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Resolution 2000-55 . . RESOLUTION NO. 2000-55 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GILROY CALLING A SPECIAL MUNICIPAL ELECTION ON NOVEMBER 7, 2000, FOR THE SUBMISSION TO THE VOTERS OF A QUESTION RELATING TO ADOPTING A NEW GENERAL TAX, REQUESTING CONSOLIDATION WITH THE GENERAL ELECTION, AND REQUESTING THE SERVICES OF THE REGISTRAR OF VOTERS WHEREAS, pursuant to the California Elections Code, the City Council desires to hold a special election on November 7, 2000 for the purpose of submitting a ballot measure relating to a new general tax to the voters at the special election; and WHEREAS, pursuant to California Elections Code section 9222, the City Council desires to submit to the qualified electors of the City a ballot measure deciding whether an ordinance shall be adopted to enact and impose a new general tax in the City, defined as an admission tax; and NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: Section I. The City Council hereby calls a special municipal election to be held in the City of Gilroy, California, in consolidation with the general election on November 7, 2000, and requests the services of the Registrar of Voters of the County of Santa Clara. Section 2. Pursuant to Elections Code section 9222, the City Council hereby orders that the following question shall be submitted to the qualified electors of the City of Gilroy at the special election: Measure B: Admission Tax "Shall the Admission Tax Ordinance of the City of Gilroy authorizing the enactment and imposition of a new general tax in the form of an admission tax of 5% of the Admission charge for certain events held within the City of Gilroy be approved? Yes 0 No. 0 Section 3. The proposed ordinance for the above-referenced Measure shall be in the form attached hereto as Attachment I and it is hereby incorporated by reference into this Resolution. Section 4, The ballots to be used at the special election shall be in the form and content as required by law. The Measure shall be designated Measure B on the ballots, unless it must be otherwise be designated to accommodate the consolidation of the City's special election with the general election. UH\486236.1 01-071004706002 -1- RESOLUTION NO. 2000-55 . . Section 5. The City Clerk is hereby authorized, instructed and directed to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election. Section 6. The polls for the election shall be open at 7:00 a.m. of the day of the election and shall remain open continuously from that time until 8:00 o'clock p.m. of the same day when the polls shall be closed, except as provided in Section 14401 of the Elections Code. Section 7, In all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections. Section 8. Notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law. Section 9. The City Clerk shall certifY to the passage and adoption of this Resolution. PASSED AND ADOPTED this 7th day of August, 2000 by the following vote: AYES: COUNCIL MEMBERS: G. ARELLANO, P. ARELLANO, MORALES, PINHEIRO, and SUDOL VELASCO and SPRINGER NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: NONE APPROVED: ----?% rJm v'<J IN;t-;: Thomas W. Springer, Mayo ~~.e~ ~.. Rhonda Pellin, City Clerk \JH\486236,1 01-071004706002 -2- RESOLUTION NO. 2000-55 . . Attachment 1 ORDINANCE NO. 2000-_ AN ORDINANCE OF THE CITY OF GILROY AMENDING THE GILROY CITY CODE BY ADDING A NEW CHAPTER 2B ENTITLED "ADMISSION TAX" NOW, THEREFORE THE PEOPLE OF THE CITY OF GILROY DO ORDAIN AS FOLLOWS: SECTION I This Ordinance may be cited as the Admission Tax Ordinance. The Gilroy City Code is amended by adding a new Chapter 2B, entitled "Admission Tax" which is to read as follows: Sec. 2B.1 Definitions. (a) follows: For purposes of this chapter, certain words and phrases shall be construed as (1) "Admission charge" shall mean any charge, whether or not so designated, for the right or privilege to enter, occupy, or use a seat or space in any facility as hereinafter defined, or to participate as a patron in any event. It shall also apply to the charge for a season or annual pass or subscription but shall not be construed to include complimentary, promotional or otherwise free-of-charge tickets or passes given by any operator or person. (2) "Director" shall mean the director of finance of the City or his or her designee. (3) "Facility" shall mean and include any building, structure, place or location wherein or at which any form of event is or can be held, carried on or conducted. (4) "Event" shall mean any entertainment or amusement activity that is a festival, exhibition, amusement or theme park, fair, carnival, circus, menagery or any other similar activity for which an admission charge is made, or for which a separate or additional charge or admission price is paid for the right or privilege of attending or participating in that activity. (5) "Operator" shall mean any person conducting, operating, or maintaining in whole or in part as principal, agent, officer, employee or independent contractor any event, or facility, as defined in this chapter, taxable under this chapter. For purposes of collecting the tax provided for in this chapter, there are two classes of operators, as follows: (a) one who conducts, operates, or maintains an established fixed facility, wherein events are held, carried on or conducted in the operator's normal course of business, hereinafter referred to as a "fixed operator"; and (b) any other operator, hereinafter referred to as a "nonfixed operator." (6) "Patron" shall mean any person who pays or on account of whom is paid any admission charge or admission price for the right or privilege of being admitted to or to use any facility, or to participate in any event. The term "patron" shall not include (i) a bona fide employee of the operator when admission to the facility is incident to said employee's duties, and (ii) any employee or official of the state of California, or any agency, instrumentality or \JH\484665.7 01-080804706002 -1- Ordinance No. 2000- Ordinance No. 2000- . . department thereof, the City, or United States Government, whose official duty makes it necessary to gain admission to any event. (7) "City" shall mean the city of Gilroy Sec. 2B.2 Tax Imposed. There is hereby imposed a tax in an amount equal to five percent (5%) ofthe price of the admission charge for the privilege of admission to any event in or at the facility. Such tax is a debt owed by the patron to the City, which debt shall be extinguished only by payment to the operator or to the City. Such tax shall be in addition to all other taxes or fees imposed by law. Sec. 2B.3 Printing of Price on Ticket. The price at which every admission ticket is sold, with the amount of the tax to be paid, shall be printed on the face of the ticket which is taken up by the operator of the event at which admission is claimed. Sec. 2B.4 Operator's Duties. Each operator shall collect the tax imposed by this chapter from any patron when he or she pays an admission charge or purchases an admission ticket or season or annual ticket or subscription. Every operator shall hold the tax imposed by this chapter in trust until the same is paid to the director as hereinafter provided. Sec. 2B.5 Exemptions. (a) An application may be filed with the director for exemption from the tax imposed by this chapter if the charge paid for the event is one specified by subsection (b). The director may require such information in the application for the exemption as will enable the director to determine whether the charge for which the exemption is sought is eligible therefor. (b) Charges levied for registration or participation in activities held or conducted by established primary and secondary public or private schools which operate and maintain fixed facilities devoted to educational purposes shall be exempt from the provisions ofthis chapter. Sec. 2B.6 Registration. (a) Prior to conducting, operating, or maintammg any event or facility which is subject to this chapter, each operator shall register with the director and obtain from him or her an admission tax collection certificate to be at all times posted in a conspicuous place on the premises, or on file with the manager of the facility. (b) Upon registration, a nonfixed operator shall make an advance deposit with the director equal to the estimated amount ofthe tax to be collected by the operator. (c) Nothing in this section prevents an operator from filing a request for a determination by the director concerning the application of this chapter to a proposed event. The UH\484665.7 01-080804706002 -2- Ordinance No. 2000- . . director may require such information as contained in the application for an admission tax collection certificate and such additional information as will enable the director to determine whether the event will be subject to the charge imposed by this chapter. The director's determination is final unless appealed pursuant to Section 2B 17. Sec. 2B. 7 Contents of Certificate. (a) The certificate issued pursuant to Section 2B.6 shall include, among other things, the following: (1) The name of the operator; (2) The address of the facility; (3) The date upon which the certificate was issued; (4) If issued to a nonfixed operator, the period of time during which the event, or if successive events on multiple days, the total period for all events; (5) A statement reading as follows: "This admission tax collection certificate signifies that the person named on the face hereof has fulfilled the requirements of the City's admission tax regulations by registering with the director for the purpose of collecting from patrons the admission tax and remitting said tax to the director. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner. This certificate does not imply that the business is either lawful or lawfully conducted and it does not constitute a permit or business license." Sec. 2B.8 Term of Certificate. (a) All certificates issued pursuant to Section 2B.6 shall be valid for the following periods: (1) Permits issued to fixed operators shall be valid for one year, and may be renewed annually thereafter. (2) Permits issued to nonfixed operators shall be valid for the period of each specific event for which the certificate is issued. A separate certificate shall be required for each individual event, except events which are scheduled to occur on multiple days, in which case a single certificate shall be valid for all successive occurrences of the event. Sec. 2B.9 Renewal of Certificate; Certificate Nontransferable. (a) The director shall issue or renew a certificate under this chapter except on a finding that the applicant for such certificate or renewal has willfully failed to remit or has expressed his or her intent to fail to remit the tax imposed by this chapter. (b) No admission tax collection certificate may be transferred or assigned. \JH\484665.7 01-080804706002 -3- . . Sec. 2B.10 Reporting And Remitting. (a) Each operator shall, on the date or within the time hereafter prescribed, make a return to the director, on forms provided by the director, of the total admissions charges collected and received and the amount of tax collected from patrons. At the time the return is filed, the full amount of any tax collected and due shall be remitted to the director. Those amounts not paid shall immediately become delinquent. The director may establish special reporting periods for any operator if the director deems it necessary to assure collection of the tax, and the director may require further information to be included in the return. Returns and payments are due and payable immediately upon cessation of business by the operator for any reason. (b) The regular reporting and remittance period shall be as follows: (1) For each fixed operator, each operator shall, on or before the last day ofthe month following the close of each calendar quarter, or at the close of any shorter reporting period which may be established by the director. (2) For each nonfixed operator, not later than ten (10) days after the conclusion of the event, or within such shorter reporting period that may be established by the director. The director shall calculate any additional tax due that exceeds the amount of the nonfixed operator's deposit, and that amount shall be immediately paid by the operator to the director. If reconciliation of the deposit amount with the return indicates a refund is due, it will be refunded to the operator within fifteen (15) days from the date the request for a refund is made by the operator. Sec. 2B.11 Collection Security. The director, whenever he or she deems it necessary to assure compliance with this chapter, may require any operator subject to the provisions of this chapter to deposit with the director security in the form of a sum of money, or bond in lieu thereof, conditioned upon the faithful compliance with the provisions of this section. The amount of the security shall be fixed by the director but shall not be greater than twice the estimated liability for the period for which accounting and return are required under Section 2B.8. Such security may be in the form of cash, cashiers' check made payable to the City, certified check made payable to the City, or a surety bond inuring to the benefit of the City, which bond shall be executed by a corporation authorized to do business in the state of California. Sec. 2B.12. Penalties and Interest. (a) Tax Returns and Remittance of Deficiency Determinations. (1) Original Delinquency. Any operator who fails to file a tax return or pay a deficiency determination within the time required shall pay a penalty of ten percent (10%) of the tax in addition to the amount of the tax. (2) Continued Delinquency. Any operator who fails to file a tax return or pay a deficiency determination on or before a period of thirty days following the date on which it first became delinquent shall pay a second delinquency penalty of ten percent UH\4B4665.7 01-080804706002 -4- Ordinance No. 2000- . . (10%) of the amount of tax in addition to the amount of tax and the ten percenl (10%) penalty first imposed. (3) Interest. Interest shall accrue as prescribed in subsection (c) below. (b) Tax Returns and Deficiency Determinations. (I) Fraud. If the director determines that any failure to pay tax found to be due under this chapter or the delinquent filing of tax return is due to fraud or an intentional disregard or an intent to evade this chapter or authorized rules and regulations, a penalty of twenty five percent (25%) of the tax shall be added thereto in addition to any other penalties which may be imposed. (2) Interest. Interest shall accrue as prescribed in subsection (c) below. (c) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one and one-half percent (1.5%) per month or fraction thereof on the amount of tax, exclusive of penalties, from the last day of the month following the monthly period for which the amount or any portion thereof should have been paid until the date of payment. (d) Penalties merged with tax. Every penalty imposed and such interest as accrues under the provisions of this section shall become part of the tax herein required to be paid. Sec. 2B.13. Failure to Collect. If any operator required to collect and remit the tax imposed by this chapter fails to file and return a remittance, the director shall proceed in such manner as he or she may deem best to obtain facts and information on which to base his or her estimate of the tax due. As soon as the director obtains such facts and information on which to base the assessment of any tax imposed by this chapter and payable by any operator who has failed or refused to collect the same and to make such report and remittance, the director shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. Sec. 2B.14 Deficiency Determination. If the director has reasonable cause to believe the return or returns of the amount of tax required to be paid to the City by any operator are erroneous, he or she shall compute and determine the amount required to be paid upon the basis of (I) facts contained in the return or returns, (2) other substantial evidence, or (3) application of standard accounting techniques. A deficiency determination for one period shall not constitute a release or waiver for other deficiencies in the same or another period. Sec. 2B.15 Offsetting of Overpayment. In making a determination pursuant to Sections 2B.13 and 2B.14, the director may offset any overpayments for a period or periods against penalties, and against interest on WH\484665,7 01-080804706002 -5- Ordinance No. 2000- . . underpayments. Interest on overpayments (for purposes of offsetting as in this section provided) and underpayments shall be computed in the marmer set forth in Section 2B.12. Sec.2B.16 Notice of Determination. The director shall give to the operator written notice of any determinations made pursuant to Sections 2B.13 and 2B.14. This notice may given personally or by depositing in the United States postal service, postage pre-paid, and addressed to the operator at his or her address as it appears in the records of the director. In case of giving notice by mail of any notice required under this chapter, the service shall be deemed complete at the time of deposit of the notice. Sec. 2B.17 Hearing and Appeal Procedures. Any operator served pursuant to Sections 2B.13 and 2B.14 may within ten (10) days after the service or giving such notice, make an application in writing for a hearing by the director to review the amount of tax determined and assessed pursuant to the City's Administrative Hearing Policy. Sec. 2B.18 Records. It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by this chapter to keep and preserve all records sufficient in nature to determine the amount of such tax as the operator may have been liable for the collection of and payment to the City. Records which shall be kept shall include, but are not limited to, records of admission on a daily basis by number and price and all cash register tapes. The director may examine at all reasonable times the books, papers, records and equipment of any operator liable for the tax imposed by this chapter and may investigate the character of the business of the operator in order to verify the accuracy of any return made, or if no return is made by the operator, to ascertain and determine the amount required to be paid. Sec. 2B.19 Refunds. (a) Whenever the amount of any tax, interest or penalty has been overpaid or 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 herein; provided that a claim in writing stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the director within one year of the date of payment. The claim shall be on forms furnished by the director. (b) An operator may claim a refund or take as credit against taxes collected and remitted any amount overpaid, paid more than once or erroneously or illegally collected or received. Neither a refund nor a credit shall be allowed unless the amount of the tax so collected has either been refunded to the patron or credited to an admission charge subsequently payable by the patron to the operator. (c) A patron may obtain a refund of taxes overpaid, paid more than once or erroneously or illegally collected or received by the City by filing a claim in the marmer provided in subsection (a), but only when a tax was paid by the patron directly to the director or when the \JH\484665.7 01-080804706002 -6- Ordinance No. 2000- Ordinance No. 2000- '. . . patron, having paid the tax to the operator, establishes to the satisfaction of the director that the patron has been unable to obtain a refund from the operator who collected the tax. (d) No refund shall be paid unless the claimant establishes his or her right thereto by written records showing entitlement thereto. Sec. 28.20 Actions to Collect. Any tax required to be paid by any patron under the provisions of this chapter shall be deemed a debt owed by the patron to the City. Any such tax collected by an operator which has not been paid to the City shall be deemed a debt owed by the operator to the City. Any person owing money to the City under the provisions of this chapter shall be liable to an action brought in the name of the City for the recovery of such amount, including attorneys' fees and costs of suit. Sec. 28.21 Tax in Addition to Other City Taxes. The tax imposed by this chapter is in addition to any other tax, license or permit fee that may be required of any person by the Gilroy Code or any other ordinance of the City. Sec. 2B.22 Disposition of Funds. All taxes and penalties received pursuant to this chapter shall be deposited by the director in the general fund. SECTION II The qualified voters of the City of Gilroy reserve the right to change the general tax herein enacted and imposed by this Ordinance. The City Council may modify this Ordinance without a vote of the people but not to increase the tax rate or to expand the application of said tax. SECTION III This Ordinance, being for the enactment and impOSitIOn of a general tax, shall be submitted to a vote of the people at the City's special election scheduled for November 7, 2000. This Ordinance shall become valid and binding if a majority of the voters voting thereon vote in its favor at said election and shall be effective on the date that the City Council certifies the results of said election. If the provisions of Government Code Sections 53720 et seq. or Article XIIIC of the California Constitution are duly repealed or amended, or interpreted by the courts so that a vote of the people is not required for enactment of this Ordinance, then this Ordinance shall take effect as provided for all other City ordinances and may be amended in the same marmer as all other City ordinances. SECTION IV If any section, subsection, part, clause, sentence or phrase of this Ordinance or the application thereof is for any reason held to be invalid or unconstitutional by a decision of any WH\41l4665,7 01-080804706002 -7- '. J . . court of competent jurisdiction, the validity of the remaining portions of this Ordinance, the application thereof, and the general taxes imposed shall not be affected thereby but shall remain in full force and effect, it being the intention of the voters to adopt each and every section, subsection, part, clause, sentence or phrase regardless of whether any other section, subsection, part, clause, sentence or phrase or the application thereof is held to be invalid or unconstitutional. SECTION V This Ordinance shall be in full force and shall take effect as provided by law. SECTION VI The Mayor shall sign this Ordinance and the City Clerk shall attest and certify to the passage and adoption ofthis Ordinance if a majority ofthe voters voting in the City's special election on November 7, 2000, approve the proposition asking whether the voters approve this Ordinance. PASSED AND APPROVED this _ day of November 2000. Thomas W. Springer, Mayor City of Gilroy Santa Clara County ATTEST: Rhonda Pellin, City Clerk \JH\484665.7 01-lJ80804706002 -8- Ordinance No. 2000- .. ' . ~ . . . . I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certifY that the attached Resolution No, 2000-55 is an original resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 7th day of August, 2000, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 9th day of August, 2000, ~~, ( Seal)