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Ordinance 1534 ,J 0RDINANc:I!: 1534 AN ORDmANCE OF 'IHE CI'l'Ir cnJNCIL OF 'IHE CI'l'Ir OF aJPERl'IN:) æ:JlœIm 'IHE DŒœmœ OF A t1l'ILI'1Y tJSEæ EXCISE TAX AND CIRIJERIlG 'IHE stJæISSlœ OF A æ:Jlœmœ ~UI( 'ro 'IHE EIECrORA1'E OF 'IHE CI'l'Ir Sections: 3.34.010 Definitions 3 . 34. 020 ExeIIptians 3.34.030 Tele¡:hcr¡e Users Tax 3.34.040 Electricity Users Tax 3.34.050 Gas Users Tax 3.34.060 Services Users Rec:eivin;r Gas or Electricity Directly 3.34.070 Penalties 3.34.080 Actians to Q)l1ect 3 . 34 . 090 D.rt:y to Q)llect - P.t., <-i' '...... 3.34.100 Additional Power and [),¡ties of Tax Administrator 3.34.110 1.<;,c;--'1t - Administrative Remedy 3 . 34 .120 Reo:Irds 3.34.130 RefUnds 3.34.140 ~es of Construction 3.34.150 Benefit to All Persons 3.34.160 Duration 3.34.170 Disposition of P.t.,.~. 3 . 34 .180 General F\n:t 1_ 3.34.190 Power in Addition 3.34.200 Ordinance a.....L..ullin;r 3.34.210 L:iberal cawtruction 3.34.220 Defect or cmisaion, Validity of P.t..<"~jn;¡s or Taxes 3.34.230 LiJnitation of Actions 3.34.240 5everability 'IHE CIT'i cnJNCIL OF 'IHE CIT'i OF aJPERl'IN) OOES œœIN AS FOUDiiS: '!he FA1rpOM ot this Ordinance is to ;~ a utility users excise tax as a t'IMII'JUe --Ire J"""'-nry to pay the usual and current expenses of con:ñJctin;r the 1ILII'Iic1pal gcvemœnt ot the City, the ~.. .....~. of which shall be paid into the g8nC'al fund ot the City. 'Ih1s Ordinance shall be known and may be cited as the ''tJt1lity Users Ðcc1se Tax Ordinance". 3.34.010 Definitions. Except W'hare the cx:ntext at:harwise requires, the definitions set forth in this section gcvem the ccnstruc:tion of this Ordinance. -1- ORDINANCE NO. 1534 "~' meal1S the City of 0Jpert:in0. "Facilities" meal1S the m.micipal facilities generally iI1cludirq Blacl<beny Fazm, other open space land within the City and the p..¡blic recreational facilities consistent with the ~ n:tVatiat and p..¡blic use of open space. Facilities shall be A.....-I available and CII'eoeptjble of use within the III8anin¡ of the tam "avallabil.ity and privilege of use", as used in this Oràinance, when such facilities exist and are available for use durin; any portia'! of the fiscal year next i"....-.¡i~ the levy of the Tax. "~" iI1cludes natural gas and any other gas used for light, heat and pc7w'I!r . ''MQn!;h'' meal1S a calerx!ar month. "Non-utilitv succlier" means a 5eJ:vice SUpplier, other than (a) a gas corporation or (b) an electrical corporatic:r\ servin; within the City, which geærates electrical energy in capacities of at least 100 kilowatts ITOl1thly for sale to others. "Persons" means any dcmestic or foreign corporation, fizm, association syn:licate, joint stock CiCIIpIlIy, partnership of any kin:i, joint venture, club, Massachusetts bJ,siness or C:)''''''', law ttust, society, or irdividual. "Tax" means the utility users excise Tax proposed to be ;~ by this Ordinance, more particularly desc:ribld in Sections 3.34.030, 3.34.040 and 3.34.050 of this Ordinance. ''Tax Þ.dministra~....... means the City Treasurer. "Teleà1a'18 Co"""""tic:r\, " "electri...,.' corcoration, " and 1Ism,¡ corcoration," have the _ meanin:;¡s as defined in sections 234, 218, 222 and 215.5, respectively, of the California PUblic utilities Code (as said sections existecI. a'! J\Jna 1, 1989), ---,L that "electrical corporation" shall also be c:x:I1Sb:uø:1 to inclu::!a any m.mic:ipality or Persa1 en;¡aged in the sellin; or SJpplyin; of electrical power to a SeJ:vioe User. "5eJ:vice SUcclier" means any entity requind. to collect or self-i"V"'"'" and remit a Tax as i "'I. .:JSed by this Ordinance. -2- ORDINANCE NO. 1534 "Service U_r" means a Person required to pay a Tax ÍJr1["œed ..... this Ordinance. -:[ 3.34.020. Exemctions. (a) P\Jblic bc:dies, religious organizations and other Persons 8XSIÇ1t un:!er state or federal law shall be exeIIpt frail the Tax. ReSidential service users of 65 years or older shall be. ~L fran Tax payments un:!er this ordinance upon applicatia'1 to the Tax Administrator, in such IIIal1I1er and with such proof or qualification as the Tax Administrator shall determine. (b) 1be City Council may, by order or resolutiat, establish one or mre classes of Persons or one or more classes of utility service otherwise subject to payment of a Tax ;"V""ed by this ordinance and provide that such classes of Persons or service shall be exenpt, in wtlole or in part, fran such Tax. (c) 1be Tax Administrator shall prepare a list of the Persons exE!I1pt fran the previsions of this ordinance by virt¡¡e of this section and fumish a c:opy thereof to each Service SlJR'lier. 3.34.030. TeleDhone Users Tax. (a) 'Ibere is hereby ;"{"œeà a Tax (herein calleci the "Telephone Users Tax") on the ano.mts paid for arr;¡ intrastate telephone services by ever¡ Person in the City other than a Telep,cne Corporation, usirg such services. 1be Tax i:øpœed by this section shall be at the rate of b.'o and forty hurmedths percent (2.40%) of the charges made for such services and shall be paid by the Persa1 payirg for such services. (b) As used in this section, the tem "charges" shall net ircl1Jde charges for services paid for by inserting ooins in ooin-q:erateci tele¡:hones ~L where such ooin-q:erateci service is fuznished for a guaranteed amount, in which event the ano.mts paid under such guarantee plus arr;¡ fiJœd lDCI'1thly or other periodic d1arqe shall be included in the base for CCIIp1tirg the amount of Tax due; nor shall the tem "charges" include charges for arr;¡ type of service or equiprent fuznished by a service supplieci subject to public utility regulations durirg any period -3- ORDINANCE 00. 1534 in which the same or 8i1lli 1 ar scvi08ll or equ.i.PI*1t are also available for sale or lease trail P8nJaw other than a Service SI.¡plier subject to ~lic utility reguJ.atiœ; nor shall the wcrda "teJ.øpt..... OCIIIII.Inicatiœ SCVioes" include lam llà)il. servi08ll or maritu. llà)il. SCVi08ll as defined in Section 2.1 of Title 47 of the 0:Ide of FecIeral RegulatiCX1S as said section exi.stecI on January 1, 1970. 'Ihe tam "tel8plJ.... lYWMo'lÚ.catiœ sezvioes" refers to that service which provides ,,~~ to a teJ.epbcne system am the privileqe of telept&::¡.. quality lYWMo'lÚ.catiœ with substantially all Persons havinq telept¡.... statiCX1S which· are part of SUCh telephone system. 'Ihe TeJ.ept¡c... Users Tax is intendact to, am does, a¡:ply to all chaJ:çes billed to a telephone ,,~ havinq a situs in the City, iu...,¡pe..."tive of Whether a particular CY'ftIM'lÚ.catiœ sezvice oriqinates an:j,Ior t:eDninates within the City. (c) 'Iha Tel~ Users Tax shall be collected trail the Service User by the Person providinq the intrastate tel~ ......... 'lÚ.catiœ SCVices, or the Person reoeivinq payment for SUCh scvioes. 'Ihe amount of Tax collected in one (1) ID:II'Ith shall be naitted to tha Tax Administrator on or before the last day of the followinq 1D:II'Ith; or, at the option of the Person required to collect am remit the Tax, an estimated amount of Tax collected, IDBaSUred by the Tax bill in tha previous 1D:II'Ith, shall be remitted to the Tax Administrator on or before the last day of each month. (d) Notwi~ the provisions Of s"'"6Bction (a), the Telephone Users Tax shall not be inp nd \.1pCI1 any Person for usinq intrastate telephone ......... 'lÚ.cation setVioes to the extant that the amounts paid for SUCh setVices are ex&Ipt trail or not subject to the Tax Í"f' iacl un:!ar Part 20 (carunencinq with sectiœ 41001) of Divisiœ 2 Of tha Califomia Revenue am Taxation Coda, or the Tax i~ un:!ar section 4251 of the Internal Revenue Code. 3.34.040. Elec:tricitv U....,... Tax. (a) 'Ihere is hereby i"f'.o."d a Tax (herein called the "Electricity Users Tax") \.1pCI1 fIV8ry Person in the City other than an Electrical Col1JOration usinq electrical energy in the City. 'Ihe Tax ~ by this section shall be at the rate Of two am forty hundredths percent (2.40%) of the charges made for such energy by an electrical OOlpOration frand1isecl to scvice tha City am shall be billed to am paid by the Person usinq the energy. It the c:hazges made for such energy by the frand1isecl electrical oorporatia'l are negctiated either (1) on the basis that the Selvice User has provide::1 its am transmissia'l -4- ORDIW.NCE NO. 1534 voltaqe reduction facilities or (2) as inlividua.lized neqotiated oo-çeneration avoiàanca transmission voltaqa rates, an:i the resultiIq neqotiated rates are not available to the City, such negotiated rates shall be made available to the City by the Service User. 'I11a Tax applicable to electrical energy prc:N1daå by a non-ut1lity su¡:plier shall be based on the above Tax rate an:t the charges made for such electrical energy if there is an ams-lezçt:h transaction far the sale ot the electrical energy ~ the nc.n-ut1lity su¡:pl1er an:t the Service User. If there is not an azms-lezçt:h sale frail a nc.n-ut1lity supplier, the Tax shall be detemined by applyinq the Tax rate to the equivalent charges the Service User IoICUld have incurred if the energy used had been provided by the electrical an-poration fnn::h1.se:1 by tha City. Rate schadules far this p..¡rpose shall be available frail tha City. Non-utility su¡:pliers shall install, maintain an:i use an ~_1ate utility-type meterinq system which will enable oarpl1ance with this section. If the electrical energy is generated by the Service User tar its own use, the Service User shall provide the City with the actual monthly cost of gene.ratinq the electrical energy so used an:i the Electricity Users Tax shall be based on the above Tax rate ~l1ed to said actual cost. Cost figures supplied by the Service User shall be subject to periodic audit by the City an:i a~riate adjUS'bDent p.¡rsuant thereto. "01arqes, " as used in this section, shall in:::lude chazqes made for: (1) metered energy an:i (2) minimJm charges far scvice, includinq custcmer charges, service charges, dsmand charges an:i all other annual an:t monthly charges (other than standby charges), fuel or other cost adjustJnents, authorized by the calitornia Public t1t1lities ('n!OIIi ....ion ar the Federal Energy Regulatory rnm.; -ion. (b) As used in this section, the tem "usinq electrical energy" shall not be oon..L...\J8d to mean the storage ot such energy by a Person in a battery owned ar pon-8'!1d by such Persa1 far use in an autall:lbile or other maàúnery devioe apart frail the pr-;898 up::n which the energy was received, provit:ecl, hcwsver, that the tem shall in:::lude the reœivinq of such energy tar the purpcse of usinq it in the charqinq of batteries; I1I?r shall the tem in:::lude electr:'city used an:t c::an5'...-! by an electrlC utility supplier in the con::iuc:t of its bJsiness: nor shall the tem include the mere receivirç ot such energy by an electric ¡::ublic utility or governmental aqency at a point within the City far resale; nor shall the -5- ORDINANCE 00. 1534 tam include the use of such energy in the production or distribution of water by a ~lic utility or a gcv&mmental agency. (c) 'Ihe Electricity Users Tax shall be collected frail the Service User by the Service su;plier or non-utility supplier. 'Ihe Electricity Users Tax on use supplied by self~tion or oo-çen&ration or fran a non-utility supplier not subject to the jurisctictiCl1 of tl'1is Ordinanœi, shall be collected an1 remitted. to the Tax Administrator in the manner set forth in SectiCl1 3.34.060. 'l11e aIIDJnt· of Tax collected by a Service su;plier or a ncn-utiJ.ity supplier in Q'I8 mcnth shall be remitted. by united states mail to the Tax Administra.tor, posbDuked on or before the last day of the follCIWin;J mcnth; or, at the cptiCl1 of the Parscn required to collect and remit the Tax, an estimted aIIDJnt of Tax ......'"'Jred by the Tax billed in the previOJS mcnth, shall be rllllitted. by united states mail, to the Tax Administrator, posbDuked CI1 or before the last day of each month. 'Ihe aIIDJnt of the Tax rllllitted. may be estimted by a form.üa based upon the payment pattern of the su¡:plier's custc:mers. (d) Natwithstandin;J the provisia1S of sectiCl1 3.34.090(a), if the aIIDJnt paid by a service User is less than the full aIIDJnt of the energy charge and Tax which has acx:ruscl far the billin; period, such aDDJnt an::1 any subsequent payments by a Service User shall be a~ied to the energy charge first until such charge has been fully satisfied. Any remainin; balance shall be applied to Taxes due. 3.34.050. ('~" IT""'.... Tax. (a) '!here is hereby i~ a Tax (herein called the "Gas Users Tax") upon ever¡ Person in the City other than a gas oozporation or electrical corporation, usin;, in the City, gas which is àe1ivered thrcu;¡h mains or pipes or by III:1tor vehicle or by rail. 'Ihe Gas Users Tax shall be at the rate of two and forty hundredths percent (2.40%) of the charges made for the gas and shall be billed to and paid by the Parscn usin; the gas. If the charges IIIIIde far such gas by the fran::hised gas oozporation are negotiated and the ~~ negotiated rates are not available to the City, such negotiated rates shall be mada available to the City by the SeIVice User. '!be Tax ëq;:plicable to gas or gas transportatia'1 provided by non-utility su¡:pliers shall be based. a'1 the charges made far SUå1 gas or gas transportation if that is derived fran an arm-lerr;¡th transaction -6- ORDIW.Na: 00. 1534 between a ncn-utility SU¡:Plier and the Service User. It there is not an azms-len;th sale, the Tax shall be detezminect by ~lyin:¡ the Tax rate to the equivalent d1a.rges the Service User WOUld haVII inc:uri-8d i~ the gas or gas transportatia1 had been pravid..d by the gas c.....~...tia1 franchiŠecI by the City. Rate SChedules for this p.¡tpose shall be available fran the City. "~II as USed in this sectiCl1 shall include: (1) those billed for gas Which is delivered through mains or pipes or by DCtor vehicle or by rail: (2) gas transportations d1a.rges, and (3) deIIIarxi d1azges, service c:harqes, 0J.stcmer d1a.rges, III:J.zWua charges, annual and mcnthJ.y c:harqes, and any at11er d1azges (at11er tl1an standby charges) authorized by the CalifOrnia Public utilities ð--.¡""ia1 or the Feder.ù Ð1erqy Regulatozy Camn.issiCl1. (b) '!he Gas Users Tax is not a¡:pliœble to: (1) charges made for gas Which is to be resold and delivered thrcugh maine and pipes or by motor Vehicle or by rail; (2) charges made for gas sold by a ~lic utility, ncn-utility SU¡:Plier or ~ aqency for use in the 9'1!1'18ration of electrical energy or for the prccuct,1a1 or distribJtion o~ water: (3) charges made by a gas ~lic utility or gas USed and 00I1SUIIIed in the course of its ~lic utility bJsíness; and (4) charges made for gas USed in the prq:wsion of a IDOtor vehicle, as authoriZed in the Vehicle Ox!e of the State of California; (c) '!he Gas Users Tax shall be collect:.ed trtm the Service User by the Person sellin:¡ or ~ the gas. In the case of ~ of gas fran a non-utility su¡:plier, or a gas OOZ'poratia1 net frarx:hised by the City, the Service User will be ~..ible for remittinq the aRJliœble Gas Users Tax cI.irectly to the Tax Adlninistrator. A Person sellin:¡ only transportatiCl1 services to a user for delivery of gas thrcugh mains or pipes or by IDOtor vehicle or by rail shall collect the Tax fran the Service User based a1 the t.raJ'IsportatiCl1 charges. Except as Provided above, the PenIa1 sellin; or transportin; the gas shall, CI1 or before the 20th of each calendar month, cnm.anc:inq CI1 the 20th day of the calerèar IrOnth after the effective day of this Ordinance, make a retum to the Tax Administrator statin; the amomt of Taxes billed durin; the Pl- "'<ling calendar IrOnth. At the time SUCh returns are filed, the Persat sellin; or transportinq the gas shall remit Tax payments to the Tax Administrator in ac::corclance with schecIules established or a¡:provecf by the Tax Administrator. -7- ORDINANCE NO. 1534 3.34.060. Servicø 11__ ~iv~ 1"..... or El~1"ieit:\r D~~y. (a) Notwithstandinq any ot:h8r provisiCl1 of thia Ordinance, a Service User receivinq gu or electric energy dinct1y trail a l1CIH1t1lity SlJ¡:pl1er not un::!ar the jurisctic:t1en of thia Ordinance, or usinq electricity qenerated by the Service User for its CI1 use, or ot:hcw1se not havinq the full Tax due en the use of gu or electric energy in the City. d1rectJ.y billed and collected by the Sexvice SUI:Plier, shall report saià fact to the Tax Administrator within thirty days of saià use and shall d1rectJ.y remit to the City the êIDQJnt ot Tax due. (b) 'I11e Tax Administrator may require trail saià Service User the filed Tax returns or other satistactozy evidence ñ,.."..,_,,,Ttinq the sale price and QUantity ot gas or electric energy USed. 3.34.070. Penalti~. (a) Taxes collected fran a Sezvice User which are not remitted to the Tax Administrator en or before the due dates provided in this Ordinance are delinquent. Sho..ùà the due date ocx:ur on a wekend or legal holiday, the return may be pos'bIarkeà on the first regular IôOrkin:1 day followinq a saturdaY/Surxlay, or legal holiday. (b) Penalties for del~ in remittarre of any Tax collected or any deficiency detendnation detemined by the Tax Administrator, shall attach and be paid by the Person required to collect and remit at the rate of fifteen percent (15t) ot the total Tax collected or iDqX)sed herein. (c) '!he Tax Administrator shall have power to iJJp:JSe additional penalties upon any P8na1 requi.reà to collect and remit Taxes un!er the provisions of this 0ràirIance for frauà in report.inq or remi ttin; at the amuaJ. rate ot fifteen petC&nt (15t) ot the êIDQJnt of the Tax collected or as l"eCX:IIplteà by the Tax Administrator. (d) Every penalty i"t""'Gaà un!er the provisions of this Ordinance shall i:A. ..... a part ot the Tax requi.reà to be remitted. 3.34.080. Actions to Collect. Arty tax required to be paid by a Service User under the provisions of this Ordinance shall be 1'1.....- a debt owed by a Sezvice User to the City. Arty such Tax collected fran a Service User -8- CJRI)!}MCE NO. 1534 which has willfully been withheld frail the Tax Administrator shall be rI-.-. a debt 0W8d to the City by the Persat I:'8qI.Ùr8d to collect an:1 remit. Any Persat ow1nq mcney to the City umar the previsions ot this Ordinance shall be liable to an act1a1 brt:aJght in the name ot the City for the recovery ot such amount. 3.34.090. D.ltv to Collect - PI-n. ....lIJreII. 'lh8 duty to collect an:1 remit the Taxes ;'V""«l by this Ordinance shall be. pertODB:! as follows: (a) Notwithstan::1in;J art¡ ot:har prtIVisicr1 of this 0rd1nance, the Tax shall be collected insotar as practicable at the same time as an:1 alCIn:J with the charges made in aooordanca with the regular billirg practices of the Sel'vice SUpplier. Wher8 the amount paid by a Sel'vice User to a Sexvice SUpplier is less than the tull amount ot the utility c:hazge an:1 Tax which has acc:rueà for the billinq peric:d, such amount an:1 any subsequent payments by a Sel'vice User shall be ~ied to the utility charge first until such charge has been fully satistied. Any renairúrq balarx:e shall be a¡:plied to Taxes due. In these cases \oIhere a Sexvice User has· notified the Sel'v1ce SUpplier of this refUsal to pay the Tax iJrr<:¡sed on said utility charges Section 3.34.100(0) will a¡:ply. (b) '!he duty to collect the Tax frail a Sexvice User shall ccmnenc:a with the beqi.11nin; ot the tirst full regular billirg period a¡:plicab1e to the Sel'vice User \oIhere all charges nozmally included in such regular billirg are subject to the previsions ot this Ordinance. Where a Person receives more than one billinq, one or more bein; for different periods than another, the duty to collect shall arise separately for each billiIq. 3.34.100. ~;ticnal Power an:1 duties ot Tax Admi!'Iistrator. (a) '!he Tax AdDdni.strator shall have the pcJWIr an:1 duty, an:1 is hereby directed to enforce each an:1 all of the previsions of this Ordinance . (b) '!he Tax Adm1n1stn.tor shall have the pcJWIr to adq¡t rW.es an:1 regulations not :inocnsistent with previsia'1S of this Ordinance for the p.Jrp06e of canyinq out an:1 enforcinq the payment, collection an:1 remittance of the Taxes herein i~. A CCFž ot such rW.es an:1 regulatia'1S shall be a1 tile in the Tax Administrator's office. (0) '!he Tax Adm1n1stn.tor may maJœ administrative agreeoents to vary the strict requiremants of this Ordinance so that· the collection of any Tax ~ hereby may be made in oanformance with tha billin;¡' procedures -9- CRDlNANa: 00. 1534 ot a partiOJlar Saxvice SUpplier so 1en; as said aq1.--.,tA result in COllectiat ot the Tax in ocntot1llanCll with tn. 9I!Mral pu%pc&e an:1 SCOpe ot this 0rà1nanc:e. A <XV.f ot esc:h such ~--nt shall be at file in the Tax Administn.tor's office. (d) 'lbe Tax Administrator shall dete%mne the eliqibility of any P8rson who asserts a right to 8XIIIIpt:iat frcm tn. Tax ;"V"68d by this 0rà1nanc:e. '!he Tax Administrator shall pz:wide the Saxvice SU¡:plier with the nama ot any Persa1 who the Tax Administrator detemines is exeDpt frail the Tax i ~ hereby, together with the adcIresa an:1 '\C<X.\mt number to Whic:h service is SlWlieã to any such ~L Person. '!he Tax Administn.tor shall notify the Service SUpplier ot temination of any Person's right to ~on henunder, or the à1anqe of any address to Whic:h service is SlWlied to any exeDpt Persa1. 3.34.110. h~--e"L - Adminim-.......ive ReMdy. (a) '!he Tax Administrator may make an "a'i~-_'1t for Taxes not remitted by a Person required to remit. (b) Whenever the Tax Administrator cIetermines that a Service User has deliberately withheld the aJIDJnt of the Tax O!o'ed by him frail the amounts remitted to a Person required to collect the Tax, or that a Service User has refused to pay the aJIDJnt of Tax to such Persa1, or whenever 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::1er this ortlinance fran certain I'IaIæd Saxvice Users for specified bi1linq periods. (c) '!he serlice SUpplier shall provide the City with amamts refun:ied to be paid an:vor UI"pid alan; with the nama an:1 addresses of the serlice Users neg1ec:t1nq to pay the Tax ;~ un::1er previsions of this Ordinance. Whenever tn. Service User has failed to pay the aJIDJnt of Tax for a period ot two or Da:'e bi1linq periods, the Service SU¡:plier shall be relieved of the obligat!a'I to collect Taxes due. (d) '!he Tax Administrator shall notify the Service User that the Tax Administrator has ".....~ I"eSpalSibility to collect the Tax due for the stated periods an:1 demanà pa~ of such TaxM. '!he notice shall be served on the Service User by harñ1nq it to such user perscnùly or by deposit of the notice in the t1nited Sates mail, postage prepared thereon, acIdressed to the Service User at the addresa to which bil1inq was made by the Per.son required to collect the Tax; or, shculd the Service User's -10- ORDINANCE N:I. 1534 address c::harqe, to the last known aådl_. It a Service User fails to remit the Tax to the Tax Administratar within fitt:e.n (15) days trail the data of the receipt of the notice upa'\ him, ~ shall be the data of mailinq if service is net ~~11shec1 in Persal, a penalty of twenty-five percent (25%) of the amount of the Tax set forth in the notice shall be ~, '!be penalty shall ~. .... part of the Tax herein required to be paid. 3.34.120. :.......,...¡... It shall be the dÜty of every PersaI required to payor collect and remit to the City any Tax 1"V"'4d by this 0rcliJ1ance to keep and pt 9rv&, for a pericxt of three (3) years, all l"eOOlås as may be ~"-.ry to detecn1ne the amount of SUCh Tax for Which such Person may have been liable for the remittance to the Tax Administrator, which records the Tax Administratar shall have the right to inspect at all reasonable times. 3.34.130. RefUnds. (a) Whenever the amount of any Tax has been averpaid or paid more than once or has been ¡u:....._ly or illegally collected or received by the Tax Administrator under this Ortlinance, it may be refurxled as provided in this section. (b) Notwiti1.stand1n; the previsions of $I'bsect1on (a) of this section, a Service SU[::pl1er may claim a returd, or take as c:reclit against Taxes remitted the amount ovezpaid, paid more than once, or ø......._ly or illegally collected or receiveà When it is estatIlished that the Service User frail whaII the Tax has been collected did net CWIII the Tax;previded, hOlæVer, that neither a returñ nor a credit shall be allOWEld unless the amcunt of the Tax so collected has either been retun:!ed to the Service User or c:reclited to c:hat1¡es subsequently payable by the Service User to the Þerson required to collect and remit. A Service SU[::pl1er that has COllected any amount of Tax in ---, of the amount of Tax ilrq:>osed by this 0rcI.i.nan0e and actually due trcm a Service User, may ret'Urx:I. such amount to the Service User and claim c:reclit for such overpayment against the ðIIO.Int of Tax Which is due upa'\ any ather Da1thly ret:1.In1s provided such credit is claiJœd in a retum dated no later than three (3) years frail the date of overpayment. (c) No refunà shall be paid under the previsions of this section unless the claimant has estatIl1sheci the claimant's right thereto by written records shcwi.nq entitlement thereto. -11- ORDINANCE 00. 1534 (d) Notwit.hstaniin; other provisia1& ot this sectiC21, whenever a Setvice SlJRllier, ~ to an order ot the Calitornia E>.Jblic utilities l"nnn!i ...iC21 or a ocurt ot CCIIpItant jurisdict1a\, ~ a returx! to Sez:vice Users ot charges tor past utility services, tha TaxM paid ~ to this ordinance C21 the ëIIII:IUnt ot sucn retun:Ja:1 d1argeø shall also be retunded to Setv~ Users, an:! tha Service SUpplier shall be entitled to claim a credit tor sucn ~ Taxas against the aIIO.II'It ot Tax which is due upc:n the next mcnthly retums. In tha 8II8I1t this Orctinance is repealed, the ama.Jnts of an¡ retundable ta)œs will be paid by the city. (e) A Service SlWlier may returx1 the Taxas collected to the Service User in accordance with this sect1a\ or by the Service Supplier's c:ust:aDazy practice. (t) A credit or a returx1 of Tax due shall be granted to an¡ Setvice User fran whaII the Tax is collected to <XIII8r the administrative an:l clerical eJCpense of establishinq an:! auditinq. the cost of generatinq electric energy for its own use pursuant to the third paragraph of Section 3.34.040(a). Any such administrative an:! clerical eJCpense is also subject to audit an:l a~iate adjustment ~ thereto. 3.34.140. ~es of ~ion. Words of the ..........ùinB gen:Ser shall be ñ--..< an:l construed to include correlative IòOJ:'ds of the feminine an:l neuter genders. unless the context shall othezwise i1xi1cate, words ilIportin; the singular number shall include the plural number an:l vice versa. 3.34.150. Benefit to All Person. 'Ib8 City O:Qx:il has found and determined am hereby declares that all Persa1s usin; utility sezvices in the city enjoy the privilege ot usinq am b8netit fran the provic:ü.n; by the city, of IILII'1icipal services am facilitiM. 3.34.160. OJratia'l. 'Ib8 Tax shall be levied for a JlW'i1ll"1II of twenty-five (25) years 1'rœ the date ot its first iJIp:Iøitia'l. 3.34.170. Di"""""itia'l of Pt... A-A_. 'lhis Ordinance is hereby declared to be a I'8V8I1Ue ""'-Jr8 for general goverrJDent pn-p.: i98; the prO.......1.. of the Tax shall be paid into the general turx!. 3.34.180. General F\Jnd T -...., 'Ib8 O:Qx:il further p.o. t. ns to enter into a lease obligation with a qualitied lessor (the IIT-901'") whereby the -12- ORDnw«:E NO. 1534 City 1o'QJJ.d. þA.) ..... cbligated, to pay rental payments to the T-'ior fran the general 1'Un:I of the City aver a period. of not to ~ twenty-five (25) years; the T-7XO 1o'QJJ.d. assign its rights to receiw rental payments to a trustee; an1 the city an1 the lessar WQåd. authorize the trustee to sell certificates of participation in the rental payments payable by thá City, the pt.:.~......,. of wh1à1 1o'QJJ.d. be used. to finance the acquisition, oonstruc:t1on, ~ an1 equ1RJinq of the Facilities. 3.34.190. PtwI!r in Añt'Iition. 'lha pc:iW8rS conferred. by this 0rà1nance are in addition to, an1 the limitatJ.a,s i"V'"'«! by this Orttinanœ do not affect, the powers conferred. by any other law or Ordinance. 3.34.200. 0rcl.i11an0a Ccntrollil'ç. If this 0rcl1nance is inconsistent with any other law, this Orttinanœ is c...d."<.Illinq. 3.34.210. T,iI.........' Ccnstn~iO'1. constroed to Pl"aDOte its objects. 'Ih1s 0rcl1nance shall be liberally 3.34.220. Defect or nmi""IiO'1. Validitv of P.I." ......1i...... or Taxes. If the jurisdiction of the 0:iunc1l to order the p.o.. \ -:-«i act is not affected, the defect or emission of any officer in p.o.. - ""'--H.-gs urœr this Ordinance does not invalidate the p.o... ......Iings or tax. levied un:Ier this Ordinance. 3.34.230. Limitation of Actions. 'lha valicU.ty of this Ordinance or of any tax levied. ¡:AJrSUant to this 0rcl1nance shall not be contested in any action or pl""O ......,inq or defense unless such action or pr»:......"Iin; or defense shall have ~ brought or raiad within ninety (90) days !ran the date of the aRJrcval of this Ordinance and the levy of said. tax by the voters of the City on November 6, 1990. unless an action or pro AMinq is caomenced or such datense raised. within said. per1od., this Ordinance an1 any tax levied. ¡:AJrSUant to this Orttinanœ shall be held valid an1 in ever¡ respect legal and inccntastable. 3.34.240. 5everahilitv. If any section, subsect1a1, subdivision, paragraph, sentence, "', a1" or phrase of this Ordinance or any part hereof is for any rea&a1 held. to be ur..........t.1tut1onal, such decisial shall not affect the validity of the ~ portions of this Ordinance or any part thereof. '!he OJuncil declares that it Io'QJJ.d have p"ø-~ each section, subsectial, sulxtivisiaw, paragraph, sentence, clause or paragraph thereof, L.......,¡pectiw of the fact that any 01'18 or more sections, subsections, subd1vision, pangraphs, sentenc:es, clauses or phrases is declared unccnst1tut1onal. -13- ORDIN1.NCE I'Ð. 1534 Article 2. Elect:iaw (';0 11 at Electia'l. A special lII.Inicipal electia'l is hereby called ani order&d to be halc1 in the City a'I 'I\Jeeday, Nov8mber 6, 1990 at IoIhich elec:tia'l there shall be sutmittad to qualified voters of the City the proposition set forth below: PI............ition. 'n18 ~_itiat shall ~~ on the ballot for said special II1IrÙ.cipal election in the toll~ fozm: .~ ) "MEASURE : Shall Ordinance No. 1534 at the City of 0Jpert1n0, adcpteà by the City CQmcil of the City of 0Jpertin0 a'I August 9, 1990, be ~ in order to authorize 1) the acquisitia'l ani presezvation at BlacldJerry Fam as open space, the acquisition ani PI" nrvation at other open space lani within the City ani the canstz\Jctia'l of public recreation facilities CXII1Sistent with the ~ nrvatia'l ani public use of the open space, ani 2) the i.rr;x:sition of an electric, gas ani talepba1e utility users excise Tax at rates of not to ev""""'¡ two ani forty hurx!redths percent (2.40%) of the mcnthly bills for said utility servi~ (subject to an exøaptia'l for senior citiz8lIII), for a period of not to e.~ Wanty-fiva (25) yøars, provided that the City CQmcil has taken the initial legal action J"A'""""'8Sry to ~ the oaIIÙetia1 of the acquisitiat aM Po- T9rvatlat of certain municipal facilita., consti.tutinq open space facilities, g8n8rally descrilJed in the 0rc:ii11arce?" / The CQmcil does hereby sutmit to the qualified voters of the City, at said special III.II'1icipal election, this 0rtlli1an0e ani the proposition set forth above. '.þ[111 c-r~ ,L t';1 Ùt.., 'L~1 ' Esti1Mh..i C'J-..n-. 'n18 estæted oosts of the acqU1sitia'l, ccnstruct:ion, ÎIl¡)roveænt ani equippin; of the Facilities is twBnty-tive million dollars ($25,000,000). SUbnission: Int.ent. 'Iha CQmcil does hereby subldt to the qualified voters of the City, at said special lllmicipal electiat, this 0rtlli1an0e ani -14- æDINANcE M:>. 1534 the !-"-"+,-,,,,itim set forth in the Sec:tia1 entitled, "p.\.... "ition". The City !-"-' \' iM to acquire, 0CI1Struct, iDprcve and equip the Facilities, to levy the excise tax and to enter into II. 1_ cbliqatia1 with a qualified lessor and for the objects and p.¡zpo: I" set forth ~ it II. majority of all qualified vctera vctinq m the ...._itim set forth above vote in favor thereof. 'nIa rental payments urx!ar the lease shall be payable fran the qeneral 1'Urñ Of the City. Polls Ocen. 'Iha polls for said elactim shall be c:pelJ6l at seven o'clock A.M. of the day Of said elactim and shall remain open CXII1t.i1uJoJsly fraD said tUe until eight o'clock P.M. of the same day, when said polls shall be closed, ~L êUI providac1 in sect.im 14301 of the California Elect1aw Code. O:Jnsol1dation With statewide Gener81 Election. 'Ihe specialuunicipal election hereby called for the date hereinbefore specified shall be, and is hereby, ordered consolidated with the statewide qeneral election to be held within the City m said date, and within the territory affecte::1 by the consolidation, the elactim shall be held and cx:n::Iucted, closed, ballots counted and returned, ret:lm1s canvassed, and results declared, and all other pro~~lings incidental to and o......-."'ted with the election shall be regulated and cIa18 in aooordanoe with the provisions of law regulatirq the statewide general elactim and specified herein. '!he Board of SUpervisors of Santa Clara 0::IUnty is hereby requested to order the consolidation of the sr-ci>ol IILII'Iicipal elactim hereby called with said statewide general electiat, and the Board of SUpervisors Of Santa Clara 0::IUnty is hereby authcrized to canvass the retums of said special I!I.Il1icipal electim, and said elactim shall be held in all respects as if there were only ana electim and a1ly ane fam Of ballot shall be used. Said Board of SUpervaors shall oertity the results Of the canvass of the ret:lm1s of said ~i>ol lILII'Iic1pal elactim to the 0::unc1l which shall thereafter declare the results thereof. 'Ihe ......"Ure sutmitted by this Ordinance shall be ñ_ignated m the ballot by II. letter printed on the left margin ot the square 0I:I'1tain:in;J the descriptim Of the measure, as provided in sect.iat 10219 of the California Elections cede. As If on. Election. 'nIa elect1aJS hereby consolidated shall be held in all re.opect:s as it there were a1ly one elect1m, and only one form of ballot shall be used. Vot1na (),..1 ifications. All Persa1s qualified to vote at general municipal elections in the City upon the date of the elaction herein -15- ClRDIN1\NCE 00. 1534 provided. far shall be qualified to vote I.IpCI\ the ~..........itia'l sutmitted at saià special elec:t1a'1. ~llots. Ballots far the elec:t1en shall be provided in the fom an::! in the 1"IIJIIIber provided by law. en said ballots, in addit1cn to arry other printed mattar Which may be r.qu1reä by law, two vtItjn;J squares shall be set off to the right of the ~....-1t1cn sutmitta:l at the elec:t1en, in the manner provided. by law, CIte havinq the wcrc1 ''YES" printeä before it an::! the other havinq the 1o'CrC1 ''M)" printed befor. it. . Methcd of Vatin¡. Ead1 voter to vote far the ~_itia'l shall staup ar write a cress, ar indicate by hole p.¡nch ar crther~, in the blank space opposite the 1o'CrC1 "YES" a'I the. ballot to the right of the prcpoeitien; an::! each voter to vote .aqaiJwt the ~_J.tien shall staq) or write a cress, ar inàicate by hole p.¡nch ar other means, in the blank space o¡;poeite the word ''M)'' en the ballot to the right of the Pl'qlOSition. Article 3. Publicatia'l and EffectiVR Date Publication. 'l111s Orà.inance shall be ¡:ublished cnc:e a day for at least seven days in a I'I8WBpaper pr1nted, ¡:ublished an::! circu1ated at least six days a ~ in the City, ar cnc:e a '-k far two -u in a newspaper printed, ¡:ublisheà an::! circ:u1atad 1_ than six days a ""'88k in the City. '!be first of said ¡:ubl1catiaw shall, in either event, be within fifteen (15) days after the acIcpt.1cn of this Orà.inance. '!he City Cleric is hereby authorized and d.ir8ctad to IIIaIœ said p¡bl1catiClte and to transmit, for receipt no later than August 10, 1990, a certified ocpy of this Ordinance to the ~,-¥,-iate official. of Santa Clara 0c1Inty respalSible for preparinq the ballots far said elec:t1en. Effectiw Data. 'Ihis 0rà1nance shall þA.~. -._ effec:t1ve i_'H"tely upon its adc:pt:.1cn by two-th1rda vote of all the -N of the Co.Incil. INlR:)IX1CED at an adjcumed regular Iœ8t1nq of the city Co.Incil of the city of QJpertino this 1st day of August, 1990, and EX1\Cl'ED at an adjcumed regular Iœ8t1nq of the City Ccunc1J. of the City of 0Jpertin0 this ....2!!! day of AURust , 1990, by the follcw1nq vote: -16-