Chapter 8.20

EMERGENCY COMMUNICATIONS SYSTEM SUPPORT FEE

Parts:

• 1 Definitions

• 2 Imposition of Emergency Communication System Support Fee

• 3 Collection of Fee

Part 1

DEFINITIONS

Sections:

• 8.20.020 911 emergency communication system.

• 8.20.030 Access line.

• 8.20.040 Eligible operating costs.

• 8.20.050 Eligible project costs. 8.20.060 Exempt operating costs. 8.20.070 Exempt project costs.

• 8.20.080 Fee.

• 8.20.090 High-speed trunk line. 8.20.100 Lifeline service. 8.20.110 Local telephone service. 8.20.120 Operating costs. 8.20.130 Project costs. 8.20.140 Service location. 8.20.150 Service supplier. 8.20.160 Telephone corporation. 8.20.170 Telephone subscriber. 8.20.180 Trunk line. 8.20.190 Wireless telephone service.

Except where the context or particular provisions require otherwise, the definitions contained in this part shall govern the application and interpretation of this chapter.

(Ord. 27229.)

"911 emergency communication system" means an enhanced emergency telephone service which automatically connects a person dialing the digits 9-1-1 to an answering point established within a city department, and includes all aspects of the call delivery system, the call processing system and initial call dispatch, including, but not limited to, selective routing, automatic number identification (ANI), automatic location identification (ALI), and wireless 911. "911 emergency communication system" includes the functions of the San José emergency communications center; however, it does not include the police department and/or fire department staff who respond to requests for assistance by traveling to a site to which they are dispatched as a result of an emergency call.

(Ord. 27229.)

"Access line" means any connection from a customer within the geographic boundaries of the City of San José to a provider of local telephone service offered to the public for compensation. Within the meaning of this part, and without limitation, "access line" includes connections providing residential basic exchange service, business basic exchange service, PBX service (private branch exchange), foreign exchange service, and centrex service. "Access line" also includes a connection from a single mobile telephone to a commercial mobile radio service, as defined in 47 C.F.R. 20.3 as this section existed on October 1, 2002, which has as its place of primary use, as defined in the Mobile Telecommunications Sourcing Act, 4 U.S.C. 124(8), a location within the City of San José. Notwithstanding the foregoing, "access line" does not include any wireless access line if the subscriber can

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demonstrate to the city's satisfaction that the subscriber does not use the wireless access line to send or receive any telephone calls within the City of San José; and "access line" does not include any connection from a customer location within the City of San José to a provider of local telephone service, when for any reason a customer cannot use, as demonstrated by the customer to the city's satisfaction, for purposes of two-way telephony that connection to dial the digits 9-1-1 to reach the 911 emergency communication system within the city at an answering point within the city. (Ord. 27229.)

"Eligible operating costs" means the portion of operating costs attributable to the operation of the 911 emergency communication system for the telephone subscribers who are required to pay the fee imposed by the provisions of this chapter. Eligible operating costs shall not include exempt operating costs.

(Ord. 27229.)

"Eligible project costs" means the portion of project costs attributable to a project for the benefit of telephone subscribers who are required to pay the fee imposed by the provisions of this chapter. Eligible project costs shall not include exempt project costs.

(Ord. 27229.)

"Exempt operating costs" means the portion of operating costs attributable to operation of the 911 emergency communication system for telephone subscribers who are exempted from the fee by Section 8.20.220 or are otherwise not attributable to the telephone subscribers required to pay the fee imposed by the provisions of this chapter. (Ord. 27229.)

"Exempt project costs" means the portion of project costs attributable to a project for telephone

subscribers who are exempted from the fee by Section 8.20.220 or are otherwise not required to pay the fee imposed by the provisions of this chapter. (Ord. 27229.)

"Fee" means the emergency communication system support fee imposed under the provisions of this chapter.

(Ord. 27229.)

"High speed trunk line" means a trunk line with a capacity of at least 24 channels over a high capacity service, such as a 1.544 Mb, T-1, or integrated services digital network (ISDN) primary rate interface (PRI) line. Notwithstanding the foregoing, "high speed trunk line" does not include any trunk line which does not come within the definition of Section 8.20.180 of this chapter. (Ord. 27229.)

"Lifeline service" means discounted telephone service available to eligible low-income residential customers.

(Ord. 27229.)

"Local telephone service" means access to a local telephone system, providing two-way telephonic quality communication with substantially all persons having telephone or radio telephone stations constituting a part of such local telephone system, whether or not such service uses transmission wires. "Local telephone service" shall also include service provided through any technology currently existing or that may exist in the future, allowing a person within the City of San José to access the 911 emergency communication using that technology. For the purposes of the emergency communication system access fee, a person shall be construed to subscribe to "local telephone service" within the City of San José if he or she has a "place of primary use" as such term is defined in the Mobile

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Telecommunications Sourcing Act, 4 U.S.C. 124(8), within the geographic boundaries of the City of San José. "Local telephone service" does not include any system that is expressly excluded from the definition of "access line," "trunk line," or "high capacity trunk line." (Ord. 27229.)

"Operating costs" means any costs to operate, repair or maintain the 911 emergency communication system, including, but not limited to, costs for personnel, planning, training, software and hardware maintenance and upgrades, facility maintenance and repair and depreciation, equipment replacement, technical infrastructure, and all other direct and indirect costs incurred by the city in providing 911 emergency communication services. (Ord. 27229.)

"Project costs" means the direct and indirect costs of acquiring, refinancing and installing computerized call delivery processing and dispatch equipment and software, and costs associated with housing 911 emergency communication system equipment and staff in a facility appropriate for the provision of 911 emergency communication service, including any debt service payments related thereto. (Ord. 27229.)

"Service supplier" means any person supplying local telephone service to any telephone subscriber, pursuant to authority granted by the California public utilities commission or the federal communications commission, at a location within the City of San José. "Service suppliers" may include, without limitation, local exchange carriers, inter-exchange carriers, competitive access providers, cable television providers offering telecommunications services, providers of wireless telephone service, and any other entity offering direct connections between their premises and the premises of telephone subscribers.

(Ord. 27229.)

"Telephone corporation" shall have the same meaning as defined in Section 234 of the California Public Utilities Code or the most comparable successor definition. It also includes any person or corporation providing wireless telephone service to any telephone subscriber. (Ord. 27229.)

"Telephone subscriber" means any person who receives local telephone service or its function. (Ord. 27229.)

"Service location" means the premises of a telephone subscriber at which a working service point or primary station set provides the subscriber with basic exchange service and to which extension services are charged. One or more parcels of real property, which are contiguous or separated only by public streets or rights-of-way, and are under the common control of a single telephone subscriber, shall be considered a single service location for the purpose of implementing the annual fee cap established in Section 8.20.210 of this Chapter. (Ords. 27229, 27322.)

Trunk line" means a line between a service supplier's switching device and a private branch exchange or automatic call distributing system, or other similar device, at a telephone subscriber location. Notwithstanding the foregoing, "trunk line" does not include any line between a service supplier's switching device and a private branch exchange, automatic call distributing system, or other similar device, at a telephone subscriber location, when for any reason a customer cannot use, or is demonstrated by the customer to the city's satisfaction the customer does not use for purposes of two-way voice telephony, that line to dial the digits 9-1-1 to

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reach the 911 emergency communication system within the city at an answering point within the city. (Ord. 27229.)

"Wireless telephone service" means commercial mobile radio service as defined in 47 C.F.R. 20.3 as this section existed on October 1, 2002. (Ord. 27229.)

Part 2

IMPOSITION OF EMERGENCY COMMUNICATION SYSTEM SUPPORT FEE

San José, but shall be suspended for any period of time during which the tax imposed by Chapter 4.52 of this Code is in effect and being collected. Should the tax imposed by Chapter 4.52 be rendered inoperative or for any reason be deemed or declared invalid, the fee suspension shall also be deemed inoperative and the fees imposed under this Section 8.20.200 shall immediately become effective, at the rates established in the most recent city council resolution adopted pursuant to this Chapter 8.20.

(Ords. 27229, 27785, Measure J (Ord. 2008.1), adopted by electorate, 12-9-08)

Sections:

• 8.20.200 Persons subject to fee.

• 8.20.210 Amount of fee.

• 8.20.220 Exemptions.

• A. There is hereby imposed an emergency communications system support fee on every person who maintains access to the 911 Emergency Communication System by subscribing to telephone service within the City of San José.

• B. For purposes of this chapter, with respect to wireless telephone services, a person shall be construed to subscribe to telephone service within the City of San José if he or she has a "place of primary use," as such term is defined in the Mobile Telecommunications Sourcing Act, 4 U.S.C. § 124(8), within the geographic boundaries of the city.

• C. Only one payment of the fee herein imposed shall be required for any single access line, trunk line or high capacity trunk line, notwithstanding that access lines of more than one telephone corporation are used in furnishing telephone service to a telephone subscriber.

• D. The fee imposed under subsection A, above, shall be in effect for every person who subscribes to telephone service within the City of

• A. The amount of the fee imposed by this section shall be established by resolution of the city council and shall be paid, on a per-line basis, by the person paying for such local telephone service.

• B. No telephone subscriber shall be required to pay fees in excess of twenty thousand dollars per account per service location in any calendar year. The cost of wireless telephone services shall not be considered for purposes of the fee cap established by this subsection, regardless of whether the service location is also a primary place of use for a wireless line. The amount of the cap established by this subsection shall be adjusted annually by the consumer price index: all urban consumers for the San Francisco/Oakland/San José area for all items as reported by the United States Bureau of Labor Statistics.

• (Ord. 27229.)

Nothing in this chapter shall be construed as imposing a fee upon the access lines of:

• A. A lifeline customer of a service supplier; or

• B. A telephone corporation; or

• C. Coin-operated telephones; or

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• D. A nonprofit hospital which is exempt from federal income tax under Section 501(a) of the United States Code; or

• E. A nonprofit educational organization which is exempt from income tax under Section 501(a) of the United States Code; or

• F. Any person when imposition of such fee upon that person would violate the Constitution of the United States or that of the State of California or preemptive federal or state law; or

• G. City of San José, county of Santa Clara, state of California and United States government offices.

(Ord. 27229.)

• A. On or before December 15 of each year, beginning December 15, 2005, the director of finance shall identify data required and make appropriate requests to each service supplier for information sufficient to identify the number of access lines maintained by that service supplier during the preceding twelve months, including separate identification of the number of trunk lines and high-capacity trunk lines that are "access lines" for purposes of this chapter, as well as the number of exempt lines as defined in Section 8.20.220. Service suppliers shall respond to such request within sixty days. Upon a request by any service supplier, the director of finance shall provide the requesting service supplier with a nondisclosure, confidentiality agreement, which has been approved as to form by the city attorney, on behalf of the City of San José, and shall remain under a continuing duty to protect all information provided by service suppliers subject to such agreement from any use other than that described in this Section 8.20.230 and from disclosure to any third parties including, but not limited to, other service suppliers.

• B. No later than March 1 of each year, beginning March 1, 2006, and using the data provided by

  • the service suppliers pursuant to the immediately preceding subsection, the director of finance shall estimate the percentage of access lines that were subject to payment of the emergency communication system support fee during the immediately prior fiscal year. This percentage shall be identified in the director of finance report as the percentage of project costs and operating costs that are eligible project costs and eligible operating costs for the following fiscal year. The director of finance report shall also identify the adjusted amount of the fee cap established by Section 8.20.210.B. that will apply in the following fiscal year.

• C. No later than March 1, 2006 and by March 1 each even numbered year thereafter, the director of finance will evaluate information from industry sources, regulatory bodies and city experience to determine whether the fee rates for trunk lines and high capacity trunk lines continue to reasonably reflect the increased estimated access to the 911 emergency communication system provided to trunk line subscribers relative to access line subscribers; and such determination shall be included in the director of finance report.

• (Ord. 27229.)

Part 3

COLLECTION OF FEE

Sections:

• 8.20.300 Fee billing.

• 8.20.310 Fee payment.

• 8.20.320 Liability for fee.

• 8.20.330 Registration, reporting and remitting.

• 8.20.340 Interest and penalties.

• 8.20.350 Authority to perform compliance audits.

• 8.20.360 Failure to collect and report fee; determination of fee by director of finance.

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• A. The fee imposed by this part shall be billed to the telephone subscriber by the service supplier with its regular bill or as otherwise in accordance with the service supplier's normal billing procedures, and service suppliers shall collect such fees as are remitted from telephone subscribers so billed on behalf of the City of San José.

• B. The fee required to be collected by service suppliers under this chapter shall be added to the service supplier's billings to subscribers. The fee shall be stated separately as the City of San José "emergency communication system support fee" on billings by service suppliers whose billing systems as presently configured are capable of such programming, and the director of finance may enter into such administrative agreements as may be required to accommodate appropriate billing of the fee as provided in Section 8.20.380. Where authorized by federal or state law, the director of finance may require reasonable modifications to a service supplier's billing system platform to accommodate requirements of this subsection, provided an administrative agreement for recovery of all one-time costs incurred by the service supplier to comply is executed as allowed by Section 8.20.380.

• C. The duty to collect the fee from a telephone subscriber shall commence on the date in the council resolution establishing the fee; provided however, that within ten business days of the effective date of this chapter, the director of finance shall provide service suppliers with

written notice of their responsibility to bill and remit fees collected. In the event that notice is not sent within ten business days of the effective date of this chapter, service suppliers' duty to bill and remit fees collected shall commence no later than ninety days after receipt of notice from the city.

• D. Service suppliers shall not be liable to any telephone subscriber for billing, collecting or remitting the fee on behalf of the city and the service supplier shall not be responsible for investigating the validity of the fee or assisting in the refunding of any fee determined to be invalid or improperly imposed, pursuant to an administrative or judicial ruling, order or determination.

(Ord. 27229.)

• A. Fee revenues remitted to service suppliers by telephone subscribers shall be held for the city, and service providers shall remit the fee revenues collected to the director of finance on a monthly basis on or before the last day of the month following the month in which they were collected.

• B. In the event a telephone subscriber makes partial payment of the total charges billed for service and the emergency communication system support fee which have accrued for the billing period, absent express written direction by the telephone subscriber identifying those charges in dispute, such partial payment shall be applied to satisfy, in order: (1) charges due and owing to the service supplier for services and products; (2) applicable federal, state, and local sales and use taxes; (3) authorized pass through expenses, costs and other charges for which the service supplier may be directly liable for payment to federal and state governments including, but not limited to, universal service fee (USF) charges; and (4) charges for which service providers are acting as mere conduits for collection and remittance including, the City of San José emergency communication system support fee.

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• C. Service suppliers shall pursue the normal course of collection efforts for deficiencies in payment of the fee by telephone subscribers; provided, however, that nothing in this section shall impose any duty on a service supplier to take any legal action to enforce the collection of the fee hereinabove imposed. Notwithstanding the foregoing, a telephone subscriber shall not be relieved of the duty to pay the fee to the service supplier in any dispute of other items billed except in cases in which the dispute arises from claims of interruption or impairment of service on the access line on which the fee under this chapter is assessed.

• D. The service supplier, at its option, may assess a service charge of up to one-eighth of one percent of the emergency communication system access fees actually collected by the service supplier and remitted to the city, or such amount as may be agreed upon by the city and the service supplier in an administrative agreement approved in accordance with Section 8.20.380. The service charge may be deducted from the emergency communication system support fees remitted to the city at the time of remission.

• (Ord. 27229.)

• A. Any fee imposed on a telephone subscriber under the provisions of this chapter shall be deemed a debt owed by the telephone subscriber to the city until it has been paid to the city, except that payment to a service supplier is sufficient to relieve the subscriber from further liability for the fee.

• B. Any fee collected under the provisions of this chapter shall be deemed a debt owed to the City of San José by the person required to bill and remit such fee. The service supplier's service charge may be removed from the collection prior to remitting said fee.

• C. With the exception of the requirement to bill telephone subscribers for the fee and to pursue the normal course of collection efforts for

  • deficiencies in payment by telephone subscribers, nothing in this chapter shall impose any duty on a service supplier to enforce the collection of the fee hereinabove imposed. However, whenever a service supplier remits to the city funds collected as an emergency communication system support fee, the service supplier shall also provide the city with the name and address of any telephone subscriber who has not paid the fee for four or more billing periods and shall state the amount of such fee remaining unpaid. A service supplier in compliance with this subsection shall, following the provision of its report, be relieved of any further duty under this chapter for billing and attempts to collect uncollected fees from the telephone subscribers identified in the report identified in this subsection for the stated periods. The director of finance may, at his or her discretion, then assume the responsibility to collect the fees due for the stated periods, in which case the director of finance shall notify the telephone subscriber that the director of finance has assumed the responsibility to collect the fees due for the stated periods and may demand payment from the telephone subscriber of such fees.

• D. A service supplier shall be obligated to bill and remit fees collected consistent with the provisions of Sections 8.20.300 and 8.20.310. In the event a service supplier willfully refuses to bill or to remit those fees collected in due course, the service supplier shall be liable to the city in the amount of fees that were to be collected, as determined by the director of finance pursuant to Section 8.20.360.

• E. Any person owing money to the city under the provisions of this chapter shall be liable in any action brought in the name of the city for the recovery of such amount.

• (Ord. 27229.)

• A. Each service supplier providing local telephone services to subscribers within the city

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• shall register with the director of finance, upon a form prescribed by the director of finance, and shall set forth the name under which the service supplier transacts or intends to transact business, together with identification of the service supplier's registered agent for process, or such other agent the service supplier designates, to whom notices pursuant to this chapter shall be directed. All notices and communications required by this chapter must be directed to the agent designated in the service supplier's registration in order to be effective notice.

• B. Each service supplier shall, on or before the last day of each month, file a return with the director of finance, on forms provided by the director of finance, stating the amount of fees collected by the service supplier during the preceding month. At the time the return is filed, the full amount of the fee collected shall be remitted to the director of finance, less any amount retained as a service charge consistent with Section 8.20.310.D. The director of finance may require additional readily attainable information in the return. Returns and remittances are due immediately upon cessation of business for any reason.

• C. Service suppliers must maintain records of fees collected and remitted to the city for a period of at least three years after the date the fee is remitted.

• (Ord. 27229.)

• A. Service suppliers.

  1. Fees collected from a telephone subscriber which are not remitted to the director of finance by the service supplier by the due dates provided in this chapter, or fees that a service supplier willfully refuses to bill or remit pursuant to Section 8.20.310.A., are delinquent.

  2. Penalties for delinquency in remittance of any fees collected pursuant to Section 8.20.310 shall attach and be paid by the

service supplier required to remit, in accordance with the provisions of Section 1.17.130 of Chapter 1.17 of Title 1 of this Code.

3. The director of finance shall have power to impose additional penalties upon service suppliers required to collect and remit fee amounts under the provisions of Section 1.17.140 for fraud or intentional material misrepresentation or omission in reporting or remitting up to one hundred percent of the amount of the fees collected or as recomputed by the director of finance.

4. Every penalty imposed under the provisions of this subsection shall become a part of the fees required to be remitted to the city.

5. In addition to the penalties imposed in this subsection, interest shall be payable on any delinquency fee payment, in accordance with Section 1.17.150 of Chapter 1.17 of Title 1 of this Code.

6. Notwithstanding the foregoing, fees collected and not timely remitted by service suppliers to the director of finance in cases of unintentional errors and omissions, or events outside the control of the service supplier, shall not be subject to the interest and penalties of this chapter if the service supplier provides written notice of such an event to the director of finance and makes the required remittance as soon as reasonably practical.

• B. Telephone subscribers.

  1. Whenever the director of finance determines that a telephone subscriber has willfully withheld the amount of the fee owed by the subscriber from the amounts remitted to a service supplier, or that a telephone subscriber has failed to pay the amount of the fee for a period of four or more billing periods, or whenever the director of finance deems it is in the best interest of the city, the director of fi-

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nance shall relieve the service supplier of the obligation to collect fees due under this part from certain named service users for specified billing periods and collect the fees directly from the telephone subscriber.

2. Penalties shall attach for willful withholding of the amount of the fee owed from the amounts remitted to a service supplier, or failure to pay any fees imposed by this chapter to the service supplier within four billing periods in accordance with the provisions of Section 1.17.130 of Chapter 1.17 of Title 1 of this Code.

3. In addition to the penalties imposed in this subsection, any telephone subscriber who fails to remit fees and penalties within thirty days of the date the City of San José mails notification that the city has assumed responsibility for the collection of fees due for specified billing periods, shall pay interest on the amount of the fee, in accordance with Section 1.17.150 of Chapter 1.17 of Title 1 of this Code, from the date on which the fee first became delinquent to the service supplier until payment in full is received by the director of finance, plus such additional collection charge for each delinquent account as may be set by resolution of the city council.

   4. The penalties, interest and collection charges imposed in this subsection shall not be collected by the service supplier, but shall be determined and collected by the city.

   5. Every penalty imposed and such interest as accrues under the provisions of this subsection shall become a part of the fee herein required to be paid.

• (Ord. 27229.)

The director of finance shall have the authority to conduct audits of service suppliers, including

inspection, auditing and copying relevant records and material, including but not limited to electronic records during the service supplier's regular business hours, upon written request and not less than five business days notice in order to review compliance with this chapter.

(Ord. 27229.)

• A. If any service supplier willfully refuses to make, within the time provided in this chapter, any report and remittance of fees collected from telephone subscribers or any portion thereof required by this chapter, the director of finance may inspect, audit and copy records relevant and material to the service supplier's willful failure during the service supplier's regular business hours, upon written request and not less than five business days notice.

• B. As soon as the director of finance is able to procure facts and information upon which to base the assessment of any fee imposed by this chapter, collected by any service supplier who has willfully refused to make such report and remittance, the director of finance shall proceed to determine and assess against such service supplier the fee, interest and penalties provided by this chapter. In case such where determination is made, the director of finance shall give a notice of the amount so assessed by personally serving the notice, or by depositing it in the United States mail, postage prepaid, addressed to the service supplier to its registered agent for service of process in the state of California.

• C. The service supplier may, within ten days after the serving or mailing of such notice, make application in writing to the director of finance for a hearing on the amount assessed. If application by the service supplier for a hearing is not made within the time prescribed, the fee, interest and penalties, if any, determined by the director, shall become final and conclu-

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• sive and immediately be due and payable. If such application is made, the director shall give not less than five days written notice in the manner prescribed herein to the service supplier to show cause at a time and place fixed in the notice why the amount specified therein should not be fixed for such fee, interest and penalties. At the hearing, the service supplier may appear and offer evidence and/or legal authority as to why the specified fee, interest and penalties should not be so fixed.

• D. After such hearing, the director of finance shall determine the proper fee to be remitted and shall thereafter give written notice to the service supplier in the manner prescribed herein of the determination and the amount of the fee, interest and penalties. The amount determined to be due shall be payable within fifteen days.

(Ord. 27229.)

• A. The director of finance shall refund to the telephone subscriber any fees collected by the service supplier in excess of the annual limit described in Section 8.20.210B. The annual limit will be calculated using the payments made during the months of July through June. For the first year of operation of this chapter, payments made through June 2005 will use a prorated annual limit based on the number of months that payments were billed by the service suppliers. In order to be eligible for the refund, the telephone subscriber must provide a written request for the refund along with of proof of payment by the subscriber. Such claims and proof of payment must be submitted to the director of finance within ninety (90) days of the end of the one (1) year period as described above.

• B. Whenever the amount of any fee payment not provided for under this chapter has been overpaid or paid more than once or has been erroneously or illegally collected or received by the city under this chapter, a refund may be pro-

vided to the fee payer, but only if a claim, in writing, stating under penalty of perjury, the specific grounds upon which the claim is founded, has been presented by the fee payer to the director of finance within one (1) year of the date of payment, and except as modified by this chapter, in the manner prescribed by Part 3 of Division 3.6 of Title 1 of the California Government Code (commencing with Section 900 thereof) for the claims to which that part applies by its own terms, as those provisions now exist or shall hereafter be amended, and as further provided by this chapter.

• C. All emergency communications system support fee refund claims shall be made in writing and verified by the claimant or by his or her guardian, conservator, executor or administrator. Any claim filed on behalf of more than one person shall be verified by each person on behalf of whom the claim is filed or by his or her guardian, conservator, executor or administrator.

• D. All emergency communications system support fee refund claims shall be filed on the refund claim form prescribed by the director. In the event that the director has not prescribed a form of claim, the emergency communications system support fee refund claim shall contain:

  1. The information required by California Government Code Section 910; and

  2. The specific amount claimed to have been overpaid, paid more than once, or erroneously or illegally collected or received by the city; and

  3. The grounds upon which the claim is founded, with specificity sufficient to enable the director and other responsible city officials to understand and evaluate the claim; and

  4. Documentation supporting the amount of the refund sought, including but not limited to proof of payment.

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• E. Emergency communications system support refund claims shall be acted upon by the director within the time and, except as modified by chapter, in the manner prescribed by Part 3 of Division 3.6 of Title 1 of the California Government Code (commencing with Section 900 thereof) for the claims to which that part applies by its own terms, as those provisions now exist or shall hereafter be amended, and as further provided by this chapter.

• F. The director is authorized to allow, compromise or settle an emergency communications system refund claim if the claimant has demonstrated that all or a portion of the amount claimed has been overpaid, paid more than once, or has been erroneously or illegally collected or received by the city and the amount to be paid pursuant to the allowance, compromise or settlement is in an amount not to exceed twenty five thousand dollars ($25,000.00) and with the approval of the city attorney, if the amount to be paid does not exceed fifty thousand dollars ($50,000.00). In the event that the amount to be paid pursuant to an allowance, compromise or settlement of an emergency communications system support fee refund claim exceeds fifty thousand dollars ($50,000.00), the approval of the city council is required.

• G. In accordance with California Government Code Sections 935(b) and 945.6, no action against the city may be maintained by a person who has not complied with applicable claims presentation requirements.

• H. Any action brought against the city upon any claim or demand shall conform to the requirements of Section 940 through and including Section 949 of the California Government Code. Any action brought against any employee of the city shall conform to the requirements of Section 950 through and including Section 951 of the California Government Code.

• I. No refund shall be paid under the provisions of this section unless the claimant has established his/her right thereto by written records showing entitlement thereto.

• J. Service suppliers are not authorized to provide refunds of any fees established by this chapter.

• (Ords. 27229, 27785.)

The director of finance may enter into administrative agreements with service suppliers to vary the strict requirements of this chapter so that collection of any fee imposed herein may be made in conformance with the billing procedures of a particular service supplier so long as the overall result of said agreements results in billing of the fee in conformance with the general purpose and scope of this chapter. Such agreement shall be approved as to form by the city attorney prior to execution by the director of finance. A copy of each agreement shall be on file and available for public examination in the director of finance's office, except that if the agreement provides for confidentiality and nondisclosure of portions of such agreement, those portions of the agreement that are designated as proprietary and confidential by the service supplier shall be excluded from the public records maintained by the director of finance's office, and shall be subject to such duty of confidentiality and nondisclosure as may be set forth in the agreement. (Ord. 27229.)

• A. Any person aggrieved by any decision of the director of finance regarding the amount of fee or penalty owed or the duty or obligation to collect, report or pay a fee pursuant to this chapter, may appeal the decision of the director of finance by filing a written notice of appeal with the clerk of the appeals hearing board of the City of San José within fifteen days of the serving or mailing of such decision. The notice of appeal shall state the

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grounds for the appeal. Once a notice of appeal is received, the secretary of the appeals hearing board shall schedule a day, time and place for the hearing and shall provide written notice of the time and place of the hearing and shall mail such notice to the appellant at least ten calendar days prior to the date of the hearing.

• B. At the hearing, the appellant bears the burdens of production and persuasion to establish the factual and legal issues upon which the appeal is based.

  • At the conclusion of the hearing, the board shall make findings of fact based upon the evidence submitted and determine whether grounds exist for denial of the appeal or for adjustment of amounts owed. The person appealing shall be notified of the appeals hearing board decision in writing. The appeals hearing board decision shall be final. Any appellant who requests a hearing and who fails to appear at the hearing is deemed to waive the right to a hearing and the adjudication of the issues related to the hearing, provided that the hearing was properly noticed.

The director of finance may promulgate regulations and issue rules, determinations and interpretations consistent with this chapter as may be necessary or appropriate for the purpose of carrying out and enforcing the payment, collection and remittance of the fee and to apply this chapter and any rules and regulations promulgated thereunder in a lawful manner. The director of finance shall hold a public hearing and allow public comment on any proposed rule or regulation prior to adoption thereof. The finance director shall provide not less than ten-days notice of such public hearing. A copy of such rules and/or regulations shall be on file and available for public examination in the office of the city clerk. Failure or refusal to comply with any rules and regulations promulgated by the director of finance shall be deemed a violation of this chapter.

(Ord. 27229.)

• C. The amount of any fee finally determined as provided in this section shall be due and payable as of the date the original fee, together with any penalties that may be due thereon; provided, however, that if the amount of such fee is fixed in accordance with the original statement of the appellant, no penalty shall attach by reason of any delinquency.

• (Ord. 27229.)

Nothing contained in this chapter is intended to conflict with applicable rules, regulations and tariffs of any service supplier subject to the jurisdiction of the California public utilities commission. In the event of any conflict, the provisions of those rules, regulations and tariffs shall control. (Ord. 27229.)

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