Measure D - June 7, 2016

On June 7, 2016 Measure D passed by majority vote.

Full result details as recorded by the Alameda County Registrar.

Measure D 

TO MAINTAIN CITY OF HAYWARD SERVICES INCLUDING: NEIGHBORHOOD POLICE PATROLS, FIRE STATIONS/911, FIREFIGHTER, PARAMEDIC RESPONSE TIMES; PRESEVING YOUTH/ANTI-GANG PROGRAMS; EMERGECNY/DISASTER PREPAREDNESS; CITY STREETS, SIDEWALKS AND LIGHTING; SHALL THE CITY OF HAYWARD RENEW THE EXISTING UTILITY USERS TAX AT THE CURRENT 5.5 PERCENT RATE ON GAS, ELECTRICITY, VIDEO, TELECOMMUNICATIONS SERVICES, PROVIDING $16 MILLION ANNUALLY FOR 20 YEARS FROM THE CURRENT END DATE, WITH EXEMPTIONS FOR LOW-INCOME LIFELINE USERS; AND ALL MONEY USED FOR CITY OF HAYWARD SERVICES? 

Section Subject Matter

8-18.10 SHORT TITLE

 

8-18.20 DEFINITIONS

 

8-18.30 CONSTITUTIONAL, STATUTORY, AND OTHER EXEMPTIONS

 

8-18.40 LOW INCOME AND LIFELINE EXEMPTIONS

 

8-18.50 TELECOMMUNICATION USERS TAX

 

8-18.60 VIDEO USERS TAX

 

8-18.70 ELECTRICITY USERS TAX

 

8-18.80 GAS USERS TAX

 

8-18.90 COLLECTION OF TAX FROM SERVICE USERS RECEIVING DIRECT PURCHASE OF GAS OR ELECTRICITY

 

8-18.100 BUNDLING TAXABLE ITEMS WITH NON-TAXABLE ITEMS

 

8-18.110 SUBSTANTIAL NEXUS/MINIMUM CONTACTS

 

8-18.120 DUTY TO COLLECT - PROCEDURES

 

8-18.130 COLLECTIONS PENALTIES - SERVICE SUPPLIERS

 

8-18.140 ACTIONS TO COLLECT

 

8-18.150 DEFICIENCY DETERMINATION AND ASSESSMENT TAX APPLICATION ERRORS

 

8-18.160 ADMINISTRATIVE REMEDY - NON-PAYING SERVICE USERS

 

8-18.170 ADDITIONAL POWERS AND DUTIES

 

8-18.180 RECORDS

 

8-18.190 REFUNDS

 

8-18.200 APPEALS

 

8-18.210 NO INJUNCTION/WRIT OF MANDATE

 

8-18.220 NOTICE OF CHANGES TO ORDINANCE

 

8-18.230 EFFECT OF STATE AND FEDERAL REFERENCE /AUTHORIZATION

 

8-18.240 INDEPENDENT AUDIT OF TAX COLLECTION, EXEMPTION, REMITTANCE, AND EXPENDITURE

 

8-18.250 REMEDIES CUMULATIVE

 

8-18.260 TERMINATION OF UTILITY USERS TAX ARTICLE 18 UTILITY USERS TAX SEC.

 

8-18.10 SHORT TITLE. This Article shall be known as the “Utility Users Tax Ordinance” of the City of Hayward.

 

SEC. 8-18.20 DEFINITIONS. The following words and phrases whenever used in this Article 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 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, search functions, recording services, interactive services or other communications services 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 Hayward.

 

(e) “Gas” shall mean natural or manufactured gas or any alternate fuel which may be substituted therefore currently or in the future.

 

(f) “Mobile Telecommunications Service” has the meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C.A. Section 124) and the regulations thereunder.

 

(g) ”Month” shall mean calendar month.

 

(h) “Non-Utility Service Supplier” means:

(1) A service supplier, other than a supplier of electric distribution service 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.A. Section 79Z-5a), municipal utility district, federal power marketing agency, electric rural cooperative, or other supplier or seller of electricity; or

(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.

 

(i) “Paging Service” means a “telecommunications service” that provides transmission of coded radio signals for the purpose of activating specific pagers or similar reception devices, whether such transmissions include message and/or sounds.

 

(j) “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, or receiver, trustee, guardian, or other representative appointed by order of any court, or any other entity.

 

(k) “Place of Primary Use” means the street address representative of where the customer’s use of the telecommunications service primarily occurs, whether the residential street address or the primary business street address of the customer.

 

(l) “Post-paid Telecommunication Service” means the telecommunication service obtained by making a payment on a telecommunication-by-telecommunication basis whether through the use of a credit card or any other 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.

 

(m) “Prepaid Telecommunication Service” means the right to access telecommunication services, which must be paid for in advance and which enables the origination of telecommunications services and that is sold in predetermined units or dollars of which the number declines with use.

 

(n) “Private Telecommunication Service” means a telecommunication service that entitles the customer to exclusive or priority use of a telecommunications channel or limited 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.

 

(o) “Service Address” shall mean 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 or video equipment from which the communication originates or terminates, regardless of where the communication is billed or paid; or

(2) If the location in subsection (1) of the definition is unknown or mobile (e.g., mobile telecommunications service or VoIP service), the service address shall mean the location of the service user’s place of primary use; or

(3) For prepaid telecommunication service, “service address” shall mean the location associated with the service number.

 

(p) “Service Supplier” shall mean any person and/or the City, that provides any service subject to any tax hereunder, including, without limitation, telecommunication, video, electric and/or, gas service, to a user of such service within the City.

 

(q) “Service User” shall mean a person required to pay a tax imposed under the provisions of this Article.

 

(r) “State” shall mean the State of California.

 

(s) “Streamlined Sales and Use Tax Agreement” shall mean the multi-state agreement commonly known and referred to the Streamlined Sales and Use Tax Agreement, and as it is amended from time to time.

 

(t) “Tax Administrator” means the Finance Director of the City or his or her designee.

 

(u) “Telecommunications Channel” is a physical or virtual path of telecommunications over which signals are transmitted between or among customer channel termination points (i.e., the location where the customer either inputs or receives the telecommunications).

 

(v) “Telecommunications Services” means the transmission, conveyance, or routing of voice, data, audio, video, or any other information of 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 Telecommunications Commission as enhanced or value added, and includes video and/or data services that are functionally integrated with “telecommunications 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; mobile telecommunication service; prepaid telecommunication services; post-paid telecommunications services; private telecommunication services; paging service; 800 service (or any other toll-free numbers designated by the Federal Telecommunication Commission); 900 service (or any other similar numbers designated by the Federal Telecommunications Commission for services whereby subscribers 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, “telecommunications 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, programs or individual episodes of video programming, or provides or sells the capability to receive one or more channels, programs or individual episodes of video programming, including any telecommunications 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 telecommunications. 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 or video program delivery of any kind, be it through channel or other subscribers or to individual buyers of programs or unique episodes; 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 “telecommunications service” that allows a caller to dial a tollfree 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 includes any subsequent numbers or other designations designated by the Federal Communications Commission for toll free telecommunications services.

 

(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 a 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 includes any subsequent numbers or other designations designated by the Federal Communications Commission for pay for services calls.

 

SEC. 8.18-30 CONSTITUTIONAL, STATUTORY AND OTHER EXEMPTIONS.

 

(a) Nothing in this Article 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 Article 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 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 user’s taxes 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 8-18.200 of this Article. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 8-18.200 of this Article is a prerequisite to a suit thereon.

 

SEC. 8-18.40 LOW INCOME AND LIFELINE EXEMPTION.

 

(a) Each household within the City, in respect to which the annual income of such household is less than fifty percent (50%) of the median family income for the County of Alameda, as most recently established by the United States Department of Housing and Urban Development, is and shall be exempt from each and all of the taxes imposed by this Article upon presentation to the Tax Administrator of a written request for such exemption and reasonable proof of qualification for the exemption.

 

(b) Any service user who is enrolled in the California Public Utilities Commission’s Lifeline Telephone Program, also known as Universal Lifeline Telephone Service (ULTS), is and shall be exempt from the tax imposed for telecommunication services under Section 8-18.50 of this Article, upon presentation to the Tax Administrator of written confirmation of enrollment in the Lifeline/ULTS program. The service user seeking the exemption under this subsection must reside at the location receiving the service. The exemption shall not apply to any nonresidential service location.

 

(c) The Tax Administrator shall, within 60 days or receipt of an application for exemption, determine whether the exemption is granted, and if so, notify the service supplier. The exemption shall apply from the date of the Tax Administrator’s determination that the household qualifies.

 

(d) The exemption granted to a person pursuant to this Section shall become effective on the beginning of the first regular billing period which commences after the Tax Administrator has notified the service supplier that an exemption has been granted. Upon a showing of hardship by a service supplier, including the City, the Tax Administrator may, as an alternative, implement this Section 8-18.40 by requiring the exempt person to pay the tax and seek a refund under Section 8- 18.190. The Tax Administrator shall provide a refund claim form for this purpose.

 

(e) The Tax Administrator, in his or her sole discretion, may require annual written verification from the service user of his or her continuing eligibility for any exemption granted under this Section.

 

SEC. 8-18.50 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 five and onehalf percent (5.5%) of the charges made for such services and shall be collected from the service user by the telecommunication service 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 Article. 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.A. Section 124). The Tax Administrator may issue and disseminate to telecommunication service suppliers which are subject to the tax collection requirements of this Article, sourcing rules for the taxation of other telecommunication services, including, but not limited to, post-paid telecommunications services and prepaid telecommunication services consistent with federal and state constitutional provisions. In promulgating any sourcing rules hereunder, the Tax Administrator shall take into account, but shall not be legally bound by, custom and common practice that furthers administrative efficiency and minimizes taxation by more than one state of the same service usage, commonly referred to as multi-jurisdictional taxation. In doing so, the Tax Administrator may refer to and/or rely upon the Streamlined Sales and Use Tax Agreement, and/or any other reasonable precedent or resource.

 

(c) The Tax Administrator may issue and disseminate to telecommunication service suppliers, which are subject to the tax collection requirements of this Article, an administrative ruling identifying those telecommunication services, or charges therefore, that are subject to the tax of subsection (a) above.

 

(d) As used in this Section, charges for telecommunication services included in calculation of the tax shall include, but are 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, administrative and other cost recovery charges; and local number portability charges. “Telecommunications services” shall not include digital downloads that are not “ancillary telecommunications services”, such as books, music, ringtones, games and similar digital products.

 

(e) To prevent actual multi-jurisdictional taxation of the 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 local jurisdiction 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 local jurisdiction; provided, however, the amount of credit shall not exceed the tax owed to the City under this Section.

 

(f) 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 (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.

 

SEC. 8.18-60 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 five and one-half percent (5.5 %) 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 Article. 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:

 

(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 Article, an administrative ruling identifying those video services, or charges therefore, 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.

 

SEC. 8-18.70 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 and one-half percent (5.5 %) 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.

 

(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 charges 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, 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 City, and the charges therefore, 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.

 

(f) The tax on electricity provided by self-production or by a non-utility service supplier not under the jurisdiction of this Article shall be collected and remitted in the manner set forth in Section 8-18.90 of this Article. 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 (20th) 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 (20th) 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.

 

SEC. 8-18.80 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 and one-half percent (5.5 %) 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;

(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, 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 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 Article shall be collected and remitted in the manner set forth in Section 8-18.90 of this Article. 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 (20th) 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 (20th) 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.

 

SEC. 8-18.90 COLLECTION OF TAX FROM SERVICE USERS RECEIVING DIRECT PURCHASE OF GAS OR ELECTRICITY.

 

(a) Any service user subject to the tax imposed by Section 8-18.70 or by Section 8-18.80 of this Article, which produces gas or electricity for self-use; which receives gas or electricity, including any related supplemental services, directly from a non-utility service supplier not under the jurisdiction of this Article; 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.

 

SEC. 8-18.100 BUNDLING TAXABLE ITEMS WITH NON-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. The service supplier has the burden of proving the proper apportionment of taxable and non-taxable charges. 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 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 of the taxable and non-taxable services.

 

SEC. 8-18.110 SUBSTANTIAL NEXUS/MINIMUM CONTACTS. For purposes of imposing a tax or establishing a duty to collected and remit a tax under this Article, “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 Article. 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, affiliate, 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 within the City or distributed from a location within 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 services that are subject to a tax under this Article.

 

SEC. 8-18.120 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 Article 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 8-18.160 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 provisions of this Article. 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 Article 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 Article. 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.

 

SEC. 8-18.130 COLLECTION PENALTIES-SERVICE SUPPLIERS.

 

(a) Taxes collected by a service supplier 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 subsection, 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 75/100ths percent (.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 Article 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 Section shall become a part of the tax herein required to be paid.

 

(e) Notwithstanding the foregoing, the Tax Administrator may, in his or her discretion, modify the due dates of this Article to be consistent with any uniform standards or procedures that mutually agreed upon by other public agencies imposing a utility users tax, or otherwise legally established, to create a central payment location or mechanism.

 

SEC. 8-18.140 ACTIONS TO COLLECT. Any tax required to be paid by a service user under the provisions of this Article 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 Article 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 Article, along with any collection costs incurred by the City as a result of the person’s noncompliance with this Article, 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.C.A. Section 507(a)(8)(C).

 

SEC. 8-18.150 DEFICIENCY DETERMINATION AND ASSESSMENT - TAX APPLICATION ERRORS.

 

(a) The Tax Administrator shall make a deficiency determination if he or she determines that any service supplier or service user required to pay, collect, and/or remit taxes pursuant to the provisions of this Article 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 8-18.150 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 or entity allegedly owing the tax, which notice shall refer briefly to the amount of the taxes owed, plus interest at the rate of 75/100ths percent (.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 mailing of such notice, the person or entity allegedly owing the tax may file a request in writing with the Tax Administrator for a hearing on the matter.

 

(c) If the person or entity allegedly owing the tax 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 within thirty (30) calendar 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 or entity at least ten (10) calendar days prior to the hearing, and, if the Tax Administrator desires said person or entity 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 or entity owing the tax. The decision of the Tax Administrator may be appealed pursuant to Section 8-18.200 of this Article. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 8-18.200 of this Article 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 75/100ths percent (.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 Article shall commence from the date of delinquency as provided in this subsection (e).

 

(f) 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.

 

SEC. 8-18.160 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 Article 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 Article. Nothing herein shall require that the Tax Administrator institute proceedings under this Section 8-18.160 if, in the opinion of the Tax Administrator, the cost of collection or enforcement likely outweighs the tax benefit.

 

(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 75/100ths percent (.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.

 

SEC. 8-18.170 ADDITIONAL POWERS AND DUTIES OF THE TAX ADMINISTRATOR.

 

(a) The Tax Administrator shall have the power and duty to enforce each and all of the provisions of this Article.

 

(b) The Tax Administrator may adopt administrative rules and regulations consistent with provisions of this Article for the purpose of interpreting, clarifying, carrying out and enforcing the payment, collection and remittance of the taxes herein imposed. 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 Article 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 53570, 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 Article 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 purposes and scope of this Article; or,

(2) to avoid a hardship where the administrative costs of collection and remittance greatly outweigh the 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 Article, of any person required to collect and/or remit a tax pursuant to this Article. 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 8-18.150 of this Article 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 very compliance with this Article, 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 Article 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 75/100ths percent (.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 Article.

 

(g) Notwithstanding any provision in this Article 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 Article 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 industry practice or other precedence.

 

SEC. 8-18.180 RECORDS.

 

(a) It shall be the duty of every person required to collect and/or remit to the City any tax imposed by this Article 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, through the City Council, 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 Article, including the delivery of records in a common electronic format on readily available media if such records are kept electronically by the persons 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, meals, lodging and 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 Section 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: i) 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, ii) 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 Section 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 $500 on such person for each day following: i) the initial date that the person refuses to provide such access; or, ii) 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 Article.

 

SEC. 8-18.190 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 Article from a service user or service supplier, it may be refunded as provided in this Section:

 

(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 Article from a service user 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 subsection.

 

(b) The Tax Administrator, where the claim is within his or her settlement authority as established by ordinance or by resolution of the City Council from time to time, or the City Council where the claim is in excess of that amount, shall act upon the refund claim within forty-five (45) calendar days of the initial receipt of the refund claim. Said decision shall be final. If the Tax Administrator/City Council fails or refuses to act on a refund claim within the forty-five (45) calendar day period, the claim shall be deemed to have been rejected by the Tax Administrator/City Council on the forty-fifth (45th) day. 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) 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 Section shall be subject to the provisions of Government Code Section 945.6 and 946.

 

(d) 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 Article, to claim credit for such overpayment against the amount of tax which is due the City upon a subsequent monthly return(s) to the Tax Administrator, provided that: i) such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous collection of said tax; ii) the Tax Administrator is satisfied that the underlying basis and amount of such credit has been reasonably established; and iii) 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.

 

(e) Notwithstanding subsections (a) through (d) above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the City within the three (3) years next preceding a deficiency determination or assessment by the Tax Administrator in connection with an audit instituted by the Tax Administrator pursuant to Section 8-18.170. A service supplier shall not be entitled to said credit unless it first clearly establishes, to the satisfaction of the Tax Administrator, the right to the credit by written records showing entitlement thereto. Under no circumstances shall an overpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise be entitled under the one-year written claim requirement of this Section.

 

SEC. 8-18.200 APPEALS.

 

(a) The provisions of this Section apply to any decision (other than a decision relating to a refund pursuant to Section 8-18.190 of this Article), 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 8-18.190 of this Article), deficiency determination, assessment, or administrative ruling of the Tax Administrator, shall be required to comply with the appeals procedure of this Section. 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 8-18.190 of this Article), deficiency determination, assessment, or administrative ruling of the Tax Administrator he or she may appeal to the City Manager by filing a notice of appeal with the City Clerk within fourteen (14 ) calendar 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 Manager, no more than thirty (30) calendar days from the receipt of the appeal. The appellant shall be mailed 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) calendar 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) calendar 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.

 

SEC- 8.18.210 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 Article of any tax or any amount of tax required to be collected and/or remitted.

 

SEC. 8-18.220 NOTICE OF CHANGES TO ORDINANCE. If a tax under this Article 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.

 

SEC. 8-18.230 EFFECT OF STATE AND FEDERAL REFERENCE/AUTHORIZATION. Unless specifically provided otherwise, any reference to a state or federal statute in this Article shall mean such statute as is may be amended from time to time, provided that such reference to a statute herein shall not include any subsequent amendment thereto, repeal thereof, 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, the 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 Article is expanded or limited as a result of changes in state or federal law, no amendment or modification of this Article 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 Article.

 

SEC. 8-18.240 INDEPENDENT AUDIT OF TAX COLLECTION, EXEMPTION, REMITTANCE, AND EXPENDITURE. The City shall annually verify that the taxes owed under this Article have been properly applied, exempted, collected, and remitted in accordance with the Article, and properly expended according to applicable municipal law. The annual verification shall be performed by a qualified independent third party and the review shall employ reasonable, cost-effective steps to assure compliance, including the use of sampling audits. The verification shall not be required of tax remitters where the cost of the verification may exceed the tax revenues to be reviewed.

 

SEC. 8-18.250 REMEDIES CUMULATIVE. All remedies and penalties prescribed by this Article 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 Article.

 

SEC. 8-18.260 TERMINATION OF UTILITY USER TAX. The levy of taxes as provided in this Article shall expire on June 30, 2019, unless reenacted by a separate ordinance of the City Council following a majority vote of the electorate. The termination of the levy of taxes as provided herein shall not terminate the obligation to pay taxes levied on services used prior to such date. Taxes levied prior to June 30, 2019, shall remain a debt payable to the City. All provisions of this Article, except those relating to the levy of taxes, shall continue in full force and effect after such date.

 

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Introduced by Council Member Márquez

 

RESOLUTION OF THE CITY OF HAYWARD ESTABLISHING JUNE7,2016, AS THE DATE FOR AN ELECTION ON A PROPOSED BALLOT MEASURE SEEKING VOTER APPROVAL RELATING TO THE RENEWAL OF THE UTILITY USERS TAX FOR TWENTY YEARS AND REQUESTING THE BOARD OF SUPERVISORS OF ALAMEDA COUNTY TO CONSOLIDATE SAID ELECTION WITH THE PRESIDENTIAL DIRECT PRIMARY ELECTION; AND AUTHORIZING CERTAIN OTHER ELECTION ACTIVITIES.

 

WHEREAS, the voters of the City of Hayward approved a 5.5% Utility Users Tax (UUT) in May 2009; and 

 

WHEREAS, the current UUT will expire on June 30, 2019; and 

 

WHEREAS, at that meeting, the City Council concluded that all of the information presented indicated that, to maintain and preserve current essential service levels, the Council should call an election to ask the voters of the City to approve a twenty-year renewal of the UUT, the revenue from which would be used to support general menicipal services; and 

 

WHEREAS, on the basis of the forgoing, the City Council determined that it is appropriate to submit a ballot measure regarding a twenty-year renewal of the UUT to the voters of the City of Hayward for their approval and adoption at the general municipal election to be held in the City on June 7, 2016; and 

 

WHEREAS, the Hayward City Council is authorized by California Elections Code Section 9222 to place such measure before the voters; and 

 

WHEREAS, Elections Code Sections 9281 through 9287 set forth the procedures for arguments in favor of and in opposition to any City ballot measure; and 

 

WHEREAS, June 7, 2016 is the date of the City's general municipal election to be consolidated with the Presidential Primary Election and it is desirable that the election on the City's ballot measure be consolidated with the Presidential Primary Election to be held on the same date; that within the City, the precincts, polling places and election officers of the two elections be the same, and that the Alameda County DEpartment of Elections canvass the returns f the consolidated election and that the election be held in all respects as if there were only oone election; and 

 

WHEREAS, based on all the information presented at the March 1, 2016 meeting, both written and oral, including the staff reports, minutes, and other relevant materials, the City Council finds that under CEQA Guidelines 15060 (c)(2) and 15378, subdivisions (2) and (4) of subdivision (b), this tax does not constitute a project under CEQA and therefore review under CEQA is not required.

 

NOW THEREFORE BE IT RESOLVED that the City Council of the City of Hayward takes the following actions:

 

1. Recitals. The foregoing recitals are true and correct and are hereby incorporated by reference.

 

2. Call Election: Placement of Measure on the Ballot. Pursuant to California Constitution Article XIIC, Section 2; Government Code Section 53724; and Elections Code Section 9222, the City Council of the City of Hayward hereby calls an election at which it shall submit to the qualified voters for the City, a measure that, if approved, would adopt a 20 year renewal of the 5.5% Utility Users Tax or until June 30, 2039. This measure shall be consolidated with the established election to be conducted on June 7, 2016.

 

3. Ballot Language. The question to be presented to the voters is as follows:

 

To maintain City of Hayward services including: neighborhood police patrols, fire stations/911, firefighter, paramedic response times; preserving youth/anti-gang programs; emergency/disaster preparedness; city streets, sidewalks and lighting; shall the City of Hayward renew the existing Utility Users Tax at the current end date, with exemptions for low-income lifeline users; and all money used for City of Hayward Service?  YES
  NO

 

4. Proposed Ordinance. The ordinance authorizing the general tax to be approved by the voters pursuant to Section 2 ad 3 of the Resolution is as set forth in Exhibit A hereto. The City Council hereby approves the ordinance, the form thereof, and its submission to the voters of the City at the June 7, 2016 elecyion, as required by Revenue and Taxation Code Section 7285.9, subject to the approval of a majority of the voters votng on the measure at the election called by the adoption of this resolution. The entire text of the ordinance, attached hereto as exhibit A, shall be included in the voters pamphlet. The ordinance specifies that the rate of the Utility User Tax shall be at the rate of five and one half percent (5.5%) of the gross receipts made for gas, electricity, video, and telecommunication services and shall be collected from service user by the services supplier/provides.

 

5. Publication of Measure. The City Clerk is hereby directed to cause motice of the measure to be published once in the official newspaper of the City of Hayward, in accordance with Section 12111 of Elections Conde and Section 6061 of Government Code. 

 

6. Request to Consolidate and Conduct Election and Canvass Returns.

a. Pursuant to the requirement of Section 1403 of the Elections Code, the Board of Supervisors of the County of Alameda is hereby requested to consent and agree to the consolidation of a General Municipal Election with the Presidential Primary Election on Tuesday June 7, 2016, for the purpose of placing the measure set forth in Sections 3 and 4 on the ballot.

b. The County of Alameda Registrar of Voters is authorized to canvass the returns of the municipal election. The Election shall be held in all respect as if there were only one election, and only one form of ballot shall be used. 

c. The Board of Supervisors is requested to issue instructions to the Alameda County Registrar of Voters to take any and all steps necessary for the holding of the consolidated election.

d. The City of Hayward recognizes that additional costs will be incurred by the County of Alameda by reason of this consolidation and agrees to reimburse the County for any costs.

 

7. Submission of Ballot Argument and Impartial Analysis.

 

a. The last day for submission of direct arguments for or against the measure shall be by 5:00PM on March 8, 2016.

b. Direct arguments shall not exceed three hundred (300) words and shall be signed by not more than five persons.

c. The last day for submission of rebuttal arguments for or against the measure shall be by 5:00PM on March 18, 2016. Rebuttal arguments shall not exceed 250 words and shall be signed by not more than five persons.

d. The City Attorney and City Clerk are hereby authorized and directed to take any and all actions necessary under law to prepare for and conduct the June 7, 2016 election and appropriate all monies necessary, consistent with the law.

 

8. Effective Date. This Resolution shall become effective immediately upon its adoption and the City Clerk is directed to send certified copies of the Resolution to the Alameda County Board of Supervisors and the Alameda County Registrar of Voters.

 

9. CEQA. The approval of this REsolution is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., "CEQA," and 14 Cal. Code Reg. §§ 15000 et seq., "CEQA Guidelines section 15378 (b)(4), the tax is not a project within the meaning of CEQA because it creates a government funding mechanism that does not involve any commitment to any specific project that may result in a potentially significant physical impact on the environment. If revenue from the tax were used for a purpose that would have either such effect, the City would undertake the required CEQA review for that particular project. Therefore, under CEQA Guidelines section 15060, review under CEQA is not required. 

 

IN COUNCIL, HAYWARD, CALIFORNIA March 1, 2016 

 

ADOPTED BY THE FOLLOWING VOTE:

 

AYES: COUNCIL MEMBERS: Zermeño, Mendall, Jones, Peixoto, Lamnin, Márquez

MAYOR: Halliday

NOES: COUNCIL MEMBERS: None

ABSTAIN: COUNCIL MEMBERS: None

ABSENT: COUNCIL MEMBERS: None

 

Download the full resolution

NOTICE IS HEREBY GIVEN that a General Municipal Election will be held in the City of Hayward on Tuesday, June 7, 2016, to be consolidated with the Presidential Primary Election. The City Council unanimously proposes on its own motion, Resolution No. 16-032, for the purpose of submitting the following Measure____, as introduced by Council Member Márquez, to the voters of the City of Hayward:

 

BALLOT TITLE

 

“To maintain City of Hayward services including: neighborhood police patrols, fire stations/911, firefighter, paramedic response times; preserving youth/anti-gang programs; emergency/disaster preparedness; city streets, sidewalks and lighting; shall the City of Hayward renew the existing Utility Users Tax at the current 5.5 percent rate on gas, electricity, video, telecommunications services, providing $16 million annually for 20 years from the current end date, with exemptions for low-income lifeline users; and all money used for City of Hayward services?”

 

SYNOPSIS OF THE MEASURE

CHAPTER 8, ARTICLE 18 UTILITY USERS TAX

 

Section Subject Matter

 

8-18.10 SHORT TITLE

8-18.20 DEFINITIONS

8-18.30 CONSTITUTIONAL, STATUTORY, AND OTHER EXEMPTIONS

8-18.40 LOW INCOME AND LIFELINE EXEMPTIONS

8-18.50 TELECOMMUNICATION USERS TAX

8-18.60 VIDEO USERS TAX

8-18.70 ELECTRICITY USERS TAX

8-18.80 GAS USERS TAX

8-18.90 COLLECTION OF TAX FROM SERVICE USERS RECEIVING DIRECT PURCHASE OF GAS OR ELECTRICITY

8-18.100 BUNDLING TAXABLE ITEMS WITH NON-TAXABLE ITEMS

8-18.110 SUBSTANTIAL NEXUS/MINIMUM CONTACTS

8-18.120 DUTY TO COLLECT - PROCEDURES

8-18.130 COLLECTIONS PENALTIES - SERVICE SUPPLIERS

8-18.140 ACTIONS TO COLLECT

8-18.150 DEFICIENCY DETERMINATION AND ASSESSMENT-TAX APPLICATION ERRORS

8-18.160 ADMINISTRATIVE REMEDY - NON-PAYING SERVICE USERS

8-18.170 ADDITIONAL POWERS AND DUTIES OF THE TAX ADMINISTRATOR

8-18.180 RECORDS

8-18.190 REFUNDS

8-18.200 APPEALS

8-18.210 NO INJUNCTION/WRIT OF MANDATE

8-18.220 NOTICE OF CHANGES TO ORDINANCE

8-18.230 EFFECT OF STATE AND FEDERAL REFERENCE /AUTHORIZATION

8-18.240 INDEPENDENT AUDIT OF TAX COLLECTION, EXEMPTION, REMITTANCE, AND EXPENDITURE

8-18.250 REMEDIES CUMULATIVE

8-18.260 TERMINATION OF UTILITY USERS TAX

 

The complete text of the measure is on file in the City Clerk’s Office, 777 B Street, Hayward, and is available on the City’s website at http://www.hayward-ca.gov.

 

NOTICE IS FURTHER GIVEN by the City Clerk, pursuant to the provisions of Sections 9285 and 9286 of the Elections Code of the State of California, that the following deadlines are hereby established as the final dates on which arguments and rebuttal arguments for and against the measure appearing on the ballot for the General Municipal Election to be held on June 7, 2016, may be submitted to the City Clerk for printing and distribution to the voters as required by law:

 

Deadline for Filing Primary Arguments: 5:00 P.M., Tuesday, March 8, 2016

Deadline for Filing Rebuttal Arguments: 5:00 P.M., Friday, March 18, 2016

 

Primary Arguments, not to exceed 300 words in length, and Rebuttal Arguments, not to exceed 250 words in length, are to be submitted to the City Clerk, 777 B Street, Hayward, on or before the deadlines. Submitted arguments are kept confidential until after the filing deadline. Arguments cannot be changed after the deadline.

 

NOTICE IS FURTHER GIVEN that there shall be set a ten calendar day examination period for public review of said Arguments. During this time, any registered voter of the election jurisdiction, or the elections official, may seek a writ of mandate or an injunction requiring any or all of the materials to be amended or deleted. The review period for Arguments is as follows: Primary Arguments commence on March 8 and end on March 18, 2016; Rebuttal Arguments commence on March 18 and end on March 28, 2016. The review period for the Impartial Analysis commences on March 4, and ends on March 13, 2016.

 

Information regarding the election and measures is available on the City’s website at http://www.hayward-ca.gov. For additional information call (510) 583-4400.

 

On Election Day, June 7, 2016, the polls will be open from 7 AM through 8 PM.

 

Dated: March 3, 2016

Miriam Lens, City Clerk

City of Hayward

 

EnglishEspañol – 中文– Tagalog – Tiêng Viêt

The Hayward City Council has placed a measure on the June 7, 2016 ballot, asking voters to approve an extension of the Utility Users Tax Ordinance, set to expire in June, 2019. If passed by a simple majority of the voters voting on the measure, the Ordinance would continue to impose a five-and-one-half percent (5.5%) tax on telecommunication services (including land line telephone and cell phone services), video services, electricity and gas consumption. Water consumption and sewer services would not be taxed under the Ordinance. This tax was first approved by voters in May, 2009, for a ten-year period. If approved by a simple majority of voters on June 7, 2016, the Ordinance would expire June 30, 2039, unless further extended by the voters

 

In general, utility companies would collect the tax from consumers as part of their regular utility bills and would remit the tax to the City. Qualifying low-income residents and Lifeline program participants would be exempt from the tax, upon application and approval by the Tax Administrator. The deinition of each utility service and a description of how the tax is calculated are more particularly described in the Ordinance.

 

The utility users tax is a general tax intended to alleviate the City's ongoing general operating bedget deficit. Revenue generated by the tax would be deposited in the City's General Fund and used to support such essential public services, as police, fire and paramedic services; the operation of youth/anti-gang, disaster preparedness and economic development programs; street repairs and maintenance; graffiti removal; code enforcement and library programs, and other general government purposes. The Ordinance includes a requirement for an annual financial audit of tax collection and expenditures to be performed by a qualified, independent third party. The results of the annual audits would be available to the public.

 

A "Yes" vote on this measure means the voter is in favor of authorizinf the City to collect a utility users tax for the additional twenty-year period. A "No" vote on this measure means the voter is not in favor of the City collecting a utility users tax for an additional twenty-year period.

 

The above statement is an impartial analysis of this measure. If you desire a copy of the Ordinance, please contact the City Clerk's Office at 777 B Street, Hayward, CA 94541, the telephone number 510.583.4400, and a copy will be sent to you at no charge. Free copies of the Ordinance are available at the City Clerk's office via email to cityclerk@hayward-ca.gov

 

Download the full analysis

Rebuttal to argument in favor of Measure

 

Jeez, the supporting argument reads like an extortion note - keep paying or else the severe cuts you'll suffer will be devastating. 

 

Come on, give us a break.

 

The UUT was enacted to mitigate the effects of the recession. Now that the property values have returned to former highs and there are hundreds of residential units currently in the planning process, the city will be reaping a windfall. This is because in addition to normal revenue levels, the current UTT won't expire for another three years.

 

If we don't let it expire in 2019 as intended, we're going to be in big trouble. All of these wonderful taxes, fees, and assessments that have been enacted lately are killing the golden goose - our crucial business sector.

 

Despite a booming economy, our city is struggling to attract and retain good businesses. Consider Hayward's largest for-profit employer, bus manufacturer Gillig. This celebrated company has given up on Hayward and is moving to Livermore - our neighbor that has no utility tax, no emergency facilities tax, and a lower sales tax rate.

 

There's a whole lot more for you consider, but limited space here doesn't allow for it. therefore, if you're still inclined to think that extending the UUT at this time is a good thing, please visit www.heyhayward.com and review additional information so that at least you'll be making the most informed choice, 

 

Thank you for voting!

 

Lawrence Johmann, Hayward resident, property owner, and businessman

 

Download the full argument

Rebuttal to argument against Measure D

 

 

The opponent of Measure D is misinformed, misguided and inaccurate.

 

 

 

Here are the facts:

 

 

 

Hayward voters approved Measure A in 2009 to prevent devastating cuts to city services in the wake of the Great Recession. Yet today, even with an improving economy, the demand for city services has increased as City of Hayward expenses also continue to rise.

 

 

Even with the UUT, the City of Hayward has slashed budgets to the bone; reduced employee positions without imposing layoffs; reached agreement with each employee bargaining group to share more of the burden of their employment benefits. All while maintaining a high level of service. During this same period, ALL City of Hayward employees went five years with absolutely no cost of living increases in their salaries.

 

 

 

Like 150+ other jurisdictions in California, Hayward's Utility Users Tax is subject to state and Federal laws. That some services, like satellite TV are not taxed, is the result of Federal law and outside the control of the City.

 

 

 

More importantly, Hayward's UUT funds now comprise the City's third largest revenue source. Approximately 75% of UUT funds (roughly $12 million/year) go directly to public safety operations (police and fire).

 

 

 

Without the VITAL funding, the City will be forced to make SEVERE serevice cuts. 

 

 

Again, Measure D will NOT RAISE your tax rate. It simply extends WITHOUT INCREASING the current rate originally approved by voters. Legally, the State cannot take this funding away.

 

 

 

Protect your investment in Hayward - without raising your tax rate. 

 

 

 

VOTE YES ON D

 

 

 

www.protecthaywardsfuture.com

 

 

 

Download the full argument 

 

Held on April 20, 2016 in the City Hall Council Chambers

 

A yes vote is a vote in favor of authorizing the City to renew for 20 years of its current Utility Users Tax of 5.5 % on gas, electricity, television and telephone services. 

Speaker: Hayward Mayor Barbara Halliday 

A no vote is a vote against renewing the City's Utility Users Tax, allowing the tax to expire in June 2019 

Speaker: Larry Johmann 

 

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