HomeMy WebLinkAbout10381-10392 RESOLUTION NO. 10381 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO
SETTING PRIORITIES FOR FILING WRITTEN ARGUMENTS REGARDING A CITY
MEASURE AND DIRECTING THE CITY ATTORNEY FOR THE
CITY OF SAN LUIS OBISPO TO PREPARE THE IMPARTIAL ANALYSIS
WHEREAS, a General Municipal Election is to be held in the City of San Luis Obispo
on November 6, 2012, at which time there will be submitted to the voters in the City the
following measure:
Shall an ordinance be adopted that would 1)
reduce the City of San Luis Obispo's current Yes
Utility Users Tax on telecommunication and
video services from 5%to 4.8%; 2) clarify the
scope and application of the tax to all taxable No
utilities; and 3) modernize the method of
calculating and collecting the tax to reflect
technological advances and changes in state and
federal law so that all taxpayers are treated
equally regardless of technology used?
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. That pursuant to Elections Code Section 9282, for measures placed on the
ballot by the legislative body, the legislative body or any member or members of the legislative
body authorized by that body, or any individual voter who is eligible to vote on the measure, or
bona fide association of citizens, or any combination of voters and associations; may file a written
argument for or against any city measure. The City Council authorizes the following member(s) of
its body
John Ashbau h Council Member in Favor John Ashbaugh Council Member Against
Dan Carpenter Council Member in Favor Dan Carpenter Council Member Against
Andrew Carter Council Member in Favor Andrew Carter Council Member Against
Kathy Smith Council Member in Favor Kathy Smith Council Member Against
Jan Marx Council Member in Favor Jan Marx Council Member Against
to file written arguments not exceeding 300 words regarding the City measure as specified above,
accompanied by the printed names and signature of the authors submitting it, in accordance with
Article 4, Chapter 3, Division 9 of the Elections Code of the State of California.
The arguments may be changed or withdrawn until and including the date fixed by the City Clerk
after which no arguments for or against the City measure may be submitted to the City Clerk..
The arguments shall be filed with the City Clerk, signed, with the printed names and signatures of
the authors submitting it, or if submitted on behalf of an organization, the name of the organization,
R 10381
Resolution No. 10381 (2012 Series)
Page 2
and the printed name and signature of at least one of its principal officers who is the author of the
argument. The arguments shall be accompanied by the Form of Statement To Be Filed By Authors
of Argument.
SECTION 2. That the City Council directs the City Clerk to transmit a copy of the
measure to the City Attorney. The City Attorney shall prepare an impartial analysis of the measure
not exceeding 500 words showing the effect of the measure on the existing law and the operation of
the measure. The impartial analysis shall be filed by the date set by the City Clerk for the filing of
primary arguments.
SECTION 3. That the full text of the ordinance submitted to the voters is on file in the Office of
the City Clerk and available for viewing on the City's website, www.slocity.org, and is attached as
Exhibit A.
SECTION 3: That in all particulars not recited in this resolution, the election shall be held
and conducted as provided by law for holding municipal elections.
SECTION 4. That the City Clerk shall certify to the passage and adoption of this
resolution and enter it into the book or original resolutions.
Upon motion of Council Member Carter seconded by Council Member Ashbaugh, and on
the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 10th day of July, 2012.
a Jan Marx
ATTEST: /
Sheryll 5chroeder
Interim City Clerk
AP ROVED ORM:
Christine Di` ick
City Attorney
EXHIBIT A
ORDINANCE NO. ?? (2012 Series)
AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA REPEALING
AND RE-ENACTING IN FULL TITLE 3, CHAPTER 16 OF THE SAN LUIS OBISPO
MUNICIPAL CODE WITH RESPECT TO UTILITY USER'S TAX
THE PEOPLE OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA DO
ORDAIN AS FOLLOWS:
SECTION 1. Title 3, Chapter 16 of the San Luis Obispo Municipal Code is
hereby repealed and re-enacted in full , to read as follows:
Chapter 16
Utility Users' Tax
3.16.010 Short Title and Purpose
3.16.020 Definitions
3.16.030 Constitutional, Statutory, and Other Exemptions
3.16.040 Telecommunication Users' Tax
3.16.050 Electricity Users' Tax
3.16.060 Gas Users Tax
3.16.070 Collection of Tax from Service Users Receiving Direct Purchase of Gas or
Electricity
3.16.080 Video Users' Tax
3.16.090 Water Users' Tax
3.16.100 Bundling Taxable Items with Nontaxable Items
3.16.110 Substantial Nexus/Minimum Contacts
3.16.120 Duty to Collect—Procedures
3.16.130 Collection Penalties— Service Suppliers
3.16.140 Actions to Collect
3.16.150 Deficiency Determination and Assessment—Tax Application Errors
3.16.160 Administrative Remedy—Nonpaying Service Users
3.16.170 Additional Powers and Duties of the Tax Administrator
3.16.180 Records
3.16.190 Refunds
3.
16.200 Appeals
3.16.210 No Injunction/Writ of Mandate
3.16.220 Notice of Changes to Chapter
3.16.230 Future Amendment to Cited Statute
3.16.240 No Increase in Tax Percentage or Change in Methodology without Voter
Approval
3.16.250 Remedies Cumulative
3.16.260 Interaction with Prior Tax
3.16.010 Short Title and Purpose
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EXHIBIT A
This Chapter 16 shall be known as the "Utility Users' Tax Law of the City of San
Luis Obispo". The taxes imposed and levied by the provisions of this chapter are
solely for the purpose of providing revenue for the usual and current expenses of
the city. The provisions of this chapter are not enacted for regulatory purposes.
3.16.020 Definitions
The following words and phrases whenever used in this Chapter 16, shall be
construed as defined in this Section.
(a) "Ancillary telecommunication services" means services that are
associated with or incidental to the provision, use or enjoyment of telecommunications
services, including but not limited to the following services:
(1) "Conference bridging service" means an ancillary service that links two
(2) or more participants of an audio or video conference call and may include the
provision of a telephone number. Conference bridging service does not include the
telecommunications services used to reach the conference bridge.
(2) "Detailed telecommunications billing service" means an ancillary
service of separately stating information pertaining to individual calls on a customer's
billing statement.
(3) "Directory assistance" means an ancillary service of providing telephone
number information, and/or address information.
(4) "Vertical service" means an ancillary service that is offered in connection
with one or more telecommunications services, which offers advanced calling features
that allow customers to identify callers and to manage multiple calls and call connections,
including conference bridging services.
(5) "Voice mail service" means an ancillary service that enables the customer
to store, send or receive recorded messages. Voice mail service does not include any
vertical services that the customer may be required to have in order to utilize the voice
mail service
(b) "Ancillary video services" means services that are associated with or
incidental to the provision or delivery of video services, including but not limited to
electronic program guide services, recording services, search functions, or other
interactive services or communications that are associated with or incidental to the
provision, use or enjoyment of video services.
(c) "Billing address" shall mean the mailing address of the service user
where the service supplier submits invoices or bills for payment by the customer.
(d) "City" shall mean the City of San Luis Obispo.
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EXHIBIT A
(e) "Gas" shall mean natural or manufactured gas or any alternate
hydrocarbon fuel which may be substituted therefor.
(f) "Individual Service" shall mean utility service at a single contiguous
location. A service user with more than one meter or billing invoice per utility service at
a single contiguous location may combine all billings for purposes of calculating the
maximum tax amount.
(g) "Mobile telecommunications service" has the meaning and usage asset
forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the
regulations thereunder.
(h) "Month" shall mean a calendar month.
(i) "Non-Utility Service Supplier" means:
(1) a service supplier, other than a supplier of electric distribution services to all
or a significant portion of the City, which generates electricity for sale to others,
and shall include but is not limited to any publicly-owned electric utility, investor-
owned utility, cogenerator, distributed generation provider; exempt wholesale
generator (15 U.S.C. Section 79z-5a), municipal utility district, federal power
marketing agency, electric rural cooperative, or other supplier or seller of
electricity;
(2) an electric service provider (ESP), electricity broker, marketer, aggregator,
pool operator, or other electricity supplier other than a supplier of electric
distribution services to all or a significant portion of the City, which sells or
supplies electricity or supplemental services to electricity users within the City; or
(3) a gas service supplier, aggregator, marketer or broker, other than a supplier of
gas distribution services to all or a significant portion of the City, which sells or
supplies gas or supplemental services to gas users within the City.
0) "Paging service" means a"telecommunications service" that provides
transmission of coded radio signals for the purpose of activating specific pagers; such
transmissions may include messages and/or sounds.
(k) "Person" shall mean, without limitation, any natural individual, firm,
trust, common law trust, estate, partnership of any kind, association, syndicate, club,joint
stock company,joint venture, limited liability company, corporation (including foreign,
domestic, and non-profit), municipal district or municipal corporation (other than the
City), cooperative, receiver, trustee, guardian, or other representative appointed by order
of any court.
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EXHIBIT A
(1) "Place of primary use" means the street address representative of where
the customer's use of the telecommunications service primarily occurs, which must be
the residential street address or the primary business street address of the customer.
(m) "Post-paid telecommunication service" means the telecommunication
service obtained by making a payment on a communication-by-communication basis
either through the use of a credit card or payment mechanism such as a bank card, travel
card, credit card, or debit card, or by charge made to a service number which is not
associated with the origination or termination of the telecommunication service.
(n) "Prepaid telecommunication service" means the right to access
telecommunication services,which must be paid for in advance and which enables the
origination of communications using an access number or authorization code, whether
manually or electronically dialed, and that is sold in predetermined units or dollars of
which the number declines with use in a known amount.
(o) "Private telecommunication service" means a telecommunication
service that entitles the customer to exclusive or priority use of a communications
channel or group of channels between or among termination points, regardless of the
manner in which such channel or channels are connected, and includes switching
capacity, extension lines, stations, and any other associated services that are provided in
connection with the use of such channel or channels. A communications channel is a
physical or virtual path of communications over which signals are transmitted between or
among customer channel termination points (i. e., the location where the customer either
inputs or receives the communications).
(p) "Service address" means the residential street address or the business
street address of the service user. For a telecommunication or video service user,
"service address" means either:
(1) The location of the service user's telecommunication equipment from
which the telecommunication originates or terminates, regardless of where the
telecommunication is billed or paid; or,
(2) If the location in subsection (1) of this definition is unknown (e.g., mobile
telecommunications service or VoIP service), the service address means the location of
the service user's place of primary use.
(3) For prepaid telecommunication service, "service address" means the location
associated with the service number or, if not known, the point of sale of the services.
(q) "Service supplier" shall mean any entity or person, including the City,
that provides, sells, or resells a utility service to a user of such service within the City.
(r) "Service user" shall mean a person required to pay a tax imposed under
the provisions of this Chapter.
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EXHIBIT A
(s) "State" shall mean the State of California.
(t) "Streamlined Sales and Use Tax Agreement" means the multi-state
agreement commonly known and referred to as the Streamlined.Sales and Use Tax
Agreement, as it is amended from time to time.
(u) "Tax Administrator" shall mean the Finance Director, or his or her
designee.
(v) "Telecommunications service" means the transmission, conveyance, or
routing of voice, data, audio, video, or any other information or signals to a point, or
between or among points, whatever the technology used. The term "telecommunications
services" includes such transmission, conveyance, or routing in which computer
processing applications are used to act on the form, code or protocol of the content for
purposes of transmission, conveyance or routing without regard to whether such services
are referred to as voice over intemet protocol (VoIP) services or are classified by the
Federal Communications Commission as enhanced or value added, and includes video
and/or data services that is functionally integrated with"telecommunication services."
"Telecommunications services" include, but are not limited to the following services,
regardless of the manner or basis on which such services are calculated or billed:
ancillary telecommunication services; intrastate, interstate, and international
telecommunication services; mobile telecommunications service; prepaid
telecommunication service; post-paid telecommunication service; private
telecommunication service; paging service; 800 service (or any other toll-free numbers
designated by the Federal Communications Commission); 900 service (or any other
similar numbers designated by the Federal Communications Commission for services
whereby subscribers who call in to pre-recorded or live service).
(w) "Video programming" means those programming services commonly
provided to subscribers by a"video service supplier" including but not limited to basic
services, premium services, audio services, video games, pay-per-view services, video on
demand, origination programming, or any other similar services, regardless of the content
of such video programming, or the technology used to deliver such services, and
regardless of the manner or basis on which such services are calculated or billed.
(x) "Video services" means "video programming and any and all services
related to the providing, recording, delivering, use or enjoyment of`'video programming"
(including origination programming and programming using Internet Protocol, e.g., IP-
TV and IP-Video) using one or more channels by a"video service supplier,"regardless
of the technology used to deliver, store or provide such services, and regardless of the
manner or basis on which such services are calculated or billed, and includes ancillary
video services, data services, "telecommunication services," or interactive
communication services that are functionally integrated with "video services."
(y) "Video service supplier" means any person, company, or service which
provides or sells one or more channels of video programming, or provides or sells the
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EXHIBIT A
capability to receive one or more channels of video programming, including any
communications that are ancillary, necessary or common to the provision, use or
enjoyment of the video programming, to or from a business or residential address in the
City, where some fee is paid, whether directly or included in dues or rental charges for
that service, whether or not public rights-of-way are utilized in the delivery of the video
programming or communications. A"video service supplier" includes, but is not limited
to, multichannel video programming distributors (as defined in 47 U.S.C.A. Section
522(13)); open video systems (OVS) suppliers; and suppliers of cable television; master
antenna television; satellite master antenna television; multichannel multipoint
distribution services (MMDS); video services using internet protocol (e.g., IP-TV and IP-
Video, which provide, among other things, broadcasting and video on demand), direct
broadcast satellite to the extent federal law permits taxation of its video services, now or
in the future;and other suppliers of video services (including two-way communications),
whatever their technology.
(z) "VoIP (Voice Over Internet Protocol)" means the digital process of
making and receiving real-time voice transmissions over any Internet Protocol network.
(aa) "800 Service" means a"telecommunications service" that allows a caller
to dial a toll-free number without incurring a charge for the call. The service is typically
marketed under the name "800," "855,""866," "877," and "888" toll-free calling, and
any subsequent numbers designated by the Federal Communications Commission.
(bb) 11900 Service" means an inbound toll "telecommunications service"
purchased by a subscriber that allows the subscriber's customers to call in to the
subscriber's prerecorded announcement or live service. "900 service" does not include
the charge for: collection services provided by the seller of the "telecommunications
services" to the subscriber, or service or product sold by the subscriber to the subscriber's
customer. The service is typically marketed under the name "900" service, and any
subsequent numbers designated by the Federal Communications Commission.
3.16.030 Constitutional, statutory, and other exemptions.
(a) Nothing in this Chapter shall be construed as imposing a tax upon any person or
service when the imposition of such tax upon such person or service would be in
violation of a Federal or State statute, the Constitution of the United States or the
Constitution of the State.
(b) Any service user that is exempt from the tax imposed by this Chapter pursuant to
subsection(a) of this Section shall file an application with the Tax Administrator for an
exemption; provided, however, this requirement shall not apply to a service user that is a
State or Federal agency or subdivision with a commonly recognized name for such
service. Said application shall be made upon a form approved by the Tax Administrator
and shall state those facts, declared under penalty of perjury, which qualify the applicant
for an exemption, and shall include the names of all service suppliers serving that service
user. If deemed exempt by the Tax Administrator, such service user shall give the Tax
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EXHIBIT A
Administrator timely written notice of any change in service suppliers so that the Tax
Administrator can properly notify the new service supplier of the service user's tax
exempt status. A service user that fails to comply with this Chapter shall not be entitled to
a refund of a users' tax collected and remitted to the Tax Administrator from such service
user as a result of such noncompliance.
The decision of the Tax Administrator may be appealed pursuant to Section
3.16.200 of this Chapter. Filing an application with the Tax Administrator and appeal to
the City Administrator, or designee, pursuant to Section 3.16.200 of this Chapter is a
prerequisite to a suit thereon.
(c) The City Council may, by resolution, establish one or more classes of persons or
one or more classes of utility service otherwise subject to payment of a tax imposed by
this Chapter and provide that such classes of persons or service shall be exempt, in whole
or in part from such tax for a specified period of time.
(d) If a billing for utility services includes charges for two or more households
situated within nonprofit retirement facilities which (1) are operated solely for the
accommodation of persons with low incomes and (2) which qualify for the welfare
exemption set forth in the California Revenue and Taxation Code, and if the charges for
such services are paid by the operators of the retirement facilities, the operators shall be
entitled to an annual refund of all taxes paid under the provisions of this ordinance. The
procedure for obtaining such refunds shall be established by the Tax Administrator,
including the requirement for whatever proof he or she deems necessary to establish
qualification for refund.
3.16.040 Telecommunication Users' Tax.
(a) There is hereby imposed a tax upon every person in the City using
telecommunication services. The tax imposed by this Section shall beat the rate of four
and eight-tenths percent (4.8%) of the charges made for such services and shall be
collected from the service user by the telecommunication services supplier or its billing
agent. There is a rebuttable presumption that telecommunication services, which are
billed to a billing or service address in the City, are used, in whole or in part, within the
City's boundaries, and such services are subject to taxation under this Section. There is
also a rebuttable presumption that prepaid telecommunication services sold within the
city are used, in whole or in part, within the City and are therefore subject to taxation
under this Section. If the billing address of the service user is different from the service
address, the service address of the service user shall be used for purposes of imposing the
tax. As used in this Section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the telecommunication services.
(b) "Mobile telecommunications service" shall be sourced in accordance with the
sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C.
Section 124). The Tax Administrator may issue and disseminate to telecommunication
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EXHIBIT A
service suppliers, which are subject to the tax collection requirements of this Chapter,
sourcing rules for the taxation of other telecommunication services, including but not
limited to post-paid telecommunication services, prepaid telecommunication services,
VoIP, and private communication services, provided that such rules are based upon
custom and common practice that further administrative efficiency and minimize multi
jurisdictional taxation (e.g., Streamlined Sales and Use Tax Agreement).
(c) The Tax Administrator may issue and disseminate to telecommunication service
suppliers, which are subject to the tax collection requirements of this Chapter, an
administrative ruling identifying those telecommunication services, or charges therefore,
that are subject to or not subject to the tax of subsection (a) above.
(d) As used in this Section, the term "telecommunication services' shall include, but
is not limited to, charges for: connection, reconnection, termination, movement, or
change of telecommunication services; late payment fees; detailed billing; central office
and custom calling features (including but not limited to call waiting, call forwarding,
caller identification and three-way calling); voice mail and other messaging services;
directory assistance; access and line charges; universal service charges; regulatory or
administrative fees, charges or surcharges; cost recovery charges or surcharges for
programs imposed by state or federal law; local number portability charges; and text and
instant messaging. "Telecommunication services" shall not include digital downloads that
are not"ancillary telecommunication services," such as music, ringtones, games, and
similar digital products.
(e) To prevent actual multi jurisdictional taxation of telecommunication services
subject to tax under this Section, any service user, upon proof to the Tax Administrator
that the service user has previously paid the same tax in another state or city on such
telecommunication services, shall be allowed a credit against the tax imposed to the
extent of the amount of such tax legally imposed in such other state or city; provided,
however, the amount of credit shall not exceed the tax owed to the City under this
Section.
(g) The tax on telecommunication services imposed by this Section shall be collected
from the service user by the service supplier. The amount of tax collected in one month
shall be remitted to the Tax Administrator, and must be received by the Tax
Administrator on or before the twentieth (20th) day of the following month.
3.16.050 Electricity Users Tax.
(a) There is hereby imposed a tax upon every person using electricity in the City. The tax
imposed by this Section shall be at the rate of five percent(5%) of the charges made for
such electricity, and for any supplemental services or other associated activities directly
related to and/or necessary for the provision of electricity to the service user, which are
provided by a service supplier or non-utility service supplier to a service user. The tax
shall be collected from the service user by the service supplier or non-utility service
supplier, or its billing agent.
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EXHIBIT A
(b) As used in this Section, the term "charges" shall apply to all services, components and
items that are: i) necessary for or common to the receipt, use or enjoyment of electric
service; or, ii) currently are or historically have been included in a single or bundled rate
for electric service by a local distribution company to a class of retail customers. The
term "charges" shall include, but is not limited to,the following charges:
(1) energy charges;
(2) distribution or transmission charges;
(3) metering charges;
(4) stand-by, reserves, firming, ramping, voltage support, regulation, emergency,
or other similar charges for supplemental services to self-generation service users;
(5) customer charges, late charges, service establishment or reestablishment
charges, demand charges, fuel or other cost adjustments, power exchange charges,
independent system operator (ISO) charges, stranded investment or competitive
transition charges (CTC), public purpose program charges, nuclear
decommissioning charges, trust transfer amounts (bond financing charges),
franchise fees, franchise surcharges, annual and monthly charges, and other
charges, fees or surcharges which are necessary for or common to the receipt, use
or enjoyment of electric service; and,
(6) charges, fees, or surcharges for electricity services or programs which are
mandated by the California Public Utilities Commission or the Federal Energy
Regulatory Commission, or by any state or federal law, whether or not such
charges, fees, or surcharges appear on a bundled or line item basis on the
customer billing.
(c) As used in this Section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the electricity or services related to the provision of such
electricity.
(d) The Tax Administrator, from time to time, may survey the electric service suppliers
to identify the various unbundled billing components of electric retail service that they
commonly provide to residential and commercial/industrial customers in the of the City,
and the charges therefor, including those items that are mandated by state or federal
regulatory agencies as a condition of providing such electric service. The Tax
Administrator, thereafter, may issue and disseminate to such electric service suppliers an
administrative ruling identifying those components and items which are: i) necessary for
or common to the receipt, use or enjoyment of electric service; or, ii) currently are or
historically have been included in a single or bundled rate for electric service by a local
distribution company to a class of retail customers. Charges for such components and
items shall be subject to the tax of subsection (a) above.
(e) As used in this Section, the term "using electricity" shall not include the mere
receiving of such electricity by an electrical corporation or governmental agency at a
point within the City for resale.
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EXHIBIT A
(f) The tax on electricity provided by self-production or by a non-utility service supplier
not under the jurisdiction of this Chapter 16 shall be collected and remitted in the manner
set forth in Section 3.16.070 of this Chapter. All other taxes on charges for electricity
imposed by this Section shall be collected from the service user by the electric service
supplier or its billing agent. The amount of tax collected in one (1) month shall be
remitted to the Tax Administrator, and must be received by the Tax Administrator on or
before the twentieth (20`h) day of the following month; or, at the option of the person
required to collect and/or remit the tax, such person shall remit an estimated amount of
tax measured by the tax billed in the previous month or upon the payment pattern of the
service user, which must be received by the Tax Administrator on or before the twentieth
(20`h) day of the following month, provided that such person shall submit an adjusted
payment or request for credit, as appropriate, within sixty (60) days following each
calendar quarter. The credit, if approved by the Tax Administrator; may be applied
against any subsequent remittance that becomes due.
3.16.060 Gas Users Tax.
(a) There is hereby imposed a tax upon every person using gas in the City, which is
transported and delivered through a pipeline or by mobile transport. The tax imposed by
this Section shall be at the rate of five percent (5%) of the charges made for such gas,
including all services related to the storage, transportation and delivery of such gas. The
tax shall be collected from the service user by the service supplier or non-utility service
supplier, or its billing agent, and shall apply to all uses of gas, including but not limited
to, heating, electricity generation, and the use of gas as a component of a manufactured
product.
(b) As used in this Section, the term "charges" shall apply to all services, components and
items for gas service that are: i) necessary for or common to the receipt, use or
enjoyment of gas service; or, ii) currently are or historically have been included in a
single or bundled rate for gas service by a local distribution company to a class of retail
customers. The term "charges" shall include, but is not limited to, the following charges:
(1) the commodity charges for purchased gas, or the cost of gas owned by the
service user (including the actual costs attributed to drilling, production, lifting,
storage, gathering, trunkline, pipeline, and other operating costs associated with
the production and delivery of such gas), which is delivered through a gas
pipeline distribution system;
(2) gas transportation charges (including interstate charges to the extent not
included in commodity charges);
(3) storage charges; provided, however, that the service supplier shall not be
required to apply the tax to any charges for gas storage services when the service
supplier cannot, as a practical matter, determine the jurisdiction where such stored
gas is ultimately used; but it shall be the obligation of the service user to self-
collect the amount of tax not applied to any charge for gas storage by the service
supplier and to remit the tax to the appropriate jurisdiction;
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EXHIBIT A
(4) capacity or demand charges, late charges, service establishment or
reestablishment charges, transition charges, customer charges, minimum charges,
annual and monthly charges, and any other charges which are necessary for or
common to the receipt, use or enjoyment of gas service; and,
(5) charges, fees, or surcharges for gas services or programs which are mandated
by the California Public Utilities Commission or the Federal Energy Regulatory
Commission, or by any state or federal law, whether or not such charges; fees, or
surcharges appear on a bundled or line item basis on the customer billing.
(c) As used in this Section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the gas or services related to the delivery of such gas.
(d) The Tax Administrator, from time to time, may survey the gas service suppliers to
identify the various unbundled billing components of gas retail service that they
commonly provide to residential and commercial/industrial customers in the City, and the
charges therefor, including those items that are mandated by state or federal regulatory
agencies as a condition of providing such gas service. The Tax Administrator, thereafter,
may issue and disseminate to such gas service suppliers an administrative ruling
identifying those components and items which are: i) necessary for or common to the
receipt, use or enjoyment of gas service; or, ii) currently are or historically have been
included in a single or bundled rate for gas service by a local distribution company to a
class of retail customers. Charges for such components and items shall be subject to the
tax of subsection (a) above.
(e) There shall be excluded from the calculation of the tax imposed in this Section,
charges made for gas which is to be resold and delivered through a pipeline distribution
system.
(f) The tax on gas provided by self-production or by a non-utility service supplier not
under the jurisdiction of this Chapter 16 shall be collected and remitted in the manner set
forth in Section 3.16.070. All other taxes on charges for gas imposed by this Section
shall be collected from the service user by the gas service supplier or its billing agent.
The amount of tax collected in one (1) month shall be remitted to the Tax Administrator;
and must be received by the Tax Administrator, on or before the twentieth (20`") day of
the following month; or, at the option of the person required to collect and/or remit the
tax, such person shall remit an estimated amount of tax measured by the tax billed in the
previous month or upon the payment pattern of the service user, which must be received
by the Tax Administrator on or before the twentieth (20`h) day of the following month,
provided that such person shall submit an adjusted payment or request for credit, as
appropriate, within sixty (60) days following each calendar quarter. The credit, if
approved by the Tax Administrator, may be applied against any subsequent remittance
that becomes due.
3.16.070 Collection of Tax from Service Users Receiving Direct Purchase of Gas or
Electricity.
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EXHIBIT A
(a) Any service user subject to the tax imposed by Section 3.16.050 or by Section
3.16.060 of this Chapter, which produces gas or electricity for self-use regardless of
technology used to produce such gas or electricity; which receives gas or electricity,
including any related supplemental services, directly from a non-utility service supplier
not under the jurisdiction of this Chapter; or which, for any other reason, is not having the
full tax collected and remitted by its service supplier, a non-utility service supplier, or its
billing agent on the use of gas or electricity in the City, including any related
supplemental services, shall report said fact to the Tax Administrator_and shall remit the
tax due directly to the Tax Administrator within thirty (30) days of such use, based on the
charges for, or value of, such gas or electricity, or supplemental services, as provided in
subsection (b). In lieu of paying said actual tax, the service user may, at its option, remit
to the Tax Administrator within thirty (30) days of such use an estimated amount of tax
measured by the tax billed in the previous month, or upon the payment pattern of similar
customers of the service supplier using similar amounts of gas or electricity, provided
that the service user shall submit an adjusted payment or request for credit, as
appropriate, within sixty (60) days following each calendar quarter. The credit, if
approved by the Tax Administrator in writing, may be applied against any subsequent tax
bill that becomes due.
(b) The Tax Administrator may require said service user to identify its non-utility service
supplier, and otherwise provide, subject to audit: invoices; books of account; or other
satisfactory evidence documenting the quantity of gas or electricity used, including any
related supplemental services, and the cost or price thereof. If the service user is unable
to provide such satisfactory evidence, or if the administrative cost of calculating the tax
in the opinion of the Tax Administrator is excessive, the Tax Administrator may
determine the tax by applying the tax rate to the equivalent charges the service user
would have incurred if the gas or electricity used, including any related supplemental
services, had been provided by the service supplier that is the primary supplier of gas or
electricity within the City. Rate schedules for this purpose shall be available from the
City.
3.16.080 Video Users' Tax.
(a) There is hereby imposed a tax upon every person in the City using video services.
The tax imposed by this section shall be at the rate of four and eight-tenths percent
(4.8%) of the charges made for such services and shall be collected from the service user
by the video service supplier, or its billing agent. There is a rebuttable presumption that
video services, which are billed to a billing or service address in the City, are used, in
whole or in part, within the City's boundaries, and such services are subject to taxation
under this Chapter. If the billing address of the service user is different from the service
address, the service address of the service user shall be used for purposes of imposing the
tax.
(b) As used in this section, the term "charges" shall include, but is not limited to, charges
for the following:
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EXHIBIT A
(1) regulatory fees and surcharges, franchise fees and access fees (PEG);
(2) initial installation of equipment necessary for provision and receipt of video
services;
(3) late fees, collection fees, bad debt recoveries, and return check fees;
(4) activation fees, reactivation fees, and reconnection fees;
(5) video programming and video services;
(6) ancillary video programming services (e.g., electronic program guide
services, search functions, recording functions, or other interactive services or
communications that are ancillary, necessary or common to the use or enjoyment
of the video services);
(7) equipment leases (e.g., remote, recording and/or search devises; converters);
and,
(8) service calls, service protection plans, name changes, changes of services, and
special services.
(c) As used in this section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the video services.
(d) The Tax Administrator may issue and disseminate to video service suppliers, which
are subject to the tax collection requirements of this Chapter, an administrative ruling
identifying those video services, or charges therefor, that are subject to or not subject to
the tax of subsection (a) above.
(e) The tax imposed by this section shall be collected from the service user by the video
service supplier, its billing agent, or a reseller of such services. In the case of video
service, the service user shall be deemed to be the purchaser of the bulk video service
(e.g., an apartment owner), unless such service is resold to individual users, in which case
the service user shall be the ultimate purchaser of the video service. The amount of tax
collected in one (1) month shall be remitted to the Tax Administrator, and must be
received by the Tax Administrator on or before the twentieth (20th)day of the following
month.
3.16.090 Water Users' Tax.
(a) There is imposed a tax upon every person using water in the City which is
transported and delivered through a pipeline distribution system. The tax imposed by this
section shall be at the rate of five percent(5%) of the charges made for such water.
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EXHIBIT A
(b) As used in this section, the term "charges" shall apply to all services, components
and items that are: i) necessary for or common to the receipt, use or enjoyment of water
service; or, ii) currently are or historically have been included in a single or bundled rate
for water service by a local distribution company to a class of retail customers. The term
"charges" shall include, but is not limited to, the following charges: water commodity
charges (potable and non-potable); distribution or transmission charges; metering
charges; customer charges; fire protection services; late charges; service establishment or
reestablishment charges; franchise fees; franchise surcharges; annual and monthly
charges; and other charges, fees and surcharges which are necessary for or common to
the receipt, use or enjoyment of water service; and, charges, fees, or surcharges for water
services or programs, which are mandated by a water district or a state or federal agency,
whether or not such charges, fees, or surcharges appear on a bundled or line item basis on
the customer billing.
(c) As used in this section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the water services.
(d) The Tax Administrator, from time to time, may survey the water service suppliers in
the City to identify the various unbundled billing components of water retail service that
they commonly provide to residential and commercial/industrial customers in the City,
and the charges therefor, including those items that are mandated by a water district or a
state or federal agency as a condition of providing such water service. The Tax
Administrator, thereafter, may issue and disseminate to such water service suppliers an
administrative ruling identifying those components and items which are: i) necessary for
or common to the receipt, use or enjoyment of water service; or, ii) currently are or
historically have been included in a single or bundled rate for water service by a local
distribution company to a class of retail customers. Charges for such components and
items shall be subject to the tax of subsection (a) above.
(e) The tax on water service imposed by this section shall be collected from the service
user by the water service supplier or its billing agent. The amount of tax collected in one
(1) month shall be remitted to the Tax Administrator, and must be received by the Tax
Administrator on or before the twentieth (20th) day of the following month.
3.16.100 Bundling Taxable Items.
If any nontaxable charges are combined with and not separately stated from taxable
service charges on the customer bill or invoice of a service supplier, the combined charge
is subject to tax unless the service supplier identifies, by reasonable and verifiable
standards, the portions of the combined charge that are nontaxable and taxable through
the service supplier's books and records kept in the regular course of business, and in
accordance with generally accepted accounting principles, and not created and
maintained for tax purposes. If the service supplier offers a combination of taxable and
non-taxable services, and the charges are separately stated, then for taxation purposes, the
values assigned the taxable and non-taxable services shall be based on its books and
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EXHIBIT A
records kept in the regular course of business and in accordance with generally accepted
accounting principles, and not created and maintained for tax purposes. The service
supplier has the burden of proving the proper valuation and apportionment of taxable and
non-taxable charges.
3.16.110 Substantial Nexus/Minimum Contact.
For purposes of imposing a tax or establishing a duty to collect and remit a tax under this
Chapter, "substantial nexus" and"minimum contacts" shall be construed broadly in favor
of the imposition, collection and/or remittance of the utility users' tax to the fullest extent
permitted by State and Federal law, and as it may change from time to time by judicial
interpretation or by statutory enactment. Any telecommunication service (including
VoIP) used by a person with a service address in the City, which service is capable of
terminating a call to another person on the general telephone network, shall be subject to
a rebuttable presumption that"substantial nexus/minimum contacts"exists for purposes
of imposing a tax, or establishing a duty to collect and remit a tax, under this Chapter. A
service supplier shall be deemed to have sufficient activity in the City for tax collection
and remittance purposes if its activities include, but are not limited to, any of the
following: maintains or has within the City, directly or through an agent or subsidiary, a
place of business of any nature; solicits business in the City by employees, independent
contractors, resellers, agents or other representatives; solicits business in the City on a
continuous, regular, seasonal or systematic basis by means of advertising that is broadcast
or relayed from a transmitter with the City or distributed from a location with the City;or
advertises in newspapers or other periodicals printed and published within the City or
through materials distributed in the City by means other than the United States mail; or if
there are activities performed in the City on behalf of the service supplier that are
significantly associated with the service supplier's ability to establish and maintain a
market in the City for the provision of utility services that are subject to a tax under this
Chapter.
3.16.120 Duty to Collect Procedures.
(a) Collection by Service Suppliers: The duty of service suppliers to collect and
remit the taxes imposed by the provisions of this Chapter shall be performed as follows:
(1) The tax shall be collected by service suppliers insofar as practicable at the
same time as, and along with, the collection of the charges made in accordance with the
regular billing practice of the service supplier. Where the amount paid by a service user
to a service supplier is less than the full amount of the charge and tax which was accrued
for the billing period, a proportionate share of both the charge and the tax shall be
deemed to have been paid. In those cases where a service user has notified the service
supplier of refusal to pay the tax imposed on said charges, Section 3.16.916 shall apply.
(2) The duty of a service supplier to collect the tax from a service user shall
commence with the beginning of the first regular billing period applicable to the service
user where all charges normally included in such regular billing are subject to the
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EXHIBIT A
provisions of this Chapter. Where a service user receives more than one billing, one or
more being for different periods than another, the duty to collect shall arise separately for
each billing period.
(b) Filing Return and Payment: Each person required by this Chapter to remit a tax
shall file a return to the Tax Administrator, on forms approved by the Tax Administrator,
on or before the due date. The full amount of the tax collected shall be included with the
return and filed with the Tax Administrator. The Tax Administrator is authorized to
require such additional information as he or she deems necessary to determine if the tax
is being levied, collected, and remitted in accordance with this Chapter. Returns are due
immediately upon cessation of business for any reason. Pursuant to Revenue and Tax
Code Section 7284.6, the Tax Administrator, and its agents, shall maintain such filing
returns as confidential information that is exempt from the disclosure provisions of the
Public Records Act.
3.16.130 Collection Penalties-Service Suppliers.
(a) Taxes collected from a service user are delinquent if not received by the Tax
Administrator on or before the due date. Should the due date occur on a weekend or legal
holiday, the return must be received by the Tax Administrator on the first regular
working day following the weekend or legal holiday. A direct deposit, including
electronic fund transfers and other similar methods of electronically exchanging monies
between financial accounts, made by a service supplier in satisfaction of its obligations
under this Chapter shall be considered timely if the transfer is initiated on or before the
due date, and the transfer settles into the City's account on the following business day.
(b) If the person required to collect and/or remit the utility users' tax fails to collect
the tax (by failing to properly assess the tax on one or more services or charges on the
customer's billing) or fails to remit the tax collected on or before the due date, the Tax
Administrator shall attach a penalty for such delinquencies or deficiencies at the rate of
fifteen percent (15%) of the total tax that is delinquent or deficient in the remittance, and
shall pay interest at the rate of seventy-five one-hundredths percent (0.75%) per month,
or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date on
which the remittance first became delinquent, until paid.
(c) The Tax Administrator shall have the power to impose additional penalties upon
persons required to collect and remit taxes pursuant to the provisions of this Chapter for
fraud or gross negligence in reporting or remitting at the rate of fifteen percent(15%) of
the amount of the tax collected and/or required to be remitted, or as recomputed by the
Tax Administrator.
(d) For collection purposes only, every penalty imposed and such interest that is
accrued under the provisions of this Chapter shall become apart of the tax herein
required to be paid.
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EXHIBIT A
(e) Notwithstanding the foregoing, the Tax Administrator may, in his or her
discretion, modify the due dates of this Chapter to be consistent with any uniform
standards or procedures that are mutually agreed upon by other public agencies imposing
a utility users' tax, or otherwise legally established,to create a central payment location
or mechanism.
3.16.140 Actions to Collect.
Any tax required to be paid by a service user under the provisions of this Chapter shall be
deemed a debt owed by the service user to the City. Any such tax collected from a service
user which has not been remitted to the Tax Administrator shall be deemed a debt owed
to the City by the person required to collect and remit and shall no longer be a debt of the
service user. Any person owing money to the City under the provisions of this Chapter
shall be liable to an action brought in the name of the City for the recovery of such
amount, including penalties and interest as provided for in this Chapter, along with any
collection costs incurred by the City as a result of the person's noncompliance with this
Chapter, including, but not limited to, reasonable attorneys' fees. Any tax required to be
collected by a service supplier or owed by a service user is an unsecured priority excise
tax obligation under 11 U. S. CA. Section 507(a)(8)(C). Service suppliers who seek to
collect charges for service in bankruptcy proceedings shall also include in any such claim
the amount of taxes due the City for those services, unless the Tax Administrator
determines that such duty is in conflict with any federal or state law, rule, or regulation or
that such action would be administratively impractical.
3.16.150 Deficiency Determination and Assessment-Tax Application Errors.
(a) The Tax Administrator shall make a deficiency determination if he or she
determines that any person required to pay or collect taxes pursuant to the provisions of
this Chapter has failed to pay, collect, and/or remit the proper amount of tax by
improperly or failing to apply the tax to one or more taxable services or charges. Nothing
herein shall require that the Tax Administrator institute proceedings under this Section
3.16.150 if, in the opinion of the Tax Administrator, the cost of collection or enforcement
likely outweighs the tax benefit.
(b) The Tax Administrator shall mail a notice of such deficiency determination to the
person required to pay or remit the tax, which notice shall refer briefly to the amount of
the takes owed, plus interest at the rate of seventy-five one-hundredths percent(0.75%)
per month, or any fraction thereof, on the amount of the tax from the date on which the
tax should have been received by the City. Within fourteen (14) calendar days after the
date of service of such notice, the person may request in writing to the Tax Administrator
for a hearing on the matter.
(c) If the person fails to request a hearing within the prescribed time period, the
amount of the deficiency determination shall become a final assessment, and shall
immediately be due and owing to the City. If the person requests a hearing, the Tax
Administrator shall cause the matter to be set for hearing, which shall be scheduled
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EXHIBIT A
within thirty (30) days after receipt of the written request for hearing. Notice of the time
and place of the hearing shall be mailed by the Tax Administrator to such person at least
ten (10) calendar days prior to the hearing, and, if the Tax Administrator desires said
person to produce specific records at such hearing, such notice may designate the records
requested to be produced.
(d) At the time fixed for the hearing, the Tax Administrator shall hear all relevant
testimony and evidence, including that of any other interested parties. At the discretion of
the Tax Administrator, the hearing may be continued from time to time for the purpose of
allowing the presentation of additional evidence. Within a reasonable time following the
conclusion of the hearing, the Tax Administrator shall issue a final assessment (or non-
assessment), thereafter, by confirming, modifying or rejecting the original deficiency
determination, and shall mail a copy of such final assessment to person owing the tax.
The decision of the Tax Administrator may be appealed pursuant to Section 3.16.200 of
this Chapter. Filing an application with the Tax Administrator and appeal to the City
Administrator, or designee, pursuant to Section 3.16.200 of this Chapter is a prerequisite
to a suit thereon.
(e) Payment of the final assessment shall become delinquent if not received by the
Tax Administrator on or before the thirtieth (30th) day following the date of receipt of the
notice of final assessment. The penalty for delinquency shall be fifteen percent(15%) on
the total amount of the assessment, along with interest at the rate of seventy-five one-
hundredths percent(0.75%) per month, or any fraction thereof, on the amount of the tax,
exclusive of penalties, from the date of delinquency, until paid. The applicable statute of
limitations regarding a claim by the City seeking payment of a tax assessed under this
Chapter shall commence from the date of delinquency as provided in this subsection (e).
(f) All notices under this Chapter may be sent by regular mail, postage prepaid, and
shall be deemed received on the third calendar day following the date of mailing, as
established by a proof of mailing.
3.16.160 Administrative Remedy-Non-Paying Service Users.
(a) Whenever the Tax Administrator determines that a service user has deliberately
withheld the amount of the tax owed by the service user from the amounts remitted to a
person required to collect the tax, or whenever the Tax Administrator deems it in the best
interest of the City, he or she may relieve such person of the obligation to collect the
taxes due under this Chapter from certain named service users for specific billing periods.
To the extent the service user has failed to pay the amount of tax owed for a period of
two (2) or more billing periods, the service supplier shall be relieved of the obligation to
collect taxes due. The service supplier shall provide the City with the names and
addresses of such service users and the amounts of taxes owed under the provisions of
this Chapter. Nothing herein shall require that the Tax Administrator institute
proceedings under this Section 3.16.160 if, in the opinion of the Tax Administrator, the
cost of collection or enforcement likely outweighs the tax benefit.
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EXHIBIT A
(b) In addition to the tax owed, the service user shall pay a delinquency penalty at the
rate of fifteen percent (15%) of the total tax that is owed, and shall pay interest at the rate
of seventy-five one-hundredths percent (0.75%) per month, or any fraction thereof, on the
amount of the tax, exclusive of penalties, from the due date, until paid.
(c) The Tax Administrator shall notify the non-paying service user that the Tax
Administrator has assumed the responsibility to collect the taxes due for the stated
periods and demand payment of such taxes, including penalties and interest. The notice
shall be served on the service user by personal delivery or by deposit of the notice in the
United States mail, postage prepaid, addressed to the service user at the address to which
billing was made by the person required to collect the tax; or, should the service user
have a change of address, to his or her last known address.
(d) If the service user fails to remit the tax to the Tax Administrator within thirty (30)
days from the date of the service of the notice upon him or her, the Tax Administrator
may impose an additional penalty of fifteen percent (15%) of the amount of the total tax
that is owed.
3.16.170 Additional Powers and Duties of the Tax Administrator.
(a) The Tax Administrator shall have the power and duty, and is hereby directed, to
enforce each and all of the provisions of this Chapter.
(b) The Tax Administrator may adopt administrative rules and regulations consistent
with provisions of this Chapter for the purpose of interpreting, clarifying, carrying out
and enforcing the payment, collection and remittance of the taxes herein imposed. The
administrative ruling shall not impose a new tax, revise an existing tax methodology as
stated in this Chapter, or increase an existing tax, except as allowed by California
Government Code Section 53750(h)(2). A copy of such administrative rules and
regulations shall be on file in the Tax Administrator's office. To the extent that the Tax
Administrator determines that the tax imposed under this Chapter shall not be collected in
full for any period of time from any particular service supplier or service user,that
determination shall be considered an exercise of the Tax Administrator's discretion to
settle disputes and shall not constitute a change in taxing methodology for purposes of
Government Code Section 53750 or otherwise. The Tax Administrator is not authorized
to amend the City's methodology for purposes of Government Code Section 53750 and
the City does not waive or abrogate its ability to impose the utility users' tax in full as a
result of promulgating administrative rulings or entering into agreements.
(c) Upon a proper showing of good cause, the Tax Administrator may make
administrative agreements, with appropriate conditions, to vary from the strict
requirements of this Chapter and thereby: (1) conform to the billing procedures of a
particular service supplier so long as said agreements result in the collection of the tax in
conformance with the general purpose and scope of this Chapter; or, (2) to avoid a
hardship where the administrative costs of collection and remittance greatly outweigh the
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EXHIBIT A
tax benefit. A copy of each such agreement shall be on file in the Tax Administrator's
office, and are voidable by the Tax Administrator or the City at any time.
(d) The Tax Administrator may conduct an audit, to ensure proper compliance with
the requirements of this Chapter, of any person required to collect and/or remit a tax
pursuant to this Chapter. The Tax Administrator shall notify said person of the initiation
of an audit in writing. In the absence of fraud or other intentional misconduct, the audit
period of review shall not exceed a period of three (3) years next preceding the date of
receipt of the written notice by said person from the Tax Administrator. Upon completion
of the audit, the Tax Administrator may make a deficiency determination pursuant to
Section 3.16.150 of this Chapter for all taxes (and applicable penalties and interest) owed
and not paid, as evidenced by information provided by such person to the Tax
Administrator. If said person is unable or unwilling to provide sufficient records to enable
the Tax Administrator to verify compliance with this Chapter, the Tax Administrator is
authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall
be entitled to a rebuttable presumption of correctness.
(e) Upon receipt of a written request of a taxpayer, and for good cause, the Tax
Administrator may extend the time for filing any statement required pursuant to this
Chapter for a period of not to exceed forty-five (45) days, provided that the time for filing
the required statement has not already passed when the request is received. No penalty
for delinquent payment shall accrue by reason of such extension. Interest shall accrue
during said extension at the rate of seventy-five one-hundredths percent(0.75%) per
month, prorated for any portion thereof.
(f) The Tax Administrator shall determine the eligibility of any person who asserts a
right to exemption from, or a refund of, the tax imposed by this Chapter.
(g) Notwithstanding any provision in this Chapter to the contrary, the Tax
Administrator may waive any penalty or interest imposed upon a person required to
collect and/or remit for failure to collect the tax imposed by this Chapter if the non-
collection occurred in good faith. In determining whether the non-collection was in good
faith, the Tax Administrator shall take into consideration the uniqueness of the product or
service, industry practice or other precedence. The Tax Administrator may also
participate with other utility users' tax public agencies in conducting coordinated
compliance reviews with the goal of achieving administrative efficiency and uniform tax
application determinations, where possible. To encourage full disclosure and on-going
cooperation on annual compliance reviews, the Tax Administrator, and its agents, may
enter into agreements with the tax-collecting service providers and grant prospective only
effect on any changes regarding the taxation of services or charges that were previously
deemed by the service provider, in good faith and without gross negligence, to be non-
taxable. In determining whether the non-collection was in good faith and without gross
negligence, the Tax Administrator shall take into consideration the uniqueness of the
product or service, industry practice or other precedence.
3.16.180 Records.
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EXHIBIT A
(a) It shall be the duty of every person required to collect and/or remit to the City any
tax imposed by this Chapter to keep and preserve, for a period of at least three (3) years,
all records as may be necessary to determine the amount of such tax as he/she may have
been liable for the collection of and remittance to the Tax Administrator, which records
the Tax Administrator shall have the right to inspect at a reasonable time.
(b) The City may issue an administrative subpoena to compel a person to deliver, to
the Tax Administrator, copies of all records deemed necessary by the Tax Administrator
to establish compliance with this Chapter, including the delivery of records in a common
electronic format on readily available media if such records are kept electronically by the
person in the usual and ordinary course of business. As an alternative to delivering the
subpoenaed records to the Tax Administrator on or before the due date provided in the
administrative subpoena, such person may provide access to such records outside the City
on or before the due date, provided that such person shall reimburse the City for all
reasonable travel expenses incurred by the City to inspect those records, including travel,
lodging, meals, and other similar expenses, but excluding the normal salary or hourly
wages of those persons designated by the City to conduct the inspection.
(c) The Tax Administrator is authorized to execute a non-disclosure agreement
approved by the City Attorney to protect the confidentiality of customer information
pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7.
(d) If a service supplier uses a billing agent or billing aggregator to bill, collect,
and/or remit the tax, the service supplier shall: 1)provide to the Tax Administrator the
name, address and telephone number of each billing agent and billing aggregator
currently authorized by the service supplier to bill, collect, and/or remit the tax to the
City; and, 2) upon request of the Tax Administrator, deliver, or effect the delivery of, any
information or records in the possession of such billing agent or billing aggregator that, in
the opinion of the Tax Administrator, is necessary to verify the proper application,
calculation, collection and/or remittance of such tax to the City.
(e) If any person subject to record-keeping under this Chapter unreasonably denies
the Tax Administrator access to such records, or fails to produce the information
requested in an administrative subpoena within the time specified, then the Tax
Administrator may impose a penalty of Five Hundred Dollars ($500.00) on such person
for each day following: 1)the initial date that the person refuses to provide such access;
or, 2) the due date for production of records as set forth in the administrative subpoena.
This penalty shall be in addition to any other penalty imposed under this Chapter.
3.16.190 Refunds
Whenever the amount of any tax has been overpaid or paid more than once or has been
erroneously or illegally collected or received by the Tax Administrator under this Chapter
from a person or service supplier, it may be refunded as provided in this Section as
follows:
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EXHIBIT A
(a) Written Claim for Refund: The Tax Administrator may refund any tax that has
been overpaid or paid more than once or has been erroneously or illegally collected or
received by the Tax Administrator under this Chapter from a person or service supplier,
provided that no refund shall be paid under the provisions of this Section unless the
claimant or his or her guardian, conservator, executor, or administrator has submitted a
written claim to the Tax Administrator within one year of the overpayment or erroneous
or illegal collection of said tax. Such claim must clearly establish claimant's right to the
refund by written records showing entitlement thereto. Nothing herein shall permit the
filing of a claim on behalf of a class or group of taxpayers unless each member of the
class has submitted a written claim under penalty of perjury as provided by this Section.
(b) Compliance with Claims Act: The filing of a written claim pursuant to
Government Code Section 935 is a prerequisite to any suit thereon. Any action brought
against the City pursuant to this Chapter shall be subject to the provisions of Government
Code Sections 945.6 and 946. The Tax Administrator, or the City Council where the
claim is in excess of Five Thousand Dollars ($5,000.00), shall act upon the refund claim
within the time period set forth in Government Code Section 912.4. If the Tax
Administrator/City Council fails or refuses to act on a refund claim within the time
prescribed by Government Section 912.4, the claim shall be deemed to have been rejected
by the City Council on the last day of the period within which the City Council was
required to act upon the claim as provided in Government Code Section 912.4. The Tax
Administrator shall give notice of the action in a form which substantially complies with
that set forth in Government Code Section 913.
(c) Refunds to Service Suppliers: Notwithstanding the notice provisions of
subsection (a) of this Section, the Tax Administrator may, at his or her discretion, give
written permission to a service supplier, who has collected and remitted any amount of
tax in excess of the amount of tax imposed by this Chapter, to claim credit for such
overpayment against the amount of tax which is due the City upon a subsequent monthly
retum(s) to the Tax Administrator, provided that, prior to taking such credit by the
service supplier: 1) such credit is claimed in a return dated no later than one year from the
date of overpayment or erroneous collection of said tax; 2)the Tax Administrator is
satisfied that the underlying basis and amount of such credit has been reasonably
established; and, 3) in the case of an overpayment by a service user to the service supplier
that has been remitted to the City, the Tax Administrator has received proof, to his or her
satisfaction, that the overpayment has been refunded by the service supplier to the service
user in an amount equal to the requested credit.
3.16.200 Appeals.
(a) The provisions of this Section apply to any decision (other than a decision relating
to a refund pursuant to Section 3.16.190 of this Chapter), deficiency determination,
assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by
any decision (other than a decision relating to a refund pursuant to Section 3.16.190 of
this Chapter), deficiency determination, assessment, or administrative ruling of the Tax
Administrator, shall be required to comply with the appeals procedure of this Section.
22
EXHIBIT A
Compliance with this Section shall be a prerequisite to a suit thereon. [See Government
Code Section 935(b)]. Nothing herein shall permit the filing of a claim or action on
behalf of a class or group of taxpayers.
(b) If any person is aggrieved by any decision (other than a decision relating to a
refund pursuant to Section 3.16.190 of this Chapter), deficiency determination,
assessment, or administrative ruling of the Tax Administrator; he or she may appeal to
the City Administrator, or designee, by filing a notice of appeal with the City Clerk
within fourteen (14) days of the date of the decision, deficiency determination,
assessment, or administrative ruling of the Tax Administrator which aggrieved the
service user or service supplier.
(c) The matter shall be scheduled for hearing before an independent hearing officer
selected by the City Administrator, or designee, no more than thirty (30) days from the
receipt of the appeal. The appellant shall be served with notice of the time and place of
the hearing, as well as any relevant materials,at least five (5) calendar days prior to the
hearing. The hearing may be continued from time to time upon mutual consent. At the
time of the hearing, the appealing party, the Tax Administrator, and any other interested
person may present such relevant evidence as he or she may have relating to the
determination from which the appeal is taken.
(d) Based upon the submission of such evidence and the review of the City's files, the
hearing officer shall issue a written notice and order upholding, modifying or reversing
the determination from which the appeal is taken. The notice shall be given within
fourteen (14) days after the conclusion of the hearing and shall state the reasons for the
decision. The notice shall specify that the decision is final and that any petition for
judicial review shall be filed within ninety (90) days from the date of the decision in
accordance with Code of Civil Procedure Section 1094.6.
(e) All notices under this Section may be sent by regular mail, postage prepaid, and
shall be deemed received on the third calendar day following the date of mailing, as
established by a proof of mailing.
3.16.210 No Injunction/Writ of Mandate.
No injunction or writ of mandate or other legal or equitable process shall issue in any
suit, action, or proceeding in any court against this City or against any officer of the City
to prevent or enjoin the collection under this Chapter of any tax or any amount of tax
required to be collected and/or remitted.
3.16.220 Notice of Changes to Ordinance.
If a tax under this Chapter is added repealed, increased, reduced, or the tax base is
changed, the Tax Administrator shall follow the notice requirements of California Public
Utilities Code Section 799.
23
EXHIBIT A
3.16.230 Effect of State and Federal Reference/Authorization.
Unless specifically provided otherwise, any reference to a State or Federal statute in this
Chapter shall mean such statute as it may be amended from time to time, provided that
such reference to a statute herein shall not include any subsequent amendment thereto, or
to any subsequent change of interpretation thereto by a State or Federal agency or court
of law with the duty to interpret such law,to the extent that such amendment or change of
interpretation would require voter approval under California law, or to the extent that
such change would result in a tax decrease (as a result of excluding all or a part of a
utility service, or charge therefor, from taxation). Only to the extent voter approval would
otherwise be required or a tax decrease would result, the prior version of the statute (or
interpretation) shall remain applicable; for any application or situation that would not
require voter approval or result in a decrease of a tax, provisions of the amended statute
(or new interpretation) shall be applicable to the maximum possible extent.
To the extent that the City's authorization to collect or impose any tax imposed under this
Chapter is expanded or limited as a result of changes in State or Federal law, no
amendment or modification of this Chapter shall be required to conform the tax to those
changes, and the tax shall be imposed and collected to the full extent of the authorization
up to the full amount of the tax imposed under this Chapter.
3.16.240 No Increase in Tax Percentage or Change in Methodology Without Voter
Approval; Amendment or Repeal.
This Title 3, Chapter 16 of the San Luis Obispo Municipal Code may be repealed or
amended by the City Council without a vote of the People. However, as required by
Chapter XIIIC of the California Constitution, voter approval is required for any
amendment provision that would increase the rate of any tax levied pursuant to this
Ordinance. The People of the City of San Luis Obispo affirm that the following actions
shall not constitute an increase of the rate of a tax:
(1) The restoration of the rate of the tax to a rate that is no higher than that set by this
Ordinance, if the City Council has acted to reduce the rate of the tax;
(2) An action that interprets or clarifies the methodology of the tax, or any definition
applicable to the tax, so long as such interpretation or clarification (even if contrary to
some prior interpretation or clarification) is not inconsistent with the language of this
Ordinance;
(3) The establishment a class of persons that is exempt or excepted from the tax or the
discontinuation of any such exemption or exception (other than the discontinuation of an
exemption or exception specifically set forth in this Ordinance); and
(4) The collection of the tax imposed by this ordinance, even if the City had, for some
period of time, failed to collect the tax.
24
EXHIBIT A
3.16.250 Remedies Cumulative.
All remedies and penalties prescribed by this Chapter or which are available under any
other provision of law or equity, including but not limited to the California False Claims
Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act
(Business and Professions Code Section 17070 et seq.), are cumulative. The use of one
or more remedies by the City shall not bar the use of any other remedy for the purpose of
enforcing the provisions of this Chapter.
3.16.260 Interaction With Prior Tax.
(a). Collection of Tax by Service Providers. Service providers shall begin to collect the
tax imposed by this amended Chapter 16 as soon as feasible after the effective date of the
Chapter, but in no event later than permitted by Section 799 of the California Public
Utilities Code.
(b). Satisfaction of Tax Obligation by Service Users. Prior to April 1, 2013, any person
who pays the tax levied pursuant to Title 3, Chapter 16 of this Code, as it existed prior to
its amendment as provided herein, with respect to any charge for a service shall be
deemed to have satisfied his or her obligation to pay the tax levied pursuant to Title 3,
Chapter 16 as amended herein, with respect to that charge. The intent of this paragraph is
to prevent the imposition of multiple taxes upon a single utility charge during the
transition period from the prior Utility Users' Tax ordinance to the amended Utility
Users' Tax ordinance (which transition period ends April 1, 2013) and to permit service
providers or other persons with an obligation to remit the tax hereunder, during that
transition period, to satisfy their collection obligations by collecting either tax.
(c) In the event that a final court order should determine that the election enacting this
Title 3, Chapter 16 (as amended herein) is invalid for whatever reason, or that any tax
imposed under this Title 3, Chapter 16 (as amended herein) is invalid in whole or in part,
then the taxes imposed under Title 3, Chapter 16 of this Code, as it existed prior to its
amendment as provided herein, shall automatically continue to apply with respect to any
service for which the tax levied pursuant to this Chapter 16 has been determined to be
invalid. Such automatic continuation shall be effective beginning as of the first date of
service (or billing date) for which the tax imposed by this Chapter is not valid. However,
in the event of an invalidation, any tax (other than a tax that is ordered refunded by the
court or is otherwise refunded by the City) paid by a person with respect to a service and
calculated pursuant to this Title 3, Chapter 16 (as amended herein) shall be deemed to
satisfy the tax imposed under Title 3, Chapter 16, as it existed prior to its amendment as
provided herein, on that service, so long as the tax is paid with respect to a service provided
no later than six months subsequent to the date on which the final court order is published.
SECTION 2. Effective Date. This Chapter, if approved by the electorate of the City
of San Luis Obispo at the General Municipal Election of November 6, 2012 shall
become effective immediately upon the declaration of the results of that election by
the City Council of the City of San Luis Obispo.
25
EXHIBIT A
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this Ordinance is for any reason held to be invalid or unenforceable by a
court of competent jurisdiction, the remaining portions of this Ordinance shall
nonetheless remain in full force and effect. The People hereby declares that they
would have adopted each section, subsection, sentence, clause, phrase, or portion of
this Ordinance, irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions of this Ordinance be declared invalid or
unenforceable.
SECTION 4. Ratification of Prior Tax. The People of the City of San Luis Obispo
hereby ratify and approve the past collection of the Utility Users' Tax Title 3, Chapter
16 of the San Luis Obispo Municipal Code, as it existed prior to the effective date of
this Ordinance.
SECTION 5. Execution. The Mayor is hereby authorized to attest to the adoption of
the Ordinance by the voters of the City by signing where indicated below.
I hereby certify that the foregoing Ordinance was PASSED, APPROVED
and ADOPTED by the People of the City of San Luis Obispo, California voting on
the 6th day of November, 2012.
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
26
RESOLUTION NO. 10382 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA
PROVIDING FOR THE FILING OF REBUTTAL ARGUMENTS FOR CITY MEASURE
SUBMITTED AT THE NOVEMBER 6,2012 GENERAL MUNICIPAL ELECTION
WHEREAS, Section 9285 of the Elections Code of the State of California authorizes the
City Council, by majority vote, to adopt provisions to provide for the filing of rebuttal arguments
for City measures submitted at municipal elections.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. That pursuant to Section 9285 of the Elections Code of the State of
California, when the elections official has selected the arguments for and against the measure
which will be printed and distributed to the voters, the elections official shall send a copy of an
argument in favor of the proposition to the authors of any argument against the measure and a
copy of an argument against the measure to the authors of any argument in favor of the measure
immediately upon receiving the arguments.
The author or a majority of the authors of an argument relating to a City measure may
prepare and submit a rebuttal argument not exceeding 250 words or may authorize in writing any
other person or persons to prepare, submit, or sign the rebuttal argument.
A rebuttal argument may not be signed by more than five authors.
The rebuttal arguments shall be filed with the City Clerk, signed, with the printed names
and signatures of the authors submitting it, or if submitted on behalf of an organization, the name
of the organization, and the printed name and signature of at least one of its principal officers,
not more than 10 days after the final date for filing direct arguments. The rebuttal arguments
shall be accompanied by the Form of Statement to Be Filed By Authors of Argument.
Rebuttal arguments shall be printed in the same manner as the direct arguments. Each
rebuttal argument shall immediately follow the direct argument which it seeks to rebut.
SECTION 2. That all previous resolutions providing for the filing of rebuttal arguments
for City measures are repealed.
SECTION 3. That the provisions of Section 1 shall apply at the next ensuing municipal
election and at each municipal election after that time.
SECTION 4. That the City Clerk shall certify to the passage and adoption of this
Resolution and enter it into the book of original Resolutions.
R 10382
Resolution No. 10382 (2012 Series)
Page 2
Upon motion of Council Member Carter seconded by Council Member Ashbaugh, and on
the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter
And Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 10th day of July, 2012.
r41- I�U�
Mayooln Marx
ATTEST:
Sheryll Schroeder
Interim City Clerk
APPROVED AS TO RM:
i
J. ristine Dietrick
ity Attorney
RESOLUTION NO. 10383 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO APPROVING
THE FINAL MAP FOR TRACT NO.3039
(730 FOOTHILL BOULEVARD,TR 108-07)
WHEREAS, the City Council made certain findings concerning the tentative map for
Tract 3039, as prescribed in Resolution No. 10034 (Series 2008); and
WHEREAS, the subdivider has completed all required subdivision improvements or
submitted surety bonds to guarantee installation of the required subdivision improvements as
shown on the approved plans, and all fees have been received or will be received prior to map
recordation; and
WHEREAS, all conditions required per said Resolution No. 10034 (Series 2008) have
been met prior to final recordation of the map.
NOW,THEREFORE,BE IT RESOLVED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. The final map for Tract No. 3039, as shown on the attached Exhibit "A", is
found to be in substantial compliance with the tentative map.
SECTION 2. Approval of the final map for Tract 3039 is hereby granted.
SECTION 3. The Mayor and City staff are authorized to take action necessary to carry out
the intent of this resolution.
Upon motion of Council Member Carter, seconded by Council Member Ashbaugh, and on
the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 17" day of July 20
Ma ran Marx
ATTEST:
Sheryll chroeder
Interim City Clerk
APP O AS TO
J. stine Dietrick
ity Attorney
R 10383
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RESOLUTION NO. 10384 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO ACCEPTING THE PUBLIC
IMPROVEMENTS AND CERTIFYING COMPLETION OF THE PRIVATE
IMPROVEMENTS FOR TRACT NO.3039
(730 FOOTHILL BOULEVARD,TR 108-07)
WHEREAS, the City Council made certain findings concerning Tract 3039, as
prescribed in Resolution No. 10034 (Series 2008); and
WHEREAS, the City Council approved the final map for Tract 3039 per Resolution No.
10383 (2012 Series); and
WHEREAS, the subdivider has satisfactorily completed the public improvements for
Tract 3039, except for the street light on Foothill Boulevard, in accordance with City standards
and specifications and has requested acceptance of the public improvements for maintenance and
operation by the City; and
WHEREAS, the subdivider has satisfactorily completed the private improvements for
Tract 3039 in accordance with City standards, specifications and the approved plans, and has
requested that the city certify completion of these private improvements; and
WHEREAS, the public and private improvements, except for the street light, have been
in place for almost one year, and no defects have been founds and
WHEREAS, the subdivider has submitted a surety guaranteeing installation of the street
light.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. The City Council hereby accepts the public improvements for Tract
No. 3039, except for the street light on Foothill Boulevard.
SECTION 2. The City Council hereby certifies completion of the private improvements
for Tract No. 3039.
SECTION 3. The Public Works Director is hereby authorized to accept the street light
on behalf of the City and release the surety upon its completion to the satisfaction of the City.
Upon motion of Council Member Carter, seconded by Council Member Ashbaugh, and on
the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith,Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
R 10384
Resolution No. 10384 (2012 Series)
Page 2
The foregoing resolution was adopted this 17''day of July 2012.
r- - L
Ma y an Marx
ATTEST:
-"Sheryll 5chroeder
Interim City Clerk
APP ED AS TO RM:
Stine Dietrick
City Attorney
RESOLUTION NO. 10385 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO SUSPENDING
ENFORCEMENT OF THE REQUIREMENTS OF SAN LUIS OBISPO MUNICIPAL
CODE CHAPTER 9.18 FOR PORTION OF 43 PRADO ROAD
WHEREAS, on March 20, 2012, the City Council of the City of San Luis Obispo
temporarily suspended enforcement of the requirements of San Luis Obispo Municipal Code
Chapter 17.16.015 (Vehicle as dwelling unit) and authorized Community Action Partnership of
San Luis Obispo County, Inc. (CAPSLO) to operate a safe parking pilot program to allow
overnight sleeping in vehicles at the Prado Day Center at 43 Prado Road; and
WHEREAS, on June 22, 2012, CAPSLO implemented a six month safe parking pilot
program for up to five vehicles at the Prado Day Center at 43 Prado Road; and
WHEREAS, on July 3, 2012, Superior Court Judge Charles S. Crandall issued a
preliminary injunction against the City's enforcement of San Luis Obispo Municipal Code
(SLMC) Chapter 17.16.015 to prohibit the use of vehicles as living and sleeping quarters on
local streets; and
WHEREAS, on July 10, 2012, the City Council of the City of San Luis Obispo adopted
an emergency ordinance declaring and reaffirming the scope and intended enforcement of the
City's ordinance prohibiting the use of vehicles as living and sleeping quarters throughout the
City of San Luis Obispo and added Chapter 9.18 (Vehicle as dwelling unit) of the San Luis
Obispo Municipal Code; and
WHEREAS, the City Council has duly considered all evidence, including the testimony
of the applicant, interested parties, and the evaluation and recommendations by staff, presented at
said hearing.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis
Obispo as follows:
SECTION 1. Findings. Based upon all the evidence, the City Council makes the
following findings:
1. A safe parking pilot program advances a key component of the goal to provide a form of
transitional housing consistent with the San Luis Obispo Countywide 10-year Plan to End
Homelessness.
2. There is a growing community need for a safe parking pilot program for those looking
for a safe place to temporarily sleep in their vehicles while they transition to permanent housing.
3. A pilot program will allow CAPSLO and the City to evaluate the success of the program
prior to deciding whether to move forward with a long-term City-wide program.
R 10385
Resolution No. 10385 (2012 Series)
Page 2
4. A safe parking pilot program within the parking area for the Prado Day Center, as show
on Exhibit A, is a logical addition to the homeless services currently provided and managed by
CAPSLO.
SECTION 2. Suspension of Municipal Code Enforcement. In order to facilitate the
operation of the pilot program, the City Council hereby suspends enforcement of Chapter 9.18 of
the City of San Luis Obispo Municipal Code prohibiting the use of recreational vehicles as a
dwelling unit as it applies to the City property located at 43 Prado Road, as shown in Exhibit A.
Enforcement of Chapter 9.18 on this property shall be suspended only for such time period as the
pilot program is authorized by the City to operate and enforcement shall resume at such time as
the pilot program is terminated.
Upon motion of Council Member Ashbaugh, seconded by Council Member Carter, and
on the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter
and Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was passed and adopted this 17'' day of July, 2012.
.,
Mayo J Marx
ATTEST:
Sheryll Schroeder
Interim City Clerk
APPROVED AS TO F
IL
Christine Dietrick
City Attorney
Resolution No. 10385 (2012 Series)
Page 3
Exhibit A
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RESOLUTION NO. 10386 (2012 SERIES)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO APPROVING AMENDMENTS
TO CHAPTER 9 THE PUBLIC FACILITIES FINANCING PLAN OF THE
MARGARITA AREA SPECIFIC PLAN
SPA 53-12
WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a
public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo,
California, on June 13, 2012 to review amendments to the public facilities plan, Chapter 9 of the
Margarita Area Specific Plan, City of San Luis Obispo Community Development, applicant; and
WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing
in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on July 17,
2012 for the purpose of considering Application SPA 53-12; and
WHEREAS, notices of said public hearings were made at the time and in the manner
required by law; and
WHEREAS, the Specific Plan Amendments are warranted to reflect amendments to the
parkland impact fees and to implement updated impact fee structures for traffic, water and
wastewater;and
WHEREAS, the Council has duly considered all evidence, including the
recommendation of the Planning Commission, testimony of interested parties, and the evaluation
and recommendations by staff, presented at said hearing.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of San Luis
Obispo as follows:
SECTION 1. Environmental Determination. The City Council finds and determines that
the amendments to the financing plan are exempt from CEQA based on Section 15061 b (3).
According to this provision, where it can be seen with certainty that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 2. Findings. The amendments to Chapter 9 of the Margarita Area Specific
Plan as shown on the attached Exhibit A, are hereby approved, based on the following findings:
Findings.
1. The proposed amendments to the Specific Plan are consistent with General Plan
Land Use Element Policy 1.13 because the Damon Garcia Sports fields have been utilized
community-wide since 2005 without being utilized by the anticipated residential
development in the Margarita area. Policy 1.13 directs that the costs of public facilities and
services needed for new development shall be borne by new development, unless the
community chooses to help pay the costs for a certain development to obtain community-
wide benefits. The Damon Garcia Sports fields are a community-wide benefit.
Resolution No. 10386 (2012 Series)
Page 2
2. The proposed amendments to the Specific Plan will not reduce the amount or
quality of parkland proposed in the Margarita Area Specific Plan because the amendments
do not reduce the funding available for new parks in the specific plan area. New
development will still be responsible for maintaining the General Plan policy of providing 10
acres of parkland per 1,000 residents.
3. The proposed amendments will help to clarify the fee structure for parkland and
allow the fee structure to be more transparent.
4. The proposed amendments will help accelerate the development of anticipated
housing projects within the specific plan area because residential impact fees will be reduced
for new development. The development of housing will, in turn, accelerate the construction
of Prado Road which is a significant east-west transportation corridor in the City.
5. The proposed amendments are not subject to CEQA because the amendments are
not considered a "project" under CEQA and the changes to the fee structure do not trigger
any changes to development scenarios or any other physical components of the specific plan.
Therefore, Section 15061 b (3) of CEQA applies to this amendment.
SECTION 2. Action. The City Council does hereby adopt revisions to the Margarita
Area Specific Plan as shown in Exhibit A.
Upon motion of Council Member Carter, seconded by Council Member Ashbaugh,
and on the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter
and Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 17`h day of July 2012.
Ma(;/an Marx
ATTEST:
Sheryll Sc roeder
Interim City Clerk
APPROV AS TO F
' e Dietrick
C Attorney
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RESOLUTION NO. 10387 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO AMENDING THE
PARKLAND IMPACT FEES IN THE MARGARITA AREA
SPA 53-12
WHEREAS, the Council adopted the Margarita Area Specific Plan on October 12, 2004
following extensive public hearings by the Planning Commission and City Council; and
WHEREAS, Chapter 9 (Public Facilities Financing) of the Margarita Area Specific Plan
(MASP) provides a detailed description of the parkland needed to serve this area and their costs
along with a method of apportioning these costs between types of development; and
.WHEREAS, the Council adopted park impact fees for the Margarita Area on January 5,
2004 based on this financing program in compliance with the provisions of Section 66000 of the
Government Code (AB 1600); and
WHEREAS, under the fee program adopted at that time by the Council, whenever the
actual or estimated costs of facilities identified in the impact fee analysis changes, the Director of
Finance & Information Technology (Director) shall review the impact fees and determine
whether the change affects the amount of the impact fees; and if the impact fees are significantly
affected, the Director shall, within thirty(30) days, recommend to the Council a revised fee for
their consideration; and
WHEREAS, reducing the proportion of responsibility for the MASP to fund construction
of the Damon-Garcia Sports Fields does not impact the Specific Plan's ability to meet the
General Plan policy of providing 10 acres of parkland per 1,000 residents; and
WHEREAS, General Plan Land Use Element Policy 1.13 directs that the costs of public
facilities and services needed for new development shall be borne by new development, unless
the community chooses to help pay the costs for a certain development to obtain community-
wide benefits and the Damon Garcia Sports fields have been utilized community-wide since
2005 without being utilized by the anticipated residential development in the Margarita area; and
WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a
public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo,
California, on June 13, 2012 pursuant to a proceeding instituted under application SPA 53-12,
City of San Luis Obispo Community Development, applicant; and
WHEREAS, the Planning Commission found that the Damon-Garcia Sports Fields serve
a community need and provide community-wide benefits and the cost of developing the facility
is therefore appropriate to share in different proportions; and
WHEREAS, the City Council conducted a public hearing on July 17, 2012 and has duly
considered all evidence, including the testimony of the applicant, interested parties, and the
evaluation and recommendations by staff, presented at said hearing.
R 10387
Resolution No. 10387 (2012 Series)
Page 2
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Luis
Obispo that park impact fees in the Margarita Area are hereby revised as set forth in Exhibit A
effective July 17, 2012 and that all other provisions of Resolution No. 9643 remain in effect:
SECTION 1. Environmental Determination. The City Council finds and determines that
the amendments to the financing plan are exempt from CEQA based on Section 15061 b (3).
According to this provision, where it can be seen with certainty that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 2. Action. The City Council does hereby adopt revisions to the Margarita
Area Specific Plan Parkland Impact Fees as shown in Exhibit A.
Upon motion of Council Member Carter, seconded by Council Member Ashbaugh, and
on the following roll call vote:
AYES: Council Member Ashbaugh and Carter, Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
RECUSED: Council Member Smith
The foregoing resolution was passed and adopted this 17th day of July 2012.
Mat'n n Marx
ATTEST:
Sheryll S6roeder
Interim City Clerk
APPROVED AS TO F
J. hristirie Dietrick
ity Attorney
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RESOLUTION NO. 10388 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO ADOPTING THE CLIMATE
ACTION PLAN AND NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT
(GPI 71-09)
WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing
in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on July 17,
2012, for the purpose of considering Planning File No. GPI 71-09, the draft Climate Action Plan
and Negative Declaration of Environmental Impact; and
WHEREAS, the Planning Commission of the City of San Luis Obispo conducted a
public hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo,
California, on May 23, 2012 and on June 13, 2012, for the purpose of formulating and
forwarding recommendations to the City Council of the City of San Luis Obispo regarding the
Climate Action Plan; and
WHEREAS, the City's General Plan contains policies supporting improved energy-
efficiency; alternative transportation options, infill, sustainable energy use, neighborhood
connections, efficient municipal operations, and parks and open space development; which help
reduce greenhouse gas emissions; and
WHEREAS, the City Council has adopted "Climate Protection" as an Other Council
Objective for the Community Development Department in the 2011-13 Financial Plan; and
WHEREAS, the City Council considered the Initial Study and Negative Declaration of
Environmental Impact for the project (ER 71-09) on July 17, 2012, and determined that the
document adequately addresses the potential environmental effects of the Climate Action Plan;
and
WHEREAS, the City Council has duly considered all evidence, including the testimony
of the applicant, interested parties, and the evaluation and recommendations by staff, presented at
said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Findings. Based upon all the evidence,the City Council makes the following
findings:
1. The proposed Climate Action Plan implements General Plan policies because it
establishes strategies for improved energy-efficiency, alternative transportation options, infill,
sustainable energy use, neighborhood connections, efficient municipal operations, and parks and
open space development.
R 10388
Resolution No. 10388 (2012 Series)
Page 2
2. The proposed Climate Action Plan implements an Other Council Objective of the 2011-
13 Financial Plan because it implements strategies for greenhouse gas reduction, energy
conservation, and infrastructure that will save energy and energy-related costs in the future.
3. The project's Negative Declaration adequately addresses the potential significant
environmental impacts of the proposed project, in accordance with CEQA guidelines.
SECTION 2. Environmental Determination. The City Council does hereby adopt a
Negative Declaration for the project.
SECTION 3. Action. The City Council does hereby adopt the Climate Action Plan.
Upon motion of Council Member Ashbaugh, seconded by Council Member Carter, and
on the following vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter
and Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 17`h day of July 2012.
Ma ran Marx
ATTEST:
Sheryll Sdiroeder
Interim City Clerk
APPROVED AS TO F
0it' i
hristine Dietrick
yAttorney
RESOLUTION NO. 10389 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO APPROVING
THE FINAL MAP FOR TRACT NO. 2969
(1310 FOOTHILL BOULEVARD,TR 200-07)
WHEREAS, the City Council made certain findings concerning the vesting tentative
map for Tract 2969, as prescribed in Resolution No. 10026 (Series 2008); and
WHEREAS, the subdivider has completed all required subdivision improvements or
submitted surety bonds to guarantee installation of the required subdivision improvements as
shown on the approved plans, and all fees have been received or will be received prior to map
recordation, as prescribed in the Subdivision Agreement;and
WHEREAS, all conditions required per said Resolution No. 10026 (Series 2008) have
been met prior to final recordation of the map.
NOW,THEREFORE,BE IT RESOLVED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. The final map for Tract No. 2969, as shown on the attached Exhibit "A", is
found to be in substantial compliance with the tentative map.
SECTION 2. The Subdivision Agreement for Tract No. 2969 as shown on the attached
Exhibit`B" is hereby approved.
SECTION 3. Approval of the final map for Tract 2969 is hereby granted.
SECTION 4. The Mayor and City staff are authorized to take action necessary to carry out
the intent of this resolution.
Upon motion of Vice Mayor Carpenter, seconded by Council Member Smith, and on the
following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith,Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
R 10389
Resolution No. 10389 (2012 Series)
Page 2
The foregoing resolution was adopted this 7t' day of August 2012.
MayVan an Marx
ATTEST:
S eryll Sc oeder
Interim City Clerk
APPROVED AS TO FO
J Chris ' Dietrick
'ty orney
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Exhibit B
SUBDIVISION AGREEMENT
THIS AGREEMENT is dated this day of 201_by and
between JAN-PAC LLC, a California limited liability company, herein referred to as
"Subdivider," and the CITY OF SAN LUIS OBISPO, herein referred to as the "City."
RECITALS
REFERENCE IS HEREBY MADE to that certain proposed subdivision of real
property in the City of San Luis Obispo, County of San Luis Obispo, State of California, a
description of which is shown on the Final Map of Tract 2969, City of San Luis Obispo,
California, as approved by the City Council on the day of 201_
The Subdivider desires that said Tract No. 2969 be accepted and approved as a
Final Map pursuant to the Subdivision Regulations of the City of San Luis Obispo (Title 16
of the San Luis Obispo Municipal Code), and
It is a condition of said regulations that the Subdivider agree to install the
improvements as set forth on the plans therefore.
TERMS AND CONDITIONS:
In consideration of the foregoing, the Subdivider does hereby agree to construct
and install the following subdivision improvements in accordance with said subdivision
regulations, and in accordance with approved plans and specifications on file in the office
of the City Engineer, City of San Luis Obispo, to wit:
1. CURB, GUTTERS AND SIDEWALKS
2. STREET AND ON-SITE BASE AND SURFACING
3. WATER SERVICES and SEWER MAINS, including sewer laterals to the property
line and water services to the curb stop.
4. LANDSCAPING
Exhibit B
5. DRAINAGE STRUCTURES
6. ELECTRIC, GAS, TELEPHONE AND CABLE TELEVISION: In addition to the
inspection and approval of such facilities by the City, each public utility shall be
required to file a letter stating that the developer has properly installed all facilities to
be provided by him, and that the said utility is prepared to provide service to
residents upon request.
7. ANY &ALL OTHER IMPROVEMENTS shown on plans or required by project
approvals.
All of the above facilities shall be installed in the locations designated and to the plans and
specifications on file and approved by said City.
The lines and grades for all of said improvements shall be established by the
Subdivider in accordance with said approved plans and specifications.
The Subdivider agrees that the work of installing the above improvements shall
begin within thirty (30) days from the date of recording of the final map, and that the work
shall be completed within twelve (12) months of said recording date, unless an extension
has been granted by the City, provided that if completion of said work is delayed by acts of
God or labor disputes resulting in strike action, the Subdivider shall have an additional
period of time equivalent to such period of delay in which to complete such work. Any
extension of time hereunder shall not operate to release the surety on the Improvement
Security filed pursuant to this agreement. In this connection, the surety waives the
provisions of Section 2819 of the Civil Code of the State of California.
No building permits will be issued nor occupancy granted after the expiration date
of the agreement until completion and acceptance of all subdivision improvements unless
specifically approved by the City.
2
Exhibit B
The Subdivider does also agree to comply with the conditions established by the
Planning Commission and/or the City Council and has paid the necessary fees as
indicated on the attached Exhibits 1 and 2.
The restoration of lost section corners and retracement of section lines within the
Subdivision shall be in accordance with Article 5, paragraph 8771 et seq., of the
Professional Land Surveyors Act, Chapter 15 of the Business and Professions Code of the
State of California.
The Subdivider attaches hereto, as an integral part hereof, and as security for the
performance of this agreement, an instrument of credit or bond approved by and in favor
of the City of San Luis Obispo, and conditional upon the faithful performance of this
agreement. Said instrument of credit or bond is in the amount of$196,000 which is the
amount of the estimated cost of said improvements that remain to be completed from the
original $675,700 of required improvements. Per Sec. 66499.7(d) of the Government
Code of the State of California, a reduction in the performance security, is not, and shall
not be deemed to be, an acceptance by the City of the completed improvements, and the
risk of loss or damage to the improvements and the obligation to maintain the
improvements shall remain the sole responsibility of the subdivider until all required public
improvements have been accepted by the local agency and all other required
improvements have been fully completed in accordance with the plans and specifications
for the improvements.
Subdivider agrees to remedy any defects in the improvements arising from faulty
workmanship or materials or defective construction of said improvements occurring within
twelve (12) months after acceptance thereof. In accordance with Sections 66499.7 and
3
Exhibit B
66499.9 of the Government Code of the State of California, upon final completion and
acceptance of the work, City will retain a security in the amount of$68,000, which is 10%
of the total estimated cost of subdivision improvements. That amount being deemed
sufficient to guarantee faithful performance by the Subdivider of his obligation to remedy
any defects in the improvements arising within a period of one year following the
completion and acceptance thereof.
Completion of the work shall be deemed to have occurred on the date which the
City Council shall, by resolution duly passed and adopted, accept said improvements
according to said plans and specifications, and any approved modifications thereto.
Neither periodic nor progress inspections or approvals shall bind the City to accept said
improvements or waive any defects in the same or any breach of this agreement.
"AS-BUILT" record drawings are to be submitted within four weeks of completion of
construction and prior to City acceptance of the public improvements.
If the Subdivider fails to complete the work within the prescribed time, the
Subdivider agrees that City may, at its option, declare the instrument of credit or bond
which has been posted by Subdivider to guarantee faithful performance, forfeited and
utilize the proceeds to complete said improvements, or city may complete said
improvements and recover the full cost and expense thereof from the Subdivider or his
surety.
The Subdivider has deposited with the City a labor and materials surety in the
amount of 50% of the remaining above described subdivision improvements ($98,000) in
accordance with State law.
4
Exhibit B
Title 16 of the San Luis Obispo Municipal Code, entitled "Subdivision," all plans and
specifications on file with said City as a part of said Subdivision Map, and all other
documents filed with the City by the Subdivider and approved by the City are hereby
referred to for further particulars in interpreting and defining the obligations of the
Subdivider under this agreement.
Pursuant to Government Code Section 66474.9(b), the subdivider shall defend,
indemnify and hold harmless the City and/or its agents, officers and employees from any
claim, action or proceeding against the City and/or its agents, officers or employees to
attack, set aside, void or annul, the approval by the City of this subdivision, and all actions
relating thereto, including but not limited to environmental review ("Indemnified Claims").
The City shall promptly notify the subdivider of any Indemnified Claim upon being
presented with the Indemnified Claim and City shall fully cooperate in the defense against
an Indemnified Claim.
It is understood and agreed by and between the Subdivider and the City hereto that
this agreement shall bind the heirs, executors, administrators, successors and assigns of
the respective Parties to this agreement.
It is agreed that the Subdivider will furnish copies of the successful bidder's contract
unit prices and total bid prices for all of the improvements herein referred to.
5
Exhibit B
IN WITNESS WHEREOF, this agreement has been executed by:
CITY OF SAN LUIS OBISPO: SUBDIVIDER:
JAN-PAC LLC,
L a California limited liability company
MAYOR, Jay �arx
Signature
Print Name and Title
ATTEST:
INTERIM CITY CLERK, Sheryll Schroeder
APPROVEKS RM:
CITY TTO Y, J. Christine Die rick
6
Exhibit B
EXHIBIT 1
TRACT 2969
SUBDIVISION AGREEMENT
1. Park-in-lieu fees and affordable housing fees have been paid, as listed in the attached
EXHIBIT 2.
2. Water and sewer impact fees were paid at time of building permits through the Community
Development Department per the fee schedule in effect at that time.
3. Transportation impact fees were paid at time of building permits through the Community
Development Department per the fee schedule in effect at that time.
4. The subdivider shall comply with all requirements of Council Resolution No. 10026 (2008
Series) approving the tentative map.
EXHIBIT 2
TRACT 2969
FEE AND BOND LIST
Amount Form Date Received
Bonds and Guarantees.
Total Faithful Performance $196,000 xxx XXXX
Labor&Materials(50%of total cost of $98,000 xxx XXXX
improvements
Fees:.
Map Check Fee $4,428 Check 3/24/09
Plan Check Fee To be collected
with building
permit
Public Improvement Inspection Fee $2,318 Check or Charge 8/13/09
Park In-Lieu Fee' $12,873 Check 7/20/12
Affordable Housing Requirements $30,736.20 Paid with building permit
Water Impact Fee Paid with building permit
Wastewater Lmpact Fee' Paid with building permit
Transportation Impact Fee' Paid with building permit
7
RESOLUTION NO. 10390 (2012 SERIES)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO AMENDING RESOLUTION
NO. 10380,TITLE 3, CHAPTER 3.16 SUBMITTING TO THE VOTERS A PROPOSED
UTILITY USER TAX MODERNIZATION ORDINANCE
WHEREAS, under the provisions of the San Luis Obispo City Charter Section 302, a
General Municipal Election will be held on Tuesday, November 6, 2012, for the submission of a
question relating to a utility user tax modernization ordinance; and
WHEREAS, when the proposed utility user tax modernization ordinance was presented to
Council on July 10, 2012 as Exhibit A to Resolution No. 10380, there was an incorrect Chapter
number given as Chapter 16,which should be changed to Chapter 3.16.
NOW,THEREFORE, BE IT RESOLVED that the Council of the City of San Luis
Obispo does declare, determine and order as follows:
SECTION 1. That Resolution No. 10380, Section 3 is hereby amended to replace Exhibit
A thereto, with corrected Exhibit A, attached hereto as Exhibit A, to correct a typographical error in
the original Exhibit A changing all references in that Exhibit from "Chapter 16"to "Chapter 3.16".
The full text of the ordinances submitted to the voters is on file in the City Clerk's Office and
available for.viewing on the City's website, www.slocity.org, and is incorporated herein by
reference and attached as Exhibit A.
SECTION 2. That the City Clerk shall certify to the passage and adoption of this
resolution and shall cause Resolution 10308, as amended by this Resolution, to be provided to the
County Clerk.
Upon motion of Vice Mayor Carpenter, seconded by Council Member Ashbaugh, and on
the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith,Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 7th day of August 2
ay Jan arx
ATTEST:Sheryll Schroeder
Interim City Clerk
ICitAPP ED RM:
i
Stine Dietnc
City Attorney
R 10390
EXHIBIT A
ORDINANCE NO. (2012 Series)
AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA
REPEALING AND RE-ENACTING IN FULL TITLE 3, CHAPTER 3.16 OF THE
SAN LUIS OBISPO MUNICIPAL CODE WITH RESPECT TO UTILITY USERS'
TAX.
THE PEOPLE OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA DO
ORDAIN AS FOLLOWS:
SECTION 1. Title 3, Chapter 3.16 of the San Luis Obispo Municipal Code is
hereby repealed and re-enacted in full, to read as follows:
Chapter 3.16
Utility Users' Tax
3.16.010 Short Title and Purpose
3.16.020 Definitions
3.16.030 Constitutional, Statutory, and Other Exemptions
3.16.040 Telecommunication Users' Tax
3.16.050 Electricity Users' Tax
3.16.060 Gas Users Tax
3.16.070 Collection of Tax from Service Users Receiving Direct Purchase of Gas or
Electricity
3.16.080 Video Users' Tax
3.16.090 Water Users' Tax
3.16.100 Bundling Taxable Items with Nontaxable Items
3.16.110 Substantial Nexus/Minimum Contacts
3.16.120 Duty to Collect—Procedures
3.16.130 Collection Penalties—Service Suppliers
3.16.140 Actions to Collect
3.16.150 Deficiency Determination and Assessment—Tax Application Errors
3.16.160 Administrative Remedy—Nonpaying Service Users
3.16.170 Additional Powers and Duties of the Tax Administrator
3.16.180 Records
3.16.190 Refunds
3.16.200 Appeals
3.16.210 No Injunction/Writ of Mandate
3.16.220 Notice of Changes to Chapter
3.16.230 Future Amendment to Cited Statute
3.16.240 No Increase in Tax Percentage or Change in Methodology without Voter
Approval
3.16.250 Remedies Cumulative
3.16.260 Interaction with Prior Tax
1
EXHIBIT A
3.16.010 Short Title and Purpose
This Chapter 3.16 shall be known as the "Utility Users' Tax Law of the City of
San Luis Obispo". The taxes imposed and levied by the provisions of this chapter
are solely for the purpose of providing revenue for the usual and current expenses
of the city. The provisions of this chapter are not enacted for regulatory purposes.
3.16.020 Definitions
The following words and phrases whenever used in this Chapter 3.16, shall be
construed as defined in this Section.
(a) "Ancillary telecommunication services" means services that are
associated with or incidental to the provision, use or enjoyment of telecommunications
services, including but not limited to the following services:
(1) "Conference bridging service" means an ancillary service that links two
(2) or more participants of an audio or video conference call and may include the
provision of a telephone number. Conference bridging service does not include the
telecommunications services used to reach the conference bridge.
(2) "Detailed telecommunications billing service" means an ancillary
service of separately stating information pertaining to individual calls on a customer's
billing statement.
(3) "Directory assistance" means an ancillary service of providing telephone
number information, and/or address information.
(4) "Vertical service" means an ancillary service that is offered in connection
with one or more telecommunications services, which offers advanced calling features
that allow customers to identify callers and to manage multiple calls and call connections,
including conference bridging services.
(5) "Voice mail service" means an ancillary service that enables the customer
to store, send or receive recorded messages. Voice mail service does not include any
vertical services that the customer may be required to have in order to utilize the voice
mail service
(b) "Ancillary video services" means services that are associated with or
incidental to the provision or delivery of video services, including but not limited to
electronic program guide services, recording services, search functions, or other
interactive services or communications that are associated with or incidental to the
provision, use or enjoyment of video services.
(c) "Billing address" shall mean the mailing address of the service user
where the service supplier submits invoices or bills for payment by the customer.
2
EXHIBIT A
(d) "City" shall mean the City of San Luis Obispo.
(e) "Gas" shall mean natural or manufactured gas or any alternate
hydrocarbon fuel which may be substituted therefor.
(f) "Individual Service" shall mean utility service at a single contiguous
location. A service user with more than one meter or billing invoice per utility service at
a single contiguous location may combine all billings for purposes of calculating the
maximum tax amount.
(g) "Mobile telecommunications service" has the meaning and usage as set
forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the
regulations thereunder.
(h) "Month" shall mean a calendar month.
(i) "Non-Utility Service Supplier" means:
(1) a service supplier, other than a supplier of electric distribution services to all
or a significant portion of the City, which generates electricity for sale to others,
and shall include but is not limited to any publicly-owned electric utility, investor-
owned utility, cogenerator, distributed generation provider, exempt wholesale
generator (15 U.S.C. Section 79z-5a), municipal utility district, federal power
marketing agency, electric rural cooperative, or other supplier or seller of
electricity;
(2) an electric service provider (ESP), electricity broker, marketer, aggregator,
pool operator, or other electricity supplier other than a supplier of electric
distribution services to all or a significant portion of the City, which sells or
supplies electricity or supplemental services to electricity users within the City; or
(3) a gas service supplier, aggregator, marketer or broker, other than a supplier of
gas distribution services to all or a significant portion of the City, which sells or
supplies gas or supplemental services to gas users within the City.
0) "Paging service" means a"telecommunications service" that provides
transmission of coded radio signals for the purpose of activating specific pagers; such
transmissions may include messages and/or sounds.
(k) "Person" shall mean, without limitation, any natural individual, firm,
trust, common law trust, estate, partnership of any kind, association, syndicate, club,joint
stock company,joint venture, limited liability company, corporation (including foreign,
domestic, and non-profit), municipal district or municipal corporation(other than the
City), cooperative, receiver, trustee, guardian, or other representative appointed by order
of any court.
3
EXHIBIT A
(1) "Place of primary use" means the street address representative of where
the customer's use of the telecommunications service primarily occurs, which must be
the residential street address or the primary business street address of the customer.
(m) "Post-paid telecommunication service" means the telecommunication
service obtained by making a payment on a communication-by-communication basis
either through the use of a credit card or payment mechanism such as a bank card, travel
card, credit card, or debit card, or by charge made to a service number which is not
associated with the origination or termination of the telecommunication service.
(n) "Prepaid telecommunication service" means the right to access
telecommunication services, which must be paid for in advance and which enables the
origination of communications using an access number or authorization code, whether
manually or electronically dialed, and that is sold in predetermined units or dollars of
which the number declines with use in a known amount.
(o) "Private telecommunication service" means a telecommunication
service that entitles the customer to exclusive or priority use of a communications
channel or group of channels between or among termination points, regardless of the
manner in which such channel or channels are connected, and includes switching
capacity, extension lines, stations, and any other associated services that are provided in
connection with the use of such channel or channels. A communications channel is a
physical or virtual path of communications over which signals are transmitted between or
among customer channel termination points (i. e., the location where the customer either
inputs or receives the communications).
(p) "Service address" means the residential street address or the business
street address of the service user. For a telecommunication or video service user,
"service address" means either:
(1) The location of the service user's telecommunication equipment from
which the telecommunication originates or terminates, regardless of where the
telecommunication is billed or paid; or,
(2) If the location in subsection (1) of this definition is unknown (e.g., mobile
telecommunications service or VoIP service), the service address means the location of
the service user's place of primary use.
(3) For prepaid telecommunication service, "service address" means the location
associated with the service number or, if not known, the point of sale of the services.
(q) "Service supplier" shall mean any entity or person, including the City,
that provides, sells, or resells a utility service to a user of such service within the City.
(r) "Service user" shall mean a person required to pay a tax imposed under
the provisions of this Chapter.
4
EXHIBIT A
(s) "State" shall mean the State of California.
(t) "Streamlined Sales and Use Tax Agreement" means the multi-state
agreement commonly known and referred to as the Streamlined Sales and Use Tax
Agreement, as it is amended from time to time.
(u) "Tax Administrator" shall mean the Finance Director, or his or her
designee.
(v) "Telecommunications service" means the transmission, conveyance;or
routing of voice, data, audio, video, or any other information or signals to a point, or
between or among points, whatever the technology used. The term "telecommunications
services" includes such transmission, conveyance, or routing in which computer
processing applications are used to act on the form, code or protocol of the content for
purposes of transmission, conveyance or routing without regard to whether such services
are referred to as voice over internet protocol (VoIP) services or are classified by the
Federal Communications Commission as enhanced or value added, and includes video
and/or data services that is functionally integrated with "telecommunication services."
"Telecommunications services" include, but are not limited to the following services,
regardless of the manner or basis on which such services are calculated or billed:
ancillary telecommunication services; intrastate, interstate, and international
telecommunication services; mobile telecommunications service; prepaid
telecommunication service; post-paid telecommunication service; private
telecommunication service; paging service; 800 service (or any other toll-free numbers
designated by the Federal Communications Commission); 900 service (or any other
similar numbers designated by the Federal Communications Commission for services
whereby subscribers who call in to pre-recorded or live service).
(w) "Video programming" means those programming services commonly
provided to subscribers by a"video service supplier" including but not limited to basic
services, premium services, audio services, video games, pay-per-view services, video on
demand, origination programming, or any other similar services, regardless of the content
of such video programming, or the technology used to deliver such services, and
regardless of the manner or basis on which such services are calculated or billed.
(x) "Video services" means "video programming" and any and all services
related to the providing, recording, delivering, use or enjoyment of"video programming"
(including origination programming and programming using Internet Protocol, e.g., IP-
TV and IP-Video) using one or more channels by a"video service supplier,"regardless
of the technology used to deliver, store or provide such services, and regardless of the
manner or basis on which such services are calculated or billed, and includes ancillary
video services, data services, "telecommunication services," or interactive
communication services that are functionally integrated with "video services."
(y) "Video service supplier" means any person, company, or service which
provides or sells one or more channels of video programming, or provides or sells the
5
EXHIBIT A
capability to receive one or more channels of video programming, including any
communications that are ancillary, necessary or common to the provision, use or
enjoyment of the video programming, to or from a business or residential address in the
City, where some fee is paid, whether directly or included in dues or rental charges for
that service, whether or not public rights-of-way are utilized in the delivery of the video
programming or communications. A "video service supplier" includes, but is not limited
to, multichannel video programming distributors (as defined in 47 U.S.C.A. Section
522(13)); open video systems (OVS) suppliers; and suppliers of cable television; master
antenna television; satellite master antenna television; multichannel multipoint
distribution services (MMDS); video services using internet protocol (e.g., IP-TV and IP-
Video, which provide, among other things, broadcasting and video on demand), direct
broadcast satellite to the extent federal law permits taxation of its video services, now or
in the future; and other suppliers of video services (including two-way communications),
whatever their technology.
(z) "VoIP (Voice Over Internet Protocol)" means the digital process of
making and receiving real-time voice transmissions over any Internet Protocol network.
(aa) 11800 Service" means a"telecommunications service" that allows a caller
to dial a toll-free number without incurring a charge for the call. The service is typically
marketed under the name "800," "855," "866," "877;' and "888" toll-free calling, and
any subsequent numbers designated by the Federal Communications Commission.
(bb) "900 Service" means an inbound toll "telecommunications service"
purchased by a subscriber that allows the subscriber's customers to call in to the
subscriber's prerecorded announcement or live service. "900 service" does not include
the charge for: collection services provided by the seller of the "telecommunications
services"to the subscriber, or service or product sold by the subscriber to the subscriber's
customer. The service is typically marketed under the name"900" service, and any
subsequent numbers designated by the Federal Communications Commission.
3.16.030 Constitutional, statutory, and other exemptions.
(a) Nothing in this Chapter shall be construed as imposing a tax upon any person or
service when the imposition of such tax upon such person or service would be in
violation of a Federal or State statute, the Constitution of the United States or the
Constitution of the State.
(b) Any service user that is exempt from the tax imposed by this Chapter pursuant to
subsection (a) of this Section shall file an application with the Tax Administrator for an
exemption; provided, however, this requirement shall not apply to a service user that is a
State or Federal agency or subdivision with a commonly recognized name for such
service. Said application shall be made upon a form approved by the Tax Administrator
and shall state those facts, declared under penalty of perjury, which qualify the applicant
for an exemption, and shall include the names of all service suppliers serving that service
user. If deemed exempt by the Tax Administrator, such service user shall give the Tax
6
EXHIBIT A
Administrator timely written notice of any change in service suppliers so that the Tax
Administrator can properly notify the new service supplier of the service user's tax
exempt status. A service user that fails to comply with this Chapter shall not be entitled to
a refund of a users' tax collected and remitted to the Tax Administrator from such service
user as a result of such noncompliance.
The decision of the Tax Administrator may be appealed pursuant to Section
3.16.200 of this Chapter. Filing an application with the Tax Administrator and appeal to
the City Administrator, or designee, pursuant to Section 3.16.200 of this Chapter is a
prerequisite to a suit thereon.
(c) The City Council may, by resolution, establish one or more classes of persons or
one or more classes of utility service otherwise subject to payment of a tax imposed by
this Chapter and provide that such classes of persons or service shall be exempt, in whole
or in part from such tax for a specified period of time.
(d) If a billing for utility services includes charges for two or more households
situated within nonprofit retirement facilities which (1) are operated solely for the
accommodation of persons with low incomes and (2) which qualify for the welfare
exemption set forth in the California Revenue and Taxation Code, and if the charges for
such services are paid by the operators of the retirement facilities, the operators shall be
entitled to an annual refund of all taxes paid under the provisions of this ordinance. The
procedure for obtaining such refunds shall be established by the Tax Administrator,
including the requirement for whatever proof he or she deems necessary to establish
qualification for refund.
3.16.040 Telecommunication Users' Tax.
(a) There is hereby imposed a tax upon every person in the City using
telecommunication services. The tax imposed by this Section shall be at the rate of four
and eight-tenths percent (4.8%) of the charges made for such services and shall be
collected from the service user by the telecommunication services supplier or its billing
agent. There is a rebuttable presumption that telecommunication services, which are
billed to a billing or service address in the City, are used, in whole or in part, within the
City's boundaries, and such services are subject to taxation under this Section. There is
also a rebuttable presumption that prepaid telecommunication services sold within the
city are used, in whole or in part, within the City and are therefore subject to taxation
under this Section. If the billing address of the service user is different from the service
address, the service address of the service user shall be used for purposes of imposing the
tax. As used in this Section, the term"charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the telecommunication services.
(b) "Mobile telecommunications service" shall be sourced in accordance with the
sourcing rules set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C.
Section 124). The Tax Administrator may issue and disseminate to telecommunication
7
EXHIBIT A
service suppliers, which are subject to the tax collection requirements of this Chapter,
sourcing rules for the taxation of other telecommunication services, including but not
limited to post-paid telecommunication services, prepaid telecommunication services,
VoIP, and private communication services, provided that such rules are based upon
custom and common practice that further administrative efficiency and minimize multi
jurisdictional taxation (e.g., Streamlined Sales and Use Tax Agreement).
(c) The Tax Administrator may issue and disseminate to telecommunication service
suppliers, which are subject to the tax collection requirements of this Chapter, an
administrative ruling identifying those telecommunication services, or charges therefore,
that are subject to or not subject to the tax of subsection (a) above.
(d) As used in this Section, the term "telecommunication services" shall include, but
is not limited to, charges for: connection, reconnection, termination, movement, or
change of telecommunication services; late payment fees; detailed billing;central office
and custom calling features (including but not limited to call waiting, call forwarding,
caller identification and three-way calling); voice mail and other messaging services;
directory assistance; access and line charges; universal service charges; regulatory or
administrative fees, charges or surcharges; cost recovery charges or surcharges for
programs imposed by state or federal law; local number portability charges; and text and
instant messaging. "Telecommunication services" shall not include digital downloads that
are not"ancillary telecommunication services," such as music, ringtones, games, and
similar digital products.
(e) To prevent actual multi jurisdictional taxation of telecommunication services
subject to tax under this Section, any service user; upon proof to the Tax Administrator
that the service user has previously paid the same tax in another state or city on such
telecommunication services, shall be allowed a credit against the tax imposed to the
extent of the amount of such tax legally imposed in such other state or city; provided,
however, the amount of credit shall not exceed the tax owed to the City under this
Section.
(g) The tax on telecommunication services imposed by this Section shall be collected
from the service user by the service supplier. The amount of tax collected in one month
shall be remitted to the Tax Administrator, and must be received by the Tax
Administrator on or before the twentieth(20th) day of the following month.
3.16.050 Electricity Users Tax.
(a) There is hereby imposed a tax upon every person using electricity in the City. The tax
imposed by this Section shall be at the rate of five percent (5%) of the charges made for
such electricity, and for any supplemental services or other associated activities directly
related to and/or necessary for the provision of electricity to the service user, which are
provided by a service supplier or non-utility service supplier to a service user. The tax
shall be collected from the service user by the service supplier or non-utility service
supplier, or its billing agent.
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EXHIBIT A
(b) As used in this Section, the term "charges" shall apply to all services, components and
items that are: i) necessary for or common to the receipt, use or enjoyment of electric
service; or, ii) currently are or historically have been included in a single or bundled rate
for electric service by a local distribution company to a class of retail customers. The
term "charges" shall include, but is not limited to, the following charges:
(1) energy charges;
(2) distribution or transmission charges;
(3) metering charges;
(4) stand-by, reserves, firming, ramping, voltage support, regulation, emergency,
or other similar charges for supplemental services to self-generation service users;
(5) customer charges,, late charges, service establishment or reestablishment
charges, demand charges, fuel or other cost adjustments, power exchange charges,
independent system operator (ISO) charges, stranded investment or competitive
transition charges (CTC), public purpose program charges, nuclear
decommissioning charges, trust transfer amounts (bond financing charges),
franchise fees, franchise surcharges, annual and monthly charges, and other
charges, fees or surcharges which are necessary for or common to the receipt, use
or enjoyment of electric service; and,
(6) charges, fees, or surcharges for electricity services or programs which are
mandated by the California Public Utilities Commission or the Federal Energy
Regulatory Commission, or by any state or federal law, whether or not such
charges, fees, or surcharges appear on a bundled or line item basis on the
customer billing.
(c) As used in this Section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the electricity or services related to the provision of such
electricity.
(d) The Tax Administrator, from time to time, may survey the electric service suppliers
to identify the various unbundled billing components of electric retail service that they
commonly provide to residential and commercial/industrial customers in the of the City,
and the charges therefor, including those items that are mandated by state or federal
regulatory agencies as a condition of providing such electric service. The Tax
Administrator, thereafter, may issue and disseminate to such electric service suppliers an
administrative ruling identifying those components and items which are: i) necessary for
or common to the receipt, use or enjoyment of electric service; or, ii) currently are or
historically have been included in a single or bundled rate for electric service by a local
distribution company to a class of retail customers. Charges for such components and
items shall be subject to the tax of subsection (a) above.
(e) As used in this Section, the term "using electricity" shall not include the mere
receiving of such electricity by an electrical corporation or governmental agency at a
point within the City for resale.
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EXHIBIT A
(f) The tax on electricity provided by self-production or by a non-utility service supplier
not under the jurisdiction of this Chapter 3.16 shall be collected and remitted in the
manner set forth in Section 3.16.070 of this Chapter. All other taxes on charges for
electricity imposed by this Section shall be collected from the service user by the electric
service supplier or its billing agent. The amount of tax collected in one (1) month shall
be remitted to the Tax Administrator, and must be received by the Tax Administrator on
or before the twentieth (20'h) day of the following month; or, at the option of the person
required to collect and/or remit the tax, such person shall remit an estimated amount of
tax measured by the tax billed in the previous month or upon the payment pattern of the
service user, which must be received by the Tax Administrator on or before the twentieth
(20`h) day of the following month, provided that such person shall submit an adjusted
payment or request for credit, as appropriate, within sixty (60) days following each
calendar quarter. The credit, if approved by the Tax Administrator, may be applied
against any subsequent remittance that becomes due.
3.16.060 Gas Users Tax.
(a) There is hereby imposed a tax upon every person using gas in the City, which is
transported and delivered through a pipeline or by mobile transport. The tax imposed by
this Section shall be at the rate of five percent(5%) of the charges made for such gas,
including all services related to the storage, transportation and delivery of such gas. The
tax shall be collected from the service user by the service supplier or non-utility service
supplier, or its billing agent, and shall apply to all uses of gas, including but not limited
to, heating, electricity generation, and the use of gas as a component of a manufactured
product.
(b) As used in this Section, the term "charges" shall apply to all services, components and
items for gas service that are: i) necessary for or common to the receipt, use or
enjoyment of gas service; or, ii) currently are or historically have been included in a
single or bundled rate for gas service by a local distribution company to a class of retail
customers. The term "charges" shall include, but is not limited to, the following charges:
(1) the commodity charges for purchased gas, or the cost of gas owned by the
service user (including the actual costs attributed to drilling, production, lifting,
storage, gathering, trunkline, pipeline, and other operating costs associated with
the production and delivery of such gas), which is delivered through a gas
pipeline distribution system;
(2) gas transportation charges (including interstate charges to the extent not
included in commodity charges);
(3) storage charges; provided, however, that the service supplier shall not be
required to apply the tax to any charges for gas storage services when the service
supplier cannot, as a practical matter, determine the jurisdiction where such stored
gas is ultimately used; but it shall be the obligation of the service user to self-
collect the amount of tax not applied to any charge for gas storage by the service
supplier and to remit the tax to the appropriate jurisdiction;
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EXHIBIT A
(4) capacity or demand charges, late charges, service establishment or
reestablishment charges, transition charges, customer charges, minimum charges,
annual and monthly charges, and any other charges which are necessary for or
common to the receipt, use or enjoyment of gas service; and,
(5) charges, fees, or surcharges for gas services or programs which are mandated
by the California Public Utilities Commission or the Federal Energy Regulatory
Commission, or by any state or federal law, whether or not such charges, fees, or
surcharges appear on a bundled or line item basis on the customer billing.
(c) As used in this Section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the gas or services related to the delivery of such gas.
(d) The Tax Administrator, from time to time, may survey the gas service suppliers to
identify the various unbundled billing components of gas retail service that they
commonly provide to residential and commercial/industrial customers in the City, and the
charges therefor, including those items that are mandated by state or federal regulatory
agencies as a condition of providing such gas service. The Tax Administrator, thereafter,
may issue and disseminate to such gas service suppliers an administrative ruling
identifying those components and items which are: i) necessary for or common to the
receipt, use or enjoyment of gas service; or, ii) currently are or historically have been
included in a single or bundled rate for gas service by a local distribution company to a
class of retail customers. Charges for such components and items shall be subject to the
tax of subsection (a) above.
(e) There shall be excluded from the calculation of the tax imposed in this Section,
charges made for gas which is to be resold and delivered through a pipeline distribution
system.
(f) The tax on gas provided by self-production or by a non-utility service supplier not
under the jurisdiction of this Chapter 3.16 shall be collected and remitted in the manner
set forth in Section 3.16.070. All other taxes on charges for gas imposed by this Section
shall be collected from the service user by the gas service supplier or its billing agent.
The amount of tax collected in one (1) month shall be remitted to the Tax Administrator,
and must be received by the Tax Administrator, on or before the twentieth (20`h) day of
the following month; or, at the option of the person required to collect and/or remit the
tax, such person shall remit an estimated amount of tax measured by the tax billed in the
previous month or upon the payment pattern of the service user, which must be received
by the Tax Administrator on or before the twentieth (20`h) day of the following month,
provided that such person shall submit an adjusted payment or request for credit, as
appropriate, within sixty (60) days following each calendar quarter. The credit, if
approved by the Tax Administrator, may be applied against any subsequent remittance
that becomes due.
3.16.070 Collection of Tax from Service Users Receiving Direct Purchase of Gas or
Electricity.
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EXHIBIT A
(a) Any service user subject to the tax imposed by Section 3.16.050 or by Section
3.16.060 of this Chapter, which produces gas or electricity for self-use regardless of
technology used to produce such gas or electricity; which receives gas or electricity,
including any related supplemental services, directly from a non-utility service supplier
not under the jurisdiction of this Chapter; or which, for any other reason, is not having the
full tax collected and remitted by its service supplier, a non-utility service supplier, or its
billing agent on the use of gas or electricity in the City, including any related
supplemental services, shall report said fact to the Tax Administrator and shall remit the
tax due directly to the Tax Administrator within thirty (30) days of such use, based on the
charges for, or value of, such gas or electricity, or supplemental services, as provided in
subsection (b). In lieu of paying said actual tax, the service user may, at its option, remit
to the Tax Administrator within thirty (30) days of such use an estimated amount of tax
measured by the tax billed in the previous month, or upon the payment pattern of similar
customers of the service supplier using similar amounts of gas or electricity, provided
that the service user shall submit an adjusted payment or request for credit, as
appropriate, within sixty (60) days following each calendar quarter. The credit, if
approved by the Tax Administrator in writing, may be applied against any subsequent tax
bill that becomes due.
(b) The Tax Administrator may require said service user to identify its non-utility service
supplier, and otherwise provide, subject to audit: invoices; books of account; or other
satisfactory evidence documenting the quantity of gas or electricity used, including any
related supplemental services, and the cost or price thereof. If the service user is unable
to provide such satisfactory evidence, or if the administrative cost of calculating the tax
in the opinion of the Tax Administrator is excessive, the Tax Administrator may
determine the tax by applying the tax rate to the equivalent charges the service user
would have incurred if the gas or electricity used, including any related supplemental
services, had been provided by the service supplier that is the primary supplier of gas or
electricity within the City. Rate schedules for this purpose shall be available from the
City.
3.16.080 Video Users' Tax.
(a) There is hereby imposed a tax upon every person in the City using video services.
The tax imposed by this section shall be at the rate of four and eight-tenths percent
(4.8%) of the charges made for such services and shall be collected from the service user
by the video service supplier, or its billing agent. There is a rebuttable presumption that
video services, which are billed to a billing or service address in the City, are used, in
whole or in part, within the City's boundaries, and such services are subject to taxation
under this Chapter. If the billing address of the service user is different from the service
address, the service address of the service user shall be used for purposes of imposing the
tax.
(b) As used in this section, the term"charges" shall include, but is not limited to, charges
for the following:
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EXHIBIT A
(1) regulatory fees and surcharges, franchise fees and access fees (PEG);
(2) initial installation of equipment necessary for provision and receipt of video
services;
(3) late fees, collection fees, bad debt recoveries, and return check fees;
(4) activation fees, reactivation fees, and reconnection fees;
(5) video programming and video services;
(6) ancillary video programming services (e.g., electronic program guide
services, search functions, recording functions, or other interactive services or
communications that are ancillary, necessary or common to the use or enjoyment
of the video services);
(7) equipment leases (e.g., remote, recording and/or search devises; converters);
and,
(8) service calls, service protection plans, name changes, changes of services, and
special services.
(c) As used in this section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the video services.
(d) The Tax Administrator may issue and disseminate to video service suppliers, which
are subject to the tax collection requirements of this Chapter, an administrative ruling
identifying those video services, or charges therefor, that are subject to or not subject to
the tax of subsection (a) above.
(e) The tax imposed by this section shall be collected from the service user by the video
service supplier, its billing agent, or a reseller of such services. In the case of video
service, the service user shall be deemed to be the purchaser of the bulk video service
(e.g., an apartment owner), unless such service is resold to individual users, in which case
the service user shall be the ultimate purchaser of the video service. The amount of tax
collected in one (1) month shall be remitted to the Tax Administrator, and must be
received by the Tax Administrator on or before the twentieth (20th) day of the following
month.
3.16.090 Water Users' Tax.
(a) There is imposed a tax upon every person using water in the City which is
transported and delivered through a pipeline distribution system. The tax imposed by this
section shall be at the rate of five percent(5%) of the charges made for such water.
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EXHIBIT A
(b) As used in this section, the term "charges" shall apply to all services, components
and items that are: i) necessary for or common to the receipt, use or enjoyment of water
service; or, ii) currently are or historically have been included in a single or bundled rate
for water service by a local distribution company to a class of retail customers. The term
"charges" shall include, but is not limited to, the following charges: water commodity
charges (potable and non-potable); distribution or transmission charges; metering
charges; customer charges; fire protection services; late charges; service establishment or
reestablishment charges; franchise fees; franchise surcharges; annual and monthly
charges; and other charges, fees and surcharges which are necessary for or common to
the receipt, use or enjoyment of water service; and, charges, fees, or surcharges for water
services or programs, which are mandated by a water district or a state or federal agency,
whether or not such charges, fees, or surcharges appear on a bundled or line item basis on
the customer billing.
(c) As used in this section, the term "charges" shall include the value of any other
services, credits, property of every kind or nature, or other consideration provided by the
service user in exchange for the water services.
(d) The Tax Administrator, from time to time, may survey the water service suppliers in
the City to identify the various unbundled billing components of water retail service that
they commonly provide to residential and commercial/industrial customers in the City,
and the charges therefor, including those items that are mandated by a water district or a
state or federal agency as a condition of providing such water service. The Tax
Administrator, thereafter, may issue and disseminate to such water service suppliers an
administrative ruling identifying those components and items which are: i) necessary for
or common to the receipt, use or enjoyment of water service; or, ii) currently are or
historically have been included in a single or bundled rate for water service by a local
distribution company to a class of retail customers. Charges for such components and
items shall be subject to the tax of subsection (a) above.
(e) The tax on water service imposed by this section shall be collected from the service
user by the water service supplier or its billing agent. The amount of tax collected in one
(1) month shall be remitted to the Tax Administrator, and must be received by the Tax
Administrator on or before the twentieth (20th) day of the following month.
3.16.100 Bundling Taxable Items.
If any nontaxable charges are combined with and not separately stated from taxable
service charges on the customer bill or invoice of a service supplier, the combined charge
is subject to tax unless the service supplier identifies, by reasonable and verifiable
standards, the portions of the combined charge that are nontaxable and taxable through
the service supplier's books and records kept in the regular course of business, and in
accordance with generally accepted accounting principles, and not created and
maintained for tax purposes. If the service supplier offers a combination of taxable and
non-taxable services, and the charges are separately stated, then for taxation purposes, the
values assigned the taxable and non-taxable services shall be based on its books and
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EXHIBIT A
records kept in the regular course of business and in accordance with generally accepted
accounting principles, and not created and maintained for tax purposes. The service
supplier has the burden of proving the proper valuation and apportionment of taxable and
non-taxable charges.
3.16.110 Substantial Nexus/Minimum Contact.
For purposes of imposing a tax or establishing a duty to collect and remit a tax under this
Chapter, "substantial nexus" and "minimum contacts" shall be construed broadly in favor
of the imposition, collection and/or remittance of the utility users' tax to the fullest extent
permitted by State and Federal law, and as it may change from time to time by judicial
interpretation or by statutory enactment. Any telecommunication service (including
Voll?) used by a person with a service address in the City, which service is capable of
terminating a call to another person on the general telephone network, shall be subject to
a rebuttable presumption that "substantial nexus/minimum contacts" exists for purposes
of imposing a tax, or establishing a duty to collect and remit a tax, under this Chapter. A
service supplier shall be deemed to have sufficient activity in the City for tax collection
and remittance purposes if its activities include, but are not limited to, any of the
following: maintains or has within the City, directly or through an agent or subsidiary, a
place of business of any nature; solicits business in the City by employees, independent
contractors, resellers, agents or other representatives; solicits business in the City on a
continuous, regular, seasonal or systematic basis by means of advertising that is broadcast
or relayed from a transmitter with the City or distributed from a location with the City; or
advertises in newspapers or other periodicals printed and published within the City or
through materials distributed in the City by means other than the United States mail; or if
there are activities performed in the City on behalf of the service supplier that are
significantly associated with the service supplier's ability to establish and maintain a
market in the City for the provision of utility services that are subject to a tax under this
Chapter.
3.16.120 Duty to Collect Procedures.
(a) Collection by Service Suppliers: The duty of service suppliers to collect and
remit the taxes imposed by the provisions of this Chapter shall be performed as follows:
(1) The tax shall be collected by service suppliers insofar as practicable at the
same time as, and along with, the collection of the charges made in accordance with the
regular billing practice of the service supplier. Where the amount paid by a service user
to a service supplier is less than the full amount of the charge and tax which was accrued
for the billing period, a proportionate share of both the charge and the tax shall be
deemed to have been paid. In those cases where a service user has notified the service
supplier of refusal to pay the tax imposed on said charges, Section 3.16.160 shall apply.
(2) The duty of a service supplier to collect the tax from a service user shall
commence with the beginning of the first regular billing period applicable to the service
user where all charges normally included in such regular billing are subject to the
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EXHIBIT A
provisions of this Chapter. Where a service user receives more than one billing, one or
more being for different periods than another, the duty to collect shall arise separately for
each billing period.
(b) Filing Return and Payment: Each person required by this Chapter to remit a tax
shall file a return to the Tax Administrator, on forms approved by the Tax Administrator,
on or before the due date. The full amount of the tax collected shall be included with the
return and filed with the Tax Administrator. The Tax Administrator is authorized to
require such additional information as he or she deems necessary to determine if the tax
is being levied, collected, and remitted in accordance with this Chapter. Returns are due
immediately upon cessation of business for any reason. Pursuant to Revenue and Tax
Code Section 7284.6, the Tax Administrator, and its agents, shall maintain such filing
returns as confidential information that is exempt from the disclosure provisions of the
Public Records Act.
3.16.130 Collection Penalties-Service Suppliers.
(a) Taxes collected from a service user are delinquent if not received by the Tax
Administrator on or before the due date. Should the due date occur on a weekend or legal
holiday, the return must be received by the Tax Administrator on the first regular
working day following the weekend or legal holiday. A direct deposit, including
electronic fund transfers and other similar methods of electronically exchanging monies
between financial accounts, made by a service supplier in satisfaction of its obligations
under this Chapter shall be considered timely if the transfer is initiated on or before the
due date; and the transfer settles into the City's account on the following business day.
(b) If the person required to collect and/or remit the utility users' tax fails to collect
the tax (by failing to properly assess the tax on one or more services or charges on the
customer's billing) or fails to remit the tax collected on or before the due date, the Tax
Administrator shall attach a penalty for such delinquencies or deficiencies at the rate of
fifteen percent (15%) of the total tax that is delinquent or deficient in the remittance, and
shall pay interest at the rate of seventy-five one-hundredths percent(0.75%)per month,
or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date on
which the remittance first became delinquent, until paid.
(c) The Tax Administrator shall have the power to impose additional penalties upon
persons required to collect and remit taxes pursuant to the provisions of this Chapter for
fraud or gross negligence in reporting or remitting at the rate of fifteen percent (15%) of
the amount of the tax collected and/or required to be remitted, or as recomputed by the
Tax Administrator.
(d) For collection purposes only, every penalty imposed and such interest that is
accrued under the provisions of this Chapter shall become a part of the tax herein
required to be paid.
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EXHIBIT A
(e) Notwithstanding the foregoing, the Tax Administrator may, in his or her
discretion, modify the due dates of this Chapter to be consistent with any uniform
standards or procedures that are mutually agreed upon by other public agencies imposing
a utility users' tax, or otherwise legally established, to create a central payment location
or mechanism.
3.16.140 Actions to Collect.
Any tax required to be paid by a service user under the provisions of this Chapter shall be
deemed a debt owed by the service user to the City. Any such tax collected from a service
user which has not been remitted to the Tax Administrator shall be deemed a debt owed
to the City by the person required to collect and remit and shall no longer be a debt of the
service user. Any person owing money to the City under the provisions of this Chapter
shall be liable to an action brought in the name of the City for the recovery of such
amount, including penalties and interest as provided for in this Chapter, along with any
collection costs incurred by the City as a result of the person's noncompliance with this
Chapter, including, but not limited to, reasonable attorneys' fees. Any tax required to be
collected by a service supplier or owed by a service user is an unsecured priority excise
tax obligation under 11 U. S. CA. Section 507(a)(8)(C). Service suppliers who seek to
collect charges for service in bankruptcy proceedings shall also include in any such claim
the amount of taxes due the City for those services, unless the Tax Administrator
determines that such duty is in conflict with any federal or state law, rule, or regulation or
that such action would be administratively impractical.
3.16.150 Deficiency Determination and Assessment-Tax Application Errors.
(a) The Tax Administrator shall make a deficiency determination if he or she
determines that any person required to pay or collect taxes pursuant to the provisions of
this Chapter has failed to pay, collect, and/or remit the proper amount of tax by
improperly or failing to apply the tax to one or more taxable services or charges. Nothing
herein shall require that the Tax Administrator institute proceedings under this Section
3.16.150 if, in the opinion of the Tax Administrator, the cost of collection or enforcement
likely outweighs the tax benefit.
(b) The Tax Administrator shall mail a notice of such deficiency determination to the
person required to pay or remit the tax, which notice shall refer briefly to the amount of
the taxes owed, plus interest at the rate of seventy-five one-hundredths percent (0.75%)
per month, or any fraction thereof, on the amount of the tax from the date on which the
tax should have been received by the City. Within fourteen (14) calendar days after the
date of service of such notice, the person may request in writing to the Tax Administrator
for a hearing on the matter.
(c) If the person fails to request a hearing within the prescribed time period, the
amount of the deficiency determination shall become a final assessment, and shall
immediately be due and owing to the City. If the person requests a hearing, the Tax
Administrator shall cause the matter to be set for hearing, which shall be scheduled
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EXHIBIT A
within thirty (30) days after receipt of the written request for hearing. Notice of the time
and place of the hearing shall be mailed by the Tax Administrator to such person at least
ten (10) calendar days prior to the hearing, and, if the Tax Administrator desires said
person to produce specific records at such hearing, such notice may designate the records
requested to be produced.
(d) At the time fixed for the hearing, the Tax Administrator shall hear all relevant
testimony and evidence, including that of any other interested parties. At the discretion of
the Tax Administrator, the hearing may be continued from time to time for the purpose of
allowing the presentation of additional evidence. Within a reasonable time following the
conclusion of the hearing, the Tax Administrator shall issue a final assessment(or non-
assessment), thereafter, by confirming, modifying or rejecting the original deficiency
determination, and shall mail a copy of such final assessment to person owing the tax.
The decision of the Tax Administrator may be appealed pursuant to Section 3.16.200 of
this Chapter. Filing an application with the Tax Administrator and appeal to the City
Administrator, or designee,pursuant to Section 3.16.200 of this Chapter is a prerequisite
to a suit thereon.
(e) Payment of the final assessment shall become delinquent if not received by the
Tax Administrator on or before the thirtieth (30th) day following the date of receipt of the
notice of final assessment. The penalty for delinquency shall be fifteen percent (15%) on
the total amount of the assessment, along with interest at the rate of seventy-five one-
hundredths percent (0.75%) per month, or any fraction thereof, on the amount of the tax,
exclusive of penalties, from the date of delinquency, until paid. The applicable statute of
limitations regarding a claim by the City seeking payment of a tax assessed under this
Chapter shall commence from the date of delinquency as provided in this subsection (e).
(f) All notices under this Chapter may be sent by regular mail,postage prepaid, and
shall be deemed received on the third calendar day following the date of mailing, as
established by a proof of mailing.
3.16.160 Administrative Remedy-Non-Paying Service Users.
(a) Whenever the Tax Administrator determines that a service user has deliberately
withheld the amount of the tax owed by the service user from the amounts remitted to a
person required to collect the tax, or whenever the Tax Administrator deems it in the best
interest of the City, he or she may relieve such person of the obligation to collect the
taxes due under this Chapter from certain named service users for specific billing periods.
To the extent the service user has failed to pay the amount of tax owed for a period of
two (2) or more billing periods, the service supplier shall be relieved of the obligation to
collect taxes due. The service supplier shall provide the City with the names and
addresses of such service users and the amounts of taxes owed under the provisions of
this Chapter. Nothing herein shall require that the Tax Administrator institute
proceedings under this Section 3.16.160 if, in the opinion of the Tax Administrator, the
cost of collection or enforcement likely outweighs the tax benefit.
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EXHIBIT A
(b) In addition to the tax owed, the service user shall pay a delinquency penalty at the
rate of fifteen percent (15%) of the total tax that is owed, and shall pay interest at the rate
of seventy-five one-hundredths percent (0.75%) per month, or any fraction thereof, on the
amount of the tax, exclusive of penalties, from the due date, until paid.
(c) The Tax Administrator shall notify the non-paying service user that the Tax
Administrator has assumed the responsibility to collect the taxes due for the stated
periods and demand payment of such taxes, including penalties and interest. The notice
shall be served on the service user by personal delivery or by deposit of the notice in the
United States mail, postage prepaid, addressed to the service user at the address to which
billing was made by the person required to collect the tax; or, should the service user
have a change of address, to his or her last known address.
(d) If the service user fails to remit the tax to the Tax Administrator within thirty (30)
days from the date of the service of the notice upon him or her, the Tax Administrator
may impose an additional penalty of fifteen percent(15%) of the amount of the total tax
that is owed.
3.16.170 Additional Powers and Duties of the Tax Administrator.
(a) The Tax Administrator shall have the power and duty, and is hereby directed, to
enforce each and all of the provisions of this Chapter.
(b) The Tax Administrator may adopt administrative rules and regulations consistent
with provisions of this Chapter for the purpose of interpreting, clarifying, carrying out
and enforcing the payment, collection and remittance of the taxes herein imposed. The
administrative ruling shall not impose a new tax, revise an existing tax methodology as
stated in this Chapter, or increase an existing tax, except as allowed by California
Government Code Section 53750(h)(2). A copy of such administrative rules and
regulations shall be on file in the Tax Administrator's office. To the extent that the Tax
Administrator determines that the tax imposed under this Chapter shall not be collected in
full for any period of time from any particular service supplier or service user, that
determination shall be considered an exercise of the Tax Administrator's discretion to
settle disputes and shall not constitute a change in taxing methodology for purposes of
Government Code Section 53750 or otherwise. The Tax Administrator is not authorized
to amend the City's methodology for purposes of Government Code Section 53750 and
the City does not waive or abrogate its ability to impose the utility users' tax in full as a
result of promulgating administrative rulings or entering into agreements.
(c) Upon a proper showing of good cause, the Tax Administrator may make
administrative agreements, with appropriate conditions, to vary from the strict
requirements of this Chapter and thereby: (1) conform to the billing procedures of a
particular service supplier so long as said agreements result in the collection of the tax in
conformance with the general purpose and scope of this Chapter; or, (2) to avoid a
hardship where the administrative costs of collection and remittance greatly outweigh the
19
EXHIBIT A
tax benefit. A copy of each such agreement shall be on file in the Tax Administrator's
office, and are voidable by the Tax Administrator or the City at any time.
(d) The Tax Administrator may conduct an audit, to ensure proper compliance with
the requirements of this Chapter, of any person required to collect and/or remit a tax
pursuant to this Chapter. The Tax Administrator shall notify said person of the initiation
of an audit in writing. In the absence of fraud or other intentional misconduct, the audit
period of review shall not exceed a period of three (3) years next preceding the date of
receipt of the written notice by said person from the Tax Administrator. Upon completion
of the audit, the Tax Administrator may make a deficiency determination pursuant to
Section 3.16.150 of this Chapter for all taxes (and applicable penalties and interest) owed
and not paid, as evidenced by information provided by such person to the Tax
Administrator. If said person is unable or unwilling to provide sufficient records to enable
the Tax Administrator to verify compliance with this Chapter, the Tax Administrator is
authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall
be entitled to a rebuttable presumption of correctness.
(e) Upon receipt of a written request of a taxpayer, and for good cause, the Tax
Administrator may extend the time for filing any statement required pursuant to this
Chapter for a period of not to exceed forty-five (45) days, provided that the time for filing
the required statement has not already passed when the request is received. No penalty
for delinquent payment shall accrue by reason of such extension. Interest shall accrue
during said extension at the rate of seventy-five one-hundredths percent (0.75%) per
month, prorated for any portion thereof.
(f) The Tax Administrator shall determine the eligibility of any person who asserts a
right to exemption from, or a refund of, the tax imposed by this Chapter.
(g) Notwithstanding any provision in this Chapter to the contrary, the Tax
Administrator may waive any penalty or interest imposed upon a person required to
collect and/or remit for failure to collect the tax imposed by this Chapter if the non-
collection occurred in good faith. In determining whether the non-collection was in good
faith, the Tax Administrator shall take into consideration the uniqueness of the product or
service, industry practice or other precedence. The Tax Administrator may also
participate with other utility users' tax public agencies in conducting coordinated
compliance reviews with the goal of achieving administrative efficiency and uniform tax
application determinations, where possible. To encourage full disclosure and on-going
cooperation on annual compliance reviews, the Tax Administrator, and its agents, may
enter into agreements with the tax-collecting service providers and grant prospective only
effect on any changes regarding the taxation of services or charges that were previously
deemed by the service provider, in good faith and without gross negligence, to be non-
taxable. In determining whether the non-collection was in good faith and without gross
negligence, the Tax Administrator shall take into consideration the uniqueness of the
product or service, industry practice or other precedence.
3.16.180 Records.
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EXHIBIT A
(a) It shall be the duty of every person required to collect and/or remit to the City any
tax imposed by this Chapter to keep and preserve, for a period of at least three (3) years,
all records as may be necessary to determine the amount of such tax as he/she may have
been liable for the collection of and remittance to the Tax Administrator, which records
the Tax Administrator shall have the right to inspect at a reasonable time.
(b) The City may issue an administrative subpoena to compel a person to deliver, to
the Tax Administrator, copies of all records deemed necessary by the Tax Administrator
to establish compliance with this Chapter, including the delivery of records in a common
electronic format on readily available media if such records are kept electronically by the
person in the usual and ordinary course of business. As an alternative to delivering the
subpoenaed records to the Tax Administrator on or before the due date provided in the
administrative subpoena, such person may provide access to such records outside the City
on or before the due date, provided that such person shall reimburse the City for all
reasonable travel expenses incurred by the City to inspect those records, including travel,
lodging, meals, and other similar expenses, but excluding the normal salary or hourly
wages of those persons designated by the City to conduct the inspection.
(c) The Tax Administrator is authorized to execute a non-disclosure agreement
approved by the City Attorney to protect the confidentiality of customer information
pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7.
(d) If a service supplier uses a billing agent or billing aggregator to bill, collect,
and/or remit the tax, the service supplier shall: 1) provide to the Tax Administrator the
name, address and telephone number of each billing agent and billing aggregator
currently authorized by the service supplier to bill, collect, and/or remit the tax to the
City; and, 2) upon request of the Tax Administrator, deliver, or effect the delivery of, any
information or records in the possession of such billing agent or billing aggregator that, in
the opinion of the Tax Administrator, is necessary to verify the proper application,
calculation, collection and/or remittance of such tax to the City.
(e) If any person subject to record-keeping under this Chapter unreasonably denies
the Tax Administrator access to such records, or fails to produce the information
requested in an administrative subpoena within the time specified, then the Tax
Administrator may impose a penalty of Five Hundred Dollars ($500.00) on such person
for each day following: 1)the initial date that the person refuses to provide such access;
or, 2) the due date for production of records as set forth in the administrative subpoena.
This penalty shall be in addition to any other penalty imposed under this Chapter.
3.16.190 Refunds
Whenever the amount of any tax has been overpaid or paid more than once or has been
erroneously or illegally collected or received by the Tax Administrator under this Chapter
from a person or service supplier, it may be refunded as provided in this Section as
follows:
21
EXHIBIT A
(a) Written Claim for Refund: The Tax Administrator may refund any tax that has
been overpaid or paid more than once or has been erroneously or illegally collected or
received by the Tax Administrator under this Chapter from a person or service supplier,
provided that no refund shall be paid under the provisions of this Section unless the
claimant or his or her guardian, conservator, executor, or administrator has submitted a
written claim to the Tax Administrator within one year of the overpayment or erroneous
or illegal collection of said tax. Such claim must clearly establish claimant's right to the
refund by written records showing entitlement thereto. Nothing herein shall permit the
filing of a claim on behalf of a class or group of taxpayers unless each member of the
class has submitted a written claim under penalty of perjury as provided by this Section.
(b) Compliance with Claims Act: The filing of a written claim pursuant to
Government Code Section 935 is a prerequisite to any suit thereon. Any action brought
against the City pursuant to this Chapter shall be subject to the provisions of Government
Code Sections 945.6 and 946. The Tax Administrator, or the City Council where the
claim is in excess of Five Thousand Dollars ($5,000.00), shall act upon the refund claim
within the time period set forth in Government Code Section 912.4. If the Tax
Administrator/City Council fails or refuses to act on a refund claim within the time
prescribed by Government Section 912.4, the claim shall be deemed to have been rejected
by the City Council on the last day of the period within which the City Council was
required to act upon the claim as provided in Government Code Section 912.4. The Tax
Administrator shall give notice of the action in a form which substantially complies with
that set forth in Government Code Section 913.
(c) Refunds to Service Suppliers: Notwithstanding the notice provisions of
subsection (a) of this Section, the Tax Administrator may, at his or her discretion, give
written permission to a service supplier, who has collected and remitted any amount of
tax in excess of the amount of tax imposed by this Chapter, to claim credit for such
overpayment against the amount of tax which is due the City upon a subsequent monthly
retum(s) to the Tax Administrator, provided that, prior to taking such credit by the
service supplier: 1) such credit is claimed in a return dated no later than one year from the
date of overpayment or erroneous collection of said tax; 2) the Tax Administrator is
satisfied that the underlying basis and amount of such credit has been reasonably
established; and, 3) in the case of an overpayment by a service user to the service supplier
that has been remitted to the City, the Tax Administrator has received proof, to his or her
satisfaction, that the overpayment has been refunded by the service supplier to the service
user in an amount equal to the requested credit.
3.16.200 Appeals.
(a) The provisions of this Section apply to any decision (other than a decision relating
to a refund pursuant to Section 3.16.190 of this Chapter), deficiency determination,
assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by
any decision (other than a decision relating to a refund pursuant to Section 3.16.190 of
this Chapter), deficiency determination, assessment, or administrative ruling of the Tax
Administrator, shall be required to comply with the appeals procedure of this Section.
22
EXHIBIT A
Compliance with this Section shall be a prerequisite to a suit thereon. [See Government
Code Section 935(b)]. Nothing herein shall permit the filing of a claim or action on
behalf of a class or group of taxpayers.
(b) If any person is aggrieved by any decision (other than a decision relating to a
refund pursuant to Section 3.16.190 of this Chapter), deficiency determination,
assessment, or administrative ruling of the Tax Administrator; he or she may appeal to
the City Administrator, or designee, by filing a notice of appeal with the City Clerk
within fourteen(14) days of the date of the decision, deficiency determination,
assessment, or administrative ruling of the Tax Administrator which aggrieved the
service user or service supplier.
(c) The matter shall be scheduled for hearing before an independent hearing officer
selected by the City Administrator, or designee, no more than thirty (30) days from the
receipt of the appeal. The appellant shall be served with notice of the time and place of
the hearing, as well as any relevant materials, at least five (5) calendar days prior to the
hearing. The hearing may be continued from time to time upon mutual consent. At the
time of the hearing, the appealing party, the Tax Administrator, and any other interested
person may present such relevant evidence as he or she may have relating to the
determination from which the appeal is taken.
(d) Based upon the submission of such evidence and the review of the City's files, the
hearing officer shall issue a written notice and order upholding, modifying or reversing
the determination from which the appeal is taken. The notice shall be given within
fourteen (14) days after the conclusion of the hearing and shall state the reasons for the
decision. The notice shall specify that the decision is final and that any petition for
judicial review shall be filed within ninety (90) days from the date of the decision in
accordance with Code of Civil Procedure Section 1094.6.
(e) All notices under this Section may be sent by regular mail, postage prepaid, and
shall be deemed received on the third calendar day following the date of mailing, as
established by a proof of mailing.
3.16.210 No Injunction/Writ of Mandate.
No injunction or writ of mandate or other legal or equitable process shall issue in any
suit, action, or proceeding in any court against this City or against any officer of the City
to prevent or enjoin the collection under this Chapter of any tax or any amount of tax
required to be collected and/or remitted.
3.16.220 Notice of Changes to Ordinance.
If a tax under this Chapter is added repealed, increased, reduced, or the tax base is
changed, the Tax Administrator shall follow the notice requirements of California Public
Utilities Code Section 799.
23
EXHIBIT A
3.16.230 Effect of State and Federal Reference/Authorization.
Unless specifically provided otherwise, any reference to a State or Federal statute in this
Chapter shall mean such statute as it may be amended from time to time, provided that
such reference to a statute herein shall not include any subsequent amendment thereto, or
to any subsequent change of interpretation thereto by a State or Federal agency or court
of law with the duty to interpret such law, to the extent that such amendment or change of
interpretation would require voter approval under California law, or to the extent that
such change would result in a tax decrease (as a result of excluding all or a part of a
utility service, or charge therefor, from taxation). Only to the extent voter approval would
otherwise be required or a tax decrease would result, the prior version of the statute (or
interpretation) shall remain applicable; for any application or situation that would not
require voter approval or result in a decrease of a tax, provisions of the amended statute
(or new interpretation) shall be applicable to the maximum possible extent.
To the extent that the City's authorization to collect or impose any tax imposed under this
Chapter is expanded or limited as a result of changes in State or Federal law, no
amendment or modification of this Chapter shall be required to conform the tax to those
changes, and the tax shall be imposed and collected to the full extent of the authorization
up to the full amount of the tax imposed under this Chapter.
3.16.240 No Increase in Tax Percentage or Change in Methodology Without Voter
Approval; Amendment or Repeal.
This Title 3, Chapter 3.16 of the San Luis Obispo Municipal Code may be repealed or
amended by the City Council without a vote of the People. However, as required by
Chapter XIIIC of the California Constitution, voter approval is required for any
amendment provision that would increase the rate of any tax levied pursuant to this
Ordinance. The People of the City of San Luis Obispo affirm that the following actions
shall not constitute an increase of the rate of a tax:
(1) The restoration of the rate of the tax to a rate that is no higher than that set by this
Ordinance, if the City Council has acted to reduce the rate of the tax;
(2) An action that interprets or clarifies the methodology of the tax, or any definition
applicable to the tax, so long as such interpretation or clarification (even if contrary to
some prior interpretation or clarification) is not inconsistent with the language of this
Ordinance;
(3) The establishment a class of persons that is exempt or excepted from the tax or the
discontinuation of any such exemption or exception (other than the discontinuation of an
exemption or exception specifically set forth in this Ordinance); and
(4) The collection of the tax imposed by this ordinance, even if the City had, for some
period of time, failed to collect the tax.
24
EXHIBIT A
3.16.250 Remedies Cumulative.
All remedies and penalties prescribed by this Chapter or which are available under any
other provision of law or equity, including but not limited to the California False Claims
Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act
(Business and Professions Code Section 17070 et seq.), are cumulative. The use of one
or more remedies by the City shall not bar the use of any other remedy for the purpose of
enforcing the provisions of this Chapter.
3.16.260 Interaction With Prior Tax.
(a). Collection of Tax by Service Providers. Service providers shall begin to collect the
tax imposed by this amended Chapter 3.16 as soon as feasible after the effective date of
the Chapter, but in no event later than permitted by Section 799 of the California Public
Utilities Code.
(b). Satisfaction of Tax Obligation by Service Users. Prior to April 1, 2013, any person
who pays the tax levied pursuant to Title 3, Chapter 3.16 of this Code, as it existed prior
to its amendment as provided herein, with respect to any charge for a service shall be
deemed to have satisfied his or her obligation to pay the tax levied pursuant to Title 3,
Chapter 3.16 as amended herein, with respect to that charge. The intent of this paragraph
is to prevent the imposition of multiple taxes upon a single utility charge during the
transition period from the prior Utility Users' Tax ordinance to the amended Utility
Users' Tax ordinance (which transition period ends April 1, 2013) and to permit service
providers or other persons with an obligation to remit the tax hereunder, during that
transition period, to satisfy their collection obligations by collecting either tax.
(c) In the event that a final court order should determine that the election enacting this
Title 3, Chapter 3.16 (as amended herein) is invalid for whatever reason, or that any tax
imposed under this Title 3, Chapter 3.16 (as amended herein) is invalid in whole or in part,
then the taxes imposed under Title 3, Chapter 3.16 of this Code, as it existed prior to its
amendment as provided herein, shall automatically continue to apply with respect to any
service for which the tax levied pursuant to this Chapter 3.16 has been determined to be
invalid. Such automatic continuation shall be effective beginning as of the first date of
service (or billing date) for which the tax imposed by this Chapter is not valid. However,
in the event of an invalidation, any tax (other than a tax that is ordered refunded by the
court or is otherwise refunded by the City) paid by a person with respect to a service and
calculated pursuant to this Title 3, Chapter 3.16 (as amended herein) shall be deemed to
satisfy the tax imposed under Title 3, Chapter 3.16, as it existed prior to its amendment as
provided herein, on that service, so long as the tax is paid with respect to a service provided
no later than six months subsequent to the date on which the final court order is published.
SECTION 2. Effective Date. This Chapter, if approved by the electorate of the City
of San Luis Obispo at the General Municipal Election of November 6, 2012 shall
become effective immediately upon the declaration of the results of that election by
the City Council of the City of San Luis Obispo.
25,
EXHIBIT A
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this Ordinance is for any reason held to be invalid or unenforceable by a
court of competent jurisdiction, the remaining portions of this Ordinance shall
nonetheless remain in full force and effect. The People hereby declares that they
would have adopted each section, subsection, sentence, clause, phrase, or portion of
this Ordinance, irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions of this Ordinance be declared invalid or
unenforceable.
SECTION 4. Ratification of Prior Tax. The People of the City of San Luis Obispo
hereby ratify and approve the past collection of the Utility Users' Tax Title 3, Chapter
3.16 of the San Luis Obispo Municipal Code, as it existed prior to the effective date
of this Ordinance.
SECTION 5. Execution. The Mayor is hereby authorized to attest to the adoption of
the Ordinance by the voters of the City by signing where indicated below.
I hereby certify that the foregoing Ordinance was PASSED, APPROVED
and ADOPTED by the People of the City of San Luis Obispo, California voting on
the 6th day of November, 2012.
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
26
RESOLUTION NO. 10391 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO
DENYING APPEALS AND UPHOLDING THE ARCHITECTURAL REVIEW
COMMISSION'S ACTION TO APPROVE A MIXED-USE PROJECT
FOR PROPERTY LOCATED AT 1340 TAFT STREET
(ARC 50-09)
WHEREAS, the Architectural Review Commission, on July 18, 2012, approved a
mixed-use project with seven residential units and 3,900 square feet of commercial floor area in
the Neighborhood Commercial zone; and
WHEREAS, Isabel Marques filed an appeal of the Architectural Review Commission's
action on June 27, 2012; and
WHEREAS, Sandra Rowley on behalf of Residents for Quality Neighborhoods filed an
appeal of the Architectural Review Commission's action on June 28, 2012; and
WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearing
in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on August 7,
2012, for the purpose of considering the appeals of the Architectural Review Commission's
action; and
WHEREAS, the Council has duly considered all evidence, including the record of the
Architectural Review Commission hearing and action, testimony of interested parties, and the
evaluation and recommendations by staff, presented at said hearing.
NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Findines. Based upon all the evidence, the City Council makes the
following findings:
1. As conditioned, the project's design is appropriate for a mixed-use project and will be
compatible with surrounding development.
2. The proposed project will not be detrimental to the public health, safety and welfare of
persons living or working at the site or in the vicinity because the new mixed-use project
conforms to all Zoning Regulation requirements.
3. The proposed project, which provides a deed-restricted unit affordable to low-income
households, is consistent with many policies and programs of the General Plan that encourage
new development to accommodate affordable housing production and variety. By providing this
affordable unit within the project, the City is able to approve a 35% density bonus and two
incentives. The specific incentive approved for the project is allowing the lift parking as
proposed since the upper level of the mechanical lifts do not expressly meet the dimensional
standard for parking spaces in the City's Parking & Driveway Standards and do not
R 10391
Resolution No. 10391 (2012 Series)
Page 2
accommodate some larger trucks and SUVs. Condition No. 21 is included to advise prospective
residential tenants of this parking design to insure that it meets their needs.
4. The project is consistent with General Plan policies that encourage mixed-use projects in
commercial districts and neighborhood preservation policies. The project complies with LUE
Policy 2.2.10 by: having two-story development closest to Kentucky Avenue and stepping back
in height toward the center of the lot; providing a substantial setback between project buildings
and the closest buildings on adjacent sites; and complying with all property development
standards for the C-N zone. The project also complies with LU Policy 2.2.12 by including
design elements that facilitate neighborhood interaction such as the entries to residential units
facing Kentucky Avenue.
5. The revised project is appropriate for the site and its surroundings and its design
maintains consistency with the Community Design Guidelines for infill development,
specifically Community Design Guideline 5.4 C.2 which encourages new residential projects to
step back in height from the street and provide entries to individual units from the street.
6. The proposed project makes good use of a deteriorated and unattractive site that has not
been viable for many years and creates an attractive and efficient site development.
7. The project is categorically exempt under Class 32, Infill Development Projects, Section
15332 of the CEQA Guidelines.
SECTION 2. Action. The City Council hereby denies the appeals and upholds the
Architectural Review Commission's action to grant final approval to the mixed-use project
(ARC 50-09) with 7 dwellings and 3,900 square feet of commercial floor area, with
incorporation of the following conditions:
Conditions:
1. Final project design and construction drawings shall be consistent with the alternative
project design proposed by the applicant to respond to key issues raised by neighbors and
included in the 8-7-12 City Council Agenda report as Attachment 3 and in substantial
conformance with the project plans approved by the ARC on 6-18-12. A separate, full-size sheet
shall be included in working drawings submitted for a building permit that list all conditions, and
code requirements of project approval as Sheet No. 2. Reference should be made in the margin
of listed items as to where in plans requirements are addressed. Any change to approved design,
colors, materials, landscaping, or other conditions of approval must be approved by the Director
or Architectural Review Commission, as deemed appropriate.
2. The color board for the project buildings presented at the meeting was supported by the
Architectural Review Commission. Any modifications to the approved palette shall be reviewed
and approved by the Community Development Director prior to issuance of a building permit.
Building colors shall be shown on the building elevations approved as part of working drawings.
The sloping awnings shall match the vertical metal (no corrugated siding).
Resolution No. 10391 (2012 Series)
Page 3
3. All stucco and plastered surfaces shall have a smooth hand-finished appearance to the
satisfaction of the Community Development Director and not be a sprayed-on type of
application. A sample of the finish shall be submitted prior to issuance of a building permit.
4. Plans shall clearly show the details of all windows and storefronts.
5. A sign program for the development including both tenant and site wayfinding and
directional signage shall be to the review and approval of the Community Development Director
with consultation with the Public Works Director regarding site directional signs. The
Community Development Director may approve the sign program if it is consistent with
applicable sections of the sign regulations and is in keeping with the character and context of the
building. The Director may refer signage to the ARC if it seems excessive or out of character
with the project. The Director has the authority to approve minor exceptions with the sign
program for directional signs if there are compelling circumstances such as visibility and safety
that warrant exceptions.
6. If proposed, parking lot poles and fixtures shall be shown on building permit plans and
not exceed 20 feet in height measured from the parking lot surface to the top of the fixture. The
selected fixture(s) shall be shielded to insure that light is directed downward consistent with the
requirements of the City's Night Sky Preservation standards contained in Chapter 17.23 of the
Zoning Regulations. Fixture and pole design shall complement the building architecture.
7. The locations of all wall-mounted lighting fixtures shall be clearly called out on building
elevations included as part of working drawings. All wall-mounted lighting shall complement
building architecture. The lighting schedule for the building shall include a graphic
representation of the proposed lighting fixtures, and cut-sheets shall be separately submitted for
the project file of the proposed lighting fixtures. The selected fixture(s) shall be shielded to
insure that light is directed downward consistent with the requirements of the City's Night Sky
Preservation standards contained in Chapter 17.23 of the Zoning Regulations. Details of all
exterior light fixtures, including any service area lights, need to be included as part of plans. A
note shall be included on plans that "Lenses of exterior wall-mounted lights may be modified or
shielding devices added after installation if the Community Development Director determines
that they emit excessive glare."
8. Mechanical and electrical equipment shall be located internally to the building. With
submittal of working drawings, the applicant shall include sectional views of the building, which
clearly show the sizes of proposed condensers and other mechanical equipment to be placed on
the roof to confirm that parapets and other roof features will adequately screen them. A line-of-
site diagram may be needed to confirm that proposed screening will be adequate. This condition
applies to initial construction and later improvements.
9. Final design details for the proposed trash and recycling enclosures shall be included in
working drawings for a building permit and shall be to the review and approval of the
Community Development and Utilities Departments. The ultimate design shall be consistent
with the Solid Waste Guidelines and coordinate with the exterior design of the buildings.
Resolution No. 10391 (2012 Series)
Page 4
10. A final landscaping plan, including irrigation details and plans, shall be submitted to the
Community Development Department along with working drawings. The legend for the
landscaping plan shall include the sizes and species of all groundcovers, shrubs, and trees with
corresponding symbols for each plant material showing their specific locations on plans.
11. The location of any required backflow preventer and double-check assembly shall be
shown on all site plans submitted for a building permit, including the landscaping plan.
Construction plans shall also include a scaled diagram of the equipment proposed. Where
possible, as determined by the Utilities Director, equipment shall be located inside the building
within 20 feet of the front property line. Where this is not possible, as determined by the Utilities
Director, the back flow preventer and double-check assembly shall be located in the street yard
and screened using a combination of paint color, landscaping and, if deemed appropriate by the
Community Development Director, a low wall. The size and configuration of such equipment
shall be subject to review and approval by the Utilities and Community Development Directors.
12. To ensure that parking spaces are reserved for commercial uses in the project, appropriate
signage shall be installed noting that 10 of the 13 surface spaces are available for commercial use
during typical business hours.
13. Final approved floor plans shall clearly call out the approved bedroom count for each unit
following final approval by the Architectural Review Commission and note that alterations to
units to create additional bedrooms are not allowed. The dens in the units shall not be utilized as
bedrooms. A covenant agreement signed by the property owner shall also be recorded prior to
final occupancy. If the project is subdivided, prospective owners shall be notified of this
requirement. If the individual units are rented, rental contracts shall note that units are to be used
as two-bedroom residences. Tenants shall be notified of any applicable residential occupancy
restrictions.
14. Decks and balconies within the project shall not be utilized for the storage needs of
individual units. However, outdoor patio furniture, potted plants and small barbecues may be
placed in these areas.
15. The applicant shall provide for the professional, perpetual maintenance of all common
area including private driveways, drainage, parking lot areas, walls and fences, lighting, and
landscaping in a first class condition.
e
16. Individual tenant spaces and the overall site shall be maintained in a neat and orderly
manner at all times. All plant materials shall be maintained and replaced as necessary.
Fire
17. The 20 foot wide "public alley" shall be posted as a fire lane.
18. Fire sprinkler risers shall be located in a room with exterior door access.
Resolution No. 10391 (2012 Series)
Page 5
19. For the commercial and garage portions of the project, a NFPA 13 system will be
required. Based on more detailed information submitted with building plans, a final
determination on appropriate sprinkler systems for the residential portions of the development
will be determined.
Housing
20. Prior to the issuance of a building permit, the applicant shall enter into an affordability
agreement with the City of San Luis Obispo for one 2-bedroom low-income affordable rental
housing unit for a term of 55 years, which will be recorded against the title of the property.
Stormwater
21. The project will require the development, submittal and approval of a Water Pollution
Control Plan in compliance with California Green Codes 2010 and the City's Stormwater
Management Plan prior to the issuance of a building permit. This will include within the plan
set(s) detailed erosion and sediment control plans and detailed locations of all stormwater control
measures and/or best management practices to be used on the site during construction activities
and for post construction site stabilization. Since, this site had contamination issues at one time
the plans should include details on how soils will be handled, managed, contained and /or
disposed of as necessary during the course of construction.
Transportation
22. Prospective residential tenants shall be notified of the project's stacked parking design
and advised that they should ensure that the on-site parking is adequate for their needs because
they will not be able to obtain on-street parking permits.
23. To ensure adequate visibility at the alley exit onto Kentucky Street, shrubs planted along
the alley within 10 feet of the public sidewalk shall not exceed three feet in height at maturity.
24. The project's Taft Street frontage shall be signed for no parking unless a sight distance
analysis that demonstrates parking or loading can be accommodated is submitted for the review
and approval of the Traffic Operations Manager. The sight analysis shall include vehicles exiting
to Taft Street from the adjoining development located at 552 California.
25. The project is required to upgrade the adjacent City transit stop serving the site to bring it
into compliance with current City standards which includes a shelter, bench and trash can.
26. The traffic impact report dated September 13, 2009 recommends that pedestrian access
across Taft Street be discouraged near Kentucky and along the project frontage. Prior to the
issuance of a building permit, the applicant shall submit public improvement plans for the
installation of pedestrian barricades and/or other measures approved by the Public Works
Director to direct pedestrian crossings of Taft Street to the crosswalk at California Boulevard.
Installation of these improvements shall be installed prior to any occupancy of the building.
Resolution No. 10391 (2012 Series)
Page 6
27. Long and short-term bicycle parking shall be provided on site in accordance with Table
6:5 of the Zoning Regulations. Bicycle parking shall be installed at highly visible locations that
are as close to the main entrance of the destination as possible and located at least as
conveniently as the most convenient automobile parking space. Dimensioned locations and
details of the short and long-term bicycle parking shall be provided on the project's construction
plans including rack design, location, clearances and circulation for users in compliance with
manufacturers' standards. A minimum four foot wide path of travel shall be provided to all
bicycle parking spaces. Additional bicycle parking (above what is required) may be proposed on
the project frontages if adequate pedestrian circulation is maintained and they result in no line of
sight issues.
Public Works
28. The building plan submittal shall include a complete grading and drainage plan prepared
by a licensed civil engineer. The plan shall include all work within the public right-of-way
including the alley. Drainage analysis may be required to justify the curb capacity for the new
driveway approach to the alley, alley drainage, and the transition from the alley into the parking
garage.
29. The existing full depth driveway approach off of Kentucky to the alley shall be replaced
per City Engineering Standard #2111 or other standard to the approval of the city. The approach
shall include provisions for an accessible path of travel across or around the approach. The plans
shall clarify how the effective curb height will be achieved to contain the street drainage.
Otherwise, drainage calculations will be required to include the curb capacity of the proposed
approach. The proposed improvements shall be shown to contain the design storm within the
Kentucky right-of-way in accordance with City Engineering Standards and the Waterway
Management Plan Drainage Design Manual.
30. The alley paving shall be upgraded for the full width of the alley across the property
frontage as a condition of the building permit. The civil plans shall clarify the extent of alley
paving beyond the property line as needed to transition to the existing pavement to remain.
31. A concrete apron shall be provided in front of the trash enclosure to protect the pavement
from repeated loading. The apron may need to be extended across the entire width of the alley.
32. The soils report and civil engineering plans shall address the potential for the project to
intercept groundwater. Permanent or temporary de-watering shall comply with city and state
standards and permit requirements. Any permanent dewatering systems shall include piping
systems that will discharge directly to the public storm drain system and not to the gutter per City
Engineering Standard 1010.B. A permanent storm drain connection will be subject to an annual
storm drain connection fee in accordance with the fee resolution in effect at the time of
connection.
33.Access into the garage shall comply with the parking and driveway standards for down
sloping driveways.
Resolution No. 10391 (2012 Series)
Page 7
34. The building plan submittal/civil plans shall show and note all signage and striping
provisions as recommended in the final traffic safety report or as updated for this revised project.
35. The building plans shall show compliance with the parking and driveway standards, City
Engineering Standards, and California Building Code. The parking garage shall include
minimum heights, all space dimensions, striping, space widths, and clearances to side
obstructions in accordance with city standards. The structural plans shall show the location of all
walls, shear walls, and columns in agreement with the dimensioned architectural plans.
36. The building plan submittal shall show all existing on-site and off-site trees over 3" in
diameter. The plans shall include the diameter, species, and disposition. The off-site trees
located at 552 California shall be shown and noted for reference. The tree canopies shall be
shown to scale for reference. The plans shall clarify the extent of pruning necessary to construct
the proposed structure. A complete tree preservation plan shall be provided in conjunction with
the building plan submittal.
37. The applicant should consider the relocation or transplanting of the existing Olive tree if
feasible.
38. The preliminary title report included reference to an access agreement. A copy of the
agreement shall be provided with the building plan submittal unless otherwise resolved. The
plans shall clarify whether the provisions of the agreement affect the proposed site development.
The agreement shall be extinguished or amended if applicable.
39. The building plan submittal shall clarify the disposition of the existing on-site and off-site
monitoring wells. The wells located within the public right-of-way shall be abandoned if no
longer needed. The building plan submittal shall clarify whether additional wells will be
required within the public right-of-way to compensate for the removal of any on-site wells.
Utilities
40. The applicant shall submit a plan that delineates the location of the property's existing
and proposed water meter(s), water services, and sewer laterals to the points of connection at the
City water and sewer mains. Each proposed unit shall have a separate water meter.
41. If the property's existing sewer lateral is proposed to be reused, submittal of a video
inspection will be required for review and approval of the Utilities Department during the
Building Permit Review process. If a new lateral is proposed, the existing lateral must be
abandoned per City standards.
Code Requirements
The following code requirements are included for information purposes only. They serve to give
the applicant a general idea of other City requirements that will apply to the project. This is not
intended to be an exhaustive list as other requirements may be identified during the plan check
process.
Resolution No. 10391 (2012 Series)
Page 8
1. The number of and locations of Street Trees are adequate. From a maintenance outlook
consider revising the ornamental pears to a species less prone to limb failure. Trees are to be
planted to city specifications.
2. Tree protection measures on existing trees to remain shall be installed before any
demolition or construction begins. These measures are to follow the cities Standard
Specifications & Engineering Standards, section 20-2 TREE PROTECTION.
Upon motion of Council Member Carter, seconded by Council Member Ashbaugh, and
on the following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter and
Mayor Marx
NOES: None
ABSENT: None
The foregoing resolution was adopted this 7`h day of August 2012.
Ma or Marx
ATTEST:
lieeryll Schroeder
Interim City Clerk
APPR 2ATO F
J C sti e Dietrick
Attorney
RESOLUTION NO. 10392 (2012 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO AMENDING
THE CITY'S CONFLICT OF INTEREST CODE
WHEREAS, the City Council adopted Resolution No. 5044 (1983 Series) amending the
City's Conflict of Interest Code by incorporating by reference the Fair Political Practices
Commission's standard model Conflict of Interest Code (Title 2, Division 6 of the California
Code of Regulations) and updating the list of designated positions required to file a Statement of
Economic Interests; and
WHEREAS, the Political Reform Act requires that the City Council review its Conflict
of Interest Code biennially to determine whether amendments are required; and
WHEREAS, Resolution No. 10218 (2010 Series) adopted on September 21, 2010
amended the City's Conflict of Interest Code by updating the Appendix (List of Designated
Positions and Disclosure Categories—Exhibit A); and
WHEREAS, a review of the Appendix indicates that amendments are necessary to
reflect changes in job titles, positions and classifications; and further reveals the need to add
disclosure categories specifying those financial interests that designated positions must disclose.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Resolution No. 10218 (2010 Series) is hereby rescinded.
SECTION 2. The Fair Political Practices Commission's standard model Conflict of
Interest Code (Title 2, Division 6 of the California Code of Regulations), as reorganized along
with the List of Designated Positions and Disclosure Categories in Exhibit A are adopted as the
City of San Luis Obispo's Conflict of Interest Code.
Upon motion of Council Member Smith, seconded by Council Member Carter and on the
following roll call vote:
AYES: Council Members Ashbaugh, Carter and Smith, Vice Mayor Carpenter
and Mayor Marx
NOES: None
ABSENT: None
ABSTAIN: None
R 10392
Resolution No. 10392 (2012 Series)
Page 2
The foregoing resolution was adopted this 4`h day of September 2012.
Malory Marx
ATTEST:
Ma e Ke edy G6fmes
City Clerk
APPROVED AS TO
stine Dietrick
City Attorney
EXHIBIT A
LIST OF DESIGNATED POSITIONS
AND DISCLOSURE CATEGORIES'
POSITION DISCLOSURE CATEGORY
Administrative Office:
Assistant City Manager 1
Economic Development Manager 3
Natural Resources Manager 3
Principal Administrative Analyst 1
City Attorney:
Assistant City Attorney 1
City Clerk:
City Clerk 1
Community Development:
Assistant Chief Building Official 3
Assistant Planner(s) 3
Associate Planner(s) 3
Building Inspector(s) 3
Building Permit Coordinator 3
Chief Building Official 3
Code Enforcement Officer 1/11 3
Community Development Director 3
Contract Planner(s) 1
Deputy Community Development Director, Development Review 3
Deputy Community Development Director, Long Range Planning 3
Housing Programs Manager 3
Plan Examiner 2
Planning Technician 3
Senior Planner(s) 3
Supervising Administrative Assistant 2
Finance& Information Technology Department:
Accounting Supervisor 2
Revenue Supervisor 2
Finance Manager 2
Information Technology Manager 2
Telecommunications Supervisor 2
Network Services Supervisor 2
Administrative Analyst 2
EXHIBIT A
Fire Department:
Administrative Analyst 2
Fire Marshal 3
Deputy Fire Chief 3
Battalion Chief(s) 3
Fire Chief I
Fire Inspector 3
Hazardous Materials Coordinator 3
Human Resources Department:
Human Resources Analyst 2
Human Resources Director 1
Human Resources Manager 2
Parks&Recreation Department:
Administrative Analyst 2
Director of Parks and Recreation 1
Golf Course Supervisor 2
Recreation Manager 2
Recreation Supervisor—Sports 2
Recreation Supervisor-Aquatics 2
Recreation Supervisor- Youth Services 2
Recreation Supervisor-Facilities 2
Recreation Supervisor—Ranger Service 2
Recreation Supervisor—Community Services & Events 2
Police Department:
Administrative Analyst 2
Chief of Police I
Communications and Records Manager 2
Neighborhood Services Manager 2
Police Captain(s) 2
Police Lieutenant(s) 2
Public Works Department:
Administrative Analyst 2
Engineering Technician(s) 1 —3 3
Facilities Maintenance Supervisor 2
City Traffic Engineer 2
Deputy Public Works Director 3
Director of Public Works I
Engineer 1 - 3 3
Engineering Inspector 1-4 3
Fleet Maintenance Supervisor 2
EXHIBIT A
Parking Manager 2
Parks Maintenance Supervisor 2
Permit Technician 3
Principal Transportation Planner 3
Public Works Maintenance Supervisor 2
Senior Civil Engineer 2
Senior Construction Inspector 2
Street Maintenance Supervisor 2
Supervising Administrative Assistant(s) 2
Supervising Civil Engineer 3
Transit Manager 2
Utilities Department:
Administrative Analyst 2
Deputy Director of Utilities—Wastewater 2
Deputy Director of Utilities—Water 2
Environmental Programs ager 1
Environmental Compliance Inspector 1
Utilities Business Manager 2
Utilities Director 1
Utilities Conservation Manager 3
Utilities Projects Manager 3
Wastewater Collection Supervisor 2
Wastewater Treatment Plant Supervisor 2
Water Distribution Supervisor 2
Laboratory Manager 2
Water Supply Supervisor(Whale Rock) 2
Water Treatment Supervisor 2
Committees/Commissions:
Members of the Architectural Review Commission 3
Members of the Cultural Heritage Committee 3
Members of the Housing Authority 3
Members of the Promotional Coordinating Committee 2
Other Positions:
Consultants2 I
Housing Authority Executive Director 1
Temporary Positions 1
EXHIBIT A
DISCLOSURE CATEGORIES
Cateaory Reportable Interests
1 Investments, business positions,income from sources located in or doing business in
the jurisdiction, and interests in real property located in the jurisdiction or in
property located within a two-mile radius of any property owned or used by the City.
2 Investments, business positions,and sources of income of the type which provide
services, supplies,materials,machinery or equipment of the type utilized by the
City.
3 Investments, business positions,and sources of income of the type that engage in
land development, construction or the acquisition or sale of property and interests in
real property located within the jurisdiction or property located within a two-mile
radius of any property owned or used by the City.
'The Mayor and Council Members, Planning Commissioners, City Manager, City Attorney and Finance&
Information Technology Director/City Treasurer are required to file Statements of Economic Interests
pursuant to Government Code Section 87200, and are therefore, not included in the List of Designated
Positions required to file pursuant to the City's Conflict of Interest Code.
''Consultants should be included in the list of designated employees and shall disclose pursuant to the broadest
disclosure category in the code subject to the following limitation:
The City Manager may determine(upon written application by the consultant)that a particular consultant,
although a"designated position," is hired to perform a range of duties that is limited in scope and thus is not
required to fully comply with the disclosure requirements described in this section. Such written determination
shall include a description of the consultant's duties and,based upon that description,a statement of the extent
of disclosure requirements. The City Manager's determination is a public record and shall be retained for
public inspection in the same manner and location as this Conflict of Interest Code.
If a consultant believes he or she is exempt from disclosure requirements of law,prior to the application to the
City Manager,the consultant shall obtain opinion to that effect from an admitted attorney to practice in the
State of California,which opinion shall contain the information specified in the paragraph above.
3Temporary positions may be required to file a Statement of Economic Interests upon determination by the City
Attorney that the temporary position is the functional equivalent of a designated position.