3.04 Transient Room Tax

　Chapter 3.04

Sections:
3.04.010 Definitions.
3.04.020 Tax imposed.
3.04.030 Collection of tax by operator—Rules for collection.
3.04.040 Operator's duties.
3.04.050 Exemptions.
3.04.060 Registration of operator - Form and contents - Execution - Certification of authority.
3.04.070 Due date - Returns and payments.
3.04.080 Penalties and interest.
3.04.090 Deficiency determinations - Evasion - Operator delay.
3.04.100 Redeterminations.
3.04.110 Security for collection of tax.
3.04.120 Security interest.
3.04.130 Refunds.
3.04.140 Administration.
3.04.150 Appeal to the City Council.
3.04.160 Violations.
3.04.170 Penalties.

3.04.010 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of this chapter.
    "Accrual accounting" means the operator enters the rent due from a transient on his or her records when the rent is earned, whether or not it is paid.
    "Cash accounting" means the operator does not enter the rent due from a transient on his or her records until rent is paid.
    "City Council" means the City Council of the City of Waldport, Oregon.
    "Hotel" means any structure, or any portion of any structure which is occupied or intended or designed for transient occupancy for thirty (30) days or less for dwelling, lodging, or sleeping purposes, and includes any hotel, motel, inn, condominium, tourist home or house, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, public or private dormitory, fraternity, sorority, public or private club, and also means space in mobile home or trailer parks, or similar structure or space or portions thereof so occupied, provided such occupancy is for less than a thirty (30) day period.
    "Occupancy" means the use or possession, or the right to the use or possession for lodging or sleeping purposes of any room or rooms in a hotel, or space in a mobile home or trailer park or portion thereof.
    "Operator" means the person who is the proprietor of the hotel in any capacity. Where the operator performs his or her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this chapter and shall have the same duties and liabilities as his or her principal. Compliance with the provision of this chapter by either the principal or the managing agent shall be considered to be compliance by both.
    "Person" means any individual, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate or any other group or combination acting as a unit.
    "Rent" means the consideration charged, whether or not received by the operator, for the occupancy of space in a hotel, valued in money, goods, labor, credits, property or other consideration valued in money, without any deduction, but shall not include charges to a condominium unit owner which are solely for cleaning or maintenance of such unit or personal use or for occupancy by such owner, so long as the charges are made in connection therewith for space occupancy.
    "Rent package plan" means the consideration charged for both food and rent for transient lodging where a single combined charge is made for both food and lodging, or where food and lodging are offered as a package, whether offered by an establishment of the type commonly known as a "bed and breakfast," offered by a conventional hotel facility in conjunction with a restaurant, or otherwise. The entire amount charged for the "rent package plan" shall be allocated to rent for the purposes of this chapter, and subject to room tax hereunder, unless the lodging which is offered as a part of the rent package plan is also offered and available independently of any food or meal and the charge for each is separately stated, in which case the amount allocated to rent, and subject to tax hereunder, shall be charged which would be made for the lodging if purchased separately from any food or meals.
    "Tax" means either the tax payable by the transient or the aggregate amount of taxes due from an operator during the period for which he or she is required to report his or her collections.
    "Tax administrator" means the City Recorder of the City of Waldport, Oregon.
    "Transient" means any individual who exercises occupancy or is entitled to occupancy in a hotel for a period of thirty (30) consecutive calendar days or less, counting portions of calendar days as full days. The day a transient checks out of the hotel shall not be included in determining the thirty (30) day period if the transient is not charged rent for that day by the operator. Any such individual so occupying space in a hotel shall be deemed to be a transient until the period of thirty (30) days has expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy, or the tenancy actually extends more than thirty (30) consecutive days. 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. A person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient. (Ord. 582 §§ 1—3, 1991; Ord. 365 § 1, 1976)

3.04.020 Tax imposed.
For the privilege of occupancy in any hotel, each transient shall pay a tax in the amount of seven percent of the rent charged by the operator. The tax constitutes a debt owed by the transient to the City which is extinguished only by payment by the operator to the City. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. The operator shall enter the tax on his or her records when rent is collected if the operator keeps his or her records on the cash accounting basis and when earned if the operator keeps his or her records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax shall be paid by the transient to the operator with each installment. In all cases, the rent paid or charged for occupancy shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms, accommodations, and space occupancy in mobile home parks or trailer parks. Any delinquency for transient room tax which continues for more than thirty days shall also become a lien against the real property used for transient lodging upon which the transient room tax has been assessed. The lien shall be entered in the lien docket of the City and shall remain accessible for inspection by anyone interested in ascertaining the amount of the lien against the property. Whenever transient room taxes remain unpaid for ninety days after due, the lien created may be foreclosed in any manner provided for by general State laws and/or City ordinances. (Ord. 681 § 1, 2002; Ord. 675 § 1, 2001; Ord. 582 § 4, 1991; Ord. 365 § 2, 1976 )

3.04.030 Collection of tax by operator - Rules for collection.
    A. Every operator renting rooms or space for lodging or sleeping purposes in this City, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owing by the operator to the City.
    B. In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made. Adjustments may be made for uncollectibles.
    C. The tax administrator shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement.
    D. For rent collected on portions of a dollar, fractions of a penny of tax shall not be remitted.
    E. In instances where credit is extended to the transient for charges for the rental of the unit through the use of a credit card or other similar transaction whereby the amount paid to the operator is discounted by contract between the operator and the issuer of the credit card, the amount of such discount shall be excluded from the definition of "rent" and no tax shall be imposed on the amount so discounted.
    F. The operator, after calculating the taxable rents and the tax thereon, may deduct a collection fee of 7.5% from the total tax due as compensation for required accounting and recordkeeping. (Ord. 681 § 2, 2002; Ord. 582 § 5, 1991; Ord. 365 § 3, 1976)

3.04.040 Operator's duties.
Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from every transient. The amount of tax shall be separately stated upon the operator's records, and any receipt rendered by the operator. No operator of a hotel shall advertise that the tax or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except in the manner provided by this chapter. (Ord. 365 § 4, 1976)

3.04.050 Exemptions.
No tax imposed under this chapter shall be imposed upon:
    A. Any occupant for more than thirty (30) successive calendar days; (a person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient);
    B. Any occupant whose rent is of a value less than two dollars per day;
    C. Any person who rents a private home, vacation cabin, or like facility from any owner who rents such facilities incidentally to his or her own use thereof;
    D. Any occupant whose rent is paid for hospital room or to a medical clinic, convalescent home or home for the aged people, or to a public institution owned and operated by a unit of government. (Ord. 365 § 5, 1976)

3.04.060 Registration of operator - Form and contents - Execution - Certification of authority.
Every person engaging or about to engage in business as an operator of a hotel in this City shall register with the tax administrator on a form provided by him or her. Operators engaged in business at the time the ordinance codified in this chapter is adopted must register not later than thirty (30) calendar days after passage of this chapter. Operators starting business after the ordinance codified in this chapter is adopted must register within fifteen (15) days after commencing business. The privilege of registration after the date of imposition of such tax shall not relieve any person from the obligation of payment or collection of tax regardless of registration. Registration sets forth the name under which the operator transacts or intends to transact business, the location of his or her place or places of business and such other information to facilitate the collection of the tax as the tax administrator may require. The registration shall be signed by the operator. The tax administrator shall, within ten (10) days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business of each registrant. Certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the tax administrator upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy.
    Said certificate shall, among other things, state the following:
    A. The name of the operator;
    B. The address of the hotel;
    C. The date upon which the certificate was issued;
    D. "This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Lodging Tax Ordinance of the City of Waldport by registration with the tax administrator for the purpose of collecting from transients the lodging tax imposed by said City and remitting said tax to the tax administrator. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, or to operate a hotel without strictly complying with all local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of the City of Waldport. This certificate does not constitute a permit." (Ord. 365 § 6, 1976)

3.04.070 Due date - Returns and payments.
    A. The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of such taxes collected by any operator less the cost charged by credit card companies when credit cards are used as consideration for occupancy are due and payable to the tax administrator on a quarterly basis on the fifteenth day of the following month for the preceding three months; and are delinquent on the last day of the month in which they are due. The tax administrator has authority to classify and/or district the operators for determination of applicable tax periods, and shall notify each operator of the due and delinquent dates for the operator's returns. The initial return under this chapter may be for less than the three months preceding the due date; thereafter returns shall be made for the applicable quarterly period.
    B. On or before the fifteenth day of the month following each quarter of collection, a return for the preceding quarter's tax collections shall be filed with the tax administrator. The return shall be filed in such form as the tax administrator may prescribe by every operator liable for payment of tax.
    C. Returns shall show the amount of gross tax collected less the cost charged by credit card companies when credit cards are used as consideration for occupancy, or otherwise due for the related period. The tax administrator may require returns to show the total rentals upon which tax was collected or otherwise due, gross receipts of operator for such period and an explanation in detail of any discrepancy between such amounts, and the amount of rents exempt, if any.
    D. The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the tax administrator at his or her office, either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.
    E. For good cause, the tax administrator may extend for not to exceed one month, the time for making any return or payment of tax. No further extension shall be granted, except by the City Council. Any operator to whom an extension is granted shall pay interest at the rate of one-half of one percent per month on the amount of tax due without proration for a fraction of a month. If a return is not filed, and the tax and interest due is not paid by the end of the extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.
    F. The tax administrator, if he or she deems it necessary in order to insure payment or facilitate collection by the City of the amount of taxes in any individual case, may require returns and payment of the amount of taxes for other than quarterly periods. (Ord. 582 § 6, 1991; Ord. 365 § 7, 1976)

3.04.080 Penalties and interest.
    A. Original Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay ten (10) percent of the amount of the tax due in addition to the amount of the tax.
    B. Continued Delinquency. Any operator who has not been granted an extension of time for remittance of tax due, and who failed to pay any delinquent remittance on or before a period of thirty (30) days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of fifteen (15) percent of the amount of the tax due plus the amount of the tax and the ten (10) percent penalty first imposed.
    C. Fraud. If the tax administrator determines that the nonpayment of any remittance due under this chapter is due to fraud or intent to evade the provisions thereof, a penalty of twenty-five (25) percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections A and B of this section.
    D. Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one percent per month or fraction thereof without proration for portions of a month, on the amount of the tax due, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
    E. Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall be merged with and become a part of the tax herein required to be paid.
    F. Petition for Waiver. Any operator who fails to remit the tax herein levied within the time herein stated shall pay the penalties herein stated; provided, however, the operator may petition the City Council for waiver and refund of the penalty or any portion thereof and the City Council may, if a good and sufficient reason is shown, waive and direct a refund of the penalty of any portion thereof. (Ord. 582 § 7, 1991; Ord. 365 § 8, 1976)

3.04.090 Deficiency determinations - Evasion - Operator delay.
    A. Deficiency Determinations. If the tax administrator determines that the returns are incorrect, he or she may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns, or upon the basis of any information within his or her possession or that may come into his or her possession. One or more deficiency determination may be made of the amount due for one, or more than one, period, and the amount so determined shall be due and payable immediately upon service of notice as herein provided after which the amount determined is delinquent. Penalties on deficiencies shall be applied as set forth in Section 3.04.080 of this chapter.
    1. In making a determination the tax administrator may offset overpayments, if any, which may have been previously made for a period or periods, against any underpayment for a subsequent period or periods, or against penalties and interest on the underpayments. The interest on underpayments shall be computed in the manner set forth in Section 3.04.080 of this chapter.
    2. The tax administrator shall give to the operator or occupant a written notice of his or her determination. The notice may be served personally or by mail. If by mail, the notice shall be addressed to the operator at his or her address as it appears on the records of the tax administrator. In case of service by mail of any notice required by this chapter, it shall be served by mailing such notice by registered mail, postage prepaid, return receipt requested.
    3. Except in the case of fraud or intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the quarterly period for which the amount is proposed to be determined or with three years after the return is filed, whichever period expires the later.
    4. Any determination shall become due and payable immediately upon receipt of notice and shall become final within twenty (20) days after the tax administrator has given notice thereof, provided, however, the operator may petition redemption and refund if the petition is filed before the determination become final as herein provided.
    B. Fraud, Refusal to Collect, Evasion. If any operator shall fail or refuse to collect said tax or to make within the time provided in this chapter any report or remittance of said tax or any portion thereof required by this chapter, or makes a fraudulent return or otherwise willfully attempts to evade this chapter, the tax administrator shall proceed in such manner as he or she may deem best to obtain the facts and information on which to base an estimate of the tax due. As soon as the tax administrator has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit said tax, he or she shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the tax administrator shall give a notice in the manner aforesaid of the amount so assessed. Such determination and notice shall be made and mailed within three years of the discovery by the tax administrator of any fraud, intent to evade or failure or refusal to collect said tax, or failure to file return. Any determination shall become due and payable upon receipt of notice and shall become final within twenty (20) days after the tax administrator has given notice thereof, provided, however, the operator may petition for redemption refund if the petition is filed before the determination becomes final as herein provided.
    C. Operator Delay. If the tax administrator believes that the collection of any tax or any amount of tax required to be collected and paid to the City will be jeopardized by delay, or if any determination will be jeopardized by delay, he or she shall thereupon make a determination of the tax or amount of tax required to be collected, noting the fact upon the determination. The amount so determined as herein provided shall be immediately due and payable, and the operator shall immediately pay such determination to the tax administrator after service of notice thereof; provided, however, the operator may petition, after payment has been made, for redemption and refund of such determination, if the petition is filed within twenty (20) days from the date of service of notice by the tax administrator. (Ord. 365 § 9, 1976)

3.04.100 Redeterminations.
    A. Any person against whom a determination is made under Section 3.04.090 of this chapter or any person directly interested may petition for a redetermination and redemption and refund within the time required in Section 3.04.090 of this chapter. If a petition for redetermination and refund is not filed within the time required in Section 3.04.090 of this chapter, the determination becomes final at the expiration of the allowable time.
    B. If a petition for redetermination and refund is filed within the allowable period, the tax administrator shall reconsider the determination, and if the person has so requested in his or her petition, shall grant the person an oral hearing and shall give him or her twenty (20) days notice of the time and place of the hearing. The tax administrator may continue the hearing from time to time as may be necessary.
    C. The tax administrator may decrease or increase the amount of the determination as a result of the hearing and if an increase is determined such increase shall be payable immediately after the hearing.
    D. The order or decision of the tax administrator upon a petition for redetermination of redemption and refund becomes final twenty (20) days after service upon the petitioner of notice thereof, unless appeal of such order or decision is filed with the City Council within the twenty (20) days after the service of such notice.
    E. No petition for redetermination of redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions hereof. (Ord. 582 § 9, 1991; Ord. 365 § 10, 1976)

3.04.110 Security for collection of tax.
    A. The tax administrator, whenever he or she deems it necessary to insure the compliance with this chapter, may require an operator to deposit with him or her such security in the form of cash, bond or other security as the tax administrator may determine. The amount of the security shall be fixed by the tax administrator but shall not be greater than twice the operator's estimated average quarterly liability for the period for which he or she files returns, determined in such a manner as the tax administrator deems proper, or five thousand dollars ($5,000.00), whichever amount is less. The amount of security may be increased or decreased by the tax administrator subject to limitations herein provided. The operator has a right to appeal to the City Council any decision of the tax administrator made pursuant to this section.
    B. At any time within three years after any tax or any amount of tax required to be collected becomes due and payable or at any time within three years after any determination becomes final, the tax administrator may bring any action in the courts of this State, or any other state, or of the United States in the name of the City to collect the amount delinquent together with penalties and interest. (Ord. 582 § 10, 1991; Ord. 365 § 11, 1976)

3.04.120 Security interest.
As a privilege for conducting a business providing transient lodging within the City of Waldport and to secure payment of the tax collected by the operator to the City of Waldport, the operator, by the act of filing a registration to engage in business as an operator of a hotel in the City of Waldport does irrevocably grant to the City of Waldport a security interest in all tangible personal property of the operator, which security interest shall be effective at the time when the tax imposed by this chapter, together with the interest and penalties herein provided and the filing fees paid to the County Clerk of Lincoln County, Oregon and the advertising costs which may be incurred, becomes delinquent as set forth in this chapter. Upon delinquency as a result of the operator's failure to pay over to the City of Waldport the tax imposed under this chapter, the City may foreclose its security interest in the operator's tangible personal property in such manner as provided by Oregon Revised Statutes Chapter 79. The operator further upon the filing of a registration to conduct a business engaged as a hotel in the City of Waldport grants a special power of attorney-in-fact to the City Recorder for purposes of executing a financing statement to give evidence of the granted security interest at the time of delinquency and authorizes the City Recorder to execute the UCC Financing statement on behalf of the debtor, listing as collateral all tangible personal property of the operator and to file said financing statement with the Oregon Secretary of State and with the Lincoln County Clerk, if appropriate. Any delinquency for transient room tax which continues for more than thirty days shall also become a lien against the real property used for transient lodging upon which the transient room tax has been assessed. The lien shall be entered in the lien docket of the City and shall remain accessible for inspection by anyone interested in ascertaining the amount of the lien against the property. Whenever transient room taxes remain unpaid for ninety days after due, the lien created may be foreclosed in any manner provided for by general State laws and /or City ordinances. (Ord. 675 § 1, 2001: Ord. 582 § 11, 1991: Ord. 365 § 12, 1976)

3.04.130 Refunds.
    A. Refunds by the City to the Operator. Whenever the amount of any tax, penalty, or interest has been paid more than once or has been erroneously or illegally collected or received by the tax administrator under this chapter, it may be refunded, provided a verified claim in writing therefor, stating the specific reason upon which the claim is founded, is filed with the tax administrator within three years from the date of payment. The claim shall be made on forms provided by the tax administrator. If the claim is approved by the tax administrator, the excess amount collected or paid may be refunded or may be credited on any amount then due and payable from the operator from whom it was collected or by whom paid and the balance may be refunded to such operator, his or her administrators, executors or assignees.
    B. Refunds by City to Transient. Whenever the tax required by this chapter has been collected by an operator, and deposited by operator with the tax administrator, and it later determined that the tax was erroneously or illegally collected or received by the tax administrator, it may be refunded by the tax administrator to the transient, provided a verified claim in writing therefor, stating the specific reason on which the claim is founded, is filed with the tax administrator within three years from the date of payment.
    C. Refunds by Operator to Tenant. Whenever the tax required by this chapter has been collected by the operator and it is later determined that the tenant occupies the hotel for a period exceeding thirty (30) days without interruption, the operator shall refund to such tenant the tax previously collected by the operator from that tenant as transient. The operator shall account for such collection and refund to the tax administrator. If the operator has remitted the tax prior to the refund or credit to the tenant, he or she shall be entitled to a corresponding refund under this section. (Ord. 365 § 13, 1976)

3.04.140 Administration.
    A. Records Required From Operators, Etc. Every operator shall keep guest records of room sales and accounting books and records of the room sales. All records shall be retained by the operator for a period of three years and six months after they come into being.
    B. Examination of Records - Investigations. The tax administrator or any person authorized in writing by him or her, may examine during normal business hours the books, papers and accounting records relating to room sales of any operator, after notification to the operator liable for the tax, and may investigate the business of the operator in order to verify the accuracy of any return made, or if no return is made by the operator, to ascertain and determine the amount required to be paid.
    C. Confidential Character of Information Obtained - Disclosure Unlawful. It is unlawful for the tax administrator or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate, or pay any transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person; provided that nothing in this subsection shall be construed to prevent:
    1. The disclosure to, or the examination of records and equipment by another City of Waldport official, employee or agent for collection of taxes for the sole purpose of administering or enforcing any provisions of this chapter, or collecting taxes imposed hereunder, or collecting City business license fees.
    2. The disclosure, after the filing of a written request to that effect, to the taxpayer himself, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest, and penalties; further provided, however, that the City Attorney approves each such disclosure and that the tax administrator may refuse to make any disclosure referred to in this paragraph when in his or her opinion the public interest would suffer thereby.
    3. The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued.
    4. The disclosure of general statistics regarding taxes collected or business done in the City. (Ord. 582 § 12, 1991; Ord. 365 § 15, 1976)

3.04.150 Appeal to the City Council.
Any person aggrieved by a decision of the tax administrator may appeal to the City Council by filing notice of appeal with the tax administrator within twenty (20) days of the serving or mailing of the tax notice of a decision given by the tax administrator. The tax administrator shall fix a time and place for hearing such appeal and shall give the appellant twenty (20) days written notice of the time and place of hearing. (Ord. 582 § 14, 1991: Ord. 365 § 18, 1976)

3.04.160 Violations.
It is unlawful for any operator or other person so required to fail or refuse to register as required herein, or to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the tax administrator or to render a false or fraudulent return. No person required to make, render, sign or verify any report shall make any false or fraudulent report, with intent to defeat or evade the determination of any amount due required by this chapter. (Ord. 582 § 15, 1991; Ord. 365 § 17, 1976)

3.04.170 Penalties.
Any person who violates any of the provisions of this chapter, as now constituted or hereafter amended or revised, commits a Class A civil infraction and shall be subject to the procedures and penalties of Chapter 1.08 of this code, as now constituted or hereafter amended or revised. (Ord. 661 § 1, 1999: Ord. 582 § 16, 1991: Ord. 365 § 21, 1976)

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Sections:
3.08.010 Initiation of proceedings and report from the City Engineer.
3.08.020 Engineer's report.
3.08.030 Council's action on Engineer's report.
3.08.040 Resolution and notice of hearing.
3.08.050 Hearing.
3.08.060 Manner of doing work.
3.08.070 Call for bids.
3.08.080 Assessment ordinance.
3.08.090 Method of assessment and alternative methods of financing.
3.08.100 Notice of assessment.
3.08.110 Lien records and foreclosure proceedings.
3.08.120 Errors in assessment calculations.
3.08.130 Deficit assessment.
3.08.140 Rebates.
3.08.150 Abandonment of proceedings.
3.08.160 Curative provisions.
3.08.170 Reassessment.
3.08.180 Remedies.
3.08.190 Segregation of liens.
3.08.200 Interpretation.

3.08.010 Initiation of proceedings and report from the City Engineer.
Whenever the Council shall deem it necessary, upon its own motion or upon the petition of the owners of one-half of the property to benefit specially from the improvement, to make any street, sewer, sidewalk, drain or other public improvement to be paid for in whole or in part by special assessment according to benefits, then the Council shall, by resolution, direct the City Engineer to make a survey and written report for such project and file the same with the City Recorder. (Ord. 370 § 1, 1977)

3.08.020 Engineer's report.
The report of the Engineer shall be filed with the Recorder. The report shall contain the following:
    A. A full description of the project;
    B. A description of each parcel of land specially benefitted;
    C. The record owner of each parcel;
    D. The name and last address of the person currently assessed for each parcel as shown by the records of the Lincoln County Assessor;
    E. An estimate of the probable cost of the project, including legal, administrative and engineering costs attributable to such project;
    F. A recommendation of a fair apportionment of the whole or any portion of the costs of the project to the property specifically benefitted;
    G. A recommendation of a method of assessment, together with an estimate of the cost per unit to the property specifically benefitted;
    H. All easements necessary and estimates of the costs of obtaining same. (Ord. 370 § 2, 1977)

3.08.030 Council's action on Engineer's report.
After the City Engineer's report shall have been filed with the City Recorder, the Council may thereafter by motion approve the report, modify the report and approve it as modified, require the Engineer to supply additional or different information for such improvement, or it may abandon the improvement. (Ord. 370 § 3, 1977)

3.08.040 Resolution and notice of hearing.
After the Council shall have approved the Engineer's report as submitted or modified, the Council shall by resolution declare its intention to make such improvement, provide the manner and method of carrying out the improvement and shall direct the Recorder to give notice of such improvement by two publications, one week apart, in a newspaper of general circulation within the City of Waldport, and by mailing a letter by certified mail to the owners to be assessed for the costs of such improvement, which said notice shall contain the following matters:
    A. That the report of the City Engineer is on file in the office of the Recorder and is subject to public examination.
    B. That the Council will hold a public hearing on the proposed improvement on a specified date, which shall not be earlier than ten (10) days following the first publication of notice, at which objections and remonstrances to such improvement will be heard by the Council; and that if prior to such hearing there shall be presented to the Recorder valid, written remonstrances of the owners of two-thirds of the area of the property to be specially assessed by such improvement (except a sidewalk or except an improvement unanimously declared by the Council to be needed at once because of an emergency) then the improvement will be abandoned for at least six months. For the purpose of this section "owner" shall mean the record holder of legal title to the land, except that if there is a purchaser of the land according to a recorded land sale contract or according to a verified writing by the record holder of legal title to the land filed with the City Recorder, the said purchaser shall be deemed the "owner." (Ord. 370 § 4, 1977)

3.08.050 Hearing.
At the time of the public hearing on the proposed improvement, if the written remonstrances shall represent less than the amount of property required to defeat the proposed improvement, then, on the basis of said hearing of written remonstrances and oral objections, if any, the Council may by motion at the time of said hearing or within sixty (60) days thereafter, order said improvement to be carried out in accordance with the resolution, or the Council may, on its own motion, abandon the improvement. (Ord. 370 § 5, 1977)

3.08.060 Manner of doing work.
The Council may provide in the improvement resolution that the construction work may be done in whole, or in part, by the City of Waldport, by a contract, or by any other governmental agency, or by any combination thereof. (Ord. 370 § 6, 1977)

3.08.070 Call for bids.
The Council may, at its discretion, direct the City Recorder to advertise for bids for construction of all, or any part of, the improvement project on the basis of the Council-approved Engineer's report and before the public hearing on the proposed improvement, or at any time after the public hearing; provided, however, that no contract shall be let until after the public hearing has been held to hear remonstrances and oral objections to the proposed improvement. In the event that any part of the work of the improvement is to be done under contract bids, then the Council shall determine the time and manner of advertisement for bids; and the contracts shall be let to the lowest responsible bidder, provided that the Council shall have the right to reject all bids when they are deemed unreasonable or unsatisfactory. The City shall provide for the bonding of all contractors for the faithful performance of any contract let under its authority, and the provisions thereof in case of default shall be enforced by action in the name of the City of Waldport.
    If the Council finds, upon opening bids for the work of such improvement, that the lowest responsible bid is substantially in excess of the Engineer's estimate, it may, at its discretion, provide for holding a special hearing of objection to the proceeding with the improvement on the basis of such bid, and it may direct the City Recorder to mail a letter by certified mail to the owners of the property affected by the improvement informing them of the date, place and time of hearing. (Ord. 370 § 7, 1977)

3.08.080 Assessment ordinance.
If the Council determines that the local improvement shall be made, when the estimated cost thereof is ascertained on the basis of the contract award or City departmental cost or after the work is done and the cost thereof has been actually determined, the Council shall determine whether the property benefitted shall bear all or a portion of the cost. The Recorder or other person designated by the Council shall prepare the proposed list of assessments to the respective lots within the assessment district and file it in the appropriate City office. Notice of such proposed assessment shall be mailed by certified mail to the owner of the property proposed to be assessed, which notice shall state the amounts of assessment proposed on that property and shall fix a date by which time objections shall be filed with the Recorder. Any such objections shall state the grounds thereof. The Council shall consider such objections and may adopt, correct, modify or revise the proposed assessments and shall determine the amount of assessment to be charged against each lot within the district, according to the special and peculiar benefits accruing thereto from the improvement, and shall by ordinance spread the assessments. (Ord. 370 § 8, 1977)

3.08.090 Method of assessment and alternative methods of financing.
The Council in adopting a method of assessment of the costs of the improvement may:
    A. Use any just and reasonable method of determining the extent of any improvement district consistent with the benefits derived.
    B. Use any method of apportioning the sum to be assessed as is just and reasonable between the properties determined to be specially benefitted.
    C. Authorize payment by the City of all, or any part of, the cost of any such improvement, when in the opinion of the Council the topographical or physical conditions, or unusual or excessive public travel, or other character of the work involved warrants only a partial payment or no payment by the benefitted property of the costs of improvement.
    Nothing contained in this chapter shall preclude the Council from using any other available means of financing improvements, including Federal or state grants in aid, sewer charges or fees, revenue bonds, general obligation bonds, or any other legal means of finance. In the event that such other means of financing improvements are used, the Council may, in its discretion, levy special assessments according to the benefits derived to cover any remaining part of the costs of the improvement. (Ord. 370 § 9, 1977)

3.08.100 Notice of assessment.
Within ten (10) days after the effective date of the ordinance levying the assessments, the City Recorder shall send by certified mail to the owner of the assessed property a notice containing the following information:
    A. The date of the ordinance levying the assessment, the name of the owner of the property assessed, the amount of the specific assessment and a description of the property assessed.
    B. A statement that application may be filed to pay the assessment in installments in accordance with the provisions of this chapter.
    C. A statement that the entire amount of the assessment, less any part for which application to pay in installments is made, is due within thirty (30) days of the date of the letter and, if unpaid on that date, will accrue interest and subject the property to foreclosure.
    Supplementary notice of assessment in form and content to be determined by the City Recorder may also be published or posted by the City Recorder. (Ord. 370 § 10, 1977)

3.08.110 Lien records and foreclosure proceedings.
After passage of the assessment ordinance by the Council, the City Recorder shall enter on the docket of City liens a statement of the amounts assessed upon each particular lot, parcel of land or portion thereof, together with a description of the improvement, the name of the owner(s) and the date of the assessment ordinance. Upon such entry in the lien docket, the amount so entered shall become a lien and charge upon the respective lots, parcels of land or portions thereof, which have been assessed for such improvement. All assessment liens of the City of Waldport shall be superior and prior to all other liens or encumbrances on property insofar as the laws of the State of Oregon permit. Interest shall be charged in a manner consistent with Financial Management Policies for similar assessments on all amounts not paid within thirty (30) days from the date of the assessment ordinance; and after expiration of sixty (60) days from the date of such assessment ordinance the City may proceed to foreclose or enforce collection of the assessment liens in the manner provided by the general law of the State of Oregon; provided, however, that the City may, at its option, enter a bid for the property being offered at a foreclosure sale, which bid shall be prior to all bids except those made by persons who would be entitled under the laws of the State of Oregon to redeem such property. (Ord. 719, 2007)

3.08.120 Errors in assessment calculations.
Claimed errors in the calculation of assessments shall be called to the attention of the City Recorder, who shall determine whether there has been an error in fact. If the Recorder shall find that there has been an error in fact, he or she shall recommend to the Council an amendment to the assessment ordinance to correct such error, and upon enactment of such amendment, the City Recorder shall make the necessary correction in the docket of City liens and send a correct notice of assessment by certified mail. (Ord. 370 § 12, 1977)

3.08.130 Deficit assessment.
In the event that an assessment shall be made before the total cost of the improvement is ascertained and if it is found that the amount of the assessment is insufficient to defray the expenses of the improvement, the Council may, by motion, declare such deficit and prepare a proposed deficit assessment. The Council shall set a time for a hearing of objections to such deficit assessment and shall direct the City Recorder to give notice by certified mail. After such hearing the Council shall make a just and equitable deficit assessment by this chapter, and notices of the deficit assessment shall be mailed by certified mail and the collection of the assessment shall be made in accordance with Sections 3.08.100 and 3.08.110 of this chapter. (Ord. 370 § 13, 1977)

3.08.140 Rebates.
If, upon the completion of the improvement project, it is found that the assessment previously levied upon any property is more than sufficient to pay the costs of such improvements, then the Council must ascertain and declare the same by ordinance, and when so declared, the excess amounts must be entered on the lien docket as a credit upon the appropriate assessment. In the event that any assessment has been paid, the person who paid the same, or his or her legal representative, shall be entitled to the repayment of such rebate credit or the portion thereof which exceeds the amount unpaid on the original assessment. (Ord. 370 § 14, 1977)

3.08.150 Abandonment of proceedings.
The Council shall have full power and authority to abandon and rescind proceedings for improvements; and if liens have been assessed upon any property under such procedure, they shall be canceled, and any payments made on such assessments shall be refunded to the person paying the same, his or her assigns or legal representatives. (Ord. 370 § 15, 1977)

3.08.160 Curative provisions.
No improvement assessment shall be rendered invalid by reason of a failure of the Engineer's report to obtain all of the information required by Section 3.08.010 of this chapter, or by reason of a failure to have all of the information required to be in the improvement resolution, the assessment ordinance, the lien docket or notices required to be mailed, nor by the failure to list the name of, or mail notice to, the owner of any property as required by this chapter, or by reason of any other error, mistake, delay, omission, irregularity, or other act, jurisdictional or otherwise, in any of the proceedings or steps herein specified, unless it appears that the assessment is unfair or unjust in its effect upon the person complaining; and the Council shall have the power and authority to remedy and correct all such matters by suitable action and proceedings. (Ord. 370 § 16, 1977)

3.08.170 Reassessment.
Whenever any assessment, deficit or reassessment for any improvement which has been made by the City has been or shall be set aside, annulled, declared or rendered void, or its enforcement restrained by any court of this State, or any Federal court having jurisdiction thereof, or when the Council shall be in doubt as to the validity of such assessment, deficit assessment, or reassessment, or any part thereof, then the Council may make a reassessment in the manner provided by the laws of the State of Oregon. (Ord. 370 § 17, 1977)

3.08.180 Remedies.
Subject to the curative provisions of Section 3.08.160 of this chapter and the rights of the City to reassess pursuant to Section 3.08.170 of this chapter, all actions of the Council taken pursuant to this chapter are reviewable solely and exclusively by writ of review in accordance with the procedures in ORS 34.010 to 34.100. Review of an ordinance levying any assessment may be commenced only by a property owner who has filed a written objection to the proposed assessment in accordance with Section 3.08.040 of this chapter. (Ord. 370 § 18, 1977)

3.08.190 Segregation of liens.
Whenever the ownership of any portion of a tract of real property less than the entire tract is transferred, any lien against said real property in favor of the City shall, upon request of the owner of any portion of said tract, be segregated as herein provided and not otherwise.
    Applications for the segregation of liens shall be made to the City Recorder describing the tract to be segregated and the names of the owners of the respective tracts. A certificate of the County Assessor shall be furnished showing the assessed valuation of the various tracts of land concerned as of January 1st of the year which the segregation is requested, if available; if not available, as of January 1st of the preceding year.
    The City Recorder shall thereupon compute a segregation of the lien against the real property upon the same basis as the same was originally computed and apportioned and reflect this segregation in the City lien docket; provided, however, that no segregation shall be made unless all parts of the original tract of land after the segregation have a true cash value as determined from the certificate of the assessor of sixty (60) percent or more of the amount of the lien as to the various tracts concerned. (Ord. 370 § 19, 1977)

3.08.200 Interpretation.
The provisions of this chapter shall apply to all future local improvement districts and, to the extent further actions or proceedings may be required, to all existing districts. (Ord. 370 § 21, 1977)

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