Chapter 4.48 — BUSINESS IMPROVEMENT MANAGEMENT DISTRICTS

This chapter may be referred to as the "the city of Oakland business improvement management district ordinance."

(Ord. 12190 § 1, 1999)

Whenever the public interest or convenience may require, the city council of the city assist specifically defined and boundaried commercial districts of the city in the formation of business improvement management districts. The city shall determine and declare the district to be benefitted by the improvements, maintenance and activities including all expenses incurred incidentally thereto, upon the lots or parcels of real property in proportion to the estimated benefits to be received, as specified in the management district plan.

(Ord. 12190 § 2, 1999)

The procedures established in this Chapter shall be additional or alternative to any other procedure established by ordinance or state law. The election to proceed under this Chapter shall be expressed in the

resolution of intention to form the district which shall be referred to as a business improvement management district ("BIMD" or "district").

(Ord. 12190 § 3, 1999)

"Activities" which benefit real property located in the district, means, but is not limited to, all of the following:

Promotion of public events which benefit businesses or real property in the district;

Furnishing of music in any public place within the district;

Promotion of tourism within the district;

Marketing and economic development, including business retention and recruitment;

Providing security, sanitation, graffiti removal, street and sidewalk cleaning and other municipal services supplemental to those normally provided by the municipality.

"Improvement" means the acquisition, construction, installation, or maintenance of any tangible property with an estimated useful life of five years or more including, but not limited to, the following:

Parking facilities;

Benches, booths, kiosks, display cases, pedestrian shelters and signs, trash receptacles and public restrooms;

Lighting and heating facilities;

Decorations;

Fountains;

Planting areas;

Minor modification of existing streets;

Facilities or equipment or both, to enhance security of persons and property within the area; ramps, sidewalks, plazas, town centers or pedestrian malls;

Rehabilitation or removal of existing public structures;

Installation or planting of landscaping;

The installation or construction of statuary, fountains and other ornamental structures and facilities;

The installation or construction of any facilities which are appurtenant to any of the foregoing or which are necessary or convenient for the maintenance or servicing thereof, including, but not limiting to, grading, clearing, removal of debris, the installation or construction of curbs, gutters, walls, sidewalks or paving, or water, irrigation, drainage or electrical facilities;

"Maintain" or "maintenance" means the furnishing of services and materials for the ordinary and usual maintenance, operation, and servicing of any improvement, including:

Repair, removal, or replacement of any part of the improvement;

Providing for the life, growth, health and beauty of landscaping including cultivation, irrigation, trimming, spraying, fertilizing, or treating for disease or injury;

The removal of trimmings, rubbish, debris and other solid waste;

The cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti.

(Ord. 12190 § 4, 1999)

A.

Upon the submission of written petitions, signed and acknowledged by of the property owners in the proposed district who will pay more than 30 percent of the assessments proposed to be levied, the City Council may initiate proceedings to form a district by the adoption of a resolution expressing its intention to form a district.

B.

The petition of property owners required under subdivision A shall include a summary of the Management District Plan. That summary shall include all of the following:

A map showing the boundaries of the proposed district;

Information specifying where the complete Management District Plan can be obtained at no cost;

A list of all affected parcels showing the corresponding amount of the proposed assessments;

A summary of the activities, improvements, and/or services that would be funded by the proposed assessment;

The proposed duration of the proposed district;

The amount of proposed annual assessment increases and any annual cap; and

The proposed first-year budget to pay for proposed activities, improvements, and/or services that will be provided.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 5, 1999)

The management district plan to be submitted before the City Council can take any action on the establishment of a BIMD under this Chapter shall contain all of the following:

A.

A map of the district in sufficient detail to locate each parcel of property within the district;

B.

The name of the proposed district;

C.

A description of the boundaries of the district, including the boundaries of any benefit zones, proposed for the establishment or extension of the district in a manner sufficient to identify the lands included. Under no circumstances shall the boundaries of a proposed district overlap with the boundaries of another existing district created pursuant to this part. Nothing in this part prohibits the boundaries of a district created pursuant to this part to overlap with other assessment districts established pursuant to other provisions of law including, but not limited to, the Parking and Business Improvement Area Law of 1989;

D.

The improvements and activities proposed for each year of operation of the district and the maximum cost thereof;

E.

The total annual amount proposed to be expended for improvements, maintenance and operations;

F.

The proposed source or sources of financing including the proposed method and basis of levying the assessment in sufficient detail to allow each property owner to calculate the amount of the assessment to be levied against his or her property;

G.

The time and manner of collecting the assessments;

H.

Any proposed rules and regulations to be applicable to the district.

(Ord. 12190 § 6, 1999)

A.

The City Council shall identify all parcels which will have a special benefit conferred upon them and upon which an assessment will be imposed. The proportionate special benefit derived by each identified parcel

shall be determined in relationship to the entirety of the capital cost of a public improvement or the maintenance and operation expense of a public improvement or for the cost of the property service being provided. No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel. Parcels within a district that are owned or used by any governmental agency, the state, or the United States shall not be exempt from assessment unless the City Council finds that it has been demonstrated, by clear and convincing evidence, that such publicly owned parcels in fact receive no special benefit.

B.

All assessments must be supported by a detailed engineer's report prepared by a registered professional engineer certified by the state. The engineer's report may be incorporated in the management district plan.

C.

The amount of the proposed assessment for each identified parcel shall be calculated and the recorded owner of each parcel shall be given written notice by mail of the proposed assessment, the total amount thereof chargeable to the entire district, the amount chargeable to the owner's particular parcel, the duration of such payments, the reason for such assessment and the basis upon which the proposed assessment was calculated together with the date, time and location of a public hearing on the proposed assessment.

D.

Each notice shall also include, in a conspicuous place thereon, a summary of the procedures applicable to the completion, return and tabulation of the ballots required including a disclosure statement that the existence of a majority protest will result in the assessment not be imposed.

E.

Each such notice mailed to owners of identified parcels within the district shall contain a ballot which includes the agency's address for receipt of any such ballot once completed by any owner receiving such notice whereby each such owner may indicate his or her name, reasonable identification or the parcel and support or opposition to the proposed assessment.

F.

The City Council shall conduct a public hearing upon the proposed assessment not less than forty-five (45) days after mailing the notice of the proposed assessment to record owners of each identified parcel. At the public hearing, the agency shall consider all protests against the proposed assessment and tabulate the ballots. The City Council shall not impose an assessment if there is a majority protest.

G.

A majority protests exists if, upon the conclusion of the hearing, ballots submitted in opposition to the assessment exceed the ballots submitted in favor of the assessment. In tabulating the ballots, the ballots shall be weighted in proportion to the assessment upon the affected property.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 7, 1999)

Before the City Council can establish a BIMD pursuant to this Chapter, the City Council shall pass a resolution declaring its intention to do so. Such resolution, in addition to all other matters it is herein required to contain, shall briefly describe the proposed improvements, state the period of time, which shall not exceed twenty (20) years, for which the proposed improvements are to be made, and contain a description of the district to be benefited thereby and to be assessed to pay the costs and expenses thereof. The resolution of intention shall further do all of the following:

A.

State that a BIMD is proposed to be established pursuant to this Chapter and describe the boundaries of the proposed district and boundaries of each separate benefit zone to be established within the district. The boundaries may be described by reference to the map and description contained in the preliminary report of the City Administrator on file in the office of the City Clerk;

B.

State the name of the proposed district;

C.

State the type or types of improvements and activities proposed to be funded by the levy of assessments on property owners within the district, including any improvements to be acquired;

D.

State the amount of the proposed assessment for the entire district, the amount chargeable to the owner's particular parcel, the duration of the payments, the reason for such assessment and the basis upon which the proposed assessment was calculated;

E.

State the date, time and location of a public hearing on the proposed assessment;

F.

Include a ballot as described in Section 4.48.070.E;

G.

State, in a conspicuous place, a summary of the procedures applicable to the completion, return and tabulation of the ballots, including a disclosure statement that the existence of a majority protest will result in the assessment not being imposed;

H.

State that the public hearing the testimony of all interested persons for or against the establishment of the district, the boundaries of the district, or the furnishing of specified types of improvements or activities will be heard;

I.

Refer to the preliminary report of the City Administrator on file in the office of the City Clerk;

J.

State the manner of collection of the assessment.

(Ord. No. 13821, § 1, 12-3-2024; Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 8, 1999)

Before the City Council can take any action on such resolution of intention, the City Administrator shall prepare and file a report in writing, proposing that the proceeding be commenced as requested in the petition, designating the plans and specifications of the proposed maintenance, improvements and activities for the proposed district and an estimate of the cost and expenses of said work for each year during which the proposed work will be done; including a certified engineer's report stating the district establishment is consistent with the provisions of Article XIII of the State Constitution in that each lot or parcel within said district to be assessed is being assessed in proportion to the estimated benefit to be received; and containing a diagram showing the boundaries of the proposed assessment district and each lot or parcel of land within said district proposed to be assessed.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 9, 1999)

Editor's note— Ord. No. 13322, § 2, adopted July 21, 2015, changed the title of Section 4.48.090 from "Preliminary report of the City Clerk" to "Preliminary report of the City Administrator." The historical notation has been preserved for reference purposes.

Upon a demonstrated show of support, through petition, of more than thirty percent (30%) of the weighted property owners who will pay into the proposed assessment district, the City Administrator will bring the issue of the proposed district to the City Council.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 10, 1999)

A.

A complete copy of the resolution of intention shall be mailed by first-class mail to each property owner in the proposed district, and to each local chamber of commerce and business organization known by the City Council to be located within the proposed district, no later than forty-five (45) days before the public hearing.

B.

In addition to first class mailed notice to each property owner, chamber of commerce and business organization within the proposed district, the City Council shall publish the Resolution of Intention in a newspaper of general circulation in the City once, at least seven (7) days before the public hearing.

(Ord. 12190 § 11, 1999)

A.

At any time prior to the date set for hearing protests, any person affected by the proposed assessment may make a written protest stating his or her objections thereto. Such protests must contain the information contained in the ballot mailed to the property owner in sufficient detail to allow the City Clerk and/or its designee to identify the owner, the parcel and the amount of the proposed assessment.

B.

At the time set for hearing protests, or any time to which the hearing may be continued, the City Council shall proceed to hear and pass up on all such protests. The City Council shall not impose an assessment if there is a majority protest as defined in Subsection 4.48.120.B.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 12, 1999)

Following adoption of the resolution of intention, the City Clerk shall record a notice and map describing the assessment district pursuant to California Streets and Highways Code Division 4.5 (commencing with Section 3100). All the provisions of that Division 4.5 apply to the district established pursuant to this Chapter.

(Ord. 12190 § 13, 1999)

Not earlier than thirty (30) days after the adoption of the resolution of intention to establish the proposed district and if there is no majority protest as described in Section 4.48.120, and after effective date of the resolution of intention, the City Council shall adopt a resolution establishing the district, consistent with the resolution of intention. The adoption of the resolution establishing the district and levying the assessment, or if the district has been previously established, levying the new assessment, and recordation of the notice and map pursuant to Section 4.48.130, shall constitute the levy of an assessment in each of the fiscal years referred to in the management district plan. This resolution shall contain all of the following:

A.

The management district plan;

B.

The number, date of adoption, and title of the resolution of intention;

C.

The time and place where the public hearing was held concerning the establishment of the district or the levying of a new assessment;

D.

A determination regarding any protests received;

E.

A state that a BIMD has been established;

F.

A statement that the improvements and activities to be provided in the district will be funded by the levy of assessments. The revenue from the levy of assessments within a district shall not be used to provide improvements or activities outside the district or for any purpose other than the purposes specified in the resolution of intention, as modified by the City Council at the hearing concerning the establishment of the district;

G.

A finding that the property within the BIMD will be benefited by the improvements and activities funded by the assessment to be levied.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 14, 1999)

The validity of an assessment levied under the provisions of this Chapter shall not be contested in any action or proceeding unless the same is commenced within thirty (30) days after the time said assessment is levied, and any appeal from a final judgment in such action or proceeding must be perfected within thirty (30) days after entry of such judgment.

(Ord. 12190 § 15, 1999)

The City Administrator and/or his/her designee shall administer the BIMD. The property owners at the time of balloting for the assessment ballot procedure shall determine whether they want the City to conduct or contract for some or all of the landscaping, security, programming or maintenance activities or improvements for the district or whether they want the City to contract with a designated nonprofit organization, comprised of the assesses themselves, to conduct the landscaping, security programming or maintenance activities or improvements. Any nonprofit corporation designated by the property owners shall enter into a contract with the City which will set forth the responsibilities and contractual obligations of the parties.

(Ord. No. 13322, § 2, 7-21-2015; Ord. 12190 § 16, 1999)

The city may advance funds for the first quarter of a new district so that the district can commence work prior to the initial collection of the assessments. The funds advanced will not exceed one quarter of the

total assessment for the first year. The funds advanced will then be deducted from the first year's assessment collections.

(Ord. 12190 § 17, 1999)

The collection of assessments levied pursuant to this Chapter shall be made at the time and in the manner sit forth by the City Council in the resolution of intention. The assessment may be collected at the same time and in the same manner as for the ad valorem property tax, and may provide for the same lien priority and penalties for delinquent payment.

(Ord. 12190 § 18, 1999)

A.

Before adopting a resolution establishing the district, the City Council shall appoint an advisory board which shall make a recommendation to the City Council on the expenditure of revenues derived from the levy of assessments, on the classification of properties applicable, and on the method and basis of levying the assessments. The City Council may designate existing advisory boards or commissions to serve as the advisory board for the district or may create a new advisory board for that purpose. At least one member of the advisory board shall be a business licensee within the district who is not also a property owner within the district.

B.

Any advisory board appointed by the City Council pursuant to subsection A of this Section shall comply with provisions of the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division of Title 5 of the Government Code).

(Ord. 12190 § 19, 1999)

A.

The advisory board shall cause to be prepared a report of each fiscal year for which assessments are to be levied and collected to pay the costs of the improvements and activities described in the report. The report may propose changes, including, but not limited to, the boundaries of the BIMD or any benefit zones within the district, the basis and method of levying the assessments, and any changes in the classification of property, if a classification is used.

B.

The report shall be filed with the City Clerk and shall refer to the BIMD by name, specify the fiscal year to which the report applies, and with respect to that fiscal year, shall contain all of the following information:

Any proposed changes in the boundaries of the BIMD or in any benefits zones within the district;

The improvements and activities to be provided for that fiscal year;

An estimate of the cost of providing the improvements and the activities for that fiscal year;

The method and basis of levying the assessment in sufficient detail to allow each real property owner to estimate the amount of the assessment to be levied against his or her property for that fiscal year;

The amount of any surplus or deficit revenues to be carried over from a previous fiscal year;

The amount of any contributions to be made from sources other than assessments levied pursuant to this part.

C.

The City Council may approve the report as filed by advisory board or may modify any particular contained in the report and approve it as modified. Any modification shall be made pursuant to Section 4.48.140, except that any proposed increase in the amount of the levy above levels previously noticed and approved must be approved as provided in Sections 4.48.070 through 4.48.140. The City Council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessment.

(Ord. 12190 § 20, 1999)

A.

Request for Modification of Management District Plan. The advisory board may, at any time, request that the City Council modify the management district plan. Any modification of the management district plan shall be made pursuant to this Section.

B.

Modification by Adoption of Resolution—Written Request of Advisory Board—Hearing.

Upon the written request of the advisory board, the City Council may modify the management district plan by adopting a resolution after holding hearings on the proposed modification pursuant to Sections 4.48.070

through 4.48.140.

The City Council shall adopt a resolution of intention which states the proposed modification prior to the public hearing required by this Section. The public hearing shall be held not more than sixty (60) days after the adoption of the resolution of intention. Notice of the public hearing shall be provided in Section

C.

Modification of Improvements and Activities Funded—Adoption of Resolution—Hearing.

The City Council may modify the improvements and activities to be funded with the revenue derived from the levy of the assessments by adopting a resolution determining to make the modifications after holding a public hearing on the proposed modifications. Notice of the public hearing and the proposed modifications shall be published as provided in Section 4.48.110.

The public hearing shall be conducted as provided in Section 4.48.120.

D.

Subsequent Modification of Resolution—Refection in Notices and Maps. Any subsequent modification of the resolution shall be reflected in subsequent notices and maps recorded pursuant to Division 4.5 (commencing with Section 3100 of the California Streets and Highways Code).

(Ord. 12190 § 21, 1999)

A.

Any district established or extended pursuant to the provisions of this Chapter, where there is no indebtedness, outstanding and unpaid, incurred to accomplish any of the purposes of the district, may be disestablished by resolution of the City Council in either of the following circumstance:

If the City Council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district, it shall notice a hearing on disestablishment. The notice and hearing shall be held pursuant to Sections 4.48.110 and 4.48.120.

During the operation of the district, there shall be a thirty (30) day period each year in which the assessed property owners may request disestablishment of the district. The first such period shall begin one year

after the date of establishment of the district and shall continue for a thirty (30) day period. The next such thirty (30) day period shall begin two years after the date of the establishment of the district. Each successive year of operation of the district shall have such a thirty (30) day period. Upon the written petition of the owners of real property in the area who pay thirty (30) percent or more of the assessments levied, the City Council shall notice a hearing on disestablishment. The notice and hearing shall be held pursuant to Sections 4.48.110 and 4.48.120.

B.

The City Council shall adopt a resolution of intention to disestablish the district prior to the public hearing required by this Section. The resolution shall state the reason for the disestablishment, shall state the time and place of the public hearing, and shall contain a proposal to dispose of any assets acquired with the revenues of the assessments levied within the property and business improvement district. The public hearing shall be held not less than thirty (30) or more than sixty (60) days after the adoption of the resolution of intention. Notice of the public hearing shall be published as provided in Section 4.48.110.

C.

Upon the disestablishment of a district, any remaining revenues derived from the levy of assessments, or any revenues derived from the sale of assets acquired with the revenues, shall be refunded to the owners of the property then located and operating within the district in which assessments were levied by applying the same method and basis that was used to calculate the assessments levied in the fiscal year in which the district was disestablished. If the disestablishment occurs before and assessment is levied for the fiscal year, the method and basis that was used to calculate the assessment levied in the immediate prior fiscal year shall be used to calculate the amount of refund.

D.

Notice of the disestablishment of a district shall be published once in a newspaper of general circulation in the city, not later than fifteen (15) days after the resolution disestablishing the district is adopted.

(Ord. 12190 § 22, 1999)