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HomeMy WebLinkAboutResolution 2003-142 N.C.S. 07/14/2003RESOLiJTION No. 2003-142 N®c.s. OF THE CITY OF PETALUMA, CALIFORNIA REQUESTING THE SONOMA COUNTY BOARD OF SUPERVISORS TO CONSOLIDATE A SPECIAL ELECTION FOR THE CITY OF PETALUMA ON TUESDAY, NOVEMBER 4, 2003 WITH ANY OTHER ELECTION HELD ON THE SAME DATE IN TERRITORY THAT IS THE SAME OR IS IN PART THE SAME. WHEREAS, the City Council of the City of Petaluma has called a Special Election to be held on November 4, 2003, for the purpose of submitting a Charter amendment and a companion measure regarding a Utility Users Tax; and, WHEREAS, it is desirable that the Special Election be consolidated with any and all elections to be held on the same date and that within the City the precincts, polling places and election officers of the elections be the same, and that the Election Department of the County of Sonoma canvass the returns of the Special Election, and that the election be held in all respects as if there were only one election: NOW, THEREFORE, BE IT RESOLVED, ORDERED, AND DECLARED AS FOLLOWS: 1. Pursuant to the Petaluma City Charter and requirement Election Code Section 10403, the Board of Supervisors of the County of Sonoma is hereby requested to consent and agree to the consolidation of a Special Election for the City of Petaluma with any and all elections to be held on Tuesday, November 4, 2003, for the purpose of submitting a Charter amendment and a companion measure regarding a Utility Users Tax on the ballot. The Charter amendment and companion measure shall be designated by letter by the Sonoma County Elections Department. 2. The Charter Amendment measure shall read as follows: Resolution No. 2003-142 N.C.S. Page 1 Shall the City of Petaluma Charter be amended to allow for the adoption of a special utility users tax on gas and electric service for 20 years, at a rate of no more than five percent (5%) of the monthly charge for the service, to pay for curb-to-curb repair and reconstruction of existing City Streets and not for the construction of new streets? The complete text of the Charter Amendment, which would repeal section 63.5 of the City of Petaluma Charter, is attached as Exhibit "A". 3. The companion measure shall read as follows: Shall a special tax be approved on users of gas and electric service for 20 years, at a rate of no more than five percent (5%) of the monthly charge of the service, with an annual cap for non-residential users and an exemption for service users who participate in PG8~E's CARE program, to pay for curb-to-curb repair and reconstruction of existing City streets and not for the construction of new streets? The complete text of the companion measure-an ordinance approving a Utility Users Tax is attached as Exhibit "B." 4. The Sonoma County Election Department is authorized to canvass the returns of the Special Election. The election shall be held in all respects as if there were only one election, and only one form of ballot shall be used. 5. The Board of Supervisors is requested to issue instructions to the Sonoma County Elections Department to take any and all steps necessary for the holding of the consolidated election. 6. The City of Petaluma recognizes that additional costs may be incurred by the County by reason of this consolidation and agrees to reimburse the County for such costs. Resolution No. 2003-142 N.C.S. Page 2 7. The Sonoma County Election Department is requested to determine the cost of processing Absentee Ballots for this election and is further requested to report said cost to the City Clerk of the City of Petaluma at the earliest possible time following the election. 8. The billing for all costs of the City Special Election shall be submitted to the City Clerk of the City of Petaluma. 9. The City Clerk shall file a certified copy of this resolution with the Board of Supervisors and with the Sonoma County Elections Department. Under the power and authority conferred upon this Council by the Charter of said City REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Council of the City of Petaluma at a (Regular) ^~i f~~ meeting on the 14`'' day of July, 2003, by the following vote: AYES: Canevaro, Mayor Glass, Harris, Healy, Vice Mayor O'Brien, Torliatt NOES: Moynihan ABSENT: Non ATTEST: Ci Cler Approved as to Form -----,c,~'?~- City Attorney ~ ~~! •. Mayor Resolution No. 2003-142 N.C.S. Page 3 I°I I IT Resolution No. 2003-142 N.C.S. Page 4 PROPOSED AMENDMENT TO THE CHARTER OF THE CITY OF PETALUMA SPECIAL MUNICIPAL CHARTER AMENDMENT ELECTION November 4, 2003 (Consolidated with State of California Established Election) The City Council of the City of Petaluma hereby submits to the qualified electors of the City of Petaluma an amendment to the Charter of the City of Petaluma to repeal Section 63.5 thereof to allow for the adoption of a utility users tax. If the majority of votes on this measure at the November 4, 2003 election are affirmative, Section 63.5 of the Charter shall be amended as follows, with double underlined text indicating addition: Neither the City Council of the City of Petaluma nor any of its officers, agents or employees .shall levy, impose or collect a tax upon the use in the City of Petaluma by any residential user, business user, industrial user or any other user, of telephone communication services whether intrastate or interstate, electrical energy, gas, water, garbage, cable television or any other use of utilities by residents of Petaluma, except as otherwise provided in this section. Consistent with the provisions of Article XIIIC of the California Constitution, the City Council and its officers, agents, and emolovees may levy and collect a tax upon the use of electricity and aas in the City of Petaluma by any residential user, business user, industrial user, or any other user. Such a tax may be imposed for no more than 20 years and may not Pxceed five percent of the monthly charae for the electric or aas service. The revenue from such a tax may be used only for curb-to-curb repair and reconstruction of existina City streets and not for the construction of new streets. Resolution No. 2003-142 N.C.S. Page 5 I IT Resolution No. 2003-142 N.C.S. Page 6 ORDINANCE NO. N.C.S. Introduced by Seconded by AN ORDINANCE OF THE VOTERS OF THE CITY OF PETALUMA ADOPTING A UTILITY USERS TAX ON THE USE OF GAS AND ELECTRICITY BE IT ORDAINED BY THE VOTERS OF THE CITY OF PETALUMA AS FOLLOWS: Section 1. Chapter 4.50 Utility Users Tax 4.50.010 Findings. A. The majority of streets within the City of Petaluma were constructed between approximately 30 and 50 years ago. The economical renewable life of a street is approximately 15 to 30 years depending on conditions. The Metropolitan Transportation Commission (MTC) provides public agencies in California with a software program that is used to determine the condition of paved streets and roads and their maintenance needs. This computer program is used by most California cities and is regularly updated to keep pace with new development and construction costs. According to the MTC system, Petaluma's ranks among the worst in. Sonoma County and the Bay Area. Historically, funding levels for street maintenance in Petaluma have been modest. The cost to bring Petaluma streets up to serviceable and sustainable conditions increases with each passing year. The Citizens Advisory Committee on Street Improvements, in its final report submitted to the City Council in June of 2003, estimated a total system cost of maintenance and repair of approximately $73,864,196 and a net funding source need of approximately $44,070,807 plus an allowance for long-term maintenance. The Citizens Advisory Committee recommended as one alternative funding source a utility users tax, noting a number of advantages and the need for such a funding source in order to adequately repair, maintain and reconstruct the City of Petaluma streets to acceptable standards. The Citizens Advisory Committee prepared and submitted to the Council an accurate inventory of roadways currently in need of repair and a preliminary schedule for the repairs. Each individual repair will require separate approval, the priority for repairs may change over the next 20 years, and that currently unidentified repairs may become necessary in the future. Although the Council is committed to making the identified repairs over the next 20 years,. the inventory of streets is not itself an approval of any particular repair, and the schedule is subject to future revision. Resolution. No. 2003-142 N.C.S. Page 7 B. The City's revenue for improvement, maintenance, and reconstruction of its streets and roads currently comes from the General Fund Gas Tax and Solid Waste Surcharge. C. The City Council does hereby determine that the cost to improve, maintain, and reconstruct the City's streets exceeds the amount of funds and revenues generated from all other sources of income available for such purpose. The Council does further determine that the imposition of a special tax on residential and nonresidential users of gas and electricity in the City, as more fully set forth below, is necessary to maintain safe and usable streets within the City, to improve existing City streets, to provide for the reconstruction of some streets, and to enhance public access and safety. D. The imposition of such a special tax will allow the City to provide essential services to occupants of residential and nonresidential real property throughout the City for the next 20 years, such as critically needed maintenance of aspects of the City's transportation and circulation infrastructure. E. The City also recognizes that occupants of both residential and nonresidential property use the streets. F. The tax on both residential and nonresidential users of gas and electricity shall be set at five percent (5%) of the total monthly cost of gas and electric services, as defined herein, for the first five years that the tax is in effect. Thereafter, the City Council shall review the tax rate annually and may adjust it by resolution, not to exceed five percent of the total monthly cost of all gas and electric service, as defined in this ordinance. G. Users of gas and electric services derive value from the maintenance of the City's roads, since they occupy either residential or nonresidential property. Occupants of residential property use the roads to travel to work and recreational activities; to receive police, fire, and other services; to take advantage of mass transit; and to obtain goods and services. Occupants of nonresidential property use the roads to go to and from their places of employment, to receive customers, to send and receive goods, and to make use of police, fire, and other essential services. The City's roads enhance the health, safety and welfare of all occupants of property in the City and improve their quality of life both directly and indirectly. H. Suppliers of gas and electric services, as defined in this ordinance, shall be required to collect the tax imposed and to remit the proceeds to the City, except as otherwise provided for in this ordinance. N. The tax imposed by this ordinance is an excise tax on the privilege of using and the use of gas and electric service, as defined in this ordinance. It is not d tax on real property, nor is it any other kind of tax on property or the ownership of property. It is not a transaction or sales tax on the sale of real property. Finally, because the tax proceeds are deposited in a special fund and the fund is restricted for the improvement, maintenance, and reconstruction of streets, the tax is a special tax. Resolution No. 2003-142 N.C.S. Page 8 4.50.020 Definitions. As used herein, the following definitions shall apply: The following words and phrases whenever used in this ordinance shall be construed as defined in this section, unless the context requires otherwise: A. "City" shall mean the City of Petaluma. B "Electrical corporation" and "gas corporation" shall have the same meanings as defined in sections 218 and 222 respectively of fhe Public Utilities Code of the State of California. "Electrical corporation "and" Gas Corporation shall also be construed to include any municipality or public agency engaged in the selling or supplying of electrical power or gas to a service user. C. "Gas" shall mean natural or manufactured gas or any alternate hydrocarbon fuel that may be substituted therefore. D. "Month" shall mean a calendar month. "Non-Residential User" .shall mean any service user other than a residential user. F. "Non-Utility Service Supplier" shall mean: (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, co generator, 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 provider 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; and (3) a gas service supplier, aggregator, marketer or broker, other than a provider 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. G. "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 nonprofit), municipal corporation (other than. the City), municipal district, cooperative, or receiver, trustee, guardian or other representative appointed by order of any court.. H. "Residential User" shall mean any service user of electric or gas service at a place of service which is a house, duplex, townhouse, apartment, or mobile home and is the primary residence of such service user. Resolution No. 2003-142 N.C.S. Page 9 I. "Service supplier" shall mean any entity or person that provides electric or gas service to a user of such services within the city, and includes an entity or person required to collect orself-collect and remit a tax as imposed by this ordinance.. J. "Service user" shall mean a person required to pay a tax imposed by this ordinance. K. "Tax Administrator" shall mean the Finance Director of the City Petaluma. L. "Utility Tax Year" shall mean the twelve (12) month period commencing July 1, and ending June 30, of the next succeeding calendar year. 4.50.030 Exemptions. A. The taxes imposed by this ordinance shall not apply to: Any person or service if imposition of such tax upon that person or service would be in violation of the Constitution of the United States or the Constitution of the State of California, or in violation of a federal statute or state statute applicable to Charter Cities. 2. The City. B. The taxes imposed by this ordinance on the use of gas and electric and gas service shall not apply to any service user who participates in Pacific Gas and Electric Company's CARE (California Alternate Rates for Energy) program. C. Any service user exempt from the taxes imposed by this ordinance described in subsection (A) (1) of this section, other than state and federal agencies or their subdivisions with commonly .recognized names, shall file an application with the Tax Administrator for an exemption. Such application shall be made upon a form supplied 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 utility service suppliers serving that service user. If deemed exempt by the Tax Administrator, such service user shall give the Tax Administrator timely written notice of any change in utility service suppliers so that the Tax Administrator can properly notify the new utility service supplier of the service user's tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of utility users taxes collected and remitted to the Tax Administrator from such service user as a result of such .non-compliance. Upon request of the Tax Administrator, a service supplier or non- utility service supplier, or their billing agents, shall provide a list of the names and addresses of those customers that, according to their billing records, are deemed exempt from the utility users tax. D. The City Council may, by ordinance or resolution, establish that one or more classes of persons or one or more classes of utility services otherwise subject to payment of a tax imposed by this ordinance shall be exempt, in whole or in part from such tax. Resolution No. 2003-1.42 N.C.S. Page 10 E. The Tax Administrator shall prepare a list of the persons and/or utility services that the Tax Administrator is aware are exempt from the provisions of this ordinance by virtue of this section and furnish a copy thereof to each service supplier. 4.50.040 Electricity Users Tax. A. There is hereby imposed a tax upon every person using electricity in the City. For the first five years that the tax imposed by this section is in effect, it 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 and/or necessary for the provision of electricity to the end-user, which are provided by a service supplier or non-utility supplier to a service user. After the first five years that the tax imposed by this section is in effect, the City Council shall review the rate annually and may adjust it by resolution. The rate set by the Council shall not exceed five percent (5%) of the charges made for such electricity or supplemental services. The tax shall be paid by the person paying for such electricity or supplemental services. B. "Charges," as used in this section, shall include: (1) energy charge; (2) distribution or transmission charge; (3) metering charge; (4) standby, reserves, firming, ramping, voltage support, regulation, emergency, or other similar minimum charges for service; (5) customer charge, service charge, demand charge, fuel or other cost adjustments, power exchange charge, independent system operator (ISO) charge, stranded investment or competitive transition charge (CTC), public purpose program charge, nuclear decommissioning charge, trust transfer amount (bond financing charge), franchise fee, franchise surcharge; and (6) all other annual and monthly charges or surcharges for electricity services. or programs, which are authorized by the City Council, the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges appear on a bundled or line item basis on the customer billing. "Charges" shall also 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. C. The Tax Administrator may, as s/he deems appropriate., survey the electric service suppliers to identify the various unbundled billing components of electric service that they commonly provide to residential and .nonresidential customers in the City and the charges therefore, including but not limited to those items that are mandated by state or federal regulatory agencies as a condition of providing electric service. Pursuant to Section 4.50.100 of this ordinance, the Tax Administrator may thereafter issue and disseminate to electric service suppliers an administrative ruling identifying those components and items that are (1) necessary for or common to the receipt, use, or enjoyment of electric service; or (2) currently, 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). D. As used in this section, the term "using electricity" shall not be construed to mean the storage of electrical energy by a person in a battery that he owns or Resolution No. 2003-142 N.C.S. Page 1 1 possesses for use in an automobile or other machinery or device apart from the premises upon which the electricity was received; provided, however, the term shall include the receiving of such electricity for the purpose of using it in the charging of batteries. The term shall not include electricity used iri water pumping by water corporations; nor shall the term include the mere receiving of such electricity by an electrical corporation or governmental agency at a point within the City for resale. E. The tax on electricity provided by anon-utility supplier or an electric utility not under the jurisdiction of this Chapter shall be collected and remitted in the manner set forth in Section 6 of this ordinance. 4.50.050 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 distribution system. For the first five years that the tax imposed by this section is in effect, it 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, and shall be paid by the person using such gas; provided, however, that the tax shall not apply to any charges for gas storage services when the service supplier cannot, as a practical matter, determine the location where such stored gas is ultimately used. After the first five years that the tax imposed by this section is in effect, the City Council shall review the rate annually and may adjust it by resolution. The rate set by the Council shall not exceed five percent (5%) of the charges made for such gas services. The tax shall be pdid by the person paying for such gas services. B. "Charges" as used in this section shall include: (1) the commodity charges for purchased gas, or the cost of gas owned by the service user, which. is delivered through a gas pipeline distribution system or by mobile transport; (2) gas transportation charges (including interstate charges to the extent not included in commodity charges); and (3) capacity or demand charges, service charges, transition charges, customer charges, minimum charges, annual and monthly charges, and any other charges for gas services or programs, which are authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. The "cost of gas owned by the service user" shall include 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. "Charges" shall also 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. C. The tax otherwise imposed by this section is not applicable to: (1) charges made for gas which is to be resold and delivered through mains and pipes; (2) charges made for gas used and consumed by a public utility or governmental agency in the conduct of its business or; (3) charges made by a gas public utility or gas used and consumed in the course of its public utility business; and (4) charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of California. Resolution No. 2003-142 N.C.S. Page 12 D. The tax that is calculated on charges for gas provided by self-production or by anon-utility supplier not under the jurisdiction of this chapter shall be collected and remitted in the manner set forth in Section 4.50.060 of this ordinance. 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 month shall be remitted by U.S. mail, to the Tax Administrator, and must be received by the Tax Administrator on or before the twentieth day of the following month; or, at the option of the person required to collect 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 day of the following month. 4.50.060 Service Users Receiving Direct Purchase of Gas or Electricity. A. Any service user subject to the tax imposed by Sections 4.50.040 or 4.50.050 of this ordinance, which produces gas or electricity for self-use, or which receives gas or electricity directly from anon-utility supplier not under the jurisdiction of this ordinance, or which otherwise is not having the full tax due on the use of gas or electricity in the City that is directly billed and collected by the service supplier or its billing agent, shall report that information and status to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within thirty (30) days of such use. 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 pattern payment 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, may be applied against any subsequent tax .bill that becomes due. B. The Tax Administrator may require a service user that meets the criteria of subsection (a) to identify its non-utility supplier and provide, subject to audit, invoices, books of account, or other satisfactory evidence documenting the quantity of gas or electricity used 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 had been provided by the service supplier, which is the primary provider of gas or electricity within the City. Rate .schedules for this purpose shall be available from the City. Resolution No. 2003-142 N.C.S. Page 13 4.50.070 Remittance of Tax. Taxes collected from a service user that are not remitted to the Tax Administrator on or before the due dates provided in this ordinance are delinquent. Should the due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following aSaturday/Sunday or legal holiday. 4.50.080 Actions to Collect. Any tax required to be paid by a service user under the provisions of this ordinance shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has willfully been withheld from the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit. Any person owing money to the City under the provisions of this ordinance shall be liable to an action brought in the name of the City for the recovery of such amount. 4.50.090 DutYto Collect; Procedures. The duty of service suppliers to collect and remit the taxes imposed by the provisions of this ordinance shall be performed as follows: A. The tax shall be collected insofar as practicable at the same time as, and along with, the collection of 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 2-4-235 will apply. B. Where a person 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. 4.50.100 Additional Power and Duties of 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 ordinance. B. The Tax Administrator shall have the power to adopt rules and regulations not inconsistent with provisions of this ordinance for the purpose of carrying out and enforcing the payment, collection, and remittance of the taxes herein imposed. A copy of such rules and regulations shall be on file in the Tax Administrator's office. C. The Tax Administrator may make administrative agreements to vary the strict requirements of this ordinance so that collection of any tax imposed hereby may Resolution No. 2003-142 N.C.S. Page 14 be made in conformance with the billing procedures of particular service supplier so long as said agreements result in collection of the tax in conformance with the general purpose and scope of this ordinance. A copy of each such agreement shall be on file in the Tax Administrator' s office. D. The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from the tax imposed by this ordinance. The Tax Administrator shall provide the service supplier with the name of any person who the Tax Administrator determines is exempt from the tax imposed hereby, together with the address and account number to which service is supplied to any such exempt person. The Tax Administrator shall notify the service supplier of termination of any person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt person. E. The Tax Administrator shall provide notice to all service suppliers, at least ninety (90) days prior to any annexation or other change in the City's boundaries. Said notice shall set forth the revised boundaries by street and address, along with a copy of the final annexation order from LAFCO. 4.50.1 10 Assessment; Service User Administrative Remedy. A. Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed from the amounts remitted to a person required to collect the tax, or that a service user has refused to pay the amount of tax, the person required to collect the tax may be relieved of the obligation to collect taxes due under this ordinance from certain named service users for specified billing periods as set forth below. B. The service supplier shall provide the City wifh amounts refused and/or unpaid along with the names and addresses of fhe service users neglecting to pay the tax imposed under provisions of this ordinance. Whenever the service user has failed to pay the amount of tax for a period of two (2) or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due. C. The Tax Administrator shall notify the service user that the Tax Administrator assumed responsibility to collect the taxes due for the stated periods and demand payment of such taxes. The notice shall be served on the service user by handing it to him personally or by deposit of the notice in the United States mail, postage prepaid thereon, 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's address change, to the last known address. If a service user fails to remit the tax to the Tax Administrator within fifteen (15) days from the date of the service of the notice upon him, which shall be the date of mailing if service is not accomplished in person, a penalty of twenty-five percent (25%) of the amount of the tax set forth in the notice shall be imposed, but not less than five dollars ($5}.The penalty shall become part of the tax herein required to be paid. 4.50.120 Records. Resolution No. 2003-142 N.C.S. Page 15 It shall be the duty of every person required to collect and remit to the City any tax imposed by this ordinance to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such tax as he may have been liable for the remittance to the Tax Administrator, which records the Tax Administrator shall have the right to inspect at all reasonable times. 4.50.130 Refunds. A. 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, provided that no refund shall be paid under the provisions of this section unless the claimant 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. The submission of a written claim, which is acted upon by the City Council, shall be a prerequisite to a suit thereon. (See California Government Code § 935). The City Council shall act upon the refund claim within the time period set forth in Government Code section 912.4. If the City Council fails or refuses to act on a refund claim within the time prescribed by Government Code 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. B. Notwithstanding the provisions of subsection (A) of this section, a service supplier may claim a refund or take as credit against taxes remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established that the service user from whom the tax has been collected did not owe the tax; provided however, that neither a refund nor a credit shall be allowed unless. the amount of the tax erroneously or illegally collected has either been refunded to the service user or credited to charges subsequently payable by the service user to the person required to collect and remit. A service supplier that has collected any amount of tax in excess of the amount of tax imposed by this ordinance and actually due from a service user, may refund such amount to the service user and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns, provided such credit is claimed in a return dated no later than one year from the date of overpayment. C Notwithstanding other provisions of this section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction makes a refund to service users of charges for past utility services, the taxes paid pursuant to this ordinance on the amount of such refunded charges shall also be refunded to service users, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly returns. In the event this ordinance is repealed, the amounts of any refundable taxes will be borne by the City. Resolution No. 2003-142 N.C.S. Page 16 D A service supplier may refund the taxes collected to the service user in accordance with this section or by the service supplier's customary practice. 4.50.140 Nonresidential User Rebate. A. Any nonresidential user who has paid combined electric or gas utility user taxes in excess of fifteen thousand dollars ($15,000), exclusive of interest and penalties, within any utility tax year subject to annual adjustment up or down in conformance with the Consumer Price Index shall be entitled to a rebate of a portion of such excess tax payments in accordance with the provisions of this section. B. Not later than thirty (30) days following the end of a calendar quarter or ninety (90) days following the end of the utility tax year within which period a nonresidential user qualifies for a rebate pursuant to this section, such user may apply to the Tax Administrator for a rebate on forms and in the manner prescribed by the Tax Administrator. C. Upon timely presentation of evidence satisfactory to the Tax Administrator a rebate shall be made to the nonresidential user in an amount equal to the total utility user taxes paid minus the sum of fifteen thousand dollars ($15,000). The Tax Administrator shall set off against such rebate any taxes, charges, interest, or late payments then due and owing the City. D. No rebate shall be paid to any nonresidential service user who fails to apply fora .rebate within the time prescribed by this section. 4.50.150 Severability. If any section, subsection, sentence, clause or phrase or word of this ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The People of the City of Petaluma and the City Council of the City of Petaluma hereby declares that it would have passed and adopted this ordinance and each and all provisions thereof irrespective of the fact that any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid. 4.50.160 Use of Tax Proceeds. All proceeds of the tax levied and imposed hereunder shall be accounted for and paid into a special fund designated exclusively for curb-to-curb repair and reconstruction of existing streets in the City. Proceeds from the tax shall not be used for the construction of new streets. The specific projects for which the proceeds of the tax have been deemed necessary are described in the inventory of roadways in need of repair presented by the Citizens Advisory Committee and will be subject to approval by the City Council as need dictates and funds are available. Each listed project will require separate review Resolution No. 2003-142 N.C.S. Page 17 and approval by the Council. Approval of the tax is not the equivalent of approval of any specific project listed and is not a guarantee that every project listed therein will be undertaken and completed in the time frame provided. In accordance with California Government Code section 50075.3, the Finance Director shall file an annual report with the City Council that contains the tax funds collected and expended and the status of any project required or authorized to be funded with revenue raised by the tax imposed by fhis ordinance. 4.50.170 Termination of Utility Users Tax. The tax levied and imposed by this ordinance shall terminate 20 years after its effective date, as established in Section 4.50.210 hereof. Service suppliers shall, upon notification, terminate any utility users tax commencing with the first full billing period that occurs after the termination of the tax. 4.50.180 Authority for Ordinance. This ordinance is enacted pursuant to the authority of Government Code Section 50077 and articles XIIIA, section 4 and XIIID, section 3(a) of the California Constitution. 4.50.190 Challenge to Tax. Any action to challenge the tax imposed by this ordinance shall be brought pursuant to Government Code section 50077.5 and Code of Civil Procedure sections 860 et seq. 4.50.200 Election Required for Tax to be Effective. The tax proposed by this ordinance shall not become effective until approved by two-thirds of the voters voting on the issue at the November 4, 2003 election. 4.50.210 Effective Date of Tax and 20-year Sunset. If this ordinance is approved by two-thirds of the voters voting on the issue at the November 4, 2003 election, pursuant to Elections Code Section 9217, the tax shall become effective ten (10) days after the Council certifies the results of the election and shall terminate 20 years thereafter. APPROVED by the following vote of the People of the City of Petaluma on November 4, 2003: ADOPTED by Declaration of the vote by the City Council of the City of Petaluma o n , 2003: AYES: NOES: ABSENT: Resolution No. 2003-142 N.C.S. Page 18 Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Resolution No. 2003-142 N.C.S. Page 19