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HomeMy WebLinkAboutItem 3d: Initiative to Voters for Transient Occupancy Tax Ordinance Amendment ti� OFv,ARo4, 0 : ;amts ' '. tn•u n•n�•a nuru.r t,nun f 0 44 °��°Wiry°t�, STAFF REPORT Office of the City Attorney DATE: November 15, 2011 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: STEPHEN P. DEITSCH, CITY ATTORNEY �t, ► 12 SUBJECT: CONSIDERATION AND DISCUSSION REGARDING POSSIBLE SUBMISSION TO THE VOTERS OF TRANSIENT OCCUPANCY TAX ("TOT") ORDINANCE AMENDMENT. Recommended Action: Provide direction SUMMARY Consideration by the City Council of a proposed initiative to be submitted to the voters at the April 10, 2012 General Municipal Election concerning an amendment to the City's Transient Occupancy Tax Ordinance. BACKGROUND The City of Arcadia currently has a transient occupancy tax ordinance which imposes a tax of ten percent (10%) on occupancy by transients at any hotel. "Occupancy" is defined as the right to use or possess a room in a hotel. "Hotel" means any structure designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home, motel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location. "Transient" means any person who is entitled to occupy a room for a period of thirty (30) consecutive calendar days or less. The City has recently been sued by guests of a certain hotel who have occupied a room for more than thirty (30) days. The hotel (Extended Stay of America) initially applied for and received a Conditional Use Permit ("CUP") in 1997 from the City, among other land use approvals. One of the conditions of the CUP required that the hotel reregister guests at the end of each thirty (30) day period in the event any guest remained longer. Plaintiffs in the litigation argue that this is not permitted by statute. As a result of the pending litigation (which is in the discovery phase), the City Attorney has reviewed the long-standing Transient Occupancy Tax Ordinance to determine whether amendments might be worth considering to address "extended stays", as well as other issues. As a result, the City Attorney has prepared a draft amendment to the Transient Occupancy Tax Ordinance. A copy of the proposed ordinance is attached as Exhibit "A" and has provisions that require direction from Council prior to finalization. The proposed ordinance is submitted for initial consideration and discussion by the City Council and once it is finalized, would be brought before the Council at the December 6th Council meeting if the Council decides to move forward with this matter. Additionally, attached as Exhibit "B" is a draft resolution calling an April 10, 2012 General Municipal Election by all mail ballot which will be presented at the December 6, 2011 City Council meeting. If the City Council desires to proceed with an amendment to the Transient Occupancy Tax Ordinance, the City Attorney recommends that the proposed ordinance be submitted to the voters for approval at the April 10, 2012 General Municipal Election. This is required by Proposition 218 if the amendment amends the definition of "transient" to extend beyond thirty (30) days, since such an amendment would constitute a change in the transient occupancy tax itself. Any new or increased tax requires voter approval. The City Attorney has prepared a memorandum focusing on certain issues for discussion by the City Council. The memorandum is attached to this staff report. RECOMMENDATION The City Attorney and staff recommend that the City Council discuss the issues described in the City Attorney's memorandum and provide direction to the City Attorney and staff regarding possible consideration and action by the City Council at its December 6, 2011 meeting regarding placement of an initiative on the April 2012 General Municipal Election ballot concerning this matter. APPROVED: Donald Penman City Manager Attachments 2 OF ARC 4r44 P1,11,0/44 76 d 3d1iO4<i Ineu.t 3,I9J Au{urt 5,1903 /h tin ity°t MEMORANDUM Office of the City Attorney Date: November 15, 2011 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: STEPHEN P. DEITSCH, CITY ATTORNEY P.r SUBJECT: ISSUES CONCERNING ROPOSED TRANSIENT OCCUPANCY TAX ("TOT") MEASURE Before the City Council this evening is a proposed measure to amend the City's Transient Occupancy Tax ("TOT") ordinance. In order to assist the City Council in its deliberations, this Memorandum provides an analysis of the significant changes and legal issues involved. For your reference, deletions are highlighted in strikeout t and additions are highlighted in bold italics. Section 2661.3 (Definition of "Occupancy") — This amendment clarifies that taxable occupancy of a hotel room occurs even if a person does not actually use or possess the room. Having the right to use or possession is sufficient. Therefore, if a person registers for a room, fails to arrive at the hotel, and is still charged, the charges are still taxable. This is consistent with existing law and is merely intended as a clarifying amendment. I have also added language clarifying that rental of non-dwelling hotel space is not taxable (ie: office, ballroom or conference rooms). The legal authority to tax such usage is unclear and at least one California charter city (Los Angeles) expressly exempts it. Section 2661.4 (Definition of "Transient") — The proposed language makes many significant amendments. First, it adjusts the period of taxable transiency from 30 days to 90 days and deletes some legally problematic language regarding longer-term agreements. This is intended to tax longer occupancies at so-called "extended stay" hotels. General law cities are limited by State law to 30 days. (Revenue & Taxation Code, Section 7280). However, charter cities are not subject to this limitation. San Bernardino Hotel/Motel Assn. v. City of San Bernardino, (1997) 59 Cal. App. 4th 237. In the San Bernardino case, the Court approved of the City's 90-day transiency period since it was a charter city. However, it ruled that its language saying "unless there is an agreement in writing. . ." was unconstitutionally vague because it was impossible to distinguish a hotel occupancy agreement for a long-term lease. As a result, I am recommending removing the same language from Municipal Code. 1 An issue for the City Council to consider is whether to set this period of transiency longer or shorter. I initially drafted the provision for 90 days because it is the maximum period where there is clear legal authority to do so. Further, since TOT returns in Arcadia are filed quarterly, I believed that this provided a nice fit for timing purposes. Of course, the City Council may, in its discretion, propose to keep the transiency period at 30 days or propose another period, such as 60 days. However, it is unclear whether the law will support a transiency period of longer than 90 days. There is no case law to this effect and we must advise that the longer the transiency period, the more difficult it may be to distinguish between taxable hotel occupancies and non-taxable leases. This will increase the risk of legal challenge to the ordinance due to vagueness. I can attempt to draft language to better draw this distinction, but there are no guarantees. The City Council will have to consider whether the potential revenue benefits of a transiency period longer than 90 days outweigh the risks. I have also added language clarifying that the first 90 days (or other selected period) of an occupancy is taxable, even if the occupant stays for a continuous period longer than 90 days. The current Code is unclear on this point. Should the occupant leave the hotel and return (thus breaking the continuous occupancy), a new taxable 90 day period would start. There is also new language addressing reservations made by others on behalf of an occupant. It clarifies that the tax applies if a person occupies or has a right to occupy the room, regardless of whether that person actually made the reservation or someone else did so on his or her behalf. Also, I have added language to address "block reservations". This is a situation whereby a company reserves a group or "block" or rooms on behalf of its employees to be used on an "as needed" basis (ie: an airline company for its travelling pilots and flight crew). The agreement with the hotel may last for several months or years, but the actual occupancies by individual employees typically last less than 90 days. This language makes clear that those occupancies are taxable because the tax is based upon the term of each occupancy, not the duration of the "block reservation" agreement. Section 2661.5 (Definition of "Rent") — This amendment is intended to include all possible types of fees and charges that an occupant may be required to pay to occupy a hotel room, including parking fees, block and advance registration fees, commissions, etc. In this way, potential loopholes from payment are avoided and the maximum collection of the tax ensured. More specifically, this language is intended to address ongoing nationwide litigation between many cities and online travel companies, such as Expedia, Travelocity, etc. ("OTC's"). To provide an example, an OTC will purchase a room from a hotel at wholesale for $100 a night. A customer then goes online and purchases the room at retail from the OTC for $150 a night. Arcadia's TOT rate is 10%. However, the OTC's for many years have only remitted the TOT based upon the wholesale rate, contending that the relevant taxable purchase occurred when they bought the room from the hotel. However, cities contend that the relevant sale (and taxable event) occurs when the end customer purchases the room, since he or she is the one who will actually enjoy 2 "occupancy" of the room. As a result, Arcadia will be underpaid TOT by $5 per night ($150 - $100 x 10% _ $5). Multiply this by hundreds of millions of online hotel reservations made over the last several years and one can understand the gravity of this litigation. Therefore, the OTC's are contesting every local loophole they can find. The proposed language states, in the most explicit language we can draft, that the full retail price charged by the OTC to the customer is subject to the TOT. This amendment also clarifies that rooms rented for free or on a complementary basis (ie: to vacation contest winners) are not taxable. Collecting TOT on these types of occupancies is problematic, at best, and most cities include this exemption in their Codes. Also food and beverage items already subject to sales and use tax are made exempt from the TOT, consistent with existing State law which also applies to charter cities (Revenue & Taxation Code, Section 7282.3). Section 2661.6 (Definition of "Operator") — For the reasons discussed above, this amendment is also intended to address resellers and booking agents, such as OTC's and other intermediaries that sell rooms on behalf of hotels. Sections 2661.8 (Definitions of "Online Travel Company", "Person" and "Block Reservation") — These are additional definitions intended to address the issues discussed above. Section 2662 (Tax Imposed) — A minor amendment has been made to conform the language to the updated definitions discussed above. The fundamental policy question posed by this section is whether the Council wishes to propose increasing the TOT rate. The rate is currently at 10% of rent charged for a hotel room. There is no legal limit to what rate may be charged, provided it is approved by a majority vote of the electorate under Proposition 218. Section 2663 (Exemptions) — No change is proposed to this section at this time. However, an issue for the Council's consideration is whether it wants to set a non- taxable floor. In other words, does the Council want to provide a TOT exemption stating that if hotel room rent is below a certain amount per day, it is not taxable (ie: less than $50 per day). There are no legal limitations and it is purely a policy decision. Section 2663.2 (Same. Officials) — Language has been added to clarify what kind of government employees are entitled to a TOT exemption. More specifically, the language is intended to address large university events. Our office has encountered the following situation: A State University is playing a large game in the area. The team, band, boosters, fans, etc. stay at the hotel and all claim to be State University "employees" by producing a student or employee identification card. When asked for proof of "travel orders", they produce a letter from the Athletic Director saying that they are officially attending on behalf of the University. While this was not the intent of the State employee exemption, imprecise language in other cities has resulted in this potentially expensive loophole. This language addresses that. 3 Section 2663.4 (Same. Procedure) — Language has been added to enhance the procedures for claiming a TOT exemption as a Federal or State employee. This conforms to the proof requirements of State law (Revenue & Taxation Code, Section 7280(e)). TEXT OF THE MEASURE. We have included provisional text for the ballot measure, pending the City Council final direction on how to word the proposed ordinance. Staff welcomes the City Council's input as to how to word the ballot text. APPROVED: Don Penman City Manager 4 Exhibit "A" Proposed Ordinance Regarding Transient Occupancy Tax ORDINANCE NO. XXXX MEASURE " " AN ORDINANCE OF THE PEOPLE OF THE CITY OF ARCADIA AMENDING THE CITY'S TRANSIENT OCCUPANCY TAX CODE BY INCREASING THE TAX RATE FROM 10% TO °A., EXTENDING THE PERIOD OF TRANSIENCY SUBJECT TO THE TAX FROM 30 TO 90 DAYS, ADDRESSING ONLINE TRAVEL COMPANY BOOKINGS, AND MAKING VARIOUS CONFORMING CHANGES. (NOTE: additions are highlighted in bold italics and deletions are highlighted in ses6Ft) THE PEOPLE OF THE CITY OF ARCADIA, CALIFORNIA DO HEREBY ORDAIN AS FOLLOWS: SECTION 1. Divisions 1 through 3 of Part 6 of Chapter 6 of Article II of the Arcadia Municipal Code are hereby amended to read as follows: "PART 6 — UNIFORM TRANSIENT OCCUPANCY TAX DIVISION 1. — DEFINITIONS 2661. - DEFINITIONS. 2661.1. - TITLE. 2661.2. - HOTEL. 2661.3. - OCCUPANCY. 2661.4. - TRANSIENT. 2661.5. - RENT. 2661.6. - OPERATOR. 2661.7. - TAX ADMINISTRATOR. 2661.8. — ONLINE TRAVEL COMPANY. 2661.9. - PERSON. 2661.10— BLOCK RESERVATION 2661. - DEFINITIONS. For the purpose of this Part certain words and terms are hereafter defined and shall have the meaning thus ascribed. 1 2661.1. -TITLE. This Part shall be known as the Uniform Transient Occupancy Tax Ordinance of the City of Arcadia. 2661.2. - HOTEL. "Hotel" means any structure, or any portion of any structure, which is occupied or intended or designed for occupancy by transients for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, dormitory, public or private club, mobile home or house trailer at a fixed location, or other similar structure or portion thereof. 2661.3. - OCCUPANCY. "Occupancy" means the use or possession, or the right to the use or possession of any room or rooms or portion thereof (whether or not the person entitled to the use or possession actually uses or possesses such room or rooms or portion thereof), in any hotel for dwelling, lodging or sleeping purposes. The use or possession or right to use or possess any room or any suite of connecting rooms as office space, banquet or private dining rooms, or exhibits, sample or display space shall not be considered "occupancy" within the meaning of this definition unless the person exercising occupancy uses or possesses, or has the right to use or possess all or any portion of such room or suite of rooms for dwelling, lodging or sleeping purposes. 2 2661.4. - TRANSIENT. "Transient" means any person who exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or other agreement for a period of thirty (30) ninety (90) consecutive calendar days or less, counting portions of calendar days as full days. The following rules shall apply to this definition: A. Any such person so occupying space or entitled to occupy a room in a hotel shall be deemed to be a transient until the period of thirty (30} ninety (90) calendar days has expired unless there is an agreement in writing between the - -- - - - •: - - • - - - - •-•• - - - - - - -- - - - . In the event person exercises or is entitled to occupancy for a continuous and uninterrupted period of longer than ninety (90) calendar days, he or she shall be deemed a transient and subject to the tax for only the first ninety (90) calendar days of occupancy and shall cease being a transient and the tax shall not apply on the ninety-first (91st) day of occupancy and following. However, any break or interruption in occupancy shall start a new ninety (90) day period subject to the tax. B. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of this Part may be considered. C. Any person who exercises or is entitled to occupancy for a period of ninety (90) consecutive calendar days or less shall be deemed to be a transient for that period, regardless of whether the reservation and/or payment for 3 occupancy is made directly by the person exercising occupancy or another person. The intent is to tax the person exercising occupancy or having the entitlement to occupancy of a hotel room. D. In the case of a block reservation, a person's employee or agent shall be deemed a transient if that employee or agent exercises or is entitled to occupancy of a room for a period of ninety (90) consecutive calendar days or less, regardless of the duration of any block reservation agreement. By way of example, if a corporation enters into a one-year block reservation agreement with an operator and one of the corporation's employees occupies a room for ninety (90) calendar days, the employee shall be deemed a transient whose occupancy is subject to the tax, notwithstanding the fact that the block reservation agreement has a duration longer than ninety(90) calendar days. 2661.5. - RENT. "Rent" means the total consideration charged to the transient, (including but not limited to, room rates, service charges, parking fees, purchase price, advance registration, block or group reservation charges, assessments, retail markup, commission, processing fees, cancellation charges, attrition fees, or online booking fees), whether or not received, for the occupancy of space in a hotel valued in money, whether to be received in money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever. Nothing in this definition shall be construed to mean that rent is charged directly or indirectly for occupancy in a hotel when a room is provided to the transient as a compliment for the operator and where no 4 consideration is charged to or received from any other person. Further, bona fide charges for food and beverages which are subject to tax under the California Sales and Use Tax Law (Revenue and Taxation Code Sections 6001 et. seq.) shall not be deemed rent subject to the tax imposed by this Part. 2661.6. - OPERATOR. "Operator" means a person who is proprietor of the hotel or any other person who has the right to rent rooms within the hotel, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee, seller, reseller, or any other capacity. Where the operator performs his functions through a managing agent or booking agent of any type or character, other than an employee (including, but not limited to, an online travel company), the managing agent or booking agent shall also be deemed an operator for the purposes of this Part and shall have the same duties and liabilities as his principal. Full Gcompliance with the provisions of this Part by either the principal or the managing agent or booking agent shall, however, be considered to be compliance by both. 2661.7. -TAX ADMINISTRATOR. "Tax Administrator" means the City License Officer Director of Finance, or his or her designee. 2661.8. ONLINE TRAVEL COMPANY. "Online Travel Company" shall mean any person, whether operating for profit or not for profit, which enables transients to purchase occupancy in a hotel via the Internet, or by similar electronic means. 5 2661.9. - PERSON. "Person" shall mean any 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. 2661.10. — BLOCK RESERVATION. "Block Reservation" shall means an arrangement whereby a person reserves, whether on an exclusive or non-exclusive basis, a room or block/group of rooms for a defined period of time under a written or oral agreement with an operator, intending for such room(s) to be occupied by that person's employees or agents on an intermittent, periodic or "as needed" basis during that defined period of time. DIVISION 2. IMPOSITION AND RATE 2662. - TAX IMPOSED. 2662. -TAX IMPOSED. For the privilege of occupancy in any hotel, each transient is subject to and shall pay a tax in the amount of ten percent (10%) of the rent charged by the operator. Said tax constitutes a debt owed by the transient to the City which is extinguished only by payment to the operator or to the City. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. If the rent is paid in installments, a proportionate share of the tax shall be paid with each installment. The unpaid tax shall be due upon the transient's ceasing occupancy. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that 6 such tax shall be paid directly to the Tax Administrator. The proceeds of this tax are allocated to the City's general fund for governmental expenditures. DIVISION 3. - EXEMPTIONS 2663. - EXEMPTIONS 2663.1. - SAME. EXEMPTED BY LAW. 2663.2. - SAME. OFFICIALS. 2663.3. - SAME. FOREIGN AGENCIES. 2663.4. - SAME. PROCEDURE. 2663. - EXEMPTIONS. The tax enacted by this Part shall not be imposed upon any person or agency defined in the following subsections. 2663.1. - SAME. EXEMPTED BY LAW. Any person as to whom, or any occupancy as to which, it is beyond the power of the City to impose the tax herein provided. 2663.2. - SAME. OFFICIALS. Any federal or State of 'California officer or employee when occupying a room while on official government business. For purposes of this section, students, non- employee supporters and volunteers of California public universities and colleges shall not be deemed to be officers or employees of the State of California. 2663.3. - SAME. FOREIGN AGENCIES. Any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty. 7 2663.4. - SAME. PROCEDURE. No exemption shall be granted except upon a claim therefor made at the time rent is collected and under penalty of perjury upon a form prescribed by the Tax Administrator. Any federal or State of California officer or employee when on official government business claiming such an exemption shall provide to the operator as conclusive evidence that his or her occupancy is for the official business of his or her employer: (1) Travel orders from his or her government employer; or a government warrant issued by his or her employer to pay for the occupancy; or a government credit card issued by his or her employer to pay for the occupancy; and (2) proof of his or her governmental employment as an employee or officer as described in paragraph (1) of this subsection (b), and proof, consistent with these provisions, that his or her occupancy is for the official business of his or her governmental employer. It shall be the duty of an operator to keep and maintain for a period of three (3) years written documentation in support of each exemption granted under this Division 3." SECTION 2. Effective Date. Pursuant to California Constitution Article XIIIC §(2)(b) and California Elections Code §9217, if a majority of the qualified voters voting in the election on Measure vote in favor of the adoption of such measure, this ordinance shall be deemed valid and binding and shall be considered as adopted upon 8 the date that the vote is declared by the City Council, and shall go into effect ten (10) days after that date. SECTION 3. Severability. If any section, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this ordinance. The People of the City of Arcadia hereby declare that they would have adopted this ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 4. Certification/Summary. Following the City Clerk's certification that the citizens of Arcadia have approved this Ordinance, the Mayor shall sign this Ordinance and the City Clerk shall cause the same to be entered in the book of original ordinances of said City; and shall cause the same, or a summary thereof, to be published as required by law. ADOPTED by the People of the City of Arcadia on the 10th day of April, 2012. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 9 Exhibit "B" Draft Resolution calling for the Placement of a General Tax Measure RESOLUTION NO. XXXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA CALLING FOR THE PLACEMENT OF A GENERAL TAX MEASURE ON AN ALL MAIL BALLOT TO BE HELD AT THE APRIL 10, 2012 GENERAL MUNICIPAL ELECTION FOR THE SUBMISSION TO THE QUALIFIED VOTERS OF A PROPOSED ORDINANCE AMENDING THE CITY'S TRANSIENT OCCUPANCY TAX BY INCREASING THE TAX RATE FROM 10% TO %, EXTENDING THE PERIOD OF TRANSIENCY SUBJECT TO THE TAX FROM 30 TO 90 DAYS, ADDRESSING ONLINE TRAVEL COMPANY BOOKINGS, AND MAKING VARIOUS CONFORMING CHANGES. WHEREAS, pursuant to Section 9222 of the California Elections Code, the City Council has authority to place propositions on the ballot to be considered at a Municipal Election; and WHEREAS, pursuant to Article II, Chapter 6, Part 6 of the Arcadia Municipal Code (A.M.C. §§2661 — 2664.9), the City currently imposes a Transient Occupancy Tax ("TOT") at the rate of ten percent (10%) upon guests of hotels and other transient accommodations within the City; and WHEREAS, the City Council desires to increase the rate for the TOT to a total of percent (_%) to be imposed upon the guests of hotels and other transient accommodations located within the City; and [AMENDING RATE?] WHEREAS, the City Council desires to amend the Arcadia Municipal Code to extend the period of transiency subject to the imposition and collection of the TOT from 30 days to 90 days;and WHEREAS, the City Council desires to amend the Arcadia Municipal Code to allow for the imposition and collection of the TOT on the full rent charged to a guest for hotel occupancy, whether the occupancy is booked directly by the guest, through the guest's employer or agent, or through online travel companies which enable guests to 1 purchase occupancy via the Internet, or by similar electronic means; and WHEREAS, the TOT is a general tax the proceeds of which are deposited into the City's general fund. The general fund pays for essential City services such as police protection, fire and paramedic services, street operations and maintenance, library services, parks and recreation services and general municipal services to the public; and WHEREAS, on November 6, 1996, the voters of the State of California approved Proposition 218 (California Constitution, Article XIIIC), an amendment to the State Constitution which requires that all general taxes which are imposed, extended or increased must be submitted to the electorate and approved by a majority vote of the qualified electors voting in the election; and WHEREAS, an increase in the TOT rate constitutes an "increase" in the TOT under Proposition 218; and [AMENDING RATE?] WHEREAS, the amendments proposed in the attached ordinance extending the period of transiency that may be subject to the TOT from 30 days to 90 days may be characterized as an "increase" in the TOT under Proposition 218; and WHEREAS, the amendments proposed in the attached ordinance which apply the TOT rate to the total rent charged to a guest for occupancy in a hotel (including any retail markup and other charges imposed through purchase of occupancy through an employer, agent or on-line travel company) may also be characterized as an "increase" in the TOT under Proposition 218; and WHEREAS, pursuant to Proposition 218 (California Constitution Article XIIIC, §2(b)), any election for the approval of an increase to a general tax must be 2 consolidated with a regularly scheduled general election for members of the governing body of the local government; and WHEREAS, pursuant to the Arcadia City Charter, Section 1100, the City's General municipal elections for the election of officers are held on the second Tuesday in April in each even-numbered year. Therefore, the next regularly scheduled General Municipal Election for the election of members of the City Council will be held on Tuesday, April 10, 2012; and WHEREAS, pursuant to California Elections Code, Section 4000 and Arcadia Municipal Code, Section 1703, the City Council may, by resolution, authorize the election on this Measure to be conducted by all-mail ballot; and WHEREAS, the City Council desires to submit to the voters, via an all mail ballot, at the April 10, 2012 General Municipal Election one ballot proposition, entitled: "Shall an ordinance amending the Arcadia Municipal Code i° Increase the rate for the City's transient occupancy tax from 10% to ' % of the rent charged by hotel operators, including online travel companies, for the transient ;occupancy of any hotel room, and to extend the period of transiency subject to the tax from 30 days to 90 days, be adopted to help the City preserve general City services`;such as police and fire protection?" [TO BE REVISED.AS APPROPRIATE] NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. Findings. The City Council finds that all of the preceding recitals are true and correct and are hereby incorporated and adopted as findings and 3 determinations by the City Council as if fully set forth herein. SECTION 2. Calling and Giving Notice of General Municipal Election. The City Council hereby calls and gives notice of a General Municipal Election to be held on Tuesday, April 10, 2012 to be conducted by all mail ballot in the City of Arcadia, County of Los Angeles. SECTION 3. Submission of Measure. Pursuant to applicable requirements of the laws of the State of California, the City Council hereby orders the ordinance attached hereto as Exhibit "A" and by this reference incorporated herein and made an operative part hereof, to be submitted to the voters of the City at the General Municipal Election by all mail ballot, to be held on Tuesday, April 10, 2012: SECTION 4. The ballot proposition shall be presented and printed upon the ballot submitted to the voters in the manner and form set forth in this Section 4. On the ballot to be submitted to the qualified voters at the City General Municipal Election to be held on Tuesday, April 10, 2012, in addition to any other matters required by law, there shall be printed substantially the following: "Shull an ordinance amrending the Arcadia YES Municipal Cod �mn a the rate for the City's transient occupx ncy ta from 10% to 'of the l ch � x �hotel operators, including online travel companies, for the transient occupancy,of any hotel'room, and to extend the period of transiency subjects to the tax,''from`3u days to 90 days, be 'adopted to help the City preserve general Cily. services such as police and fire protection?" [TO BE REVISED AS APPROPRIATE] NO 4 SECTION 5. Conduct of Election. The City Clerk is authorized, instructed and directed to procure and furnish any and all official ballots, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election by all mail ballot. In all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections. SECTION 6. That pursuant to the City of Arcadia Municipal Code, and other applicable provisions of the City Charter and Ordinances of the City of Arcadia, said General Election shall be conducted by all mail ballot, and shall be conducted pursuant to Chapter 2 of Division 4 (commencing with Section 4100) of the California Elections Code only insofar as required by law, and only where not inconsistent with the Charter and Ordinances of the City of Arcadia. Notwithstanding Elections Code Section 4103, ballots cast in this General Election shall be returned to the Office of the City Clerk no later than ! p.m. on election day. Only ballots received in the Office of the City Clerk by p.m. on election day shall be counted. [UNDER ELECTIONS CODE 4113, DEADLINE IS 8 ISM„ ON ELECTION DAY, BUT CITE COUNCIL MAY SET DIFFERENT DEADLINE] SECTION 7. Notice of Election. Notice of the time and place of holding the election is hereby given, and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 8. Impartial Analysis. Pursuant to California Elections Code Section 9280, the City Council hereby directs the City Clerk to transmit a copy of the measure to 5 the City Attorney. The City Attorney shall prepare an impartial analysis of the measure, not to exceed 500 words in length, showing the effect of the measure on the existing law and the operation of the measure, and transmit such impartial analysis to the City Clerk within ten (10) days following the adoption of this Resolution. SECTION 9. Certification. The City Clerk shall certify to the adoption of this Resolution. SECTION 10. Filing with County. The City Clerk shall, not later than the 88th day prior to the General Municipal Election to be held on Tuesday, April 10, 2012, file with the Board of Supervisors and the County Clerk — Registrar of Voters of the County of Los Angeles, State of California, a certified copy of this Resolution. SECTION 11. Public Examination. Pursuant to California Elections Code §9295, this measure will be available for public examination for no fewer than ten (10) calendar days prior to being submitted for printing in the sample ballot. The examination period will end on the day that is seventy-five (75) days prior to the date set for the election. The Clerk shall post notice in the Clerk's office of the specific dates that the examination period will run. [SIGNATURES ON NEXT PAGE] 6 Passed; approved and adopted this day of , 2011. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 7