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CC Ordinance No. 1888ORDINANCE NO. 1888 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO EXTENDING THE UTILITY USERS EXCISE TAX FOR A PERIOD OF FIFTEEN YEARS AND ORDERING THE SUBMISSION OF A PROPOSITION THEREOF TO THE ELECTORATE OF THE CITY Sections: 3.34.010 3.34.020 3.34.030 3.34.040 3.34.050 3.34.060 3.34.070 3.34.080 3.34.090 3.34.100 3.34.110 3.34.120 3.34.130 3.34.140 3.34.150 3.34.160 3.34.170 3.34.180 3.34.190 3.34.200 3.34.210 3.34.220 3.34.230 3.34.240 Definitions Exemptions Telephone Users Tax Electricity Users Tax Gas Users Tax Services Users Receiving Gas or Electricity Directly Penalties Actions to Collect Duty to Collect - Procedures Additional Power and Duties of Tax Administrator Assessment - Administrative Remedy Records Refunds Rules of Construction Benefit to All Persons Duration Disposition of Proceeds General Fund lease Power in Addition Ordinance Controlling Liberal Construction Defect or Omission, Validity of Proceedings or Taxes Limitation of Actions Severability THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: The purpose of this Ordinance is to impose a utility users excise tax as a revenue measure necessary to pay the usual and current expenses of conducting the municipal government of the City, the proceeds of which shall be paid into the general fund of the city. This Ordinance shall be known and may be cited as the "Utility Users Excise Tax Ordinance". 3.34.010 Definitions. Except where the context otherwise requires, the definitions set forth in this section govern the construction of this Ordinance. Ordinance No. 1888 Page 2 "City" means the City of Cupertino. "Facilities" means the municipal facilities generally including Blackberry Farm, other open space land within the City and the public recreational facilities consistent with the preservation and public use of open space. Facilities shall be deemed available and susceptible of use within the meaning of the term "availability and privilege of use", as used in this Ordinance, when such facilities exist and are available for use during any portion of the fiscal year next preceding the levy of the Tax. "Gas" includes natural gas and any other gas used for light heat and power. "Month" means a calendar month. "Non-utility supplier" means a Service Supplier, other than (a) a gas corporation or (b) an electrical corporation serving within the City, which generates electrical energy in capacities of at least 100 kilowatts monthly for sale to others. "Persons" means any domestic or foreign corporation, firm, association syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society, or individual. "Tax" means the utility users excise Tax proposed to be imposed by this Ordinance, more particularly described in Sections 3.34.030, 3.34.040 and 3.34.050 of this Ordinance. "Tax Administrator" means the City Treasurer. "Telephone Corporation," "electrical corporation," and "gas corporation," have the same meanings as defined in sections 234, 218, 222 and 215.5, respectively, of the California Public Utilities Code (as said sections existed on June 1, 1989), except that "electrical corporation" shall also be construed to include any municipality or Person engaged in the selling or supplying of electrical power to a Service User. "Service Supplier" means any entity required to collect or self-impose and remit a Tax as imposed by this Ordinance. "Service User" means a Person required to pay a Tax imposed by this Ordinance. 3.34.020 Exemptions. (a) Public bodies, religious organizations and other Persons exempt under state or federal law shall be exempt from the Tax. Residential service users of 65 years or older shall be exempt from Tax payments under this Ordinance upon application to the Tax Administrator, in such manner and with such proof or qualification as the Tax Administrator shall determine. Ordinance No. 1888 Page 3 (b) The City Council may, by order or resolution, establish one or more classes of Persons or one or more classes of utility service otherwise subject to payment of a Tax imposed by this Ordinance and provide that such classes of Persons or service shall be exempt, in whole or in part, from such Tax. (c) The Tax administrator shall prepare a list of the Persons exempt from the provisions of this Ordinance by virtue of this section and furnish a copy thereof to each Service Supplier. 3.34.030 Telephone Users Tax. (a) There is hereby imposed a Tax (herein called the "Telephone Users Tax") on the amounts paid for any interstate, interstate and/or international telephone communication services by every Person in the City other than a Telephone Corporation, using such services. The Tax imposed by this section shall be at the rate of two and forty hundredths percent (2.40%) of the charges made for such services and shall be paid by the persons paying for such services. (b) A used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except where such coin-operated service is furnished for a guaranteed amount, in which event the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of Tax due; nor shall the terms "charges" include charges for any type of service or equipment furnished by a service supplied subject to public utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from Persons other than a Service Supplier subject to public utility regulation; nor shall the words "telephone communication services" include land mobile services or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations as said section existed on January 1, 1970. The term "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all Persons having telephone stations which are part of such telephone system. The Telephone Users Tax is intended to, and does, apply to charges billed to a telephone account having a situs in the City, irrespective of whether a particular communication service originates and/or terminates within the City. (c) The Telephone Users Tax shall be collected from the Service User by the last day of the following month; or, at the option of the Person required to collect and remit the Tax, an estimated amount of Tax collected, measured by the Tax bill in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month. (d) Notwithstanding the provisions of subsection (a), the Telephone Users Tax shall not be imposed upon any Person for using intrastate telephone communication services to the extent that the amounts paid for such services are exempt from or not subject to the Tax imposed under Part 20 (commencing with section 41001) of Division 2 of the California Revenue and Taxation Code, or the Tax imposed under section 4251 of the Internal Revenue Code. Ordinance No. 1888 Page 4 3.34.040. Electricity Users Tax. (a) There is hereby imposed a Tax (herein called the "Electricity Users Tax") upon every Person in the city other than an Electrical Corporation using electrical energy in the City. The Tax imposed by this section shall be at the rate of two and forty hundredths percent (2.40%) of the charges made for such energy by an electrical corporation franchised to service the city and shall be billed to and paid by the Person using the energy. If the charges made for such energy by the franchised electrical corporation are negotiated either (1) on the basis that the Service User has provided its own transmission voltage reduction facilities or (2) as individualized negotiated co-generation avoidance transmission voltage rates, and the resulting negotiated rates are not available to the City, such negotiated rates shall be made available to the City by the Service User. The Tax applicable to electrical energy provided by a non-utility supplier shall be based on the above Tax rate and the charges made for such electrical energy if there is an arms-length transaction for the sale of the electrical energy between the non-utility supplier and the Service User. If there is not an arms-length sale from a non-utility supplier, the Tax shall be determined by applying the Tax rate to the equivalent charges the Service User would have incurred if the energy used had been provided by the electrical corporation franchised by the City. Rate schedules for this purpose shall be available from the City. Non-utility suppliers shall install, maintain and use an appropriate utility-type metering system which will enable compliance with this section. If the electrical energy is generated by the Service user for its own use, the Service User shall provide the City with the actual monthly cost of generating the electrical energy so used and the Electricity Users Tax shall be based on the above Tax rate applied to said actual cost. Cost figures supplied by the Service User shall be subject to periodic audit by the City and appropriate adjustment pursuant thereto. "Charges," as used in this section, shall include charges made for: (1) metered energy and (2) minimum charges for service, including customer charges, service charges, demand charges and all other annual and monthly charges (other than standby charges), fuel or other cost adjustments, authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. (b) As used in this section, the term "using electrical energy" shall not be construed to mean the storage of such energy by a Person in a battery owned or possessed by such Person for use in an automobile or other machinery device apart from the premises upon which the energy was received, provided, however, that the term shall include the receiving of such energy for the purpose of using it in the charging of batteries; nor shall the term include electricity used and consumed by an electric utility supplier in the conduct of its business; nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at Ordinance No. 1888 Page 5 a point within the City for resale; nor shall the term include the use of such energy in the production or distribution of water by a public utility or a governmental agency. (c) The Electricity Users Tax shall be collected from the Service User by the Service Supplier or non-utility supplier. The Electricity Users Tax on use supplied by self-generation or co-generation or from a non-utility supplier not subject to the jurisdiction of this Ordinance, shall be collected and remitted to the Tax Administrator in the manner set forth in Section 3.34.060. The amount of Tax collected by a Service Supplier or a non-utility supplier in one month shall be remitted by United States mail to the Tax Administrator, postmarked on or before the last day of the following month; or, at the option of the Person required to collect and remit the Tax, an estimated amount or Tax measured by the Tax billed in the previous month, shall be remitted by United States mail, to the Tax Administrator, postmarked on or before the last day of each month. The amount of the Tax remitted may be estimated by a formula based upon the payment pattern of the supplier's customers. (d) Notwithstanding the provisions of section 3.34.090(a), if the amount paid by a Service user is less than the full amount of the energy charge and Tax which has accrued for the billing period, such amount and any subsequent payments by a Service User shall be applied to the energy charge first until such charge has been fully satisfied. Any remaining balance shall be applied to Taxes due. 3.34.050. Gas Users Tax. (a) There is hereby imposed a Tax (herein called the "Gas Users Tax") upon every Person in the city other than a gas corporation or electrical corporation, using, in the City, gas which is delivered through mains or pipes or by motor vehicle or by rail. The Gas Users Tax shall be at the rate of two and forty hundredths percent (2.40%) of the charges made for the gas and shall be billed to and paid by the Person using the gas. If the charges made for such gas by the franchised gas corporation are negotiated and the resulting negotiated rates are not available to the City, such negotiated rates shall be made available to the City by the Service User. The Tax applicable to gas or gas transportation provided by non-utility suppliers shall be based on the charges made for such gas or gas transportation if that is derived from an arms-length transaction between a non-utility supplier and the Service User. If there is not an arms-length sale, the Tax shall be determined by applying the Tax rate to the equivalent charges the Service User would have incurred if the gas or gas transportation had been provided by the gas corporation franchised by the City. Rate schedules for this purpose shall be available from the City. "Charges" as used in this section shall include: (1) those billed for gas which is delivered through mains or pipes or by motor vehicle or by rail; (2) gas transportations charges, and (3) demand charges, service charges, customer charges, minimum charges, annual and monthly charges and any other charges (other than Ordinance No. 1888 Page 6 standby charges) authorized by the California Public Utilities Commission or the Federal Energy Regulatory Commission. (b) The Gas Users Tax is not applicable to: (1) charges made for gas which is to be resold and delivered through mains and pipes or by motor vehicle or by rail; (2) charges made for gas sold by a public utility, non-utility supplier or governmental agency for use in the generation of electrical energy or the production of distribution of water; (3) charges made by a gas public utility or gas used and consumed in the course of its public utility business; (4) charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of California; (c) The Gas Users Tax shall be collected from the Service User by the Person selling or transporting the gas. In the case of purchase of gas from a non-utility supplier, or a gas corporation not franchised by the City, the Service User will be responsible for remitting the applicable Gas Users Tax directly to the Tax Administrator. A Person selling only transportation services to a user for delivery of gas through mains or pipes or by motor vehicle or by rail shall collect the Tax from the Service User based on the transportation charges. Except as provided above, the person selling or transporting the gas shall, on or before the 20th of each calendar month, commencing on the 20th day of the calendar month after the effective day of this Ordinance, make a return to the Tax Administrator stating the amount of Taxes billed during the preceding calendar month. At the time such returns are filed, the Person selling or transporting the gas shall remit Tax payments to the Tax Administrator in accordance with schedules established or approved by the Tax Administrator. 3.34.60. Service Users Receiving Gas or Electricity Directly. (a) Notwithstanding any other provision of this Ordinance, a Service User receiving gas or electric energy directly from a non-utility supplier not under the jurisdiction of this Ordinance, or using electricity generated by the Service User for its own use, or otherwise not having the full Tax due on the use of gas or electric energy in the city directly billed and collected by the Service supplier, shall report said fact to the Tax Administrator within thirty days of said use and shall directly remit to the City the amount of Tax due. (b) The Tax Administrator may require from said Service User the filed Tax returns or other satisfactory evidence documenting the sale price and quantity of gas or electric energy used. 3.34.70. Penalties. (a) Taxes collected from a Service User which are not remitted to the Tax Administrator on or before the due dates provided in this ordinance are delinquent. Should the due date occur on a weekend or legal holiday, the return may be postmarked on the first regular working day following a Saturday/Sunday, or legal holiday. Ordinance No. 1888 Page 7 (b) Penalties for delinquency in remittance of any Tax collected or any deficiency determination determined by the Tax Administrator, shall attach and be paid by the Person required to collect and remit at the rate of fifteen percent (15%) of the total Tax collected or imposed herein. (c) The Tax Administrator shall have power to impose additional penalties upon any Person required to collect and remit Taxes under the provisions of this Ordinance for fraud in reporting or remitting at the annual rate of fifteen percent (15%) of the amount of the Tax collected or as recomputed by the Tax Administrator. (d) Every penalty imposed under the provisions of this Ordinance shall become a part of the Tax required to be remitted. 3.34.080 Action to collect. Any tax required to be paid by a Service User under the provisions of this Ordinance shall be deemed a debt owed by a Service User to the City. Any such Tax collected from a Service User which has willfully been withheld from the Tax Administrator shall be deemed a debt owed to the City by the Person required to collect and remit. Any person owing money to the City under the provisions of this Ordinance shall be liable to an action brought in the name of the City for the recovery of such amount. 3.34.090 Duty to Collect - Procedures. The duty to collect and remit the Taxes imposed by this Ordinance shall be performed as follows: (a) Notwithstanding any other provision of this Ordinance, the Tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with the regular billing practices of the Service Supplier. Where the amount paid by a Service User to a Service Supplier is less than the full amount of the utility charge and Tax which has accrued for the billing period, such amount and any subsequent payments by a Service User shall be applied to the utility charge first until such charge has been fully satisfied. Any remaining balance shall be applied to Taxes due. In those cases where a Service User has notified the Service Supplier of this refusal to pay the Tax imposed on said utility charges Section 3.34.100 (c) will apply. (b) The duty to collect the Tax from a Service User shall commence with the beginning of the first full regular billing period applicable to the Service User where all charges normally included in such regular billing are subject to the provisions of this Ordinance. Where a Person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing. 3.34.100. Additional Power and duties of Tax Administrator. (a) The Tax Administrator shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this Ordinance. Ordinance No. 1888 Page 8 (b) The Tax Administrator shall have the power to adopt rules and regulations not inconsistent with provisions of this Ordinance for the purpose of carrying out and enforcing the payment, collection and remittance of the Taxes herein imposed. A copy of such rules and regulations shall be on file in the Tax Administrator's office. (c) The Tax Administrator may make administrative agreements to vary the strict requirements of this Ordinance so that the collection of any Tax imposed hereby may be made in conformance with the billing procedures of a particular Service Supplier so long as said agreements result in collection of the Tax in conformance with the general purpose and scope of this Ordinance. A copy of each such agreement shall be on file in the Tax Administrator's office. (d) The Tax Administrator shall determine the eligibility of any Person who asserts a right to exemption from the Tax imposed by this Ordinance. The Tax Administrator shall provide the Service Supplier with the name of any Person who the Tax Administrator determines is exempt from the Tax imposed hereby, together with the address and account number to which service is supplied to any such exempt Person. The Tax Administrator shall notify the Service Supplier of termination of any Person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt Person. 3.34.110. Assessment - Administrative Remedy. (a) The Tax Administrator may make an assessment for Taxes not remitted by a Person required to remit. (b) Whenever the Tax Administrator determines that a Service User has deliberately withheld the amount of the Tax owed by him from the amounts remitted to a Person required to collect the Tax, or that a Service User has refused to pay the amount of Tax to such Person, or whenever the Tax Administrator deems it in the best interest of the City, such Person may be relieved of the obligation to collect Taxes due under this Ordinance from certain named Service Users for specified billing periods. (c) The Service Supplier shall provide the City with amounts refunded to be paid and/or unpaid along with the name and addresses of the Service Users neglecting to pay the Tax imposed under provisions of this Ordinance. Whenever the Service User has failed to pay the amount of Tax for a period of two or more billing periods, the Service Supplier shall be relieved of the obligation to collect Taxes due. (d) The Tax Administrator shall notify the Service User that the Tax Administrator has assumed responsibility to collect the Tax due for the stated periods and demand payment of such Taxes. The notice shall be served on the Service User by handing it to such user personally or by deposit of the notice in the United States mail, postage prepared thereon, addressed to the Service User at the address to which billing was made Ordinance No. 1888 Page 9 by the Person required to collect the Tax; or, should the Service User's address change, to the last known address. If a Service user fails to remit the Tax to the Tax Administrator within fifteen (15) days from the date of the receipt of the notice upon him, which shall be the date of mailing if service is not accomplished in Person, a penalty of twenty-five percent (25%) of the amount of the Tax set forth in the notice shall be imposed. The penalty shall become part of the Tax herein required to be paid. 3.34.120. Records. It shall be the duty of every Person required to pay or collect and remit to the city any Tax imposed by this ordinance to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such Tax for which such Person may have been liable for the remittance to the Tax Administrator, which records the Tax Administrator shall the right to inspect at all reasonable times. 3.34.130. Refunds. (a) Whenever the amount of any Tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Ordinance, it may be refunded as provided in this section. (b) Notwithstanding the provisions of subsection (a) of this section, a Service Supplier may claim a refund, or take as credit against Taxes remitted the amount overpaid, paid more than once, or erroneously or illegally collected or received when it is established that the Service User from whom the Tax has been collected did not owe the Tax; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the Tax so collected has either been refunded to the Service User or credited to charges subsequently payable by the Service User to the Person required to collect and remit. A Service Supplier that has collected any amount of Tax in excess of the amount of Tax imposed by this Ordinance and actually due from a Service User, may refund such amount to the Service user and claim credit for such overpayment against the amount of Tax which is due upon any other monthly returns provided such credit is claimed in a return dated no later than three (3) years from the date of overpayment. (c) No refund shall be paid under the provisions of this section unless the claimant has established the claimant's right thereto by written records showing entitlement thereto. (d) Notwithstanding other provisions of this section, whenever a Service Supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makes a refund to Service Users of charges for past utility services, the Taxes paid pursuant to this ordinance on the amount of such refunded charges shall also be refunded to Service Users, and the Service Supplier shall be entitled to claim a credit for such refunded Taxes against the amount of Tax which is due upon the next monthly returns. In the event this Ordinance is repealed, the amounts of any refundable taxes will be paid by the city. Ordinance No. 1888 Page 10 (e) A Service Supplier may refund the Taxes collected to the Service User in accordance with this section or by the Service Supplier's customary practice. (f) A credit or refund of Tax due shall be granted to any Service User from whom the Tax is collected to cover the administrative and clerical expense of establishing and auditing the cost of generating electric energy for its own use pursuant to the third paragraph of Section 3.34.040(a). Any such administrative and clerical expense is also subject to audit and appropriate adjustment pursuant thereto. 3.34.140 Rules of Construction. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number and vice versa. 3.34.150 Benefit to All Person. The City council has found and determined and hereby declares that all Persons using utility services in the city enjoy the privilege of using and benefit from the providing by the City, of municipal services and facilities. 3.34.160 Duration. The Tax shall be levied until November 6, 2030 at which time, the tax levied hereinunder, unless further extended, shall cease. 3.34.170 Disposition of Proceeds. This Ordinance is hereby declared to be a revenue measure for general government purposes; the proceeds of the Tax shall be paid into the general fund. 3.34.180 Power in Addition. The powers conferred by this Ordinance are in addition to, and the limitations imposed by this Ordinance do not affect, the powers conferred by any other law or Ordinance. 3.34.190 Ordinance Controlling. If this Ordinance is inconsistent with any other law, this Ordinance is controlling. 3.34.200 Liberal Construction. This Ordinance shall be liberally construed to promote its objects. 3.34.210 Defect or Omission, Validity of Proceedings or Taxes. If the jurisdiction of the Council to order the proposed act is not affected, the defect or omission by any officer in proceedings under this Ordinance does not invalidate the proceedings or taxes levied under this Ordinance. 3.34.220 Limitation of Actions. The validity of this Ordinance or of any tax levied pursuant to this Ordinance shall not be contested in any action or proceeding or defense unless such action or proceeding or defense shall have been brought or raised within ninety (90) days from the date of the approval of this Ordinance and the levy of said tax by the voters of the City on March 6, 2002. Unless an action or proceeding is commenced or such defense raised within said period, this Ordinance and any tax levied Ordinance No. 1888 Page 11 pursuant to this Ordinance shall be held valid and in every respect legal and incontestable. 3.34.230 Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part hereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The Council declares that it would have passed each section, subsection, subdivisions, paragraph, sentence, clause or paragraph thereof, irrespective of the fact that any one or more sections, subsections, subdivision, paragraphs, sentences, clauses or phrases is declared unconstitutional. Article 2. Elections Call of Election. A special municipal election is hereby called and ordered to be held in the City on March 5, 2002 at which election there shall be submitted to qualified voters of the City the proposition set forth below: Proposition. The proposition shall appear on the ballot for said special municipal election in the following form: "MEASURE Utility Tax Initiative. Residents currently pay a 2.4% tax on utility use, specifically electric, gas and telephone. Shall the City of Cupertino extend the existing utility tax which will otherwise terminate in 2015 for an additional 15 years to 2030, for general city services and programs? The Council does hereby submit to the qualified voters of the City, at said special municipal election, this Ordinance and the proposition set forth above. The City Clerk is hereby directed to certify to the adoption of this resolution, to transmit a copy hereof to the Board of Supervisors of the Santa Clara County, and to file a certified copy with the Registrar of Voters of the county. The Board of Supervisors of Santa Clara County is hereby requested to order the consolidation of the special election with the gubernatorial primary election to be held on Tuesday, March 5, 2001, and to authorize the Registrar of Voters to conduct the election and canvass the returns. The election shall be held and conducted, closed, ballots counted and returned, returns canvassed, and results declared, and all other proceedings incidental to and connected with the election shall be regulated and done in accordance with the provisions of law regulating the gubernatorial primary election and specified herein. Said Registrar of Voters shall certify the results of the canvass of the returns of said special election to the Council, which shall thereafter declare the results thereof. The Cupertino City Council hereby accepts the usual and customary terms and conditions of the performance of said election services by the Registrar of Voters; and the City Council further agrees to make payments as may be set forth in a billing to the City of Ordinance No. 1888 Page 12 Cupertino from the Registrar of Voters prescribing the amount due for costs incurred from the rendering of election services, all as provided by the provisions of Section 10416 of the Elections Code of the State of California. Arguments in favor or against the proposed measures shall be filed with the City Clerk by Thursday, November 1, at 5:00 p.m. Rebuttals to arguments in favor or against the proposed measures shall be filed with the City Clerk by Thursday, November 8, at 5:00 p.m. The City Attorney shall prepare an impartial analysis of the measure not to exceed 500 words in length and which is to be filed with the City Clerk no later than Thursday, November 8, 2001. The City Clerk shall publish a notice of election and synopsis of the measure one time in a newspaper of general circulation. The polls shall be opened at 7:00 a.m. and closed at 8:00 p.m. INTRODUCED at a regular meeting of the City Council of the City of Cupertino this 1 st day of October, 2001 and ENACTED at a regular adjourned meeting of the City of Cupertino this 15th day of October, 2001 by the following vote: Vote Council Members AYES: Burnett, Chang, James, Lowenthal NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/Kimberly Smith /s/Sandra James City Clerk Mayor, City of Cupertino