Gilroy Municipal Code Art. I General Provisions

This chapter shall be known as the “Utility Users Tax Ordinance of the City of Gilroy.”

(Ord. No. 99-12, Exh. B, 9-7-1999)

This chapter is adopted pursuant to the powers of the City of Gilroy as a charter city as provided in Article II, Section 200, of the City Charter, and as authorized by Section 6 of Article XI of the Constitution of the State of California.

(Ord. No. 99-12, Exh. B, 9-7-1999)

Except where the context otherwise requires, the definitions contained in this section shall govern the construction of this chapter. The word “may” is always directory and discretionary and not mandatory; the word “shall” is always mandatory and not directory or discretionary.

“City”

shall mean the City of Gilroy, California, including all of the territory and jurisdiction thereof as presently constituted, and any and all of the same which shall later come into existence by any manner or means whatsoever.

“Director”

shall mean the director of finance of the City of Gilroy.

“Electrical corporation”, “gas corporation” and “telephone corporation”

shall have the same meanings as defined in Sections 218, 222, 234, respectively, of the Public Utilities Code of the State of California.

“Month”

shall mean a calendar month.

“Nonutility supplier”

shall mean:

(1)

A service supplier, other than a provider of electric distribution services to all or a significant portion of the city, which generates electricity in capacities of fifty (50) kilowatts or more, for its own use or for sale to others, and shall include but is not limited to any publicly-owned electric utility, investor-owned utility, cogenerator, municipal utility district, federal power marketing agency, electric rural cooperative, or other supplier or seller of electricity;

(2)

An energy service provider (ESP), electricity broker, marketer, aggregator, pool operator, or other electricity supplier other than provider of electric distribution services to all or a significant portion of the city, which sells or supplies electricity or supplemental services to electricity users within the city; and

(3)

A gas service supplier, aggregator, marketer or broker, other than a provider of gas distribution services to all or a significant portion of the city, which sells or supplies gas or supplemental services to gas users within the city.

“Person”

shall mean all domestic and foreign corporations, associations, syndicates, joint stock companies, partnerships of every kind, joint ventures, clubs, Massachusetts business or common law trusts, societies and individuals, and shall include a municipal corporation.

“Service supplier”

shall mean any entity or person that provides telephone communication, electric, gas, or video service to a user of such services within the city. The term shall include any entity or person required to collect or self-collect and remit a tax as imposed by this chapter, including its billing agent.

“Service user”

shall mean a person required to pay a tax imposed under the provisions of this chapter.

“Tax collector”

shall mean the director of finance, or his/her designee, of the City of Gilroy.

“Video service provider”

shall mean any person, company, or service which provides one or more channels of video programming or communications (including the leasing of channel access to provide such video programming or communication) to or from an address in the city, including to or from a business, home, condominium, or apartment, where some fee is paid, whether directly or included in dues or rental charges for that service, whether or not public rights-of-way are utilized in the delivery of the video programming or communications. A “video service provider” includes, but is not limited to, multichannel video programming distributors (as defined in 47 U.S.C. Section 552(12)), open video systems (OVS) providers, providers of cable television, master antenna television, satellite master antenna television, multichannel multipoint distribution services, direct broadcast satellite (to the extent allowed by federal law), and other providers of video programming or communications (including two-way communications), whatever their technology.

“Video services”

shall mean any and all services related to the providing of video programming (including origination programming), communications (including two-way communications), regardless of the content of the video programming or communications, and shall include the leasing of channel access (e.g., home shopping) to the extent that the service user is subject to an additional direct or indirect charge for programming or communications over the leased channel. “Video services” shall not include services for which a tax is paid under section 26 B.7 of this chapter.

(Ord. No. 99-12, Exh. B, 9-7-1999)

The taxes imposed by this chapter shall not apply to:

(a) Any person or service if imposition of such tax upon person or service would be in violation of the Constitution of the United States or the Constitution of the State of California; and

(b) The city.

Any service user believing itself exempt from the taxes imposed by this chapter pursuant to subsection (a), other than state and federal agencies or their subdivisions with commonly recognized names, shall file an application with the tax collector for the exemption. Such application shall be made upon a form supplied by the tax collector 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 providers serving that service user. If constitutionally exempt, such service user shall give the tax collector timely written notice of any change in utility service providers so that the tax collector can properly notify the new utility service provider of the service user’s tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of utility users taxes collected and remitted to the tax collector from such service user as a result of such non-compliance. Upon request of the tax collector, a service supplier or non-utility supplier, or their billing agents, shall provide a list of the names and addresses of those customers which, according to their billing records, are deemed exempt from the utility users tax.

(Ord. No. 99-12, Exh. B, 9-7-1999)

Nothing contained in this chapter is intended to conflict with applicable rules, regulations and tariffs of any service supplier or non-utility supplier subject to the jurisdiction of the California Public Utilities Commission. In the event of any conflict, the provisions of said rules, regulations and tariffs shall control.

(Ord. No. 99-12, Exh. B, 9-7-1999)

The taxes imposed by this chapter shall become operative November 1, 1971.

(Ord. No. 99-12, Exh. B, 9-7-1999)