on the Operatorsof Lodging establishmentspursuant to this Ordinance andpassedon to customersarenot part of a Lodging establishmentOperator's rent, grossreceipts, or grossrevenuesfor purposesof this Chapter or Chapter 3 -28 of the City Code. 6- 56. 310 Administrative Fee; Registration.
a) The Tax Collector shall be entitled to chargean amount equal to its actual costsof collection and administration, not to exceed two percent ( 2 %), of the Assessments collected from Operatorsof Lodgingestablishmentsto defraytheadministrativecostsincurredby theTax Collector.
b) The Tax Collector may require each Operator subject to assessment under this Chapter to register with the Tax Collector and to provide such information as the Tax Collector deems necessary to enable the Tax Collector to collect Assessments due under this Chapter. 6- 56. 320 Special Fund.
A special fund designated as the " Santa Rosa Tourism Business Improvement Area Fund" is hereby created. The Tax Collector shall place all Assessmentscollected or remitted hereunderinto the Fund. The revenuefrom the levy of Assessmentswithin the Area shall not be used for any purposes other than those set forth in 6- 56190 of this Chapter. 6- 56. 330 Deficiencies; Penalties.
a) Any Operatorsubjectto assessmentunderthis Chapterwhofails to remit any Ord. No. 3946
assessmentimposed by this Chapter within the time required shall pay a penalty of ten (10) percent of the amount of the assessment in addition to the amount of the assessment. b) Any Operator subject to assessmentunder this Chapterwho fails to remit any delinquent remittance on or before aperiod of thirty days following the dateupon which the remittance. first becamedelinquent shall pay a seconddelinquency penalty of ten (10) percent of the amount of the assessment, in addition to the amount of the assessment and the ten percent penalty first imposed.
c) If the Tax Collector determinesthat the nonpayment of any remittance . due under this Chapter is due to fraud, a penalty of twenty -five ( 25) percent of the amount of the Assessments due shall be added thereto, in addition to the penalties set forth in subsections ( a) and ( b) of this section.
d) In addition to any penalties imposed hereunder, any Operatorwho fails to remit any assessmentimposed by this Chapterwhen due shall pay interest at the rate of one- and -one- half percent ( 1. 5 %) per month on the unpaid balance of the assessment, from the date on which the assessment first became delinquent until paid.
6- 56. 340 Determination of Assessment upon Nonpayment
a) If any Operator subject to assessmentunder this Chapter shall fail to make any report or remittance of Assessments within the time provided in this Chapter, the Tax Collector shall proceedin the manner it deemsbest to obtain facts and information upon which to baseits estimate of the assessment due, and shall thereafter determine and assess against the Operator the assessment, penalties, and interest due pursuantto this Chapter. In any casewhere such determination is made, the Tax Collector shall give a notice of the amounts so assessedby serving it personally or depositing it in the United Statesmail, postageprepaid, addressedto the Operator at its last known place of address.
b) The Operator may, within ten (10) calendardays after the serving or mailing of suchnotice, make application in writing to the Tax Collector for a hearing on the amount assessed. The application is considered made when mailed. If application by the Operator for a hearing is not madewithin the time prescribed, the Assessments, penalties, and interest, . if any, determinedby the Tax Collector to be due shall becomefinal and conclusive and immediately due and payable. If the Operator makestimely application for a hearing, the Tax Collector shall give not less than ten ( 10) calendar days' written notice to the Operator as provided herein of the time and dateof the hearing. At the hearing, the Operatormay appearand offer evidence asto why the amounts specified in the Tax Collector' s determination should not be fixed. c) After suchhearing, the Tax Collector shall determine the proper assessment, penalties, and interest to be remitted, and shall thereafter give written notice of sameto the Operator, within thirty (30) calendardaysof thehearing. TheTax Collector'sdetermination shall be presumedto be correct. The amount determined to be due shall be payable after fifteen 15) calendardays from the date. of mailing of the determination, unlessan appeal is taken Ord. No. 3946
pursuant to 6- 56.350 of this Chapter. At any appeal, the Operator has the burden of proving that the Tax Collector' s determination is incorrect.
6- 56. 350 Appeals
Any Operator subjectto assessmentunder this Chapteraggrieved by any decision of the Tax Collector with respect to the amount of Assessments, penalties, or interest imposed under this Chapter may appealto the Council by filing a notice of appealwith the City Clerk, and a copy on the Tax Collector, within fifteen ( 15) calendardays of the serving or mailing of the determinationby theTaxCollector. TheCouncilshallfix atime andplacefor hearingsuch appeal, and the City Clerk or the Tax Collector shall give notice to the Operatorby mailing such notice to the Operator at its last known place of address. The time of the hearing shall be at least 15calendardaysafter the mailing of the notice. The Tax Collector shall presentthe matter to the Council and include evidence submitted by the Operator. The Tax Collector shall also include proposedfindings and a resolution of the appeal. At the hearing, the Tax Collector and the Operator shall have an opportunity to explain their case and introduce other statements or evidence. The Council may impose reasonabletime limits on eachparty' s presentation. The findings of the Council shall be final and conclusive, and shall be served on the Operator as provided in 6- 56.340 of this Chapter. Any amount found to be due shall be immediately due and payable.
6- 56. 360 AssessmentsDue Deemed Debt to City; Actions to Collect Any assessment, penalty, or interestrequired to be paid by any Operator subject to assessmentunder this Chapter shall be deemeda debt owed by the Operator to the City. Any assessmentcollectedfrom a Transientby anOperatorwhichhasnot beenpaidto theCity shall bedeemeda debtowedby theOperatorto theCity. Any Operatorowingmoneyto theCity for Assessmentsunderthis Chaptershallbeliableto anactionbroughtin thenameof theCity for the recovery of the amount of the debt. The City shall be entitled to recover from an Operator found liable for the debt, or any part thereof, any costs, including attorneys' fees, personnel costs, or other expensesincurred by the City becauseof the failure of the Operatorto timely remit Assessments, penalties, or interest to the City.
6- 56. 370 Refunds.
If an assessment, penalty, or interest imposed by this Chapter hasbeenoverpaid or paid more than once or paid in error, or hasbeenillegally collected or received by the City, a refund may be soughtby filing a claim according to the procedure setforth in Title 3, Chapter 3- 28.080 of this Code.
6- 56. 380 Violations.
Any Operatorviolating anyof theprovisionsof this Chaptershallbe guilty of a misdemeanorand shall be punishable therefore asprovided in Title 1 Section 1- 28.010 of this Code. In addition, the Tax Collector may pursue on behalf of the City any civil or administrative remedy otherwise available for failure to comply with the requirementsof this Chapter. If the City prevailsin suchactionor proceeding, theCity shallbeentitledto recoverits costs, including attorneys' fees, personnel costs, or other expensesincurred becauseof the failure to comply with the provisions of this Chapter.
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6- 56. 390 Records.
Every Operator of a Lodging establishment subject to assessment under this Chapter shall keep andpreserve, for a period of three years, all records asmay be necessaryto determine the amount of such assessment as he may have been liable for the collection of and payment to the Tax Collector, which records the Tax Collector shall have the right to inspect at a reasonable time andfollowing twenty -four (24) hours' prior writtennotice. 6- 56. 400 Advisory Board.
An Advisory Board is hereby created, which composition shall be madeup of five ( 5) members appointed as follows:
One ( 1) Santa Rosa Chamber of Commerce employee
One (1) City of SantaRosaemployee
Three (3) hotel operators, at least one of whom is employed by a full service hotel and one of whom is employed by a selectservice hotel.
TheAdvisory Boardshallthereafterbesubjectto CouncilPolicyNo. 000 -06. Notwithstanding any Council Policy that may now or hereafter exist to the contrary, City employeesshall serveon the Advisory Board: The Advisory Board shall advise the City Council on the amount of the Area' s Assessmentsand on the services, programs, and activities to be funded by the Assessments, andshallperformsuchotherdutiesasrequiredby theLaw, includingpreparingthe AnnualReportrequiredby Section36533of theLaw. TheAdvisoryBoardshallmeetasoften as necessary to accomplish its goals, but no less than once each calendar quarter. 6- 56. 410 Administration.
a) The City may contract with a Contractor to carry out the services, activities, and programsto be funded by 70% of the revenues from Assessments, as set forth in this Chapter and the Law, and as specified in the applicable Annual Report.. The SantaRosaChamber of Commerceis herebydesignatedto actastheinitial Contractor. Any contractbetweentheCity and the Contractor shall conform to the provisions of this Chapter. b) The contract with the Contractor shall reasonably specify the services, programs, and activities to beprovided by the Contractor, which services, programs, and activities shall be in conformance with the applicable Annual Report. The Contractor may provide any services, programs, or activities that' promote tourist visits to the Area, without regard to the limitations set forthin 6- 56.290, providedthatservices, programs, oractivitiesnotauthorizedby 6- 56.290may notbepaidfor usingrevenuesfrom Assessments. Prior to contractingwith aContractor, the City shall obtain a budget from the Contractor showing to the satisfaction of the City that the revenues from Assessments and all other sources to be paid to the Contractor are sufficient to permit the Contractor to carry out the services, programs, and activities setforth in the annual plan. Thecontractwith theContractorshallcontainprovisionsallowingtheCity to inspectthe Contractor' s records, to perform audits and investigations, or to obtain reports from the ContractorastheCity deemsnecessaryto ensurethatrevenuesfrom Assessmentsareusedonly as set forth in the contract and as permitted under this Chapter and the Law. The contract shall Ord. No. 3946
provide that it may be terminated by the City, with or without cause, on no lessthan thirty ( 30) days' notice.
c) The Council may, in its sole discretion, remove the initial or any successor Contractor at any time. Upon suchremoval, the Council may either (1) selectand contract with a successor Contractor or ( 2) provide the services, program, and activities set forth in the applicable Annual Report with the City' s own forces, in which case, the City may fund services performed and expenses incurred from revenues from Assessments. d) The contract with the Contractor shall be administered on behalf of the City by the Director of the Economic Development and Housing, who may authorize disbursementsfrom theSantaRosaTourismBusinessImprovementAreaFundsolelyfor thepurposessetforth in 6-
56. 290.
6- 56.420 Modification or Disestablishment of the Area. a) The Council, by ordinance, may modify the provisions of this Chapter and may disestablishthe Area, after adopting a resolution of intention to such effect. Suchresolution shall describe the proposed change or changes, or indicate that it is proposed to disestablish the area, and shall statethe time andplace of a hearing to be held by the Council to consider the proposed action.
b) If the Operatorsof Lodging establishmentswhich pay 50 percent or more of the Assessmentsin theAreafile apetitionwith theCITY ClerkrequestingtheCouncilto adopta resolution of intention to modify or disestablishthe Area, the Council shall adopt suchresolution andactuponit asrequiredby 6- 56.420(d) belowandtheLaw. Signatureson suchpetitionshall be thoseof a duly authorized representativeof the Operatorsof Lodging establishmentsin the Area that paid Assessments in the prior calendar quarter. c) In the event the resolution proposesto modify any of the provisions of this Chapter, including changesin the amount or authorized usesof Assessments, suchproceedings shallterminateif protestis madeby theOperatorsof Lodgingestablishmentspaying50percent or more of the Assessments in the Area.
d) In the event the resolution proposes disestablishment of the Area, the Council shall disestablishthe Area; unless at suchhearing, protest againstdisestablishment is madeby the Operators of Lodging establishments paying 50 percent or more of the Assessments in the Area."
Section 3. Severabilitv. If any section, subsection, sentence, clauseor phraseof this ordinance is for any reasonheld to be unconstitutional and invalid, suchdecision shall not affect the validity of the remaining portion of this ordinance. The Council hereby declaresthat it would havepassedthis ordinance and every section, subsection, sentence, clauseor phrase thereof, irrespectiveof thefactthatanyoneor moresections, subsections, sentences, clausesor phrases be declared unconstitutional or invalid.
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Section 4. Effective Date. This ordinance shall be andthe sameis hereby declaredto be in full force and effect from and after thirty ( 30) daysafter the dateof its passageand shall be published once before the expiration of fifteen ( 15) days after said passage, with the names of the Council membersvoting for or againstthe same, in ThePressDemocrat, a newspaperof general circulation published in the County of Sonoma, Stateof California.
IN COUNCIL DULY PASSED AND ADOPTED this 3rd day of August, 2010.
AYES: ( 6) Mayor Gorin, Councilmembers Bender, Sawyer, Jacobi, Vas Dupre and Olivares
NOES: ( 0)
ABSENT: ( 1) Vice Mayor Wysocky
ABSTAIN:
ATTEST:
Deputy City Clerk
APPROVED AS TO FORM:
City Attorney
APPROVED: 1611 'A2A A" J J'of
Mayor
Ord. No. 3946