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ORD 292 ORDINANCE NO. 292 AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING CHAPTER 3 . 30 OF THE RANCHO PALOS VERDES MUNICIPAL CODE, AND IMPOSING A UTILITY USER TAX ON USERS OF TELEPHONE, ELECTRIC, GAS AND WATER SERVICES IN THE CITY THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: Section 1. Chapter 3 . 30 of Title 3 of the Rancho Palos Verdes Municipal Code is hereby amended in its entirety, to read as follows: "Chapter 3 . 30 . Utility User Tax. Sections: 3 . 30 . 010 Short title. 3 . 30 . 020 Definitions. 3 . 30 . 030 Exemptions. 3 . 30. 040 Telephone user tax. 3 . 30 . 050 Electricity user tax. 3 . 30 . 060 Cogenerated Electricity user tax. 3 . 30. 070 Gas user tax. 3 . 30. 080 Water user tax. 3 . 30 . 090 Purpose. 3 . 30 . 100 Duty to collect and remit. 3 . 30 . 110 Interest and penalty. 3 . 30 . 120 Actions to collect. 3 . 30. 130 Additional powers and duties of Tax Administrator. 3 . 30 . 140 Records. 3 . 30. 150 Refunds. 3 . 30. 160 Violations; misdemeanors. 3 . 30 . 170 Effective date. 3 . 30 . 180 Legislative review. 3 . 30. 010 Short Title. This chapter shall be known as the "Utility User Tax Ordinance. " 3 . 30. 020 Definitions. The following words and phrases whenever used in this chapter shall be construed as defined in this section, except where the context clearly requires otherwise; A. "City" means the City of Rancho Palos Verdes. B. "Cogeneration electrical energy" means the use for the generation of electricity of exhaust steam, waste steam, heat, or resultant energy from an industrial, commercial or manufacturing plant or process, or the use of exhaust steam, waste steam, or heat from a thermal power plant for an industrial, commercial, or manufacturing plant or process. C. "Gas" means natural or manufactured gas or any alternate gaseous hydrocarbon fuel which may be substituted therefor. D. "Month" means a calendar month. E. "Person" means all domestic and foreign corporations, firms, associations, syndicates, joint stock companies, partnerships of every kind, joint ventures, clubs, Massachusetts business or common law trusts, societies and individuals. For the purposes of this Chapter, "person" I/ shall not include any public entity which purchases and uses utility services in the performance of governmental functions. F. "Service supplier" means any person required to collect and remit a tax imposed by this chapter. G. "Service user" means a person required to pay a tax imposed under the provisions of this chapter. H. "Tax Administrator" shall mean the Director of Finance of the City of Rancho Palos Verdes or other person designated by the City Manager to administer the provisions of this chapter. I . "Telephone Communication Services" means services which provide access to a telephone system and the privilege of telephone communication with substantially all persons having telephone stations which are part of such telephone system. "Telephone Communication Services" includes cellular telephone service and other telephone services that gain access to the public switched network by means of various technologies, but does not include other forms of land mobile service or maritime mobile services as defined in Section 2 . 1 of Title 47 of the Code of Federal Regulations which do not gain access to the public switched network. J. "Telephone corporation" , "electrical corporation" , "gas corporation" and "water corporation" shall have the same meanings as defined in Sections 234 , 218 , 222 and 241, respectively, of the California Public Utilities Code, or any successor statute. 3 . 30 . 030 . Exemptions. A. Nothing in this chapter shall be construed as imposing a tax upon any person when the imposition of such tax upon that person would be in violation of the Constitution of the United States or the Constitution of the State of California, or any federal or California statute. B. The City Council may, by resolution, establish one or more ORDINANCE NO. 292 PAGE 2 classes of persons or one or more classes of utility services otherwise subject to payment of the tax imposed by this chapter and to provide that such classes of persons shall be exempt, in whole or in part from the payment of the tax imposed by this chapter. I/ C. Charges made for energy used in the propulsion of a low emission motor vehicle, as defined in the Vehicle Code of the State of California, shall be exempt, provided that the owner of such vehicle installs and maintains a separate metering system for the energy provided to the vehicle. D. Notwithstanding the foregoing, the exemptions provided by subsections (B) and (C) shall not be applicable unless and until applied for by the service user and granted in accordance with the provisions of subsections (E) and (F) of this section. E. Any service user who becomes eligible for an exemption from the taxes imposed by this chapter because of the provisions of subsections (B) and (C) above, may file an application with the Tax Administrator for an exemption. Such application shall be made upon forms supplied by the Tax Administrator and shall recite facts under penalty of perjury which qualify the applicant for an exemption. The Tax Administrator shall review all such applications and shall certify as exempt those applicants determined to qualify therefor and shall notify all service suppliers that such exemption has been approved, stating the name of the applicant, the address to which such exempt service is being supplied, the account number, if any, and such other information as may be necessary for the service supplier to remove the exempt service user from its tax billing procedure. Upon receipt of such notice, the service supplier shall not be required to continue to bill any further tax imposed by this chapter from such exempt service user until further notice is given by the Tax Administrator. The service supplier shall eliminate such exempt service user from its tax billing procedure not later than sixty days after receipt of such notice from the Tax Administrator. F. All exemptions certified by the Tax Administrator shall be effective for a period of two years and may thereafter be renewed by the Tax Administrator upon application to the Tax Administrator showing that the prerequisite facts supporting the initial qualification for exemption still continue; provided, however, that the exemption shall automatically terminate with any change in the service address or residence of the exempt individual. If the new address or residence is still within the City, such individual may apply for a new exemption with each change of address or residence. Any individual exempt from the tax shall notify the Tax Administrator within ten days of any change in fact ORDINANCE NO. 292 PAGE 3 or circumstance which might disqualify said individual from receiving such exemption. It shall be a misdemeanor for any person to knowingly receive the benefits of the exemption provided by this section when the basis for such exemption either does not exist or ceases to exist. G. Every service supplier is authorized to bill the tax imposed I/ by this chapter to any new service user or to any account on which the service user's name has been changed (excluding changes attributable to spelling errors or other clerical errors) until such time as the service supplier receives notification from the Tax Administrator that an exemption has been granted pursuant to this section. H. Notwithstanding any of the provisions of this section, any service supplier who determines by any means that a new or nonexempt service user is receiving service through a meter or connection exempt by virtue of an exemption issued to a previous user or exempt user of the same meter or connection shall immediately notify the Tax Administrator of such fact and the Tax Administrator shall conduct an investigation to ascertain whether or not the provisions of this section have been complied with and, where appropriate, order the service supplier to commence collecting the tax from the nonexempt service user. I . Corporations defined under Section 3 . 30 . 020, subsection (J) of this ordinance shall be exempt from this tax. 3 . 30 . 040 . Telephone User Tax. A. There is hereby imposed a tax upon the amounts paid for intrastate, interstate, including the District of Columbia, or international telephone communication services, including cellular telephone services and other telephone services that gain access to the public switched network by means of various technologies, by every person using such services in the City. The tax imposed by this section shall be at the rate of three percent (3%) of the charges made for such services and shall be paid by the person paying for such telephone services. Said tax shall apply to all such charges billed to a telephone account having a situs in the City, irrespective of whether a particular telephone service originates or terminates within the City. The situs shall be the service address, if known, otherwise the situs shall be the billing address. ORDINANCE NO. 292 PAGE 4 B. As used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed I/ monthly or other periodic charge shall be included in the base for computing the amount of tax which is due. C. Notwithstanding the provisions of subsection (A) , the tax imposed under this section shall not be imposed upon any person for using intrastate, interstate, or international telephone communications services to the extent that the amounts paid for such services are exempt from or are not subject to the tax imposed under Section 4251 of Title 26 of the United States Code. 3 . 30 . 050 . Electricity User Tax. A. There is hereby imposed a tax upon every person using electrical energy in the City. The tax imposed by this section shall be at the rate of three percent (3%) of the charges made for such energy and shall be paid by the person paying for such energy. The tax applicable to electrical energy provided by a non-utility supplier shall be determined by applying the tax rate to the equivalent charges the service user would have incurred if the energy used had been provided by an electrical corporation franchised by the City. Non-utility suppliers shall install and maintain an appropriate utility-type metering system which will enable compliance with this section. B. "Charges, " as used in this section, shall include charges made for (1) metered energy and (2) minimum charges for service, including customer charges, service charges, standby charges, charges for temporary services, demand charges and annual and monthly charges and any other charges or cost adjustments authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. C. As used in this section, the term "using electrical energy" is not intended to, and does not, mean: (1) the storage of such energy by a person in a battery owned or possessed by him for use in an automobile or other machinery or device apart from the premises upon which the energy was received, provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries, (2) the mere receiving of such energy by an electrical public utility or governmental agency at a point within the City for resale, or (3) the use of such energy in the production or distribution of water by a public utility or a governmental agency. ORDINANCE NO. 292 PAGE 5 3 . 30 . 060 . Cogenerated Electricity User Tax. A. There is hereby imposed a tax upon every person using cogenerated electrical energy in the City at the rate specified in Section 3 . 30 . 050. The tax applicable to cogenerated electrical energy used on site shall be determined by applying the tax rate to the equivalent charges the cogenerator would have incurred if the energy used had been provided to the service user by an electrical corporation franchised by the City. I/ B. The cogenerator shall install and maintain an appropriate metering system which will enable compliance with this section. C. If the cogenerator sells the energy for consumption in the City, the tax will be imposed by applying the tax rate to the equivalent charges for such service the service user would have incurred if the energy used had been provided by the electrical corporation franchised by the City and shall be collected from the service user by the service supplier. 3 . 30 . 070 . Gas User Tax. A. There is hereby imposed a tax upon every person using gas energy in the City, which is delivered through mains or pipes or by mobile transport. The tax imposed by this section shall be at the rate of three percent (3%) of the charges made for such gas and shall be paid by the person paying for such gas. B. "Charges, " as used in this section, shall include: (1) charges made for metered gas or mobile transport, (2) gas transportation charges and (3) charges for service, including customer charges, service charges, minimum charges, demand charges, and annual and monthly charges and any other charge authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. C. As used in this section, the term "using gas energy" is not intended to, and does not, mean: (1) charges made for gas which is to be resold and which is delivered through a gas pipeline distribution system or mobile transport, (2) charges made for gas used by a cogenerator or as the primary fuel in a fuel cell to generate electricity, or (3) the use of gas energy in the production or distribution of water by a public utility or governmental agency. ORDINANCE NO. 292 PAGE 6 3 . 30. 080 Water User Tax. A. There is hereby imposed a tax upon every person using water in the City which is delivered through mains or pipes. The tax imposed by this section shall be at the rate of three I/ percent (3%) of the charges made for such water and shall be paid by the person paying for such water. B. "Charges, " as used in this section, shall include charges made for (1) Metered water and (2) Minimum charges for service, including customer charges, ready to serve charges, standby charges, and annual and monthly charges. C. There shall be excluded from the bases on which the tax imposed by this section is computed charges for water which is to be resold and which is delivered through mains or pipes. 3 . 30 . 090 . Purpose. The taxes imposed by this chapter are established solely to raise revenue for the general governmental purposes of the City. The revenues generated thereby shall be deposited in the general fund of the City and may be expended for any proper municipal purpose at the discretion of the City Council. 3 . 30. 100. Duty to Collect and Remit. The duty to collect and remit the taxes imposed by this chapter shall be performed as follows: A. The tax imposed by this chapter shall be collected from the service user by the service suppliers. The amount collected in one month shall be remitted to the City and shall be due on or before the twentieth day of the following month. If remitted by mail, such remittance shall be postmarked on or before the twentieth day of the following month; provided, however, that if the twentieth day falls on a weekend or legal holiday, and the remittance is made by mail, the remittance shall be postmarked as of the first business day following such weekend or legal holiday. B. The tax shall be collected at the same time as, and along with, the charges made in accordance with the service II supplier' s regular billing practice. If the amount paid by a service user is less than the full amount of the charge and tax which has accrued for the billing period, a proportionate share of both the charge and the tax shall be deemed to have been paid. C. The duty to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to that person which starts on or after the operative date of this chapter. The operative date of ORDINANCE NO. 292 PAGE 7 this chapter shall be December 20, 1993 . Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall commence separately for each billing. 3 . 30. 110. Interest and Penalties. I/ A. Taxes collected from a service user by the service supplier which are not remitted to the Tax Administrator on or before the due dates provided in this chapter are delinquent and are subject to penalties and interest. B. Penalties for delinquency in remittance of any tax collected or any deficiency determination, shall attach and be paid by the persons required to collect and remit at the rate of fifteen percent (15%) of the total delinquent tax collected or imposed herein. Whenever fraud or gross negligence in reporting and remitting tax collections is discovered, the Tax Administrator shall have the power to impose additional penalties of twenty percent (20%) of taxes owed upon persons required to collect and remit taxes under the provisions of this section. C. Every penalty imposed under the provisions of this section shall become a part of the tax owed and required to be remitted. D. Any person required to remit to the Tax Administrator delinquent taxes as required in this section, shall pay interest at the rate of one and one-half percent (1. 5%) per month or portion thereof on the amount of tax owed exclusive of penalties from the date on which the tax first became delinquent until paid. E. Notwithstanding the provisions of this section, no penalty or interest shall be applied if delinquencies are the result of natural disasters or other phenomena beyond the control of the person charged with collecting and remitting the tax, provided the person required to remit the tax notifies the Tax Administrator as soon as normal communications permit. 3 . 30 . 120 . Actions to Collect. Any tax required to be paid by a service user under the provisions of this chapter shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has not been remitted to the Tax Administrator shall be deemed a debt owed to the City by the service supplier. Any person owing money to the City under the provisions of this chapter shall be liable in an action brought by the City Attorney in the name of the City for the recovery of such amount. ORDINANCE NO. 292 PAGE 8 3 . 30. 130. Additional Powers 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 chapter. I/ B. The Tax Administrator shall have the power to adopt rules and regulations not inconsistent with the provisions of this chapter for the purpose of carrying out and enforcing the payment, collection, and remittance of the taxes imposed herein. A copy of such rules and regulations shall be maintained on file in the office of the Tax Administrator. C. The Tax Administrator may enter into administrative agreements to vary the strict requirements of this chapter so that collection of any tax billing imposed hereby may be made in conformance with the billing procedures of a particular service supplier, so long as said agreements result in collection of the taxes imposed herein in conformance with the general purpose and scope of this chapter. A copy of each such agreement shall be maintained on file in the office of the Tax Administrator. D. The Tax Administrator may make a special assessment for taxes not paid or remitted by a person required to pay or remit. A notice of the assessment shall include the amount of the taxes owned, penalties imposed and the time and place when such an assessment shall be heard by the City Council for confirmation or modification. The Tax Administrator shall mail a copy of such notice to the service supplier and to the service user at least ten days prior to the date of the hearing and shall post such notice for at least five days continuously prior to the date of the hearing at those places in the City normally designated for the posting of such notices. Any interested party having any objections may appear and be heard at the hearing, provided the objection is filed in writing with the Tax Administrator prior to the time set for the hearing. At the time fixed for considering said assessment, the City Council shall hear the same together with any objection timely filed and thereupon may confirm or modify said assessment by resolution. E. 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 that a service user has failed to pay the amount of the tax to a service supplier for a period of two or more billing periods, or whenever the Tax Administrator deems it in the best interest of the City, the Tax Administrator may relieve the service supplier of ORDINANCE NO. 292 PAGE 9 the obligation to collect taxes due under this chapter from certain named service users for specified billing periods. The Tax Administrator shall notify the service user that the Tax Administrator has assumed responsibility to collect the taxes due for the stated periods and shall demand payment of such taxes. The notice shall be served on the service user by handing it to him or her personally or by deposit of the 1/ 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 have changed his address, to his or her last known address. If a service user fails to remit the tax to the Tax Administrator within fifteen days from the date of the service of the notice upon him or her, 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. The penalty shall become part of the tax owed. E. The Tax Administrator may waive any of the penalties and interest established by this Chapter when the Tax Administrator determines that such a waiver is appropriate and in accordance with the intent of this Chapter. 3 . 30 . 140 . Records. It shall be the duty of every person required to collect and remit to the City any tax imposed by this chapter to keep and preserve, for a period of three years, all records as may be necessary to determine the amount of such tax as he or she may have been liable for the collection of and remittance to the Tax Administrator, which records the Tax Administrator or his/her designee shall have the right to inspect at all reasonable times. 3 . 30 . 150 . Refunds. A. Whenever the amount of any tax has been overpaid, paid more than once, or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded as provided in this section. B. A person required to collect and remit taxes imposed under this chapter may claim a refund or take a credit against taxes collected and not yet remitted in the amount overpaid, paid more than once, or erroneously or illegally collected or received, when it is established in a manner prescribed by the Tax Administrator that the 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 so collected has either been refunded to the service user or credited to charges ORDINANCE NO. 292 PAGE 10 subsequently payable by the service user to the person required to collect and remit. C. No refund shall be paid under the provisions of this section unless the claimant establishes his right thereto by written I/ records. D. 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 any refund to service users of charges for past utility services, the taxes paid pursuant to this Code 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 chapter is repealed, the amount of any refundable taxes will be borne by the City. 3 . 30. 160 . Violations; Misdemeanor. Any person who violates any of the foregoing provisions of this chapter is guilty of a misdemeanor and shall be punished therefor in conformance with Section 1 . 08 . 010 of this Code. 3 . 30 . 170 . Effective Date. This chapter, inasmuch as it provides for a tax levy for the usual and current expenses of the City, shall take effect immediately upon passage, except that the tax imposed by this article shall become operative and be imposed at the beginning of the first regular billing period on or after the effective date, as provided in Section 3 . 30. 100 hereof, and shall not apply prior to said date. 3 . 30. 180 . Legislative Review. Beginning in January, 1996, and every four years thereafter, the City Manager shall submit for consideration by the City Council an analysis of the revenues derived from the taxes imposed by this chapter. Based on the needs of the City, the City Council shall determine if any modifications to the rate is necessary or if the tax imposed by this chapter should be repealed. Said review shall be completed by the City Council prior to the adoption of the budget being prepared for the next fiscal year. This Chapter shall be repealed if the City Council does not conduct the review required by this Section 3 . 30 . 180 . Section 2 . Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each ORDINANCE NO. 292 PAGE 11 section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases might be declared unconstitutional. Section 3 . Certification. The City Clerk shall certify to the passage and adoption of this ordinance by the City I/ Council and shall cause the same to be posted as required by law. PASSED, APPROVED AND ADOPTED this 21 day of September, 1993 . IIIP 4 '') & __.a MAYOR ATTEST: q ) I? , / // CITY LERK ( STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF RANCHO PALOS VERDES ) I , JO PURCELL, City Clerk of the City of Rancho Palos Verdes do hereby certify that the whole number of members of the City Council of said City is four, that the foregoing ordinance, being Ordinance No. 292 , was introduced on September 7 , 1993 and was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on September 21, 1993 , and the same was passed and adopted by the following roll call vote: AYES: KUYKENDALL, McTAGGART, AND BACHARACH NOES: MAYOR BROOKS ABSENT: NONE ABSTAIN: NONE On 4t-t iikel-C CITY CLERK, CITY OF RANCHO PALOS VERDES ORDINANCE NO. 292 UUT.ORD PAGE 12 ORDINANCE NO. 292 •• RANCHO PALOS VERDES STATE OF CALIFORNIA COUNTY OF LOS ANGELES ) SS AFFIDAVIT OF POSTING CITY OF RANCHO PALOS VERDES ) The undersigned, being first duly sworn, deposes and says: That at all times herein mentioned, she was and now is the appointed City Clerk of the City of Rancho Palos Verdes; That on SEPTEMBER 24, 1993 , she caused to be posted the following document entitled: • AMENDING CHAPTER 3. 30 OF THE RANCHO PALOS VERDES MUNICIPAL CODE, AND IMPOSING A UTILITY USER TAX ON USERS OF TELEPHONE, ELECTRIC, GAS AND WATER SERVICES IN THE CITY. a copy of which is attached hereto, in the following locations: City Hall Los Angeles County Fire Station 30940 Hawthorne Blvd. Miraleste Station Rancho Palos Verdes 4000 Miraleste Plaza Rancho Palos Verdes U . S . Post Office 28649 S. Western Ave. Ladera Linda Community Center Rancho Palos Verdes 32201 Forrestal Drive Rancho Palos Verdes Hesse Park 29301 Hawthorne Blvd. Rancho Palos Verdes Park Rancho Palos Verdes 30359 Hawthorne Blvd. , Rancho Palos Verdes I certify under penalty of perjury that the foregoing is a true and correct affidavit of posting . „16 s ; CITY CLERK 30940 HAWTHORNE BOULEVARD / RANCHO PALOS VERDES, CA 90274-5391 / (213) 377-0360