SR-091096-8C
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FD:MD:sd:br/f:\finance\admin\stfrpts\sruut2
Council Meeting: September 10, 1996 Santa Monica, CA
--') 101998
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Approval for First Reading of Amendment to Utility Users
Tax Ordinance and Resolution Adopting Administrative
Rules Concerning Implementation of the City's utility
Users Tax Ordinance
Introduction
This is to request that the City Council approve for first reading
the attached amendment to the city's utility Users Tax (UUT)
Ordinance and approve the attached resolution adopting various UUT
Administrative Rules.
The Administrative Rules would become
effective upon the effective date of the amendment to the
ordinance.
The
amendment
to the
ordinance would
authorize the Tax
Administrator
to
take
certain
actions
to
facilitate
the
implementation of the ordinance so long as those actions are
consistent with the Administrative Rules adopted by the City
Council.
Approval of the Administrative Rules will facilitate the efficient
and effective collection of UUT tax revenues. These rules will also
ensure that the City's UUT tax is correctly applied by all current
and future utility service Suppliers (as that term is defined in
section 6.72.010(e) of the Municipal Code) to all
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appropriate types
8e
. ,
,~ ,
:
SEP 1 0 1996
of utility services which may be provided by utility Service
Suppliers.
The proposed ordinance amendment and proposed Administrative Rules
do not change the current UUT tax rate or those utility services to
which the current tax rate is applied.
BackqrounCl
The city's utility Users Tax (UUT) Ordinance (Chapter 6.72 of the
Municipal Code) taxes the use of various utility services within
the city. The UUT tax is an important part of the City's tax
revenues which finance vital municipal services such as police,
fire, library, and public works. Under the city's DUT Ordinance,
the utility Service Supplier is required to collect the UUT tax
from its customers, and remit the proceeds to the City. It is
therefore of utmost importance that the utility Service Supplier
clearly understands how the various provisions of the City's UUT
Ordinance are to be administered and cooperates with the city by
correctly administering the City's UUT tax.
Until recently, most utility Service Suppliers have been
outstanding in their valuable role as the City's UUT tax
collectors. However, in the past year or two, the City and its UUT
auditors have encountered resistance from some utility Service
Suppliers to the City's efforts to assure compliance with its UUT
Ordinance through reviews and audits. This resistance appears to
be reflective of the following concerns of the utility service
Suppliers:
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. Possible future financial exposure should the City's OUT
Ordinance be impacted by legal or legislative extension of
the Guardino decision to charter cities. As a charter
city, Santa Monica is not currently subject to the Guardino
decision.
The September 1995 State Supreme Court Guardino decision
reversed lower court rulings concerning the voter approved
Proposition 62 which revised voting requirements for
various taxes.
. Possible liability for errors in the geo-coding of
customers (i.e. not applying the city's OUT tax to
customers actually located within the City due to the
utility incorrectly attributing the address of a customer
to another jurisdiction and vice versa) .
. possible liability for incorrectly applying or not applying
the City's UUT tax to various services provided by the
utility.
. Possibly incurring significant costs in responding to
auditing requests.
. Possible opposition to the City's use of third party
auditors.
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. The difficulty for utilities of having to comply with the
UUT ordinances of many cities with different administrative
rules and protocols.
These concerns have been exacerbated by the dramatic changes taking
place in the utility industries where existent or anticipated
deregulation and many new market entrants are exposing traditional
utility service Suppliers to increasing financial and competitive
risks.
In order to address these utility concerns, city staff and
representatives of a number of other public agencies have met with
each other I and with tax department representatives from various
utili ty Service Suppliers over the past several months. The
purpose of these meetings has been to understand the concerns of
the utility service suppliers, and to attempt to reasonably address
those concerns by crafting uniform administrative rules for
implementing UUT ordinances. Attached to this report is the result
of that considerable effort.
Description of Proposed ordinance Amendment
The amendment to the ordinance will (in addition to correcting
various typographical errors) authorize the city's Tax
Administrator (Director of Finance/City Controller) to take certain
actions to facilitate the implementation of the ordinance so long
as those actions are consistent with the Administrative Rules
adopted by the City Council. Specifically, the Tax Administrator
will be authorized (i) to waive the duty of a utility Service
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Supplier to collect the tax; (il) to require the utility Service
Supplier to collect the tax on a prospective basis onlYi and (iii)
to reduce or waive the penalty imposed upon utility Service
Suppliers, so long as such waiver, prospective application or
reduction or waiver is done consistent with the Administrative
Rules adopted by Resolution of the city council.
DescriDtion of Proposed Administrative Rules
Section I.A. This provision places the burden, in the future, on
the city to assure that the billing information (customer
addresses) used by the various utilities is accurate so customers
within the city pay the City's tax and customers outside of the
city do not pay the City's tax. The City's current UUT auditor,
Municipal Resource Consultants, performs this valuable service at
no cost to the utility, and at no increased cost to the city.
This provision also provides that the utility service supplier is
not responsible for those past errors due to inaccurate information
provided by the city or due to the city not making corrections to
the utility Service Supplier's billing data base when such errors
had come to the attention of the city.
Section I. B. This provision places the burden on the city to
provide utility Service Suppliers with accurate information
regarding its UUT Ordinance, including future amendments.
Municipal Resource Consultants has agreed to assist the city at no
increased cost to the City by placing a link in a data base on its
Internet Web site to the City's UUT Ordinance residing on the
city's Internet homepage. This data base will also include the
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ordinances of all other cities having a UUT ordinance, thus
creating a central source of comprehensive information for all
current and future utility service Suppliers. In addition, city
staff will provide a hard copy of the city's OUT Ordinance to all
applicable utilities.
Section I. C. Under this section, the utility service Supplier
would not assume any responsibility for legal challenges to the
City's UUT Ordinance. state law is being proposed by the
utilities that will accomplish the same thing.
Section I. D. The City will reimburse the utility for the cost of
responding to "extraordinary" audit requests, where, for example,
utility software modifications may be necessary to meet the City's
request for information.
Section I. E. The city will seek to assure UUT compliance by all
utility Service Suppliers, inCluding new market entrants.
section I. F. The City's Tax Administrator will attempt in good
faith to allow utilities to follow payment and remittance protocols
generally employed by other California public agencies. If future
changes to the city's current payment protocol would be
appropriate, staff will return to Council for an appropriate UUT
Ordinance change.
Section I. G. This provision allows utility Service Suppliers to
obtain "prospectivell tax application by cooperatively meeting with
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the city's Tax Administrator, in consultation with the city
Attorney, and fully disclosing the various services provided by the
utility. The Tax Administrator, in consultation with the City
Attorney, will then determine the appropriate application of the
UUT Ordinance to such services. Under section I. I., the Tax
Administrator, in consultation with the City Attorney, will also
participate with other public agencies to develop recommended
uniform application rules, to the extent feasible.
section I. H. This provision establishes a similar incentive as
section I.G. for "prospectivell application of the UUT Ordinance to
new services and technologies.
section I. I. This section anticipates the creation of an advisory
committee representing public agencies with UUT ordinances. The
Committee would make non-binding recommendations to participating
cities to achieve more uniformity in UUT application and UUT
administration. The advisory committee would also meet with
utility representatives to develop industry-supported
recommendations. The City's Tax Administrator, in consultation
with the City Attorney, would participate in such an advisory
committee.
section II contains a series of provisions designed to address
utility concerns regarding the city's use of a third party
auditor/consultant such as the city's current auditor, Municipal
Resource Consultants (MRC). Those concerns include confidentiality
of customer information, possible conflict of interest,
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reasonableness of audit requests, scope of audit, and right to
review draft audit reports.
section XII provides a mechanism (mediation) for addressing
disputes between the City and utility service suppliers regarding
the application of the Administrative Rules and the UUT Ordinance.
The City Council would have the ultimate authority for resolving
such disputes.
Budaet/Financial Impact
There is no budget or financial impact associated with approval of
the attached Administrative Rules.
Recommendation
City staff recommends that the city council approve for first
reading the attached amendment to the City's utility Users Tax
ordinance and the attached resolution which adopts the UUT
Administrative Rules attached to the resolution.
Prepared by:
Mike Dennis, Director of Finance-City Controller
Linda Mills-coyne, Deputy city Attorney
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FD:MD:brjf:\finance\admin\stfrpts\srtaxadm.2
Council Meeting: september 10, 1996
Santa Monica, CA
ORDINANCE NUMBER
(C1ty Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA AMENDING SECTIONS 6.72.010, AND 6.72.070
AND 6.72.090 TO THE SANTA MONICA MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Subparagraph (d) of Section 6.72.010 of the Santa
Monica Municipal Code is hereby amended to read as follows:
6.72.010 Definitions.
Except where the context otherwise requires, the
definitions given in this Section govern the construction
of this Chapter.
(a) Person.
"Person" shall mean any domestic or
foreign corporation, firm, association, syndicate, joint
stock company, partnership of kind, joint venture, club,
Massachusetts business or common-law trust, society,
individual, or municipal corporation.
(b) city.
"Cityll shall mean the city of Santa
Mon1ca.
1
(c) Telephone Corporation, Eleotrical corporation,
and Gas corporation. "Telephone corporation,lI
"electrical corporation," and lIgas corporation" shall
have the same meanings as defined in Section 234, 218,
222, 241 and 215.5, respectively, of the Public utilities
Code of the state of California, as said sections existed
on January 1, 1969. "Electrical corporat.1on" shall be
construed to include any municipality or franchised
agency engaged in the selling or supplying of electrical
power to a service user.
(d) Tax Administrat~ii~~. iTax
Admlnistratori shall mean the Director of
Finance-City Controller of the City of Santa
Monica.
(e) Service Supplier. "service Supplier" shall
mean a person required to collect and remit a tax imposed
by this Chapter.
(f) Service User. IIservice Userll shall mean a
person required to pay a tax imposed by this Chapter.
(g) Month. "Monthll shall mean a calendar month.
SECTION 2. section 6.72.070 of the Santa Monica Municipal
Code is hereby amended to read as follows:
6.72.070 Collection of tax.
(a) Every person recelvlng payment of charges
from a $~ervice ~~ser shall collect the amount of
2
tax imposed by this Chapter from the $.service
\t;t:tser.
(b) The tax shall be collected insofar as
practicable at the same time as and along with the
collection of charges made in accordance with the
regular billing practice of the ~servicc S~upplier.
(c) The duty to collect tax from a $service
~ser shall commence with the beginning of the
first regular billing period applicable to that
person which starts on or after the July I, 1969.
Where a person receives more than one (1) billing,
one or more being for different periods than
another, the duty to collect shall arise separately
for each billing period.
(J.) 1,ct",'lthstandIng t:.!1e fo-egoing, ':nc :-ax
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rrcs~ectlve b~sLs only, so long as such ~aLver O~
such prosp~ct 1 ve appl icati::m IS i:1 f.r 1 tJ ng and
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aOSO.....1tJ.cn oL the City Caunell to facll:'t.atc the
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H.ule~ adopted by Resolution 01 the C.ity Coune!),
tnc :a:(,:!sion of the Tax Admi:11 strator shall be
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SECTION 3.
section 6.72.090 of the Santa Monica Municipal
Code is hereby amended to read as follows:
6.72.090
Penalty.
(a) Taxes collected from a ~erV1ce Uttser
wh1ch are not remitted to the Tax Administrator on
or before the due dates provided in this ordinance
are delinquent.
(b) Penalties for delinquency in remittance
of
any
tax
collected
or
any
deficiency
determination, shall attach and be paid by the
person required to collect and remit at the rate of
f1fteen percent (15%) of the total tax collected or
imposed herein.
(c) The Tax Administrator shall have power to
impose additional penalties upon persons required
to collect and remit taxes under the provisions of
this ordinance for fraud or negligence in reporting
or remitt1ng at the rate of fifteen percent (15%)
of the amount of the tax collected or as recomputed
by the Tax Administrator.
4
(d) Every
penalty
imposed
under
the
provisions of this section shall become a part of
the tax required to be remitted.
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po~cr to reduco or to waive dn~ pen~]ty ~pcn
!'" : ~ . I. . I L :. ~ (. , I ,.t I.'j r ':. :... '!f.. I l r
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:,." ". ':. L ~ . :.:I~ l~"t r , I' . I
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=~: ;..::. cs -~. ~ -: t:
~~~ ~~~~~~~~=~~_,e ~~:e~ 3d~~ta~ L~ ~~=~:w~_~~ ';
~hc C:ty cou~~ll ~o td~illtate the ImpleThcntatio~
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I,..u 1 V3r of any penCl!. ty assesscu pursuant to th:;.~
~~;:';:'IJ-: S-..:... t.c ....e,.:ie :.~ i""=:~l=:;; :':'= ':'ii:lt-2:- -:'=..El-.
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ordlna~ce or Admlnjstrative R~l~s aJopted bi
He~olution 01 the Clty Councll, the decls~cn of the
..;J~ ;-.:. :-1 ~~-=--:.'":~r 5'~l..i:: ::e f::l_'!.: ..:.:-.1. :--.c-:" J:::;~c.:!:a.:.."_":'
to th~ Cjty Council, but sutject ~o j~dlcla~ rev~ew
pur~La~t to cc~ SectIon l094.~.
SECTION 4. Any provlslon of the Santa Monica Municipal Code
or appendices thereto inconsistent with the provisions of this
Ordinance, to the extent of such inconsistencles and no further, is
hereby repealed or modified to that extent necessary to effect the
provisions of this Ordinance.
5
SECTION 5. If any section, subsection, sentence, clause, or
phrase of thlS Ordinance is for any reason held to be invalid or
unconstitutional by a decision of any court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance.
The City Council hereby
declares that it would have passed this Ordinance and each and
every section, subsection, sentence, clause, or phrase not declared
invalid or unconstitutional without regard to whether any portlon
of the Ordinance would be subsequently declared invalid or
unconstitutional.
SECTION 6.
The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance.
The City Clerk shall
cause the same to be published once in the official newspaper
within 15 days after its adoption.
This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
~
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SHA JONES M UTRIE
City Attorney
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6
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FD:MD:sd:brjf:\finance\admin\stfrpts\sruut2
council Meeting: September 10, 1996
Santa Monica, California
(CCS) f(MeAJtJcf) 8Y
Rf:!;fJ. :tF q :1-0'2. c..c S
9-Z~-1/
RESOLUTION NUMBER 9086
(City Council Series)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
APPROVING UTILITY USER TAX ADMINISTRATIVE RULES
WHEREAS, the City of Santa Monica's utility Tax (UUT) Ordinance
(Chapter 6.72 of the Municipal Code) places a utility users tax on
the use of certain utility services within the city;
WHEREAS! the utility Service Supplier (as that term is defined
in section 6.72.010(e) of the Municipal Code) is required to impose
and collect the UUT tax from its customers, and remit the tax to
the c~ty;
WHEREAS! the cooperation of the utility service Supplier is of
great importance to the appropriate implementation of the City's
UUT ordinance;
WHEREAS, a number of utility Service Suppliers have raised
concerns regarding their role as tax collector, associated
liability! audits and third party auditors, and the need for
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....
Adopted and approved thIs 10th of September. 1996
tJ~~
Mayor
I hereby certIfy that the foregomg Resolution 9086 (CCS) was duly adopted at a meetmg
of the Cay Council held on the 10th of September, 1996 by the followmg vote
Aves
Councllmembers
Abdo. Ebner. Genser. Greenberg. Holbrook, O'Connor.
Rosenstem
Noes
Councllmem bers
None
Abstam
Councllmembers
None
Absent
CouncIlmembers
:\ one
ATTEST
~~ ~J-
CIty Clerk
AttaChment A
Utility Tax Administrative Rules
I. To assist utility Service Suppliers that perform the valuable
public service of collecting the City's utility Users Tax (UUT),
City will assume the following responsibilities:
A. Subsequent to adoption of these administrative rules, City
will assure the accuracy of its boundary information needed
for utility billing and tax collection purposes, by reviewing
and correcting the utility Service Supplier's computerized
billing data no less than once a year. The utility Service
Supplier shall not be responsible or liable for the collection
or payment of any UUT taxes that were due prior to the
adoption of these Administrative Rules that were not collected
due to the inaccuracy of information provided by the City or
due to the City's failure to make appropriate corrections to
the utili~y Service supplier's billing data.
B. The city will provide utility Service Suppliers with
accurate and timely ordinance information, including ordinance
amendments, at a central location (e.g., Web Page on
Internet) . City will provide written notice of ordinance
changes to persons designated by the utility Service supplier.
In the absence of special circumstances, as determined by the
Tax Administrator in his or her sole discretion, the utility
Service Supplier shall begin implementation of the UUT tax
change within sixty (60) days from the date on which the
utility Service Supplier receives the written notification
from the city. If the 60th day is not the first day of a
month, then the utility service Supplier shall implement the
changes on the first day of the month following the month in
which the 60th day occurs. To IIbegin implementation" means to
calculate and place the UUT tax in the customer billing.
C. The City will assume sole responsibility for defending any
legal challenge regarding the validity of the City's UUT
Ordinance, any part thereof, or any collection thereunder, and
shall defend and hold harmless any tax collecting agent
(utility Service Supplier) named in such action for properly
performing its legal obligations set out in the UUT Ordinance.
D. The City, in its sole discretion, will reimburse utility
Service Suppliers for the reasonable costs associated with an
extraordinary audit request (e.g., modifications to existing
billing software in order to respond to an audit request).
E. The City will take reasonable steps to assure that all
utility Service Suppliers, including new market entrants, are
correctly applying and collecting the UUT tax.
F. To the extent feasible, the city will permit utill ty
Service Suppliers to follow the same payment and remittance
protocol for UUT collections that is generally employed by
other California public agencies, provided that such protocol
is consistent with the City's UUT Ordinance.
G. Following the effective date of these Administrative
Rules, the Tax Administrator shall give notice to the utility
Service Suppliers within the City that they may request that
the Tax Administrator, in consultation with the City Attorney,
render a determination of the application of the UUT tax to
their various existing services. If such request is made
within ninety (90) days of the notice by the Tax Administrator
to the utility Service Supplier of these Administrative Rules,
then any determination by the Tax Administrator shall apply
prospectively. The Tax Administrator shall give the utility
Service Supplier at least sixty (60) days written notice
following the determination of tax application before
implementation of such changes shall be required. If the 60th
day is not the first day of a month, then the utility Service
Supplier shall implement the changes on the first day of the
month following the month in which the 60th day occurs. To
"begin implementation" means to calculate and place the UUT
tax in the customer billing.
H. Where new utility technologies are employed or new
utility services are being offered, a utility Service Supplier
may request that the Tax Administrator, in consultation with
the City Attorney, render a determination of the application
of the UUT tax to such new technology or service within ninety
(90) days of providing such services or technologies. Upon
rendering a determination of applicabili ty, the Tax
Administrator shall seek prospective application of the UUT
tax Ordinance to such technologies or services. The Tax
Administrator shall give the utility Service Supplier at least
sixty (60) days written notice before implementation of such
changes shall be required. If the 60th day is not the first
day of the month, then the utility Service Supplier shall
implement the changes on the first day of the month following
the month in which the 60th day occurs. To "begin
implementationU means to calculate and place the UUT tax in
the customer billing.
I. Regarding Paragraphs G and H above, the Tax Administrator,
in his or her sole discretion and upon consultation with the
City Attorney, may participate in an advisory committee,
comprised of representatives of public agencies with UUT
ordinances, to develop and recommend to such public agencies
(after meeting and conferring with utility representatives) :
uniform applications of the UUT tax to various utility
services and technologies; uniform implementation protocols;
and appropriate amendments to OUT ordinances to reflect
industry, regulatory, and technological changes.
J. The Tax: Administrator shall not reduce or waive any
obligation to collect any tax or any obligation to pay any
penalty pursuant to Santa Monica Municipal Code Sections
6.72.070(d) and 6.72.090(e}, unless the affected utility
Service Supplier requests a determination as is provided for
in Paragraphs G and H above. Pending completion of the
requested determination, the utility Service Supplier shall
continue to collect all applicable taxes.
II. The Tax Administrator has "the right and obligation to assure
fair and reasonable compliance with the VUT Ordinance. Due to the
complexity of utility services, technologies, and tax
administration, the Tax Administrator may require special outside
expertise to assist in performing compliance review of the VUT
ordinance. utility Service Suppliers have a legitimate interest
in assuring that such outside firms maintain the confidentiali ty of
utility customer information and conduct their compliance reviews
in a professional and efficient manner. The Tax Administrator's
use of special outside expertise shall therefore be subject to the
following rules:
A. The outside firm will execute a non-disclosure agreement
(in a form acceptable to the City Attorney) in which the
outside firm shall agree to maintain the confidentiality of
customer information and not to use individual customer
information for any purpose other than the UUT compliance
review of this city.
B. The outside firm will not initiate contact with a utility
customer in the course of performing its compliance
activities, except with the prior written consent of the
utility Service Supplier.
C. The outside firm shall fully disclose to the City any
potential conflict of interest (e.g., prior or proposed
representation of private utility customers within the City) .
D. The outside firm shall not make any data requests of a
utility Service Supplier by subpoena unless the outside firm
first receives the review and approval of the Tax
Administrator prior to the request being made to the utility
Service Supplier.
E. The outside firm shall be authorized to perform any
compliance review (including sampling audits and computerized
reviews) which, in its professional opinion, is reasonably
necessary to perform its contractual obligation to the city.
If a utility Service Supplier refuses to cooperate in
connection with such compliance review, the outside firm shall
immediately advise the Tax Administrator so that the Tax
Administrator may take appropriate remedial steps.
F. The outside firm will use its best efforts to accurately
identify all errors, whether such corrections are in favor of
the customer, the City, another public agency, or the utility
Service supplier.
G. The Tax Administrator shall make available to the utility
Service Supplier a copy of any compliance report prepared by
the outside firm regarding such utility service Supplier. The
utility service Supplier shall be afforded an opportunity (at
least thirty (30) days) to respond to any aspect of the report
before such report becomes final.
III. Dispute Resolution Process
A. If a utility service Supplier disputes an application of
these Administrative Rules, an interpretation of the UUT
Ordinance, or any other action by the Tax Administrator
(including its outside firm), the protesting utility service
Supplier may request a hearing pursuant to Paragraph B below
and in addition to any other request for relief may request to
the Tax -Administrator that the matter be submitted to
voluntary non-binding mediation within thirty (30) days of the
Tax Administrator's actions. If the Tax Administrator in his
or her sole discretion agrees to submit the matter to
voluntary non-binding mediation, and if the matter is not
resolved within thirty (30) days following the conclusion of
any mediation, the protesting utility Service Supplier may
request that the matter be set for a hearing before the city
council at the next available city council meeting.
B. If a hearing before the City Council is requested, the
city Councilor at the city Council's direction, a hearing
officer, shall hear the matter pursuant to Santa Monica
Municipal Code section 6.16.010 et seq. If a hearing examiner
hears the matter, the decision of the hearing examiner shall
be reviewed by the city Council at the next available City
council meeting following the hearing examiner's decision and
shall be accepted, rejected or modified following arguments
from all parties concerned. The city Council's decision shall
be final and subject to jUdicial review pursuant to CCP
Section 1094.5.
f:\finance\admin\stfrpts\uutattac.b