Ordinance1535
ORDINANCE NO. 1535
AN ORDINANCE OF 'IHE CIT1{ CXXJNCIL OF 'IHE CIT1{ OF C!.JPERrn«)
æJKSIOO 'IHE ooœITICN OF AN EXCISE TAX Fœ. 'IHE AVAIIABILI'lY
AND PRIVIUm: OF USE OF CERI'AIN K.JNICIPAL FJ\CILI'l'I]S
AND ORIJERIN:; 'IHE SUEMISSICN OF A PR)KSITICN 'In=U1<
'ro 'IHE EIECroRATE OF 'IHE CIT1{
Sections :
3.34.010 Definitioos
3.34.020 Rules of ConstJ:ucticn
3.34.030 Benefits to all Persons
3.34.040 Intent of Council
3.34.050 Imposition of a Tax
3.34.060 !t.Inicipal Facilities
3.34.070 Ma,,+mnm Rates
3.34.080 Exemptions
3.34.090 Duration
3.34.100 Rules and Regulatioos
3.34.110 Asllft..·...."I1:: Administrative Remedy
3.34.120 Penalties
3.34.130 1\ct:ioos to COllect
3.34.140 ~
3.34.150 Power in Addition
3.34.160 Ordinance controll:!n;¡-
3.34.170 Liberal Ccr1Structicn
3.34.180 Defect or Qnission, Validity of p.\... .....'irç¡ or Taxes
3.34.190 Limitation of Actioos
3.34.200 Severability
3.34.210 Disposition of PL·~A
3.34.220 General PU1d Iaase
'IHE CIT1{ caJNCIL OF 'IHE CIT1{ OF C!.JPERrn«) OOES æDAIN AS FOLIa<5:
Article 1. Ordinance
3.34.010. no.fOi"it-i""",. unless the CX'I'Itext otherwise requires, the
tetms defined in this Section 3.34.010 for all ~1JCS9S of this Ordinance
and of any amen::maeltt hereto shall have the meanin;¡s herein specified.
,,)!."". t.......tt Heuse" means a residential b.1i1d:!n;¡- or b.1i1dings consist:!n;¡-
of three or more separate dwell:!n;¡- units.
"Çill" means the City of 0Jpertin0.
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ORDINANCE NO. 1535
"Cœncil" means the City Cœncil of the City.
"Facilities" means the IILInicipal facilities generally referred to in
Section 3.34.060 of this Ortlinan::e and includes Blackberry Fann, other
open space land within the City and the public recreational facilities
consistent with the p1. agryatiCl'l and public use of open space. Facilities
shall be ñ""""""'" available and sueœptible of use within the meaning of the
term "availability and privilege of use", as used in this Oràinance, when
such facilities exist and are available for use dur:!n;¡- any portion of the
fiscal year next lo'L"'~ the levy of the Tax.
"Person" includes any person, fm, ''''''''<X'iatiCl'l, organization,
partnership, b.1siness trust, ocnpJratiCl'l or l"nII"'ny, 1:ut dces net include
any IILInicipal or public ocnpJratiCl'l.
"Tax" means the excise tax lo'L'¥>Sed to be i~ by this Oràinance,
JOOre particularly described in sectiCl'1S 3.34.040 and 3.34.050 of this
ardinanœ.
"Tax Administrator" means the City Treasurer.
3.34.020. Rules of Q:)¡K>~1JctiCl'l. All refereu...... in this Oràinance to
"Articles", "sectiCl'1S" and other sul:xtivisiCl'1S are to the ();)1,...=polrling
Articles, sectiCl'1S or sul:xtivisiCl'1S of this Ordinimce; and the words
"herein", ''hereof'', ''hereunder', and other ~ of similar ~ refer
to this Ortlinan::e as a whole and net to any particular Article, section or
sul:xtivision hereof.
Words of the -"""'!line gemer shall be ... -..ñ and construed to include
correlative ~ of the feminine and neuter genjers. Unless the context
shall ot:hcwise indicate, ~ iDp:)rt.in; the sin:Jular "nm.....x shall
include the plural ,..~ and vice versa, and ~ iJDportin;¡- persons
shall include O""'~Atia18 and associatiCl'1S, as well as natural persons.
3.34.030. Benefite to all Persons. 'D1e Cœncil has fourñ and
determined and hereby ñAr-l "nIB that all Perscns resictin;J and do:!n;¡-
business in the City enjoy the privilege of us:!n;¡- and benefit frtm the
providing, by the City, of III.1I1icipal facilities, incll.¥lin;J, without
limitation, the Facilities.
3.34.040. Intent of Cœncil. 'D1e denc:minatiCl'l of the Tax in this
Oràinance as an excise tax shall net be 1'1.......-'1 conclusive. ihe Tax is not
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ORDINANCE NO. 1535
(a) a prcperty tax, ad valorem or otherwise, (b) a transaction tax, (c) a
sales tax on real 1JL.."....,ty or (d) a special tax. It is .interDed to
cparate as an excise tax ;~ as a revenue measure for the availability
and privilege of use of municipal facilities, inc1udin; the Facilities,
J:ut the Council dl!lC'lares that it wa1ld have adq1ted the 0rdi11ance and
i~ the Tax even tha.Igh it may be determined that the levy is in law
not an "'Y""'i" J:ut saue other fonn of taxatia'l which may be lawfully
i~ by the City. '!he Council recognizes that the Tax, as a¡:plied to
Persons in category (b) of Section 3.34.070, qualifies as a I::usiness
license excise tax, "'''~-~'9d in additia'l to any I::usiness license tax
=llected umer Title 5 of the city's !t.Inicipal COde.
3.34.050. 'T'IrrYvaitia'l of Tax. '!he Council hereby 1JL"1^-ses the
inp:8ition of an exci... tax for the availability and privilege of use of
certain municipal facilities and services hereinatter descr:l1:ied, for
general government:al p¡11JOS9S; said ~iM tax shall be Icncwn as the "Open
Space Excise TaxI' and is hereinafter referred to as the "Tax".
3.34.060. !t.Inicj....1 FIot'!i1ities. said. municipeJ. facilities shall
consist of Blackberry Fam, ather q:I8I'1 splICe land within the city and
public recreatiœal facilities consistent with the 1JL servatia'l and p.¡blic
use of q:I8I'1 space, all as more particularly set forth in this Ordi11ance,
and is herein referred to as the "Facilities".
3.34.070. Ma>ri".,m Ra~"". '!he Tax shall be paid by all Persons
residin;¡- and do:!n;¡- I::usiness in the city, at not to ~ the follCMing
rates :
$65.00 per employee, or
full-time equivalent, per
year or, in the case of
Apartment 1bJs9S, $65.00
per dw8ll:!n;¡- unit
3.34.080. F.wonrrI-iŒ1S. 'Ihe Tax constitutes a debt owed by the Persons
identified in Sectia'l 3.34.030 to the city whiå1 is ext:in;;uished only by
payment of the ëIIIDJl1t of the Tax at the tbEs and in the IIIIU1nBr herein
provided.
a) as to and Fersa1 occupyin;J a
residential unit as a principal
resideooe ~~ Apartment Haus9S
b) as to PersaIs elqaqed in I::usiness
activities subject to the city's
I::usiness license tax
$65.00 per residential unit
per year
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ORDINANCE NO. 1535
Public bodies, religious organizations and other Persons ~L un::1er
state or federa1law shall be ~L frail the Tax. Senior citizens of 65
years or older shall be exE!IIpt frail Tax payments un::1er Sectia'l 3.34. 070a
of this 0ltlinan:1e upa1 /lR)licatia'l to the Tax Administrator, in such
manner and with such proof or qualification as the Tax Administrator shall
detemine.
Notwi~ any other provisions of this Q!apœr, senior citizens
of 65 years or older resic:tin¡ in an apartment hwse taxed under Section
3.34.070b who can demonstrate that the Tax pa~le by the apartment hwse
has been assigned to them in the fom of a rent :Increase nay /lR)ly for a
refurxi upon /lR)lication to the Tax Administrator, in such manner and with
such proof or qualifications as the Tax Administrator shall determil1e.
3.34.090. !)Jratia'l. '!he Tax shall be levied for a lIIID'i1ln1ln of
twenty-five (25) years frail the date of its first iJDpositia'l.
. 3.34.100. Rules and Reaulations. '!he Tax Administrator shall have
pOwer to adept rules and regulations not inconsistent with the provisions
of this 0ltlinan:1e for the ~ of carxyin;J out and enforc:::!n;¡- the
payment, collectiCX1 and remittance of the Tax herein i"V""ed: and a copy
of such rules and regulations shall be on file and available for public
ey.>1n;r¡ation in the Tax Administrator's office. Failure or refusal to
c::x:arply with any rules and regulations pram.¡].gated under this ordinance
shall be 1'1-- a violatiCX1 thereof.
3.34.110. ~~..----: 1IdI!I;ni<rhoootive Remedv. '!he Tax Administrator
may make an "IgSœ-"'IL for taxes not paid or remitted by a Person required
to pay or remit. '!he Tax Administrator shall prepare and mail a ''Notice
of l¡sS-~II which shall refer briefly to the amc:unt of the taxes and
penalties ;111p"""ed and the tbne and place where such "~!]es---11t is
payable. '!he Tax Administrator may adjust any delin;¡uent tax or penalty
when it is deteDIIined to be in the best interest of the City to do so.
Arrž interested party hav:!n;¡- any objections to the decision of the Tax
Administrator nay "W""'Il the decisiCX1 to City Council upa1 fil:!n;¡- a
written notice of aR"""l with the Tax Administrator within fifteen (15)
days of the ''Notice of 1IsI!'ØI!'~. II
3.34.120. Penalties
(a) Taxes which are not remitted to the Tax Administrator on or
before the due dates are delin;¡uent. Shculd the due date occur on a
weeJœn:1 or legal holiday, the return may be postmarked a'l the first
regular -workin;¡- day following a saturday/Burœy, or legal holiday.
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ORDINANCE 00. 1535
(b) Penalties for delinquency in remittan::e or arr¡ deficiency
deternúnaticn shall be at the rate of fifteen perceuL (m) of the total
Tax =llected or i.....,......... herein.
(c) 'Ihe Tax Administrator shall have pcWIBI' to i....,........ additional
penalties upat arr¡ person required 1;0 remit Taxes under the provisia1S of
this ordinance for fraud in reporting' or remittin;¡- at the annual rate of
fifteen percent (15%) of the I!IID.II1t of the Tax collected or as recœplted
by the Tax Jldministrator.
(d) Every penalty i~ un:!er the provisia1S of this ordinance
shall Þeor- a part of the Tax required to be remitted.
3.34.130. h:tia1S to Collect. krf Tax required to be paid by a
service user un:!er the provisia1S of this ordinance shall be <:t! .M a debt
owed by a service user to the City. krf such Tax =llected 1'raII a service
user which has willfully been withheld 1'raII the Tax Administrator shall be
r1'--d a debt owed to the City. krf person owin:J DXn!Iy to the City un:!er
the provisia1S of this ordinance shall be liable to an actia1 brc:AJght in
the name of the City for the recovery of such 1!IID.II1t.
3.34.140. ßetunds.
(a) ~ the I!IID.II1t of arr¡ Tax has bMn CÌYmpUd or paid more
than once or has bMn ..........-...JSly or illegally =llected or received by
the Tax Administrator under this ordinance, it may be refumed as provided
herein.
(b) A Per!ICI1 required to =llect and remit taxes i.....,......... under this
ordinance JØ1J.'f claim a reflni or take as a credit against taxes =llected
and remitted the I!IID.II1t ovaprld, paid more than once or erroneously or
illegally collected or received when it is established in a manner
prescribed by the Tax Administrator that the Per!ICI1 1'raII whan the Tax has
been collected did net owe the Tax; provided, hcwever, that neither a
ref'uni nor a credit shall be allowed unless the I!IID.II1t of the Tax so
=llected has either been refumed to the Per!ICI1 taxed or credited to
charges subeequently payable by the Person taxed to the Person required to
=llect and remit.
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ORDINANcE ro. 1535
(c) No refund shall be paid under the provision of this Section
3.34.140 unless the claimant establishes the right thereunto by written
reco:r:ds shcwin;r entitlement thereto. No refund shall be paid unless a
claim therefor is made within one year of the date of the a=.uü of the
refund.
3.34.150. PowiBr in AMition. '!he powers conferred by this Drd:inance
are in additiat to, an::l the l:imitations i"V'Md by this Drd:inance do not
affect, the powers conferred by any other law or ordi.narx::e.
3.34.160. Ordinance a:mtrolli11g. If this Drd:inance is inconsistent
with any other law, this Drd:inance is oontrol1:!n;¡-.
3.34.170. T,in--1 Construction. '!his Drd:inance shall be liberally
ocnst:roed to Pl......A:e its objects.
3.34.180. Defect or Qmi....iat. Validitv of Pre-- ......~iras or Taxes. If
the jurisdictiat of the Comcil to order the pt'4.o..ed act is not affected,
the defect or anissiat of any officer in Pl- .o-:iings under this Drd:inance
does not invalidate the pt(~ings or taxes levied under this Drd:inance.
3.34.190. Limitation of Actions. 'Ihe validity of this Drd:inance or of
any Tax levied p.¡rsuant to this Drd:inance shall not be contested in any
action or pt.. ......!:!n;¡- or defense unless such actiat or ptOi)-d:!n;¡- or
defense shall have been brt:u;¡ht or raised within ninety (90) days iran the
date of the a¡:pIwaJ. of this Drd:inance an::l the levy of said tax by the
voters of the City at NoI/eui)er 6, 1990. Unless an actiat or pt~~:!n;¡- is
CCI1IDenOed or such defense raised within said period, this Drd:inance and
any Tax levied pm¡uant to this Drd:inance shall be held valid and in every
respect legal an:l inccnt:estab1e.
3.34.200. 5eY8r2!bilit;y. If any sectiat, ~ù:Jsectiat, suJ:xlivision,
paragra¡n, smt:ence, OJ~1Se or ~ of this Ordinance or any part hereof
is for any reIUICI1 held to be unoa...titutianal, such decisiat shall not
affect the validity of the remainin¡ portiaw of this Ordinance or any
part thereof. 'Iha Comcil r'I.....lara that it ~d have l""-sed each
sectiat, ~1~at, suJ:xlivisions, paragraph, sentence, clause or
paragraph thereof, ine..pective of the fact that any one or Dm:'e sections,
subsections, suJ:xlivision, paragra.¡:hs, senten:::es, clauses or phrases is
declared un::onstitutianal.
3.34.210. ni...........ition of ~... '!his Ordinance is hereby declared
to be a revernJe measure for general gcvenunent pw:p:sas; the ~:1s of
the Tax shall be paid into the general fund.
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ORDINANCE NO. 1535
3.34.220. General Fund T...._, 'Ihe Council further ~~lIes to enter
into a lease obligatia\ with a qualified lessor (the "T-øor") ~ the
City \1IQl].d 1:Je.:. .,... obligated to pay rental payments to the T-ø'Jr fran the
general fund of the City over a period of net to ~ twenty-five (25)
years; the T-'9''Jr wculd assign its rights to receive rental payments to a
trustee; am the City am the T-"'QI" \1IQl].d authorize the trustee to sell
certificates of participatiCl'l in the rental payments payable by the City,
the pr() --'I.. of wh1à1 \1IQl].d be used to finance the acquisition,
constzuction, i1Iprovement am equi~:!n;¡- of the Facilities.
Article 2. Elections
SectiCl'l 1. (')011 of ElectiCl'l. A speci...1 nunicipal elect1C1'1 is hereby
called am oràered to be held in the City CI'I 'DJesday, NaIIamber 6, 1990 at
whià1 elect1C1'1 there shall be sul:lllitted to qualified voters of the city
the ~~itia\ set forth belOll:
Sect1C1'1 2. Pl..........it-i,..... 'Ihe ~~itia\ shall ~,. CI'I the ballot
for said speci... 1 nunicipal elect:ia1 in the follow!n;J fom:
"MFASURE : Shall 0rc:linIux:e No. 1535
of the City of OJpertjno, adcpted by the City
Council of the City of 0Jpertjn0 CI'I August 9,
1990, be çprcved in order to autharize (1)
the acquisitiCl'l am ~ serJatiCl'l of B1ac:J\:berry
Fam as c::pm space, the aoquisitiCl'l am
pl ¡¡serJatiCl'l of other open space lam within
the City am the CX1'1Str\JCtiCl'l of public
recreatiCI'IIÙ facilities CXI1Sistent with the
prellerJatiCl'l am public use of the open space,
all as more particularly set forth in the
Orc:linIux:e, am (2) the bp»itiCl'l of an ~i"
tax for the availebility am privilege of use
of said facilities, net to emeej, $65 per year
per residential unit in the City (subject to
an e:xIIIIpI:iCI'I for senior citizens) am net to
exoeed $65 per year per eq;ùoyee for
non-residentia1 users, for a period of net to
~ twerrt:y-five (25) years?"
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ORDINANCE ro. 1535
'Ihe Cwncil does hereby sul:mit to the qualified voters of the City, at
said special III.IlÚ.cipal election, this Ordinance ani the P1-""1-'-"'ition set
forth aIoove.
Sectinn 3. E:st1.mAted /"roa+o" 'Ihe estiJDated costs of the acquisition,
constJ:uction, ~ ani equipp:!n;¡- of the Facilities is tI.ienty-five
million dollars ($25,000,000).
Se::tion 4. SlIhni....ion: Intent-.. 'Ihe Cwncil does hereby sul:mit to the
qualified voters of the City, at said speci",' lII.IlÚ.cipal election, this
Ordinance ani the p..""1-'-"'ition set forth in the section entitled,
"PJ;VJ.JUOiiti~". 'Ihe City P1-"'1-'-"'e& to acquire, CXI1Struct, iDpJ:cve and equip
the Facilities, to levy the excise tax ani to enter into a lease
åJligatian with a qualified lessor ani for the objects ani ~ses set
forth aIoove if a majority of all qualified voters vot:!n;¡- on the
PJ:~itian set forth aIoove vote in favor thereof. 'Ihe rental payments
under the lease shall be payable !ran the genera¡ fund of the City.
. Section 5. I'bUs Ocen. 'Ihe polls for said electian shall be c::pened at
seven o'clock A.M. of the day of said election ani shall remain open
cont:inuoosly !ran said time until eight o'clock P.M. of the same day, when
said polls shall be closed, except as provided in sectian 14301 of the
Califomia Elections 0Jde.
Section 6. CcMnlidatian With sta+-....nñA Geneno, Electi~. 'Ihe special
municipal electian hereby called for the date hereinbefore specified shall
be, and is hereby, ordered consolidated with the statewide genera¡
electian to be held within the City an said date, ani within the territory
affected by the oansoJ.idatian, the electian shall be he1å ani oon:iucted,
closed, ballots oamt:ed am returned, returns canvassed, ani results
declared, am all ather PJ:. .~1i.ngs incidental to am oa........."ted with the
election shall be regulated am done in acoordanoe with the provisions of
law reguJ.atUq the statewide genera¡ election am specified herein. 'Ihe
Board of Supervisors of Santa Clara Cwnty is hereby requested to order
the oonsolidatian of the special III.IlÚ.cipal electian hereby called with
said statewide geI....Al electian, and the Board of SUpervisors of Santa
Clara Cwnty is hereby authorized to canvass the returns of said special
municipal electian, and said election shall be held in all respects as if
there were only one electian ani only one fœ:m of ballot shall be used.
Said Board of SUpervisors shall certify the results of the canvass of the
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ORDINANCE NO. 1535
retuxT1s of said special IIIJlÚ.cipal electia'l. to the O:xmcil which shall
thereafter declare tñe results thereof. '!be """"'aure sul::mitted by this
Ordinance shall be designated at the ballot by a letter printed on the
left margin of tñe square containin;J the descriptia'l. of the measure, as
provided in sectiat 10219 of the Califomia Elections Cede.
Section 7. Votin:r ()Jalifications. All persons qualified to vote at
general IIIJlÚ.cipal elections in the City upon the date of tñe election
herein provided for shall be qualified to vote upon the pl,¥-,,"ltion
subnitted at said special election.
Sectia'l. 8. Roo 1 lots. Ballots for the electiat shall be provided in the
fom and in tñe nuaiJer provided by law. Q1 said ballots, in addition to
any other printed matter Ioh:I.à1 may be required by law, two vct:!n;¡- squares
shall be set off to tñe right of tñe ~,+"",ltiat sul::mitted at the
electia'l., in tñe manner provided by law, a18 hav:!n;¡- tñe word ''YES'' printed
before it and tñe ather hav:!n;¡- the word ''NO'' printed before it.
Sectia'l. 9. Msthod of Voting. Eaål voter to vote for the pl~ition
shall staDp or write a cross, or indicate by hole punch or ather means, in
the blank space qp:JSite the word ''YES'' a'I. the ballot to the right of the
pl'¥-""ition; and each voter to vote against the pl,¥-,,"itia'l. shall st.anp or
write a cross, or indicate by hole punch or other means, in the blank
space qp:JSite the word ''NO'' on the ballot to the right of the
pL,¥-,,"itia'l..
ArTicle 3. Publication and Effective Date
Sectia'l. 1. Pub!it"JO+-i...... 'Ibis ordinance shall be published a'1C8 a day
for at least seven days in a ~ printed, published and circulated
at least six days a ~ in the City, or a'1C8 a ~ for two -m in a
newspaper printed, published and circulated less than six days a week in
the City. on. first of said publications shall, in either event, be
within fiftæn (15) days after the adcptia'l. of this ordinance. 'Ihe City
Clerk is hereby authorized and directed to make said publicaticns and to
transmit, for receipt no later than August 10, 1990, a certified CC1fJ'i of
this ordinance to tñe ~'¥Liate officials of Santa Clara County
responsible for preparirq tñe ballots for said electia'l..
Sectia'l. 2. Effective Date. 'Ibis ordinance shall JJecr-> effectiveliJnrnW i <ltely upon its adcptia'l. by two-thirds vote of all the ~ of the
O:xmcil.
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