Ord.1534 Utility User's Tax
0RDI1II\NCE 1534
AN ORDINANCE OF 'mE Cl'lY CXDlCIL OF 'mE Cl'lY OF aJPER1'INO
~ 'mE IMEœ1TIar OF A t1I'ILI'1Y USERS EXCISE TAX
AND 0RDER1H:; 'mE SUEMISSIar OF A PR:¡iœ1TIar ~U1<
'ltI 'mE EœClœATE OF 'IHE Cl'lY
Sections:
3.34.010 Definitiaw
3.34.020 Exemptiaw
3.34.030 Telepxme Users Tax
3.34.040 Electricity Users Tax
3.34.050 Gas Users Tax
3.34.060 Services Users Rsoeivin¡ Gas or Electricity Directly
3.34.070 PIInalties
3.34.080 Act:icnI to Q:)11ect
3.34.090 D1ty to Q:)11ect - Pl, ~'1:'8S
3.34.100 Additional Power and D1ties of Tax Administrator
3.34.110 IISfi'''e'''''''''''!t - Administrative Remedy
3.34.120 Rscoràs
3.34.130 ~
3.34.140 Rules of Construction
3.34.150 Benefit to All Persons
3.34.160 Duration
3.34.170 Disposition of ~
3.34.180 General FUnd lease
3.34.190 Power in Addition
3.34.200 ordinance Cu.ìL..<ill.iD¡
3.34.210 Liberal Ccnstruc:tion
3.34.220 Defect or OIIission, Validity of P.o.' .-.....rti'J3S or Taxes
3.34.230 Limitatia1 of Act:icnI
3.34.240 Beverability
'IHE Cl'lY CXDlCIL OF 'IHE Cl'lY OF aJPER1'INO OOES CRIlAJN AS roua4S:
'!be pw:pose of this Ordinance is to i>v-- a utility users excise tax
as a revenue -1I\Jr8 r---..azy to pay the usual and cw:rent expenses of
001'1ductin;J the IIL1rÚ.cipal government of the City, the i'L' ....~.. of which
shall be paiã into the ge¡.....a1 fUnd of the City. 'Ibis Ordinance shall be
known and may be cited as the "utility Users Excise Tax Ordinance".
3.34.010 Definitiaw. Except ~ the context ot:heJ:wise reè¡uires,
the definitions set forth in this sec:tiœ1 govern the oonstruc:tion of this
Ordinance.
-1-
ORDnmNCE 1«>. 1534
"~, means the City of CUpertino.
"Facilities" means the IIILInicipal facilities generally incl\Jdin;J
Blackberry Fam, ather open space land within the City ard the ¡:ublic
recreational facilities oansist:ent with the ~ s-arvation ard ¡:ublic use of
open space. Facilities shall be iI~ available ard ...'eœpt1ble of use
within the l\I8i!l1in;J of the tam "availability ard privilege of use", as
used in this Ordinance, when such facilities exist ard are available for
use durin¡ arr:¡ portion of the fiscal year next ~$('AoHrq the levy of the
Tax.
"Gas" includes natural gas ard arr:¡ ather gas used for light, heat ard
pcr.ær .
''Month'' means a calendar month.
''N~i1itv succlier" means a service SU¡:plier, other than (a) a gas
=þ.n.ation or (b) an electrical corporation servin¡ within the City,
which generates electrical energy in capacities of at least 100 kilowatts
Ita1thly for sale to others.
"Persons" means any danestic or foreign corporation, fm, association
syrx:licate, joint stock ~, partnership of arr:¡ Jdrxl, joint venture,
club, MassadnIsetts business or 0·",,·., law trust, society, or in:tividual.
"~' means the utility users excise Tax ~"1œed to be i"V""""l by
this Ordinance, mre particularly described in sections 3.34.030, 3.34.040
ard 3.34.050 of this Ordinance.
"Tax J\ñmini~~""'" means the City Treasurer.
IlTeleå1cn8 ('\01'........'1 ..,..".. "e1ectr..~, o ","coration," and "~
corcoration," have the same III8IIlÚn; S as defined in sections 234, 218, 222
ard 215.5, respectively, of the california Public utilities COde (as said
sections existed on June 1, 1989), except: that "elec:trica1 cotpOtation"
shall also be .........L..o.18d to include any 1IIJlÙcipality or Person erçaged in
the sellin¡ or suwlyin¡ of electrical pcr.ær to a service User.
"service SUl:J: 1ier" means Mrž entity required to collect or self-i'T""""
ard remit a Tax as i"l"""""" by this Ordinance.
-2-
ORDINANCE NO. 1534
"Service User" means a Person required to pay a Tax ì"V""""'ì by this
Ordinance.
3.34.020. Exemctions.
(a) Public bodies, religious organizations am other Persons exempt
umer state or federal law shall be ~L frcm the Tax. Residential
service users of 65 years or older shall be exempt frcm Tax payments umer
this Ordinance upon awlication to the Tax Administrator, in sud1 manner
am with such proof or qualification as the Tax Administrator shall
deteJ:mine.
(b) '!he City Council may, by order or resolution, establish one or
more classes of Persons or one or more classes of utility service
otherwise subject to payment of a Tax ì"P""""d by this Ordinance am
provide that such classes of Persons or service shall be exempt, in whole
or in part, frcm such Tax.
(c) '!he Tax Administrator shall prepare a list of the Persons exempt
from the provisions of this Ordinance by v:irbJe of this section am
fumish a copy thereof to each Service Su¡;:plier.
3.34.030. Telechone Users Tax.
(a) 'Ihere is hereby ì"P""""d a Tax (herein called the "Tel~ Users
TaxI') on the aDD.Ints paid for any intrastate tele¡i1one services by every
Person in the City other than a Tele¡i1one Corpuration, usin;¡ such
services. '!he Tax i~ by this section shall be at the rate of two am
forty hun:!redths percent (2.40%) of the cha%ges made for such services am
shall be paid by the Person payin;J for sud1 services.
(b) As used in this section, the ten! "cha%ges" shall not include
cha%ges for services paid for by insertin;r coins in coin-operated
tel~ except where such coirl-qJerated service is fumished for a
guaranteed amount, in which event the aDD.Ints paid umer such guarantee
plus any fixed 1Ia1thly or other pericxlic charge shall be included in the
base for CXIIp.1tiJ1q the amount of Tax due; nor shall the ten! "charges"
include charges for any type of service or equipnerrt: fumished by a
service ~lied subject to public utility regulations durin;¡ any period
-3-
0RDD00lCE 00. 1534
in which the same ar sd1lli1ar services ar equ.ipænt are also available far
sale ar lease f1:tm FImIa1S other than a service SUpplier subject to public
utility reguJ.atiat1 D:It' shall the 1«It'ds "tele¡:i1ale l'Y'OIIII'I"licaticn services"
include land lIIObile serviœs ar maritime lIIObile services as defined in
Section 2.1 of Title 47 of the Code of Federal Rsgulatiats as said section
existed on JarD.JaXy 1, 1970. 'nI8 tmm "telephone OCIIIIIJnicatiat services"
refers to that service which pJXNides lID - to a telati.....18 system and the
privilege of tele¡t¡one quality CCIIIIUnicatiat with substantially all
Persons ~ telephone stations which are part of such tele¡:i1one
syst&n. 'nI8 Telephone Users Tax is intended. to, and does, ¡çply to all
charges billed to a telephone aooount havin¡ a situs in the City,
li......spective of whether a particular l'rOIIInI"lication service originates
aOO¡ar t:eminates within the City.
(c) 'nI8 Telepbane Users Tax shall be collected f1:tm the SeJ:vice User
by the Perscm prcvidin¡ the intrastate telepbane ........."lication services,
or the Perscm receivin¡ payment far such services. 'nI8 aJID1nt of Tax
collected in one (1) DDnth shall be remitted to the Tax Administrator on
ar before the last day of the follc::JWizq DDnth1 ar, at the cpt:ion of the
Perscm required to collect an:i remit the Tax, an estimated aJID1nt of Tax
collected, measured by the Tax bill in the previous DDnth, shall be
remitted to the Tax Administrator on ar before the last day of each DDnth.
(d) Notwi~ the pJXNisions of subsection (a), the Tele¡:i1one
Users Tax shall net be i~ upon any Persa1 far usin¡ intrastate
telephone CCIIIIIIIJIÙcation serviœs to the extent that the amounts paid far
such services are ~L f1:tm ar net subject to the Tax i~ under Part
20 (cu......rcin¡ with sectiat 41001) of Division 2 of the Califomia Revenue
an:i Taxation Code, ar the Tax i"V""«i under secticn 4251 of the Internal
Revenue Code.
3.34.040. Electricitv U- Tax.
(a) 'lhere is hereby iv-'d a Tax (herein called the ''Electricity
Users Tax") upon every Persa1 in the City other than an Electrical
Coz}:maticn using electrical energy in the City. 'nI8 Tax i~ by this
section shall be at the rate of two and forty hurm'edths petl..oo=&1L (2.40%)
of the charges made far such energy by an electrical OO1.~'ation
franc:hiseð. to service the City and shall be billed to an:i paid by the
Perscm usin¡ the eneJ:gy. If the charqes made far such energy by the
franchised. electrical OO1.......atiat are negotiated either (1) on the basis
that the Service User has prtWided ite own transmissiat
-4-
ORDINANCE NO. 1534
voltage reàuction facilities or (2) as imividualized negotiated
co-generation avoidance transmissia1 voltage rata, and the resultin;J
negotiated rata are not available to the City, such negotiated rates
shall be made available to the City by the setvice User.
'Ihe Tax çlicable to electrical energy provided by a non-utility
SUß)lier shall be bItsed on the abaIIe Tax rate and the charges made for
such electrical energy if there is an ams-length transaction for the sale
of the electrical energy ~ the non-utility su¡:plier and the setvice
User. If there is not an ams-length sale fran a non-utility SUß)lier,
the Tax shall be dete1:mined by awlyinq the Tax rate to the equivalent
charges the setvice User waùd have incurred if the energy used had been
provided by the electrical oaxpotAtion franchised by the City. Rate
schedules for this pw:poee shall be available fran the City. Non-utility
su¡:pliers shall install, maintain and use an _"¥Llate utility-type
meterinq system which will enable OCIII)liance with this section.
If the electrical energy is generated by the Service User for its CMI'l
use, the setvice User shall provide the City with the actual 1Ia1thly cost
of qeneratin;J the electrical energy so used and the Electricity Users Tax
shall be based on the abaIIe Tax rate çlisd to said actual cost. coet
figures SUß)lied by the setvice User shall be subject to periodic audit by
the City and ~"¥Liate adj,"",L......tt p.¡rsuant thereto.
"Charqes, II as used in this section, shall include charges made for:
(1) metered energy and (2) IIIinhum charges for service, includinq custaner
charges, service charges, demand charges and all ather annual and monthly
charges (ather than starxn:Iy charges), fuel or ather cost adjusbnents,
authorized by the California Public utilities lhnmi ....ion or the Federal
Energy RegulatOJ:y lhnmi ....1at;
(b) As used in this sectiat, the texm ''usinq electrical energy" shall
not be oar...t.....-i to mean the storage of such enm:gy by a Person in a
battezy owned or pos&'--~ed by such Persan for use in an aut:aoobile or
ather machinety device apart fran the pr-i ~_ upan whiål the energy was
received, provided, hcwever, that the texm shall include the receivinq of
such energy for the pw:poee of usinq it in the ålarqi11q of batteries; nor
shall the texm include electricity used am 0CII1S\.IIIIBd by an electric
utility suwlier in the corxh1ct of, its J:usiness; nor shall the texm
include the mere receivinq of such energy by an electric p.lblic utility or
gcverrmIel1tal aqercy at a point within the City for resale; nor shall the
-5-
ORDINANcE NO. 1534
tam incluc1e the use of SUå1 energy in the prcductiat or distr:ib.1tion of
water by a Plblio utility or a ~ agency.
(0) 'I11e Electricity Users Tax shall be collected frail the Se%vice
User by the Se%vice 9uß>lier or non-utility su¡:plier. 'I11e Electricity
Users Tax' at use su¡:plied by self~tiat or ~...ration or frail a
non-utility su¡:plier not subject to the jurisdictiat of this Ordinance,
shall be collected and œmitted to the Tax Administrator in the manner set
forth in Sectiat 3.34.060. 'Ihe ëIIIOmt of Tax collected by a Se%vice
9uß>lier or a non-utility su¡:plier in ale month shall be œmitted by
united states mail to the Tax Administrator, posbDarJϋ on or before the
last day of the followin¡ month; or, at the q!tiat of the Person required
to collect and œmit the Tax, an estimated ëIIIOmt of Tax measured by the
Tax billed in the previous month, shall be œmitted by United states mail,
to the Tax Administrator, posbDarJϋ at or before the last day of each
month. 'I11e ëIIIOmt of the Tax œmitted may be est:iJDated by a fOImla based
upon the payment pattern of the SURllier's aJSt:aoers.
(d) Notwit:hs1:.an::lin¡ the prcvisiatS of sectiat 3.34.090(a), if the
alIDJnt paid by a Se%vice User is less than the full alIDJnt of the energy
c::ha%ge and Tax Whiål has aocz:ued for the billin¡ period, such alIDmt and
any subsequent payments by a Service User shall be ÇPlied to the energy
c::ha%ge first until such c::ha%ge has been fully satisfied. ~ remainin;J
balance shall be ÇPlied to Taxes due.
3.34.050. 1"....... Users Tax.
(a) 'n1ere is hereby i~ a Tax (herein called the "Gas Users TaxI')
upon every Person in the City other than a gas ~Atiat or electrical
OO1:~ation, usin¡, in the City, gas Which is delivered through maiJ'1s or
pipes or by motor vehicle or by rail. 'Ihe Gas Users Tax shall be at the
rate of two and forty hunåredths perœnt (2.40\) of the charges made for
the gas and shall be billed to and paid by the Person usin¡ the gas. If
the charges made for SUå1 gas by the franchised gas OO1.}'U.Lation are
negotiated and the resultin¡ negotiated rates are not available to the
City, such negotiated rates shall be made available to the City by the
SetVice User.
'I11e Tax ÇPlicable to gas or gas transportation provided by
non-utility su¡:pliers shall be ~ at the charges made for suå1 gas or
gas transportatiat if that is derived frail an ams-len;th transaction
-6-
ORDINANCE NO. 1534
~ a nan-utility su¡:plier and. the Service User. If there is not: an
lmDS-len;th sale, the Tax shall be d8t:ermined by applyizq the Tax rate to
the equivalent charges the Service User WCUld have 1ncurred. if the gas or
gas transportatiat had been provi.ded by the gas c::1CIl...........tian franchised by
the City. Rate schedules for this PJJ:pOse shall be available fran the
City.
"01arges" as used. in this sectiem shall in::11X!e: (1) these billed for
gas which is delivered. thra1gh mains or pipes or by motor vehicle or by
rail; (2) gas transportations charges, and. (3) demand charges, service
charges, c:us1:aDer charges, 1IIi.ni1Jun charges, annual and. DaIthly charges,
and. aT¥ other charges (ather than ~ charges) authorized by the
Cali~on;ia Public utilities Chmni ...ia1 or the Federal Energy Regulatory
er..nm, !CUJ~a1.
(b) '!be Gas Users Tax is not: applicable to: (1) charges made for gas
which is to be resold and. delivered. thra1gh mains and. pipes or by motor
vehicle or by rail; (2) charges made for gas sold by a p,Iblic utility,
non-utility su¡:plier or go\Ter%1IDen'ta agency for use in the generatiem of
electrical energy or for the production or distribution of water; (3)
charges made by a gas p,lblic utility or gas used. and. oansumed in the
caJrse of its p,lblic utility bJainess; and. (4) charges made for gas used.
in the prc:p.1lsiem of a motor vehicle, as authorized in the Vehicle Code of
the state of California;
(c) '!be Gas Users Tax shall be collected fran the Service User by the
Person sellin¡ or transport.in;J the gas. In the case of ~ of gas
fran a non-utility SUR>lier, or a gas COl!Ju.¡...tiem not franchised by the
City, the Service User will be resp:¡....ible for remittin;J the awlicable
Gas Users Tax d1rect1y to the Tax Administrator. A Person sellin¡ only
transportatiem services to a user for deliveJ:y of gas thraJgh mains or
pipes or by motor vehicle or by rail shall collect the Tax fran the
Service User hased. em the transportatiem charges. Except as provided
above, the Person sellin¡ or transport:in¡ the gas shall, em or before the
20th of each calerxJar DDnth, <> .'.'-.-.cin¡ em the 20th day of the calerxJar
mnth after the effective day of this Orclinance, make a retum to the Tax
Administrator statin¡ the anamt of Taxes billed clurin¡ the p.........--1in;
calerxJar DDnth. At the time such returns are filed, the Person sellin; or
transporti¡q the gas shall remit Tax payments to the Tax Administrator in
aooordance with schedules established or a¡:proved by the Tax
Administrator .
-7-
ORDINANcE NO. 1534
3.34.060. Smvice U- ~ivin:J r..... or Elect:ricitv Direc:tJ.v.
(a) Natwit:hstanciinq any other prcvisien of this Ordinance, a Service
User receiv~ gas or electric 8I1er9)' directly frail a lXII1-I1tility su¡:plier
not umer the jurisdiction of this Ordinance, ar us~ electricity
generated by the Smvice User far its cn use, ar otherwise not hav~ the
full Tax due on the use of gas ar electric enetgy in the City directly
billed and collected by the Service SU¡:p1ier, shalll"¥J.LL said fact to
the Tax Administrator within thirty days of said use and shall directly
remit to the City the aDD.Int of Tax due.
(b) 'Ihe Tax Administrator may require fran said Service User the
filed Tax rebm1s ar other satisfactœy evidence dccumer1tin; the sale
price and quantity of gas ar electric enetgy used.
3.34.070. Penalties.
(a) Taxes collected fran a Service User Which are not remitted to the
Tax Administrator on ar before the due dates provided in this ordinance
are delirx;¡uent. Shculd the due date occur on a weJœnd ar legal holiday,
the ret:un'1 may be postmarlœd en the first regular workin;J day followin;J a
Saturday/SUOOay, ar legal holiday.
(b) Penalties far delinquency in remittance of any Tax collected or
any deficiency det.ez1Dinatien detemined by the Tax Administrator, shall
attach and be paid by the Persa1 required to collect and remit at the rate
of fifteen percent (15\) of the total Tax collected ar i'V""ed herein.
(c) 'Ihe Tax Administrator shall have power to i~ additional
penalties upcn any Persa1 required to collect and remit Taxes umer the
provisions of this Ordinance far fraud in report:in¡ ar remitting at the
annual rate of fifteen pm........L (15\) of the aDD.Int of the Tax collected or
as rec~ ·'1·1ted by the Tax Administrator.
(d) Every penalty i"V""'d umer the provisians of this Ordinance
shall Þec- .,.... a part at the Tax required to be remitted.
3.34.080. Actions to Collect. Arr¡ tax required to be paid by a Service
User umer the provisions of this Ordinance shall be ñ......- a debt owed by
a Service User to the City. Arr¡ such Tax collected frail a Service User
-8-
ORDINANCE: 1«>. 1534
which has willfully been withheld fXaa the Tax Administrator shall be
ñ--., a debt 0W8cl to the City by the Person required to collect and
remit. Arr:i Persan owing Da1ey to the City under the previsions of this
Ordinan:::e shall be liable to an act:.ion brought in the name of the City for
the recovery of such amount.
3.34.090. z:ut:v to Cl"Illect - ~ IA."........ 'Ihe duty to collect and remit
the Taxes i1lp leci by this Ordinance shall be perfomeci as follows:
(a) Natwi~ any other provision of this Ordinan:::e, the Tax
shall be collected insofar as practicabJ.e at· the same time as and allDJ
with the cha%ges made in aooorcIance with the regular billirç practices of
the Setvice SU¡:plier. Where the amount paid by a Selvice User to a
Setvice ~lier is less than the full amount of the utility charge and
Tax which has acx:ruect for the billirç periocl, such amount and any
subsequent payments by a Selvice User shall be a¡:plied to the utility
charge first until such charge has been fUlly satisfied. Arr:i remainin;
balance shall be a¡:plied to Taxes due. In these cases where a Setvice
User has' notified the Setvice SU¡:plier of this refusal to pay the Tax
imr'osec1 on said utility cha%ges Section 3.34.100(C) will aß)ly.
(b) 'Ihe duty to collect the Tax fXaa a Setvice User shall c.........108
with the beginnin¡ of the first full regular billirç periocl aß)licable to
the Setvice User where all cha%ges l1OnM1ly included in such regular
billirç are subject to the provisions of this Ordinance. Where a Person
receives more than one billirç, one or more being for different periods
than another, the duty to collect shall arise separately for each billirç.
3.34.100. Additional ~ and ciuti_ of Tax .Mministrat-.nr.
(a) 'Ihe Tax Administrator shall have the power and duty, and is
hereby db:ec:t:ecl to enforce each and all of the previsions of this
Ordinan:::e .
(b) 'Ihe Tax Administrator shall have the power to adept rules and
regulations not incawistent with provisions of this Ordinan:::e for the
plU:pœe of carzying out anti enforcinr¡ the payment, collection and
remittance of the Taxes her8in i'T'=nci.
A OCPY of such rules and regulations shall be on file in the Tax
Jldministrator's office.
(c) '!he Tax Administrator may IIIIIJœ administrative a<; 1..........d:s to ~
the strict requirements of this Ordinance so that the collection of any
Tax i'TOS'ed hereby may be made in confcmaanoe with the billirç Pl' ....~u:es
-9-
ORDINANcE 00. 1534
of a particular Service S\JR)lier so len¡ as said ag:¡:...........tls result in
collection of the Tax in OJnt01:ha.\Coo with the general puzpose ani scope of
this Ordinance. A copy of each such ag:¡:.......uL shall be on file in the Tax
Administrator's office.
(d) 'Ihe Tax Administrator shall det:emine the eligibility of any
Person Who asserts a right to 8X8IIption frail the Tax i"F68d by this
Ordinance. 'Ihe Tax Administrator shall provide the Se%vice SUJ:plier with
the name of any Person Who the Tax Administrator determines is exeøpt frail
the Tax ~ hereby, together with the address ani account l11nnner to
Which service is sua>lied to any such exeøpt Person. 'Ihe Tax
Administrator shall natify the Service S\JR)lier of t-_i'1ation of any
Person's right to exemption hereunder, or the charqe of any address to
Which service is su¡:.plied to any ~L Person.
3.34.ll0. b-.,.-__... - Admini_tive ~'v.
(a) 'Ihe Tax Administrator may maJœ an "a't'....---u; for Taxes not
remitted by a Person requixed to remit.
(b) Whenever the Tax Administrator determines that a Service User has
deliberately withheld the amount of the Tax owed by him frail the aDrJUnts
remitted to a Person requixed to collect the Tax, or that a Selvice User
has refused to pay the amount of Tax to such Person, or Ioi1enever the Tax
Administrator deems it in the best interest of the City, such Person may
be relieved of the obligatiat to collect Taxes due un:Jer this Ordinance
frail certain named Se%vice Users for specified billin¡ periods.
(0) 'Ihe Service S\JR)lier shall provide the City with aDrJUnts ref'un:!ed
to be paid and/or unpaid alcn¡ with the MIlle ani addresses of the Se%vice
Users neglectin;J to pay the Tax i"l"'Sed un:Jer provisions of this
Ordinance. Whenever the Service User has failed to pay the amount of Tax
for a period of two or lime billin¡ periods, the Service S\JR)lier shall be
relieved of the obligation to collect Taxes due.
(d) 'Ihe Tax Administrator shall notify the Selvice User that the Tax
Administrator has ......."""'d re&pa1Sibility to collect the Tax due for the
stated periods ani CÙ!IIIIIß1 payment at such Taxes. 'Ihe notice shall be
seJ:Ved on the Service User by han:tin¡ it to such user per&a1ally or by
deposit of the notice in the united sates mail, postage prepared thereon,
addressed to the Service User at the address to Which billin;J was made by
the Person requixed to collect the Tax; or, shaùd the Selvice User's
-10-
ORDINANcE NO. 1534
address cban;Je, to the last known aààJ::_. If a Service User fails to
remit the Tax to the Tax Administrator within fifteen (15) days frail the
date of the receipt of the notice upat him, whiå1 shall be the date of
mailin;r if service is not "''''''""'I'lished in Pet......, a penalty of twenty-five
percent (25%) of the aIIrA.1nt of the Tax set forth in the notice shall be
i"t'OSed, 'Ihe penalty shall 1:""0 .,- part of the Tax herein required to be
paid.
3.34.120. RAo ..·ds. It shall be the duty of every Person required to
pay or collect anti remit to the City any Tax i~9d by this 0nUnance to
keep anti p.. WBrV8, for a period of three (3) years, all recOJ:l:)s as may be
""""""'''1!Zy to detemi.ne the aIIrA.1nt of SUCh Tax for whiå1 SUCh Person may
have been liable for the remittance to the Tax Administrator, ~ch
recx:n:ds the Tax Administrator shall have the right to inspect at all
reasonable times.
3.34.130. ReftnYtc.
(a) Whenever the aIIrA.1nt of any Tax has been ovetpaid or paid more
than once or has been en...-....JSly or illegally collected or received by
the Tax Administrator umer this 0nUnance, it may be refurx!ed as provided
in this section.
(b) Natwit:hstan:iin¡ the provisions of ..nœeetion (a) of this section,
a Service SIJI:Plier may clm a refund, or take as credit against Taxes
remitted the aIIrA.1nt 0II81:paid, paid more than CI'Ioe, or eJ:L.......;JI1sly or
illegally collected or received when it is established that the Service
User frail ~ the Tax has been collected did not ewe the Tax;provided,
however, that neither a refund nor a credit shall be allowed unless the
aIIrA.1nt of the Tax so collected has either been refurx!ed to the Service
User or credited to d1arges subsequentJ.y payable by the Service User to
the Person required to collect anti remit. A Service SlWlier that has
collected any aIIrA.1nt of Tax in ~ft of the aIIrA.1nt of Tax i"t'OSed by this
Ordinance anti actually due frail a Service User, may refund SUCh aIIrA.1nt to
the Service User anti claim credit for SUCh CYeJ:payment against the aIIrA.1nt
of Tax whiå1 is due upat any other mcnth1y ret:ums provided such credit is
claimed in a retum dated no later than three (3) years frail the date of
overpayment.
(0) No refund shall be paid umer the provisions of this section
unless the cl<ilinæ1t has established the cl",i_"It's right thereto by
written recœ:ds shcwin;r entitlement thereto.
-11-
ORDINANCE NO. 1534
Cd) Notwi1:hstandin¡ otl1er provisia1S of this section, whenever a
Service 8uR>lier, p.¡rsuant to an order of the California Public utilities
Chnmi....ion or a court of CXIIpEItent jurisdicticn, makes a refurñ to Service
Users of charges for pIISt utility scvices, the T8X8S paid p.¡rsuant to
this ordinance CIl the aDDmt of such refunded charges shall also be
refunded to Service Users, an:l the Service SUWlier shall be entitled to
clm a credit for such refunded T8X8S against the amount of Tax which is
due upCI1 the next DICIlthly returns. In the event this ordinance is
repealed, the amc::mrt:s of any refundable taxes will be paid by the city.
Ce) A Service SUWlier may refurñ the T8X8S collected to the Service
User in acoordance with this sectiCll or by the Service 8uR>lier's
custaoary practice.
Cf) A credit or a refurñ of Tax due shall be granted to any Service
User fran whaD the Tax is collected to c:x:JVer the administrative an:l
clerical expense of est:ablishin¡ an:l auditin:¡ the cost of generatin:¡
electric energy for its own use p.¡rsuant to the third paragraJñ of Section
3.34.040Ca). Any such administrative an:l clerical expense is also subject
to audit an:l aM-'L'¥Liate adju..I..u.::.Jt pJrBUant thereto.
3.34.140. Rules of Construction. Words of the -......ùfne gender shall
be ñ~ ani oonstJ:ued to include correlative WŒàs of the feminine ani
neuter qerx!ers. Unless the context shall othezwise :in:licate, 1rIOrås
iIrp:¡rtiIq the sin;¡ular rn""h$r shall include the plural rn""l-qr ani vice
versa.
3.34.150. Benefit to All Persan. '!be city COJncil has foun:1 ani
det:eJ:miJ1ed ani hereby r'l«:lares that all Persa1s usin;J utility services in
the city enjoy the privilege of usin;J an:l benefit fran the provic:llix¡ by
the City, of 1IImicipal services an:l facilities.
3.34.160. no"""~;"". '!he Tax shall be levied for a _"';11'1"" of
twenty-five (25) years frc::m the date of its first hpJeitiCll.
3.34.170. n;.....".dtiCll of p.&,.. AAI'!... 'Ibis ordinance is hereby deC'land
to be a revenue """"....u:e for gellexal govenm¡ent p.lIpCses¡ the proc-v'l" of
the Tax shall be paid into the gl!luexal furx1.
3.34.180. General F\md T......... '!he COJncil :further ~...y:ses to enterïinto a lease obligation with a qualified lessor Cthe IIT-sor") whereby the
-12-
ORDINANCE ro. 1534
City wcuJ.d œ:- ..... obligated to pay rental payments to the T -o;ool' iran the
general furñ of the City over a period of net to EIY""'""d twenty-five (25)
years; the T-mOl' wcuJ.d assign its rights to receive rental payments to a
trustee; an:! the city an:! the lessor wcuJ.d authorize the trustee to sell
certificates of participatia1 in the rental payments payable by the City,
the px.... ~e of 10bich wcuJ.d be used to finance the acquisition,
constructia1, iDpravement an:! equiRlin¡ of the Facilities.
3.34.190. PI:Mer in aMition. 'Ihe powers conferred by this ordinance
are in additia1 to, ani the lUdtatiaw i"'V"""d by this ordinance do net
affect, the powers conferred by any other law or ordinance.
3.34.200. C>rdinara. Cl:luL..ullin¡. If this ordinance is inconsistent
with any other law, this ordinance is ......'L..ullin¡.
3.34.210. T.in...-.., CcnI:Ib-I~ion.
construed to p1.........te its objects.
'Ibis Ordinance shall be liberally
3.34.220. ~"ect. or nmiaaian.. ValirJitv of PL'. AA.";1"V"Ia or Taxes. If
the jurisdiction of the Ccuncil to order the l-o-"'1.:>SEId act is net affected,
the defect or anissicl'1 of any officer in PL' .....-4i~ under this ordinance
does net invalidate the lA' ^-'IiJçs or taxes levied under this ordinance.
3.34.230. T.i1nitatia'l of Al±i~. 'Ihe validity of this Ordinance or of
any tax levied ~ to this ordinance shall net be contested in any
action or px~i"q or defense unless such action or PL' .c-'Ii"Ç or
defense shall have been bra¡ght or raised within ninety (90) days iran the
date of the ~ of this Ordinance ani the levy of said tax by the
voters of the City a'I November 6, 1990. Unless an action or ~in:¡ is
ccmunenoed or such defense" raised within said period, this ordinance ani
any tax levied pursuant: to this ordinance shall be held valid an:! in every
respect legal an:! in:xI'Itest:able.
3.34.240. Severllbility. If any section, ...1bMct:ion, subdivision,
paragralXt, sentence, """'1Se or phrase of this Ordinance or any part hereof
is for any reucn held to be unconstitutional, such decision shall net
affect the validity of the remainin;¡ portiCIIs of this ordinance or any
part thereof. 'Ihe Ccuncil ~laræ that it wcuJ.d have I"'ø~ed each
sectia'l, "'1bseC'tiat, subdivisia1S, par-..."..~, sentence, ",1...,'M or
paragrçh thereof, il..__tive of the fact that any a'I8 or Dm'8 sections,
suIosectians, subdivisia1, par..."..a¡.bs, sen\:ences, ",1aJ'ees or ¡:i1rases is
ñ"'C'lared uncalStitutianal.
-13-
ORDINANcE NO. 1534
Al'+icle 2. El~ians
C'Jol1 of Election. A ....,.....iAllll1lÚCipal elec:t.icx1 is hereby called and
ordered to be held in the City œ 'l\1esday, NoveDIber 6, 1990 at which
electiœ there shall be sutmitted to qualified voters of the City the
P1-,+"""ition set forth below:
Pi."""""itien.. '!be P1-,+""".Ltiœ shall ~t' en. the ballot for said
special municipal election in the followin;J fom:
"MEASURE : Shall Ordinance No.
1534 of the City of Q.Jpertino, aàcpted by
the City Oouncil of the City of Q.Jpertino œ
August 9, 1990, be ~ in order to
authorize 1) the acquisitien. and
pJ:: : servation of Blackber1:y Fa1:m as open
space, the acquisition and p.. servation of
other open space land within the City and
the constructiœ of ¡:ub1ic recreation
facilities consistent with the P1- .uvation
and ¡:ublic use of the open space, and 2) the
iIrposition of an electric, gas and tele¡t¡one
utility users excise Tax at rats of not to
e~ two and forty hurxiredths percent
(2.40%) of the manthly bills for said
utility services (subject to an ~Liœ
for senior citizens), for a period of not to
e.'""""'Ci twenty-five (25) years, prcvided that
the City Oouncil has taIœn the initial legal
action r---.._ry to assure the CXIIpletion of
the acquisiticm and ~ servaticn of certain
municipal facilities, constitutinq open
space facilities, generally described in the
Ordinance?"
'!he Oouncil does hereby sul:mit to the qualified voters of the City, at
said speciAl municipal electiœ, this Ordinance and the ¡""',+"""ition set
forth above.
Est!mat-....,;¡ t"'rIoz1- . '!be estiJDatacl casts of the acquisition, construction,
iJDprcvement and equi¡:pinq of the Facilities is twenty-five millicm dollars
($25,000,000).
SlIhmi_ion: :rrttaM.. '!be Oouncil does hereby sutmit to the qualified
voters of the City, at said srec-iAl lIIJrÙ.Cipa]. elec:t.icx1, this Ordinance and
-14-
ORDINANcE: H:I. 1534
the ~.........itiat set forth jn the Section entitled, "PL... eiti""". '!he
City ~'I' :sas to aa¡u1re, o.....Lwct, :iJJproye an! equip the Facilities, to
levy the excise tax an! to enter into a lease åoligatia1 with a qualified
lessor an! for the àojects an! puxpc ses set forth a]:x,ve if a majority of
all qualified voters vot:1n¡ at the ~.........itia¡ set forth a]:x,ve vote in
favor thereof. '!he œntaJ. payments urxrer the lease shall be payable £ran
the geh=:al fUnd of the City.
Polls Ocen. 'Ibe polls for saià election shall be ope¡àod at seven
o'clock A.M. of the day of saià election an! shall remain open
COI1tUtucusly £ran saià time until eight o'clock P.M. of the same day, When
said polls shall be closed, ~L as previded jn section 14301 of the
California Elections Q: de.
Ccnaol iti.."'i..... With st:ablWitia GenImo1 El~iOQ. '!he special IIILInicipal
election hereby called for the date hereinbefore specified shall be, am
is hereby, ordered ccnsolidated with the statewide gel.....al election to be
held within the City at saià date, an! within the territory affected by
the ccnsolidatiat, the election shall be held an! conducted, closed,
ballots ocunted am retumed, retuJ:ns canvassed, am results declared, am
all other ~. ......·....·Urçs :incidenta1 to an! oœ..-::t:ed with the election shall
be regulated am done jn accordance with the previsions of law regulatin;J
the statewide general election am specified herein. '!he Board of
SUpervisors of Santa Clara Camty is hereby requested to order the
consolidation of the special 1II1rÚ.cipa1 election hereby called with said
statewide genera], election, am the Board of SUpervisors of Santa Clara
Camty is hereby authorized to œnvus the returns of saià sreci ,,1
IIILIl1icipal electia¡, am saià electia¡ shall be held jn all respects as if
there were atl.y one electia¡ and atl.y one fam of ballot shall be used.
Said Board of SUpervisors shall certify the results of the canvass of the
retuJ:ns of said ~i.. 1 III1r1icipal electia¡ to the Ocuncil Wh!C'h shall
thereafter 1"1....., are the results thereof. 'Ibe -aura subnitted by this
Ordinance shall be designated a¡ the ballot by a letter printed on the
left maxqjn of the square CCI1tainin¡ the description of the measure, as
previdec1 jn sectiat 10219 of the California Elections Code.
As If Ons El~i...... 'Ibe elections hereby ccnsolidated shall be held
jn all respec:t:s as if there were atl.y one election, and only one fam of
ballot shall be used.
VotiI1a On"lificat-ions. All Persons qualified to vote at general
IIILIl1icipal elections jn the City upon the date of the election herejn
-15-
ORDINANCE: 1«). 1534
provided for shall be qualified to vct:e upa¡ the ~"¥",,,ition sutmitt.ed at
said spec'bl elect:ia1.
~11ots. Ballots for the electiem shall be provided in the fœ:m arxl
in the 1"''-'' prcvided by law. on said ballots, in addition to any ather
printed matter Whici1 may !:Ie required by law, two votin;J squares shall be
set off to the right of the p1."¥""'ition sutlllitt.ed at the electiem, in the
manner prc:IVi.ded by law, CX18 havin¡ the ward "YES" printed before it arxl
the ather havin;J the ward ''H:)" printed before it.
Methcd of Votin¡. Fach voter to vct:e for the ~"¥",,,ition shall stanq:¡
or write a cross, or indicate by hole pI.II1å1 or ather means, in the blank
space q:posite the ward ''YES" em the bIù.lat to the right of the
prcpcsiticm; and each voter to vct:e against the ~"¥",,,ition shall stanq:¡ or
write a cross, or indicate by hole pI.II1å1 or ather means, in the blank
space q:posite the ward ''NO'' em the ballot to the right of the
~"¥",,,iticm.
An,icle 3. pnhlica~i..... and Effective Date
Publication. nú.s orclinance shall be pJblishad a1Ce a day for at
least seven days, in a ~per printed, pJblishad and cirt:u1ated at least
six days a week in the City, or a1Ce a week for two \leeks in a newspaper
printed, pJblishad and circulated less than six days a week in the City.
'n1e first of said plblicatiaw shall, in either event, be within fifteen
(15) days after the adcptia1 of this orclinance. 'n1e City Clerk is hereby
authorized and dinIcted to DBJœ said pJblicatiœs and to transmit, for
receipt no later than August 10, 1990, a certified copy of this Orãinanoe
to the ÇPJ:'¥Liate officbl. of santa Clam camty respalSible for
praparin;J the ballots for said electiem.
Effective D!rI:s. nú.s orclinance shall beo- effective i_b:tely
upon its adqItiem by twowt:hirds vct:e of all the 1II<II'IIheJ::s of the Ccuncil.
IN'IRXX1CED at an adjcumed regular Jœetin;J of the City Ccuncil of the
City of O,¡pertino this 1st day of August, 1990, arxl ~ at an
adjcumed regular Jœetin;J of the City Ccuncil of the City of O,¡pertino
this 9th day of Au !ust , 1990, by the following vct:e:
-16-
ORDINANCE 1«). 1534
YQt§ p......l.A111 ~ t.he Citv l'ft1l'V'!i 1
~: Koppel, Sorensen, Szabo, Rogers
NOES: None
ABSENT: Goldman
ABSTAIN: None
1a'~~"T:
APPRJ\1ED:
/s/ Dorothy Cornelius
City Clerk
/s/ Barbara A. Rogers
Mayor, City of 01pertin0
-17-