HomeMy WebLinkAboutContracts & Agreements_74-2000_CCv0001.pdf FEE
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AGREEMENT
Dated as of( —u 7 la } 2000
between
ROBERTSON'S READY NUX, LTA
a California Limited Partnership
and
CITY OF REDLANDS
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AGREEMENT
This Agreement (this "Agreement") is made as of July 18 2000. between
ROBERTSON'S READY MfX, LTD.,a California Limited Partnership, ("Producer") and City of
Redlands, ("Redlands", which for purposes of this Agreement shall be the definition for both the
governmental entity constituting such city ('and any political subdivisions thereof) and the
geographic location comprising such city), for the purpose of setting forth the agreement of the
parties with respect to the following:
RECITALS
A. Producer is engaged in the extraction of aggregate and the processing of aggregate
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within the boundaries of Redlands.
B. Redlands has proposed to establish a tax on the commercial businesses ofextracting
aggregate and processing aggregate within its boundaries, said tax if enacted by the electorate of
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Redlands to be substantially in the form of proposed Ordinance No.2441,attached hereto as Exhibit
"A" (the "Proposed Ordinance"),
C. Redlands acknowledges that if the Proposed Ordinance is enacted,Producer intends
to challenge the legality,constitutionality, and other aspects thereof(the "Litigation"),and that one
or more of such challenges may be successful, resulting in such ordinance becoming null and void.
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D. Producer and Redlands agree that there are benefits to be achieved for each by
entering into this Agreement which, among other things, exempts Producer from the provisions of
the Proposed Ordinance if it is enacted, limits the tax that may be levied on the businesses of
extracting aggregate and processing aggregate, avoids the Litigation, and provides for the payment
by Producer to Redlands of a mutually agreeable business licence tax on the extraction and
processing of aggregate within the boundaries of Redlands.
AGREEMENT
NOW,THEREFORE, in consideration of the foregoing and the mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Producer and Redlands agree as follows:
ARTICLE I
EFFECTIVE DATE AND TERM
This Agreement shall be effective as of the date first written above, and subject to §4.22 and
the other provisions hereof, shall remain in full force and effect for sixty-six (66)years, at the end
of which term this Agreement shall terminate automatically without the need for any action on the
part ofthe parties hereto.
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ARTICLE 11
DEFINMTIONS
The following teems and references shall have the meanings indicated below:
(1) "aggregate" shall mean rock, sand and gravel;
(2) "Agreement" shall have the meaning ascribed thereto in the introductory
paragraph of this Agreement;
(3) "Business Day" shall have the meaning ascribed. thereto in §4,16 of this
Agreement;
(4) "CPI" shall have the meaning ascribed thereto in §31.1 of this Agreement;
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(5) "extracting" or"extraction" shall mean the extracting,miming,or excavating
of aggregate;
(6) "License Tax" shall have the meaning ascribed thereto in Article III of this
Agreement;
(7) "Non-Redlands Tax Credit" shall have the meaning ascribed thereto in §3.5
of this Agreement;
(8) "processing" shall mean the crushing and screening of aggregate;
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(9) "Producer" shall have the meaning ascribed thereto in the introductory
paragraph of this Agreement;
(10) "Proposed Ordinance" shall have the meaning ascribed thereto in Recital B
of this Agreement;
'11) 1 1 introclnctory
"Redlands" shall have the nicanings ascribed thereto in the
paragraph of this Agreement-
12) "tax" shall mean any tax, fee, charge, duty, levy, or other assessment of a
similar nature, whether imposed directly or through withholding.
(13) "ton" or"tonnage" shall mean a short ton or two thousand pounds(10001bs).
ARTICLE III
BUSINESS LICENSE TAX
In lieu of paying a tax pursuant to the Proposed Ordinance, Producer hereby agrees to pay
a bLIS111eSS license tax (the "License Tax") to Redlands, on the following terms and conditions:
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I I Imposition. The License Tax:
(1) shall be imposed solely on the extraction or processing ofag,g regatecondLICted
within the boundaries of Redlands;
(11) shall be applied only once to any ton of aggregate(or potion thereof), so that
no ton of aggregate(or portion thereof) IS Subjected to the License Tax both when extracted within
the boundaries of Redlands and when processed within the boundaries of Redlands, or at different
times or at different locations within the boundaries of Redlands;
(111) shall be imposed at the rate of Ten Cents 00.10)per ton,which rate shall be
adjusted annually in (January) of each year in accordance with the percentage change in the
Consumer Price Index for All Urban Consumers for the Los Angeles/Riverside/Orange County Area
for All hems (the "CPI") since the last adjustment (or, if the CPf ever ceases to be published, III
accordance with such substantially equivalent replacement index as the parties shall agree to);
(iv) shall be subject to adjustment during the term of this Agreement only in
accordance with the express provisions of this Agreement; and
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(v) shall be the only tax levied by Redlands during the term of this Agreement
against the extraction or processing of aggregate by Producer within the boundaries of Redlands,or
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against any other aspect of Producer's aggregate business, with the sole exception of the sales tax
that is levied against the retail sale of items generally and authorized by the laws of the State of
California; and such other taxes as are levied on all or substantially all other businesses within the
boundaries of Redlands generally, and if Redlands ever collects or attempts to impose any other tax
on Producer in connection with the extraction or processing of aggregate (or any other aspect of
Producer's aggregate business) during the term hereof, then in addition to all other remedies
available to Producer in equity and at law for such breach of this Agreement, Producer shall have
the option to terminate this Agreement by providing written notice to Redlands of such termination.
3.2. Commencement and Payment. Imposition of the License Tax shall begin Oil
January 1, 2001, and be paid by Producer to Redlands on a quarterly basis, sixty(60)days after the
end of each calendar quarter, beginning on 'flay 31, 2001.
3.3. x payment shall be accompanied by the follow'
Reporting. Each License Tax following
information relating to aggregate extracting and processing activity during the prior quarter:
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(1) the tonna,e of aggregate both extracted and processed within the boundaries
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of Redlands.
(11) the tonnage of aggregate extracted within the boundaries of Redlands and
processed outside the boundaries of Redlands;
(111) the tonnage of aggregate processed within the boundaries of Redlands and
extracted outside the boundaries of Redlands,
(IV) the Current rate of the License Tax;
(v) the aggregate tonnage of ate described in clause (11) and. (ill) immediately
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preceding that is subject to tax by any other governmental entity or agency(specifying such amounts
by governmental entity and agency), and the rate(s) of such other governmental entity's(les') or
agency's(ies')tax(es); and
(vi) the amounts of any credits/offsets claimed in accordance with §3.5. below,
and if necessary, an explanation of how the credit/offset was determined.
The parties hereto agree that whenever in this Agreement the amount of aggregate gate extracted
or processed is to be calculated or reported, such amounts shall be determined at and as of the time
such aggregate is sold,it being acknowledged by the parties that this will result in the most accurate
and easily verifiable calculations and reporting.
3.4. Record Keeping and Audits. In addition to the information provided to
Redlands pursuant to §3.3, Producer shall maintain detailed weight slips for all aggregate sold by
it that is either extracted from within the boundaries of Redlands or processed within the boundaries
of Redlands. Such information shall be maintained for a period of three(3)years. During such three
(3) year period, Redlands shall be entitled to reasonable audits of the weight slips to verify the
accuracy of the License Tax paid and the other information reported to it by Producer. Any such
audits shall be conducted at the sole expense of Redlands; provided, however,that if any particular
audit discloses a quarterly underpayment of License Tax in excess of 7.5% of the amount finally
determined to be payable by Producer,the reasonable cost of such audit shall be home by Producer.
3.>. Credits/Offsets. The License 'Fax payable by Producer to Redland for any
quarter shall be reduced by an amount equal to the Non-Redlands Tax Credit. The "Non-Redlands
Tax Credit" shall mean the amount of tax (with the sole exception of the sales tax that is levied
against the retail sale of items generally)paid or payable by Producer to any governmental entity or
agency other than Redlands (the "Non-Redlands Taxing Entities") and attributable to age reM-ate
extracted or aggregate processed by Producer within the boundaries of Redlands during such quarter;
provided, however, that the amount of such credit during any such quarter shall not exceed the
following: (1)the amount of License Tax payable by Producer to Redlands during such quarter prior
to application of theN (ii) the fraction that has as on-Redlands Tax Credit; multiplied b� its
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numerator the number of Non-Redlands Taxing Entities imposing tax on the aggregate business of
Producer that quarter,and as its denominator the number of Non-Redlands Taxing Entities imposing
tax on the aggregate business of Producer that quarter plus one.
.3.6. Reductions. Notwithstanding anything to the contrary contained in this Agreement,
in the Proposed Ordinance, or in any other ordinance, law, statute, rule, or regulation promulgated,
passed, or enacted by Redlands or its populace., Redlands covenants and agrees with Producer that
Producer shall never be required to pay any License Tax at a rate per ton of aggregate extracted or
processed that is in excess of the tax on the extraction and processing of aggregate actually paid
(after taking into account all credits, rebates, offsets, and other reductions permitted in connection
with the payment of such tax) by any other entity engaged in such business within the boundaries
of Redlands(and the rate of License Tax payable by Producer shall automatically be reduced hereby
(to zero if necessary)to effectuate this provision); it beint,the intention and agreement of the parties
hereto that in consideration of Producer entering, into this Agreemeut, Producer shall never suffer
a competitive disadvantage with any other entity who extracts or processes aggregate within the
boundaries of Redlands as a result of entering into this Agreement.
In connection therewith,Redlands further agrees to: promptly advise Producer in writing
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if the tax per ton on the extraction and processing of aggregate actually paid (after taking into
account all credits,rebates, offsets, and other reductions permitted in connection with the payment
of such tax)by any other entity engaged in such business within the boundaries of Redlands is lower
than that paid by Producer during any period; (11) promptly return any portion of License Tax
previously paid by Producer to Redlands as may be necessary to effectuate the provisions and
intentions of this § 3.6 and avoid the overpayment of such tax by Producer; and (iii) permit
independent audit of its records by a reputable certified public accounting firm to verify Redlands'
compliance with the provisions of this Agreement;provided,however,that such firm shall first agree
in writing to hold any non-public information strictly confidential.
If the provisions of§§ 3.5 and 3.6 are both applicable to the calculation of License Tax for
any period, the provisions of§ 3.5 shall be applied prior to the provisions of§ 3.6 in calculating
License Tax owing for such period. 1
3.7. Penalties. Failure byproducer to timely pay any License Tax due hereunder shall
cause the unpaid amount of License Tax to incur interest at the rate of ten percent(10'/10)per annum;
provided, however, that if such failure is Finally adjudicated by a competent court of law to be due
to the fraud ofProducer,then such unpaid License Tax shall be subject to an.additional penalty equal
to Twenty-Five percent(25%)of the amount of the fraudulently unpaid License Tax but in no event
more than the maximum penalty pen-nitted by law.
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3.8. Sole Recourse. Notvithstanding, the Proposed Ordinance or any other
ordinance, law, statute, rule, or regulation promulgated, passed, or enacted by Redlands or its
populace, Redlands agrees that the terms of this Agreement shall govern, and shall provide the basis
for its sole recourse against Producer in respect of, all matters relating to tax on the extraction and
processing of auorci4atc (and other aspects of' the aggregate business) within the boundaries of
Redlands, including the imposition of such tax and any reporting requirements, audits, or penalties
relatin<- to such tax.
3.9. Waiver of Right to Challenge. Producer waives its right to challenge the
imposition of the License Tax based on the provisions ofProposition 62(Government Code§53720
et seq.) or Proposition 218 (Article XIIIC of the California Constitution).
ARTICLE IV
MISCELLANEOUS
4.1. Confidentiality. All non-public information relating to Producer's aggregate
extraction, aggregate processing and other aggregate business that is provided to Redlands by
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Producer, including,without limitation, the information provided pursuant to §33,hereof and any
information obtained by Redlands pursuant to an audit described in §3.4, shall be held strictly
confidential by Redlands and shall not be used for any purpose other than verification of the terins
of this Agreement. Redlands hereby acknowledges and agrees that any disclosure or improper use
by Redlands of confidential information could cause Producer substantial damages, and also
irreparable injury for which there is not an adequate remedy at law. Therefore, in the event of any
such action,Producer shall be entitled, in addition to a]I other remedies which it may have hereunder
or at law or in equity, to a temporary and/or permanent injunction with a decree for specific
performance of the ten-ns hereof without being required to furnish a bond or other Security.
Jurisdiction in any action for injunctive relief shall be in a court of competent subject matter
jurisdiction in California., with venue in Southern California, but outside of [San Bernardino]
County.
Moreover, if Redlands or any party acting on its behalf is subpoenaed or otherwise ordered
to produce any confidential information., Redlands shall promptly (and prior to such disclosure)
notify Producer of such subpoena or demand whereupon Producer and Redlands shall cooperate and
take all reasonable acts (provided Redlands shall not be required to expend any of its own funds in
connection therewith)to exhaust the legal avenues available to maintain the confidentiality of such
confidential information, unless Producer consents to the production and disclosure of the
information. In all events, only that portion of the confidential information specifically requested
by the tribunal or party compelling such disclosure shall be provided and no interpretation or
analysis of such data shall be prepared by Redlands for the purpose of such disclosure unless
approved by Producer or required by
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4.2. Other Regulatory Provisions. Except as expressly provided herein, nothing
in this Agreement shall relieve Producer from any applicable regulatory provisions or ordinances
otherwise applicable to the business it conducts within the boundaries of Redlands.
4.3. Notices. Any communication, notice, or demand of any kind whatsoever that
either party may be required or may desire to give to or serve upon the other shall be in writing,
addressed to the addresses set forth below,and delivered by personal service,by reputable overnight
delivery service,by facsimile transmission,or by registered or certified mail,postage prepaid,return
receipt requested.
Physical Address Mailing Address
If to Producer Robertson's Ready Mix, Ltd. Robertson's Ready Mix, Ltd.
6830 Van Buren Blvd P.O. Box 33140
Riverside CA 92509 Riverside CA 92519
Attn: President Attn: President
Facsimile: (909) 685-0221)
With copy to: Joseph P. Occhiuto, Esq. Joseph P. Occhiuto, Esq.
Law Offices of Joseph P. Occhiuto Law Offices of Joseph P. Occhiuto
6830 Van Buren Blvd P.O. Box 3')140
Riverside CA 92509 Riverside CA 92519
Facsimile: (909) 685-0221
If to Redlands: City of Redlands City of Redlands
35 Cajon Street P.O. Box 3005
Redlands, CA 92373 Redlands, CA 92373
Attn: City Attorney
Facsimile: (909) 798-7503
With a copy to:
Attn:
Facsimile:
Anv such notice shall be deemed delivered if sent as follows: (a)if personally delivered, on
the date of delivery to the address of the person to receive such notice as evidenced by a signed
receipt or notice of refusal thereof, (b) if sent by reputable overnight courier service,on the date of
delivery to the address of the person to receive such notice as evidenced by a signed receipt or notice
of refusal thereof. (c) if sent by facsimile transmission, on the date transmitted to the person to
receive such notice if sent by 5:00 p.m. Pacific Time, and on the next day if sent after 5:00 p.m.
Pacific Time; or(d) if mailed, on the date of delivery to the address of the person to receive such
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notice as evidenced by a signed receipt or notice of refusal thereof. Any notice sent by facsimile
transmission must be confirmed by personally delivcring, sending by courier, or mailing a copy of
the notice sent by facsimile transmission. Any party may change its address for notice by written
notice given to the other at least ten (10) days before the effective date Of Such change in the manner
provided in this §4.3.
4.4. Successors and Assigns. This Agreement shall be binding,upon and inure to the
benefit of the parties hereto and their respective heirs, administrators, successors, and assigns,
including, without limitation, upon any purchaser, manager, operator, subcontractor, lessee, or
licensee of Producer's aggregate business operated within the boundaries of Redlands or Producer's
aggregate-containing land located within the boundaries of Redlands.
4.5. Amendments. This Agreement maybe amended or modified onlyby awritten
instrument executed by both parties.
4.6. Interpretation. Words used in the singular shall include the plural, and vice-
versa, and any gender shall be deerned to include the other. The captions and headings of the
Articles and Sections of this Agreement are for convenience of reference only, and shall not be
deemed to define or limit the provisions hereof. Furthermore, each party hereby acknowledges that
such party and its counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and any rule of
construction to the effect that ambiguities herein should be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any amendments, modifications, or
exhibits hereto or thereto.
4.7. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, without regard to its principles of
conflicts of law.
4.8. Entire Agreement. This Agreement including the exhibits attached hereto
constitutes the entire agreement between Redlands and Producer pertaining, to the subject matter
hereof and supersedes all prior agreements, understandings, letters of intent, negotiations, and
discussions of the parties, whether oral or written.
4.9. Attorneys' Fees and Costs. If either Redlands or Producer brings any suitor other
proceeding with respect to the subject matter or the enforcement of this Agreement or any other
document executed in connection herew ith,the prevailing party(as determined by the court,agency,
or other authority before which such suit or proceeding is commenced)., in addition to such other
relief as may be awarded, shall be entitled to recover reasonable attorneys' fees,expenses,and costs
of investigation actually Incurred. The foregoing shall include, without limitation, reasonable
attorneys' fees, expenses, and costs of investigation incurred in appellate proceedings and costs
incurred in establishing the right to indemnification.
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4.10. Time of the Essence. Time is of the essence with respect to all matters contemplated
by this Agreement.
4.11. oto Waiver. No,,vaiver of any of the provisions of this Agreement shall be deemed
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or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. IN'o waiver shall be bindin,2 Linless executed in writing by the party
making the waiver.
4.12. Further Acts. Each party, at the request of the other, shall execute,
acknowledge(if appropriate), and deliver such additional documents, and do such other additional
acts,as may be reasonably required in order to accomplish the intent and purpose of this Agreement.
4.13. Exhibits. Exhibit "A" is attached hereto and incorporated herein by reference.
4.14. Counterparts. This Agreement maybe executed in one or more counterparts,
each of which shall constitute an original,but all of which when taken together shall constitute one
and the same instrument,
4.15. No Intent to Benefit Third Parties. Except for any purchaser(s), manager(s),
operator(s), subcontractor(s), lessee(s), or licensee(s) of Producer's aggregate business located
within the boundaries of Redlands or Producers aggregate-containing land located within the
boundaries of Redlands,which purchaser(s),manager(s),operator(s),subcontractor(s),lessee(s),or
licensee(s) shall be entitled to all the benefits of this Agreement, Producer and Redlands do not
intend by any provision of this Agreement to confer any right, remedy, or benefit upon any third
party, and no third party shall be entitled to enforce, or otherwise shall acquire any right, remedy,
or benefit by reason of, any provision of this Agreement,
4.16. Business Days. The term "Business Day" shall mean a day that is not a
Saturday,Sunday or legal holiday in California. In the event that the date for the performance of any
covenant or obligation gation under this Agreement shall fall on a Saturday, Sunday or legal holiday in
California, the date for performance thereof shall be extended to the next Business Day.
4.17. Expenses of Agreement. Except as otherwise provided in this Agreement,
Producer and Redlands shall each bear its own direct and indirect expenses incurred in connection
with the negotiation and preparation.of this Agreement and the consummation and performance of
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the transactions contemplated hereby.
4.18. Severability. Any provision or part of this Agreement which is invalid or
Unenforceable in anvI situation or in any jurisdiction shall, as to such situation and such jurisdiction,
be ineffective only to the extent of such invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or enforceability of any such provision in any other
situation or in any other jurisdiction, unless such invalidity materially changes the transaction set
forth herein, in which event this Agreement shall terminate.
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4.19. Dispute Resolution. The parties hereto acknowledge that it is in their best interest
to facilitate the informal resolution of any disputes arising out of this Agreement. As a result,if any
dispute o arises,the complaining party shall serve upon the ether party a written document setting
forth in detail the nature of the complaint and the proposed solution to the complaint, including a
specific and reasonable time frame within which the parties must act. The Harty receiving the
complaint shall respond in writing within thirty (3 ) days upon receipt of the notice with an
explanation and response to the proposed. solution. Within thirty (30) days of receipt of this
response, Redlands and Producer shall meet and discuss options for resolving the dispute. The
complaining party shall initiate the scheduling of a resolution meeting.
In the event the parties are unable to reach agreement at any such resolution meeting or
meetings, a settlement conference shall be held within thirty(30) clays. The settlement conference
shall be held in the Los Angeles office of Judicial Arbitration and Mediation Services, Inc.
("JAMS"). The complaining party shall'contact JAMS to schedule the conference and the parties
may agree on a'retired judge from the JAMS panel. If the parties are unable to agree upon such a
retired judge, JAMS :shall provide a list of three available judges and each party shall strike a
separate judge. The remaining judge shall serve as the mediator at the settlement conference.
If the dispute is not settled by the two above-described formats, the parties hereto agree to
submit the dispute to the JAMS Los Angeles office for binding arbitration in accordance with
California substantive law and the arbitration rules conducted in accordance with Title 9 of the
California Code of i it Procedure§§l. f}et.sect.and under the commercial of the American
Arbitration Association then in effect. One j udge will be selected to arbitrate the dispute. JAMS
will provide the names of three potential'arbitrators, giving each party the opportunity to strike one
name. The remaining person will serve as the arbitrator,unless both parties object to the remaining
person in which case JAP S will provide the names of three additional potential arbitrators and the
process shall begin anew. The parties agree that the arbitration must be initiated within one year
after the complaining party first knew or should have known of the existence of the claimed breach
of this Agreement, and that failure to initiate arbitration:within the one-year period constitutes an
absolute bar from the institution of any new proceedings. Arbitration shall be initiated by the
aggieved,party by sending written notice of an intent to arbitrate in accordance with the notice
previsions contained'in § 4.3, and by additionally sending such written notice by registered or
certified mail, return receipt requested, to JAMS. The notice must contain a description of the
dispute,the amount involved and the remedies sought. If and when a demand for arbitration is oracle
by either party, the parties agree to execute a Submission Agreement provided by JAMS and
consistent herewith, setting forth the rights of the parties if the case is arbitrated and the rules and
procedures to be followed at the arbitration hearing. The arbitrators shall apply California
substantive law in resolving the dispute. However,the parties understand and agree that JAMS shall
have no authority to consider or to issue injunctive and/or equitable relief,and that such requests for
injunctive an or equitable relief shall be tiled in the Superior Court of the State of California for
the County of Los Angeles.
4.20. Authority. Each party hereto represents and warrants to the other that the
individual executing this Agreement on its behalf is duly authorized to execute and deliver this
Agreement on its behalf.
4.21. Non-Contravention. Each party hereto represents and warrants to the other that the
execution,delivery,and performance of this Agreement does not violate any ordinance,law statute,
rule, regulation,judgment, injunction, order or decree, applicable to it, or breach of any agreement
to which it is a party.
4.22. Development Agreement. From and after the date hereof,Redlands and Producer
agree to work diligently and in good faith with each other and to use commercially reasonable efforts
to enter into an agreement on the same material terms and conditions as this Agreement but which
otherwise meet the requirements of a development agreement under California Government Code
§65864etseq. If within one(1)year of the date hereof,such a development agreement has not been
fully executed and delivered by both of the parties hereto, then at any time thereafter, either party
may terminate this Agreement by providing written notice to the other of such termination.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
"Producer"
ROBERTSON'S READY MIX, LTD.
a California Limited Partnership
By: Robertson's Ready Mix, Inc.
a California corporation,
its General Partner
'
Saye Bennett, Treasurer
"Redlands"
APPROVED BY: CITY OF REDLANDS
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CITY CO CiL
By:
ity Cle r er Mayor, Pat Gilbreath
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LIST OF EXHIBITS
EXHIBIT A PROPOSED ORDINANCE
EXHIBIT A
PROPOSED ORDINANCE
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ORDlN-NCE O. 2'441- DRAFY
A-N 0 RD IN AN CE OF THE CITY OF RE D L AND, S -!,-D DIN G CHAT AT E R n TO T H
REAL NDS Nfl--,-Ni-ICIPALI CODE QST? ISHI'.,,�G A BITSI�'N7ESSS LICENSE TAX ON THE
: BT
"TRAC-FION ORPROCE7SSING OF ROCK. SAND A-\D GRAVEL AGGREGATZTE,}
CT
THE CITY COt:--\-,'CIL OF THILH- TY OF R-7D'I--,ANDS DOES ORDIAINi AS
FOLLOWS:
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Section 1. Chapter entitled "Business License Tax on Extraction or ProcCssint� of
Rock-, Sand and Gravel is he-,ebv added to the Redlands Municipal Code to read as
follows:
"Chapter 5.110
Business License Tax on Extraction or Processing of Rock.
Sand and Gravel (Aggregate)
Section
;.10.0i0 Purpose
.10.010 Payment oi- Business License Tax; Business License Required
5.10.030 Ven'—cat4on ofA,nnual Production
1 -,.,el (a-�zTe-ate) processing and
10,040 Rock. Sand and Gra =- on Tax
Extraction
0.050 Credit for Sales Taxes Generated and Paid
10.060 Record k,---T)ln-: Retention o1rRecords and Riaht of Inst)ection
1
x.10.070 Failure �UO
Remit Tax \N7hen Due: Penaltv
5.10.080 Payment of Other Fees or Taxes Not Excused
:110.090 ni
Exention from Tax
—10,100 Taxes a Debt to City: Actions for Collection of Taxes
5.10.110 Misreoresentation
5.1 101.1 0 Amendments
I Penaltv for
10.1 0 General Violations
f.ItJ.IIO
Severability
;.10.150 Effective Date
se.
Section 5.110.0110 Pum,o
The Purpose of this Chaptc-11's io establish a tax on the co=Crclal business ofthe extraction
orprocessing of Lock, sand and ravel (a2=ezate)within the City. as a means of generating: rcvenu-,
for the Civ, for municipal Dumoses and not as arecrulatoi7,; measure. This business license tax is
;—Ii,00se01n theinterests I ' ' +- of the ealth. safety convenience- and welfare of the residents of the Citv-
i L3
7:,�J-r,,Drd,Ord.
Scction 5.10,120 IaAeSsinr:g-d
A. There is imposed upon an.v business engaged in the principal business of extracting� OF
processing rock, sand or gravc! (aggregate.) Tom or on any real property located within the Cft�. for
the purpose of commercial use or sa ie, a general business license tax in the amount set forth in
Section 5.110.040 of this Chapter.
B. Each business-which is subject to this Chapter shall. within 45 days of the effective date
of the (Drdinancc establishing this Chapter, apply for and obtain a business license tax certificate. as
part application,fthe business license appation. hothe City Treasurer, The business license tax certificatecertificate—,application shall include a current topographic map of all permitted extraction and processing sites
res
within the City, at a scale of 1"= 200' and shall include the locations of the City limits and permit
limits.
C. It is unlawful for any person, whether as principal or agent, or employee, either for
himself or for any other person, to transact and carry on any business within the City which is
subject to the business license tax established in this Chapter without first having applied for and
procured a business license tax certificate from the City to do so, and without having paid the
business license tax therefor. Exemptions to this requirement are set forth in Section 5.10.080 of this
Chapter.
D� As used in this Chapter, "processed" or "processing" shall include,not be limited to, the
utilization of rock, sand or gavel (aggregate) from any source or location, as a primary ingredient
as part of a manufacturing or batching process(such as asphalt or concrete batching)within the .City
.Y
E. As used in this Chapter, to be "engaged in business" shall include the acts of extracting
rock, sand or gravel (aggregate) from or on any real property located within the City, processing
rock, sand or gavel (aggregate), or the utilization of rock, sand or gravel (aggregate), from any
source or location, as a primary ingredient as part of a manufacturing or batching process within the
City. As used in this Chapter, "engaged in business" shall also include the business of extraction and
processing of rock, sand or gavel (aggregate) which is sold to a public agency pursuant to bid.
F. NAqienever any person is carrying on two or more related activities at the same location
and under the same ownership or management, such as extraction and processing of rock, sand or
gravel (aggregate), then in that event the business license tax shall be applied once only to each ton
offmaterial extracted or processed, whichever is grater, and a single business license shall be issued.
Provided, however, that nothing contained in this Section shall be construed to relieve the payment
-)f t
c -,No or more business license taxes when required, where two or more separate businesses are
conducted in the same location by the same owner or managernent and such businesses are not
construed by the City Treasurer to be correlated or allied with each other. An appropriate business
license tax as set forth in this Chapter shall be paid for each business.
C. Nothing contained in this Chapter shall be construed to relieve the obligation to obtain
!:'djrn,Ord%Orc'. 24A I ,vpd
a separate business license and to pav the appropriate business license tax required for each bus,,,-,ss
owned or conducted by a seDarate owner, whether or not und r the came 'm naLle ent.
Section 5.10.030 Verification of Annual Production.
A. To enable the Cite to venfy arn$ual production reporting, each business which is subject
to Lt s Chapter snap submit the following information to the City Treasurer.
(1) Each year on or before June 3 ,production quantities shall be submitted, reported
to tans by quarter and cumulatively for the reporting ve r.
(2) Each year, or.or before July 15, a current aerial photograph shall be submitted of
the rninina area with City limits and mine permit area clearly identified.
(3) Every five (5) years, on or before July 15, a current topographic map of the
business' permitted extractive sites within the City shall be submitted. The
topographic map shah be based on aerial photographs taken within 45 days of
submittal. The purpose of the topographic,reaps is to venrify reported production
quantities:
(4) Weight slips for aggregate materials shall be made available to the City annually,
upon request:
B. If the information submitted nursuant to this Section does not adequately quantify annual
production, additional information and documentation, identified by the City,may be required and
shall be provided at the expense of the business.
C. In addition to the measures set forth in this Section, the City may conduct an audit to
ensure compliance with this Chanter. The expenses incurred in the completion of the audit shall be
paid bythe City, unless inaccuracies in reporting are identified. Should inaccuracies b identified,
the penalties set forth in Section 5.10.130 shall be assessed, including the cost of the audit..
Section 5.10. 40 Rock. Sand and. Gravel ggegate Extraction and Processing Tax.
A.. Every person who engages in the principal business ofextracting brprocessing rock,sand.
and gravel (aggregate) from or on any real property located within the City, for the purpose of
conaercial use or sale, shall pay a general business license tax on each ton of material excavated
from or processing in the City according to the following schedule:
SO.10 per ton for any quantity of rock up to and including one million tons
SO.12 per tort for any quantity of rock, sand or gravel in excess ofone (1) million tons but
less that? million tons;
S .14per tart for arty quantity of rock oft million tons or more;
i [j)
The rate of tax corm-nencing- shall be adjusted annually in July of each year in accordance with the
Consumer Pace Index,for all,urban consumers ior Los (or substantially
equivalent index}.
B. The tax on the processing or extraction of rock, sand and gravel (aggregate) and
hustntsses as set forth herein, snail begin on Januai�y 1, 2001, and shall be paid and collected by the
City quarterly, begi=ing April 1, 2001. The returns for the tax shall be submitted by the persons
engaged in said prmcipal business within 15 days following the end of each quarter for which the
'I I of each calendar year, subject to the penalties
,ax is due, on July 1, October 1, January I and Apr-,
for :ailuro luro to pay the said tax as set forth in this Chapter.
C. The City Treasurer shall provide each person in the principal business with a form for
reporting the quarterly return. All returns shall indicate:
(1) The tonnage of rock, sand and gravel (aggregate) extracted and processed during
the prior calendar quarter from property located within the City of Redlands.
(2) The tonnage of rock, sand and gravel (aggregate) extracted during the prior
calendar quarter from property located outside the City, and processed within the
City, which is taxed by another city or county, and the rate of tax which has been
collected by the other city or county for the same material.
(3) The tonnage of rock, sand and -gavel (aggregate) shipped from extraction or
processing facilities located within the City to concrete batch plants, asphalt batch
plants and other processing or manufacturing facilities that utilize aggregate
materials.
(4) The- tonnage of concrete, asphalt or other processed materials shipped 'o=
processing facilities located within the City. Concrete and asphalt materials shall
be taxed at a rate to be determined by the City based on approximate aggregate
content, per cubic yard of concrete, asphalt or other processed material shipped.
Other products processed on the site where aggregate is used as a constituent in an
end product will be taxed based on the approximate aggregate content.
(5) The current tax rate imposed by the City.
D. Information provided on the quarterly return shall not be considered conclusive as to the
inforrnation it contains, will not prevent the City from collecting the appropriate amount which is
actually due and payable, and shall be subject to revie,,�% audit and verification.
LO LFL�r U
Section 5.10.05,0 C-cdlt for Sales Taxes Generated. Ind Paid,
A--m.; person required to pay a iiccnse tax for conductir- a business subject to thlj*S
Gliaote- sha!l "lave credited against the arnount of1busmess 1'.'c--nse tax due and ow;m-, for anv %, ,ca,
.,
an amount equal to the sales tax cTic,atcd and pard to the CiniI)%, that business durin- the v-ar,
Section 5.10.060 Record K.-eT)inL,: Retention olc'Rl-cords and
It shall be the duty ofeve:v person liable for the reporting and payment to the Cit%, of ariv
business license tax imposed by this Chapter to 'Keep and preserve, for a period of not less than three
years. all records as may he necessary to determine the -amount ofsuch tax as he may have beer,
liable for the reporting of and Pa,,-mcnt to the Cit-,,,. The Citv Treasure.- shall have the right and
authority to examine or cause to examine, audit and "Inspect such books and records as mav be
necessary to determine the amount of tax due and payable, and shall have the authority to enforce
all provisions of this Chapter.
Section 5.10.0 10 Failure.,to Remit Tax , 'hen Due: Penalty
A. Any person who engages in a business which is subject to this Chapter who falls to remit
any tax imposed hereby within the time required, shall pay a penalty often (10)percent per annurn,
compounded, of the amount of tax in addition to the amount owed. Such penalty shall be added by
the City Treasurer on the first day of each month after the due date thereof. In addition to the
penalty
se, forth above, the City shall also collect all of its administrative costs, attorneys' fees and other
costs incurred by in enforcing this Chapter.
B. If the CityTreasurer determines that the nonp ay-ment or underp aynient of any rernittanc e
due under this Chapter is due to fraud, a penalty of twenty-five (25)percent offthe amount of the tax
shall be added thereto in addition to the penalties stated hereinabove.
C. Every penalty imposed and such interest as accrues under the provisions of this Section
shall become a part of the tax required to be paid by this Chapter.
D. The penalty sell forth herein shall be in addition to any other applicable penalty for a
violation of this Chapter, or any other recourse or remedy available to the City by law,
Section 5.10.080 Payment of Oth..er.Fees or Taxes Not Excused.
Anv person required to -Pav -, business license tax for conducting a business under this
I I I I I IS
Charmer shall not be relieved from the paymem of any other, permit charge, fee or tax for the
' *1
orlVi!-�=--
- p- olconductin- suclit)usI i-*ress ',�-quIredu,-icieranvothe,-;)rovisionof this Code or any other
ordinance or regulation of the Citi: or other agency, and such person shall e subj
remain
I subject to all
lo-r1licable regulatory provisions.
2 44 wnd
Section 5.10.090 Fxcmr,Illori from Tax,
A, In the event that he extraction ofani,° of the rock, sand and _ravel {aggregate;)Processed
bv thl-i-)erson responsible for pa,,-Inc,the tax is in fact taxed biz an%rothe, city or county, and the other
City or county also allows a reduction in tax under the swile circumstances, then the 'Lax so pald or,
the.maierlals so processed may be reducc-diny as much as the amount paid to the other city or counry,
but in no event shall the reduction be more than one-half (1/,,) of the rate charged by the
tV.
S. No business license'Lax shall be required under this Chapter of or from any person exempt
frorn the business license tax by virtue of the constitution or any applicable statutes of the united
States or the State of California.
C. No business license tax shall be required under this Chapter of or from any governmental
ac,encv or subdivision and the employees thereof, but only to the extent they are engaged in the
business of such 2overnmCritall agencies or subdivisions.
D. Any person claiming a business 'license tax exemption under this Chapter has the burden
offurnishing to the City Treasurer such information as the City Treasurer may require to support the
claim or eligibility for exemption.
Section 5.10.100 Taxes a Debt to City: Actions for Collection of Taxes.
The amount of any business license tax, penalty or interest, or any combination thereof,
imposed by the provisions oifthis Chapter shall be deemed a debt to the City. An action may be
cornmenced in the name of the City in any court of competent jurisdiction for the amount of any
delinquent business tax,penalties, interest,charges and administrative costs incurred in connection
therewith, including attorneys' fees.
Section 5.10.110 Misrez)resentation.
No person shall knowingly or intentionally misrepresent any material fact in applying or or
paying for the business license tax certificate.
Section 5.10.120 Amendments.
The procedural provisions ofthis Chapter may be amended by ordinance duly enacted by the
City Council.
Section 5+.10.1 10 Gercral Penalty for Violatiors.
No pel-son, whether as plinc!pal. agent. empiovee or othcr-,vise, shall violate, cause the
vloiation of, or otherwise fall to co mply with any of the requirements of this Chapter. Ever--, act
pro ni bi,Led or d----lared unlaw r`ul.and ever- failure to perforni an act in act--mandatory,shall constitute
244 1_%Lpd 6
, I and be prosecuted as a misdcrnp-anor as set forth in Chapter 1.24 of this Code. to
Section 5.10.140 Seve--rabillt--%.
l-fanv section,subsection,sentence,clause orDhras-oft pis Chapter or the application thereof
is for any reason held to be invalid or unconstitutional by a decision of any court of competent
. sdi
mindiction, the validity of the remaining portions of this Chapter. the application thereof. and the
-I -l ,
to imposed shall not be affected thereby but shall remain in fl`ull force and effect, it belne, the
ni*ent,on of the G
" tv Counc-1 and-lie voters to adopt each and even,section, subsection,part.clause,
L
sentence and phrase regardless of ,vhether any other section, subsection, part, clause, sentence or
Txarasc or the application thereof is held to be invalid or unconst-h-utional.
Section 5.10.1 50 Effective Date,
The ordinance enacting this Chapter as a part of this Code and levvin2, the business license
tax described herein shall be effective ten (1 0) days after the date on which the City Council has
declared that the voters of the City of Redlands have approved that ordinance by a majorlit�v of the
votes cast by the electors voting on the tax proposal set forth in the ordinance.
Section-'2. The City Attorney is herebv designated and directed to prepare asui=ary of this
ordinance, which shall be published in a newspaper of general circulation in the City of Redlands.
A certified copy of the fill text of the Ordinance shall be posted and available in the oft-Ice of the
GUY Clerk.
Section 3. The Mayor shall sign this Ordinance and the City Clerk shall attest and certify
the passage and adoption of this Ordinance if a maion'iv of the voters voting in the City's special
cle.-+.;on on November 7, 2000 approve that measure askinz whether the voters approve this
ordinance.
ADOPTED, SIGINZED AND APPROVED this day of 2000.
vlavor of the City of Redlands
Attest:
City I C1 rk
2AI mmd
4
ZCC-MCX
USM
July 14, 2000
Dan McHugh
City Attorney's Office
City of Redlands
35 Cajon Street
Redlands, CA 92373-1505
RE: Agreement
Dear Mr. McHugh:
Cemex USA is pleased to enclose a signed copy of an agreement providing for, among
other things, payment of an aggregate mining and processing fee to the City of Redlands.
Cemex believes this agreement should be acceptable to the City of Redlands. This
agreement is being delivered to you to hold and not release unless and until you are
irrevocably committed to returning a signed counterpart to Cemex USA, together with
the City's resolution authorizing Redlands to enter into such agreement. In addition,
unless the offered agreement is signed by the City and returned to Cemex USA, with the
authorizing resolution, on or before July 21, 2000, the offer will become null and void,
and the documents delivered to you must be returned promptly to Cemex USA. If you
have any questions, please do not hesitate to contact me at 713-881-1034 or Len Hersh
213-687-5426.
Sincerely,
U
Christine Jones
Director—Environment, Safety & Risk 1 kit 0
Cemex USA
One Riverway,Suite 2200,Houston.Texas 17056,USA,Phone:(713)881-1000 Fax:(713)881-1165
AGREEMENT
Dated as of July 19, 2000
i
between
CEMEX U.S.A. CONSTRUCTION MATERIALS, INC.
A DRLANV- R CORPORATION ,
TEXAS
and
CITY OF REDLANDS,
A MUNICIPAL CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA
199328 05-1-cs Angeles Sl A
1
AGREENWNT
This AGREEMENT (this "Agreement") is made as of July 19, 2000, between
CEMEX U.S.A. CONSTRUCTION MATERIALS, INC., a D�ave corporation M�., ) i
("Producer"), and City of Redlands, a municipal corporation organized and existing under the
laws of the State of California ("Redlands," which for purposes of this Agreement shall be the
definition for both the governmental entity constituting such city (and any political subdivisions
thereof) and the geographic location comprising such city), for the purpose of setting forth the
agreement of the parties with respect to the following:
RECITALS
A. Producer is engaged in the extraction of aggregate and the processing of
aggregate within the boundaries of Redlands.
B. Redlands has proposed to establish a tax on the commercial businesses of
extracting aggregate and processing aggregate within its boundaries, said tax if enacted by the
electorate of Redlands to be substantially in the form of proposed Ordinance No. 2441 attached
hereto as Exhibit A (the "Proposed Ordinance").
C. Redlands acknowledges that if the Proposed Ordinance is enacted, Producer
intends to challenge the legality, constitutionality, and other aspects thereof(the "Litigation"),
and that one or more of such challenges may be successful, resulting in such ordinance
becoming null and void.
D. Producer and Redlands agree that there are benefits to be achieved for each by
entering into this Agreement which, among other things, exempts Producer from the provisions
of the Proposed Ordinance if it is enacted, limits the tax that may be levied on Producer's
businesses of extracting aggregate and processing aggregate, avoids the Litigation, and
provides for the payment by Producer to Redlands of a mutually agreeable business license tax
on the extraction and processing of aggregate within the boundaries of Redlands.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Producer and Redlands agree as follows:
R 9x93'28-GS Uos Angeles SIA
1 ARTICLE
EFFECTIVE DATE AND TERM
This Agreement shall be effective as of the date first written above, and subject to
Section 4.22 and the other provisions hereof, shall remain in full force and effect for sixty-six
(66) years, at the end of which term this Agreement shall terminate automatically without the
need for any action on the part of the parties hereto.
2 ARTICLE
DEFINITIONS
The following terms and references shall have the meanings indicated below:
(1) "aggregate" shall mean rock, sand, and gravel.
(2) "Agreement" shall have the meaning ascribed thereto in the
introductory paragraph of this Agreement.
(3) "Business Day" shall have the meaning ascribed thereto in Section 4.16
of this Agreement.
(4) "CPI" shall have the meaning ascribed thereto in Section 3.1 of this
Agreement.
(5) "extracting" or "extraction" shall mean the extracting, mining, or
excavating of aggregate.
(6) "License Tax" shall have the meaning ascribed thereto in Article III of
this Agreement.
(7) "Non-Redlands Tax Credit" shall have the meanings ascribed thereto
in Section 3.5 of this Agreement.
(8) "processing" shall mean the crushing and screening of aggregate.
(9) "Producer" shall have the meaning ascribed thereto in the introductory
paragraph of this Agreement.
(10) "Proposed Ordinance" shall have the meaning ascribed thereto in
Recital B of this Agreement.
199328.05-L.as Angeles Sl A
N
2
lJ
S^ A=
(11) "Redlands" shall have the meanings ascribed thereto in the introductory
paragraph of this Agreement.
(12) "tax" shall mean any tax, fee, charge, duty, levy, or other assessment of
a similar nature, whether imposed directly or through withholding.
(13) "ton or tonnage" shall mean a short ton or two thousand (2000) pounds.
3 ARTICLE
BUSINESS LICENSE TAX
In lieu of paying a tax pursuant to the Proposed Ordinance, Producer hereby agrees to
pay a business license tax (the "License Tax") to Redlands on the following terms and
conditions:
3.1 Imposition. The License Tax:
(i) shall be imposed solely on the extraction or processing of aggregate conducted
within the boundaries of Redlands;
(ii) shall be applied only once to any ton of aggregate (or portion thereof), so that no
ton of aggregate (or portion thereof) is subjected to the License Tax both when extracted within
the boundaries of Redlands and when processed within the Boundaries of Redlands, or at
different times or at different locations within the boundaries of Redlands;
(iii) shall be imposed at the rate of Ten Cents ($0,10) per ton, which rate shall be
adjusted annually in January of each year in accordance with the percentage change in the
Consumer Price Index for All Urban Consumers for the Los Angeles/Riverside/Orange County
Area for All Items (the "CPI") since the last adjustment (or, if the CPI ever ceases to be
published, in accordance with such substantially equivalent replacement index as the parties
shall agree to);
(iv) shall be subject to adjustment during the term of this Agreement only in accordance
with the express provisions of this Agreement; and
(v) shall be the only tax levied by Redlands during the term of this Agreement against
the extraction or processing of aggregate by Producer within the boundaries of Redlands, or
against any other aspect of Producer's aggregate business, with the sole exceptions of the sales
tax that is levied against the retail sale of items generally and authorized by the laws of the
State of California and such other taxes as are levied on all or substantially all other businesses
within the boundaries of Redlands generally; and if Redlands ever collects or attempts to
I993'_R.05-Los Angeles 81 A
3
impose any other tax on Producer in connection with the extraction or processing of aggregate
(or any other aspect of Producer's aggregate business) during the term hereof, then in addition
to all other remedies available to Producer in equity and at law for such breach of this
Agreement, Producer shall have the option to terminate this Agreement by providing written
notice to Redlands of such termination.
3.2 Commencement and Payment. Imposition of the License Tax shall begin on
January 1, 2001, and be paid by Producer to Redlands on a quarterly basis, sixty (60) days
after the end of each calendar quarter, beginning on May 31, 2001.
3.3 Reporting. Each License Tax payment shall be accompanied by the following
information relating to aggregate extracting and processing activity during the prior quarter:
(i) the tonnage of aggregate both extracted and processed within the boundaries of
Redlands;
(ii) the tonnage of aggregate extracted within the boundaries of Redlands and processed
outside the boundaries of Redlands;
(iii) the tonnage of aggregate processed within the boundaries of Redlands and extracted
outside the boundaries of Redlands;
(iv) the current rate of the License Tax; and
(v) the tonnage of aggregate described in clauses (ii) and (iii) immediately preceding
that is subject to tax by any other governmental entity or agency (specifying such amounts by
governmental entity and agency), and the rate(s) of such other governmental entity's(ies)' or
agency's(ies') tax(es).
The parties hereto agree that whenever in this Agreement the amount of aggregate
extracted or processed is to be calculated or reported, such amounts shall be determined at and
as of the time such aggregate is sold, it being acknowledged by the parties that this will result
in the most accurate and easily verifiable calculations and reporting.
3.4 Record Keeping and Audits. In addition to the information provided to
Redlands pursuant to Section 3.3, Producer shall maintain detailed weight slips for all
aggregate sold by it that is either extracted from within the boundaries of Redlands or
processed within the boundaries of Redlands. Such information shall be maintained for a
period of three years. During such three year period, Redlands shall be entitled to reasonable
audits of the weight slips to verify the accuracy of the License Tax paid and the other
information reported to it by Producer. Any such audits shall be conducted at the sole expense
of Redlands; provided, however, that if any particular audit discloses a quarterly underpayment
19932S-05-Los Angeles SIA
4
M
a;
of License Tax in excess of 7.5% of the amount finally determined to be payable by Producer,
the reasonable cost of such audit shall be borne by Producer.
3.5 Credits. The License Tax payable by Producer to Redlands for any quarter
shall be reduced by an amount equal to the Non-Redlands Tax Credit. The "Non-Redlands
Tax Credit" shall mean the amount of tax (with the sole exception of the sales tax that is
levied against the retail sale of items generally) paid or payable by Producer to any
governmental entity or agency other than Redlands (the "Non-Redlands Taxing Entities") and
attributable to aggregate extracted or aggregate processed by Producer within the boundaries of
Redlands during such quarter; provided, however, that the amount of such credit during any
such quarter shall not exceed the following: (i) the amount of License Tax that would be
payable by Producer to Redlands during such quarter if it were calculated prior to application
of the Non-Redlands Tax Credit; multiplied by (ii) the fraction that has as its numerator the
number of Non-Redlands Taxing Entities imposing tax on the aggregate business of Producer
that quarter, and as its denominator the number of Non-Redlands Taxing Entities imposing tax
on the aggregate business of Producer that quarter plus one.
3.6 Reductions. Notwithstanding anything to the contrary contained in this
Agreement, in the Proposed Ordinance, or in any other ordinance, law, statute, rule, or
regulation promulgated, passed, or enacted by Redlands or its populace, Redlands covenants
and agrees with Producer that Producer shall never be required to pay any License Tax at a
rate per ton of aggregate extracted or processed by Producer that is in excess of the rate of tax
per ton actually paid on the extraction and processing of aggregate (after taking into account all
credits, rebates, offsets, and other reductions permitted in connection with the payment of such
tax) by any other entity engaged in such business within the boundaries of Redlands (and the
rate of License Tax payable by Producer shall automatically be reduced hereby (to zero if
necessary) to effectuate this provision); it being the intention and agreement of the parties
hereto that in consideration of Producer entering into this Agreement, Producer shall never
suffer a competitive disadvantage with any other entity who extracts or processes aggregate
within the boundaries of Redlands as a result of entering into this Agreement.
In connection therewith, Redlands further agrees to: (i) promptly advise Producer in
writing if the tax per ton on the extraction and processing of aggregate actually paid (after
taking into account all credits, rebates, offsets, and other reductions permitted in connection
with the payment of such tax) by any other entity engaged in such business within the
boundaries of Redlands is lower than that paid by Producer during any period; (ii) promptly
return any portion of License Tax previously paid by Producer to Redlands as may be
necessary to effectuate the provisions and intentions of this Section 3.6 and avoid the
overpayment of such tax by Producer; (iii) require such reporting from and maintain such
records for entities other than Producer that are engaged in the extracting or processing of
aggregate within the boundaries of Redlands as may be reasonably necessary to allow the
parties to this Agreement to implement this Section 3.6 (and in no event shall Redlands allow
199328.05-Las Angeles SIA
S
N
lesser reporting or maintenance of records than that required of Producer or Redlands
hereunder); and (iv) permit independent audit of its records by a reputable certified public
accounting firm to verify Redlands' compliance with the provisions of this Agreement;
provided, however, that such firm shall first agree in writing to hold any non-public
information strictly confidential.
If the provisions of Sections 3.5 and 3.6 are both applicable to the calculation of
License Tax for any period, the provisions of Section 3.5 shall be applied prior to the
provisions of Section 3.6 in calculating License Tax owing for such period.
3.7 Penalties. Failure by Producer to timely pay any License Tax due hereunder
shall cause the unpaid amount of License Tax to incur interest at the rate of ten percent (101)
per annum; provided, however, that if such failure is finally adjudicated by a competent court
of law to be due to the fraud of Producer, then such unpaid License Tax shall be subject to an
additional penalty equal to twenty-five percent (25%) of the amount of the fraudulently unpaid
License Tax but in no event more than the maximum penalty permitted by law.
3.8 Sole Recourse. Notwithstanding the Proposed Ordinance or any other ordinance,
law, statute, rule, or regulation promulgated, passed, or enacted by Redlands or its populace,
Redlands agrees that the terms of this Agreement shall govern, and shall provide the basis for its
sole recourse against Producer in respect of, all matters relating to tax on the extraction and
processing of aggregate (and other aspects of the aggregate business) within the boundaries of
Redlands, including the imposition of such tax and any reporting requirements, audits, or
penalties relating to such tax.
4 ARTICLE
MISCELLANEOUS
4.1 Confidentiality. All non-public information relating to Producer's aggregate
extraction, aggregate processing, and other aggregate business that is provided to Redlands by
Producer, including, without limitation, the information provided pursuant to Section 3.3
hereof and any information obtained by Redlands pursuant to an audit described in Section 3.4,
shall be held strictly confidential by Redlands and shall not be used for any purpose other than
verification of the terms of this Agreement. Redlands hereby acknowledges and agrees that
any disclosure or improper use by Redlands of confidential information could cause Producer
substantial damages, and also irreparable injury for which there is not an adequate remedy at
law. Therefore, in the event of any such action, Producer shall be entitled, in addition to all
other remedies which it may have hereunder or at law or in equity, to a temporary and/or
permanent injunction with a decree for specific performance of the terms hereof without being
required to furnish a bond or other security. Jurisdiction in any action for injunctive relief
shall be in a court of competent subject matter jurisdiction in California, with venue in Los
Angeles County, California.
199323 05-Los Angeles 51 A
6
Moreover, if Redlands or any party acting on its behalf is subpoenaed or otherwise
ordered to produce any confidential information, Redlands shall promptly (and prior to such
disclosure) notify Producer of such subpoena or demand whereupon Producer and Redlands
shall cooperate and take all reasonable acts (provided Redlands shall not be required to expend
any of its own funds in connection therewith) to exhaust the legal avenues available to maintain
the confidentiality of such confidential information, unless Producer consents to the production
and disclosure of the information. In all events, only that portion of the confidential
information specifically requested by the tribunal or party compelling such disclosure shall be
provided and no interpretation or analysis of such data shall be prepared by Redlands for the
purpose of such disclosure unless approved by Producer or required by law.
4.2 Other Regulatory Provisions. Except as expressly provided herein, nothing in
this Agreement shall relieve Producer from any applicable regulatory provisions or ordinances
otherwise applicable to the businesses it conducts within the boundaries of Redlands.
4.3 Notices. Any communication, notice, or demand of any kind whatsoever that
either party may be required or may desire to give to or serve upon the other shall be in
writing, addressed to the addresses set forth below, and delivered by personal service, by
reputable overnight delivery service, by facsimile transmission,,or by registered or certified
mail, postage prepaid, return receipt requested:
If to Producer: Cemex U.S.A. Construction Materials, Inc.
1 Riverway, Suite 2200
Houston, Texas 77056
Attention: Director of Environmental Safety and Risk
and
General Counsel
Facsimile: (713) 881-1165
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Rand S. April, Esq.
Facsimile: (213) 687-5600
If to Redlands: City of Redlands
35 Cajon Street
Redlands, California 92373
Attention: City Attorney
Facsimile: (909) 798-7503
199328 05-Los Angeles SIA
7
Any such notice shall be deemed delivered if sent as follows: (a) if personally
delivered, on the date of delivery to the address of the person to receive such notice as
evidenced by a signed receipt or notice of refusal thereof, (b) if sent by reputable overnight
courier service, on the date of delivery to the address of the person to receive such notice as
evidenced by a signed receipt or notice of refusal thereof; (c) if sent by facsimile transmission,
on the date transmitted to the person to receive such notice if sent by 5:00 p.m., Central time,
and on the next day if sent after 5:00 p.m., Central time; or (d) if mailed, on the date of
delivery to the address of the person to receive such notice as evidenced by a signed receipt or
notice of refusal thereof. Any notice sent by facsimile transmission must be confirmed by
personally delivering, sending by courier, or mailing a copy of the notice sent by facsimile
transmission. Any party may change its address for notice by written notice given to the other
at least ten (10) days before the effective date of such change in the manner provided in this
Section 4.3.
4.4 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, administrators, successors, and assigns,
including, without limitation, upon any purchaser, manager, operator, subcontractor, lessee, or
licensee of Producer's aggregate business operated within the boundaries of Redlands or
Producer's aggregate-containing land located within the boundaries of Redlands.
4.5 Amendments. This Agreement may be amended or modified only'by a written
instrument executed by both parties.
4.6 Interpretation. Words used in the singular shall include the plural, and vice-
versa, and any gender shall be deemed to include the other. The captions and headings of the
Articles and Sections of this Agreement are for convenience of reference only, and shall not be
deemed to define or limit the provisions hereof. Furthermore, each party hereby acknowledges
that such party and its counsel, after negotiation and consultation, have reviewed and revised
this Agreement. As such, the terms of this Agreement shall be fairly construed and any rule of
construction to the effect that ambiguities herein should be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments,
modifications, or exhibits hereto or thereto.
4.7 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, without regard to its principles
of conflicts of law.
4.8 Entire Agreement. This Agreement including the exhibits attached hereto
constitutes the entire agreement between Redlands and Producer pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, letters of intent,
negotiations, and discussions of the parties, whether oral or written.
199328 05-Los Angeles S I A
4.9 Attorneys' Fees and Costs. If either Redlands or Producer brings any suit or
other proceeding with respect to the subject matter or the enforcement of this Agreement or
any other document executed in connection herewith, the prevailing party (as determined by
the court, agency, or other authority before which such suit or proceeding is commenced), in
addition to such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses, and costs of investigation actually incurred. The foregoing shall
include, without limitation, reasonable attorneys' fees, expenses, and costs of investigation
incurred in appellate proceedings and costs incurred in establishing the right to
indemnification.
4.10 Time of the Essence. Time is of the essence with respect to all matters
contemplated by this Agreement.
4.11 No Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
4.12 Further Acts. Each party, at the request of the other, shall execute,
acknowledge (if appropriate), and deliver such additional documents, and do such other
additional acts, as may be reasonably required in order to accomplish the intent-and purpose of
this Agreement.
4.13 Exhibits. Exhibit A is attached hereto and incorporated herein by reference.
4.14 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original, but all of which when taken together shall constitute
one and the same instrument.
4.15 No Intent to Benefit Third Parties. Except for any purchaser(s), manager(s),
operator(s), subcontractor(s), lessee(s), and licensee(s) of Producer's aggregate business
located within the boundaries of Redlands or Producer's aggregate-containing land located
within the boundaries of Redlands, which purchaser(s), manager(s), operator(s),
subcontractor(s), lessee(s), and licensee(s) shall be entitled to all the benefits of this
Agreement, Producer and Redlands do not intend by any provision of this Agreement to confer
any right, remedy, or benefit upon any third party, and no other third party shall be entitled to
enforce, or otherwise shall acquire any right, remedy, or benefit by reason of, any provision of
this Agreement.
4.16 Business Days. The term "Business Day" shall mean a day that is not a
Saturday, Sunday or legal holiday in California or Texas. In the event that the date for the
performance of any covenant or obligation under this Agreement shall fall on a Saturday,
199328,05-Los Angeles SIA
9
Sunday or legal holiday in California or Texas, the date for performance thereof shall be
extended to the next Business Day.
4.17 Expenses of Agreement. Except as otherwise provided in this Agreement,
Producer and Redlands shall each bear its own direct and indirect expenses incurred in
connection with the negotiation and preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby.
4.18 Severability. Any provision or part of this Agreement which is invalid or
unenforceable in any situation or in any jurisdiction shall, as to such situation and such
jurisdiction, be ineffective only to the extent of such invalidity and shall not affect the
enforceability of the remaining provisions hereof or the validity or enforceability of any such
provision in any other situation or in any other jurisdiction, unless such invalidity materially
changes the agreements set forth herein, in which event this Agreement shall terminate.
4.19 Dispute Resolution. The parties hereto acknowledge that it is in their best
interest to facilitate the informal resolution of any disputes arising out of this Agreement. As a
result, if any dispute so arises, the complaining party shall serve upon the other party a written
document setting forth in detail the nature of the complaint and the proposed solution to the
complaint, including a specific and reasonable time frame within which the parties must act.
The party receiving the complaint shall respond in writing within thirty (30) days,upon receipt
of the notice with an explanation and response to the proposed solution. Within thirty (30)
days of receipt of this response, Redlands and Producer shall meet and discuss options for
resolving the dispute. The complaining party shall initiate the scheduling of a resolution
meeting.
In the event the parties are unable to reach agreement at any such resolution meeting or
meetings, a settlement conference shall be held within thirty (30) days. The settlement
conference shall be held in the Los Angeles office of Judicial Arbitration and Mediation
Services, Inc. ("JAMS"). The complaining party shall contact JAMS to schedule the
conference and the parties may agree on a retired judge from the JAMS panel. If the parties
are unable to agree upon such a retired judge, JAMS shall provide a list of three available
judges and each party shall strike a separate judge. The remaining judge shall serve as the
mediator at the settlement conference.
If the dispute is not settled by the two above-described resolution formats, the parties
hereto agree to submit the dispute to the JAMS Los Angeles office for binding arbitration in
accordance with California substantive law and the arbitration rules conducted in accordance
with Title 9 of the California Code of Civil Procedure §§ 1280 et seq. and under the
commercial rules of the American Arbitration Association then in effect. One judge will be
selected to arbitrate the dispute. JAMS will provide the names of three potential arbitrators,
giving each party the opportunity to strike one name. The remaining person will serve as the
199328,05-LOS Angeles Sl A
10
arbitrator, unless both parties object to the remaining person in which case JAMS will provide
the names of three additional potential arbitrators and the selection process shall begin anew.
The parties agree that the arbitration must be initiated within one year after the complaining
part first knew or should have known of the existence of the claimed breach of this Agreement,
and that failure to initiate arbitration within the one-year period constitutes an absolute bar
from the institution of any new proceedings. Arbitration shall be initiated by the aggrieved
party by sending written notice of an intent to arbitrate in accordance with the notice provisions
contained in Section 4.3, and by additionally sending such written notice by registered or
certified mail, return receipt requested, to JAMS. The notice must contain a description of the
dispute, the amount involved and the remedies sought. If and when a demand for arbitration is
made by either party, the parties agree to execute a Submission Agreement provided by JAMS
and consistent herewith, setting forth the rights of the parties if the case is arbitrated and the
rules and procedures to be followed at the arbitration hearing. However, the parties
understand and agree that JAMS shall have no authority to consider or to issue injunctive
and/or equitable relief, and that such requests for injunctive and/or equitable relief shall be
filed in the Superior Court of the State of California for the County of Los Angeles.
4.20 Authority. Each party hereto represents and warrants to the other that the
individual executing this Agreement on its behalf is duly authorized to execute and deliver this
Agreement on its behalf.
4.21 Non-Contravention. Each party hereto represents and warrants to the other
that the execution, delivery, and performance of this Agreement does not violate any
ordinance, law, statute, rule, regulation, judgment, injunction, order, or decree, applicable to
it, or breach any agreement to which it is a party.
4.22 Development Agreement. From and after the date hereof, Redlands and
Producer agree to work diligently and in good faith with each other and to use commercially
reasonable efforts to enter into an agreement on the same material terms and conditions as this
Agreement but which otherwise meet the requirements of a development agreement under
California Government Code §65864 et seq. If within one (1) year of the date hereof, such a
development agreement has not been fully executed and delivered by both of the parties hereto,
then at any time thereafter, either party may terminate this Agreement by providing written
notice to the other of such termination.
4.23 Challenges. Producer and Redlands each agree that during the pendency of this
Agreement it shall not challenge this Agreement or any of the terms hereof on the specific
basis that this Agreement or any of its terms violate California Proposition 218 or the
provisions of any other California state law which provides that Redlands may not enact a tax
without an affirmative vote of its populace; provided, however, that Producer reserves and
retains all rights to challenge any and all taxes imposed or sought to be imposed by Redlands
on it or its aggregate business from and after the expiration or termination of this Agreement
199328.05-Los Angeles S I A
lI
M
(including, without limitation, termination of this Agreement as a result of the parties inability
to obtain a development agreement as provided in Section 4.221, and to challenge such taxes on
any basis whatsoever, including, without limitation, on the basis that such taxes violate
California Proposition 218 or the provisions of another California state law which provides that
Redlands may not enact a tax without an affirmative vote of its populace.
199328.05-Los Angeles SIA
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
1
"Producer"
CEMEX U.S.A. CONSTRUCTION MATERIALS, INC.,
(} a Dlaf*are aS corporation
E;X
f
By. Print `~ ry
Print Title: '
"Redlands"
CITY OF REDLANDS,
a municipal corporation organized and existing under the laws
of the State of California
By:
Print Name: Pat Gilbreath
Print Title: Mayor
,
By:
Print Namezer
Print Title. it v Clerk
APPROVED AS TO FORM:
By: n/a
Print Name:
Print Title: City Attorney
199328 05-Los Angelo S I A
li
, E
LIST OF EXHIBITS
EXHIBIT A PROPOSED ORDINANCE
199328 05-Los Angeles SIA
- rr
ORDINANCE NO. 2441 [BRAF7
AN ORDINANCE OF THE CITY OF REDLANDS ADDING CHAPTER 5.10 TO THE
REDLANDS MUNICIPAL CODE ESTABLISHING A BUSINESS LICENSE TAX ON THE
EXTRACTION OR PROCESSING OF ROCK, SAND AND GRAVEL (AGGREGATE)
THE CITY COUNCIL OF THE CITY OF REDLANDS DOES ORDAIN AS
FOLLOWS:
Section 1. Chapter 5.10, entitled "Business License Tax on Extraction or Processing of
Rock, Sand and Gravel (Aggregate)" is hereby added to the Redlands Municipal Code to read as
follows:
"Chapter 5.10
Business License Tax on Extraction or Processing of Rock,
Sand and Gravel (Aggregate)
Section
5.10.010 Purpose
5.10.020 Payment of Business License Tax; Business License Required
5.10.030 Verification of Annual Production
5.10.040 Rock, Sand and Gravel (aggregate) processing and Extraction Tax
5.10.050 Credit for Sales Taxes Generated and Paid
5.10.060 Record keeping: Retention of Records and Right of Inspection
5.10.070 Failure to Remit Tax When Due: Penalty
i.10.080 Payment of Other Fees or Taxes Not Excused
5.10.090 Exemption from Tax
5.10.100 Taxes a Debt to City: Actions for Collection of Taxes
5.10.110 Misrepresentation
5.10.120 Amendments
5.10.130 General Penalty for Violations
5.10.140 Severability
5.10.150 Effective Date
Section 5.10.010 Puzpose.
The purpose of this Chapter is to establish a tax on the commercial business of the extraction
or processing of rock,sand and a
I gravel(aggregate)within the City,as a means of generating revenue
for the City for municipal purposes and n6it as a regulatory measure. This business license tax is
imposed in the interests of the health, safety convenience and welfare of the residents of the City.
1:',djm\0rd\0rd.2441.wpd
Section 5.10.120 Payment of Business License Tax and Business License Re
A. There is imposed upon any business engaged in the principal business of extracting or
processing,rock,sand or gravel(aggregate)from or on any real property located within the City, for
the purpose of commercial use or sale, a general business license tax in the amount set forth in
Section 5.10.040 of this Chapter.
B. Each business which is subject to this Chapter shall,within 45 days of the effective date
of the Ordinance establishing this Chapter, apply for and obtain a business license tax certificate,as
part of the business license application, from the City Treasurer. The business license tax certificate
application shall include a current topographic map of all permitted extraction and processing sites
within the City, at a scale of I"= 200' and shall include the locations of the City limits and permit
limits.
C. It is unlawful for any person, whether as principal or agent, or employee, either for
himself or for any other person, to transact and carry on any business within the City which is
subject to the business license tax established in this Chapter without first having applied for and
procured a business license tax certificate from the City to do so, and without having paid the
business license tax therefor. Exemptions to this requirement are set forth in Section 5.10.080 of this
Chapter.
D. As used in this Chapter, "processed" or"processing" shall include,not be limited to,the
utilization of rock, sand or gravel (aggregate) from any source or location, as a primary ingredient
as part of a manufacturing or batching process(such as asphalt or concrete batching)within the City.
E. As used in this Chapter, to be "engaged in business" shall include the acts of extracting
rock, sand or gravel (aggregate) from or on any real property located within the City, processing
rock, sand or gravel (aggregate), or the utilization of rock, sand or gravel (aggregate), from any
source or location,as a primary ingredient as part of a manufacturing or batching process within the
City. As used in this Chapter,"engaged in business" shall also include the business of extraction and
processing of rock, sand or gravel (aggregate)which is sold to a public agency pursuant to bid.
F. Whenever any person is carrying on two or more related activities at the same location
and under the same ownership or management, such as extraction and processing of rock, sand or
gravel (aggregate),then in that event the business license tax shall be applied once only to each ton
of material extracted or processed,whichever is grater,and a single business license shall be issued.
Provided,however,that nothing contained in this Section shall be construed to relieve the payment
of two or more business license taxes when required, where two or more separate businesses are
conducted in the same location by the same owner or management and such businesses are not
construed by the City Treasurer to be correlated or allied with each other. An appropriate business
license tax as set forth in this Chapter shall be paid for each business.
G. Nothing contained in this Chapter shall be construed to relieve the obligation to obtain
1:\djm�Ord\Ord,2441.wpd ?
[U) Mirk? U
a separate business license and to pay the appropriate business license tax required for each business
owned or conducted by a separate owner whether or not under the same management.
Section 5.10.030 Verification of Annual Production.
A. To enable the City to verify annual production reporting, each business which is subject
to this Chapter shall submit the following'Information to the City Treasurer:
(1) Each year on or before June 30, production quantities shall be submitted,reported
in tons by quarter and cumulatively for the reporting year.
I 1=
(2) Each year, on or before July 15, a current aerial photograph shall be submitted of
the mining area with City limits and mine permit area clearly identified.
(3) Every five (5) years, on or before July 15, a current topographic map of the
business' permitted extractive sites within the City shall be submitted. The
topographic map shall be based on aerial photographs taken within 45 days of
submittal. The purpose of the topographic maps is to verify reported production
quantities.
(4) Weight slips for aggregate materials shall be made available to the City annually,
upon request,
B. If the information submitted pursuant to this Section does not adequately quantify annual
production,additional information and documentation, identified by the City,may be required and
shall be provided at the expense of the business.
C. In addition to the measures set forth in this Section, the City may conduct an audit to
ensure compliance with this Chapter. The expenses incurred in the completion of the audit shall be
paid by the City, unless inaccuracies in reporting are identified. Should inaccuracies be identified,
the penalties set forth in Section 5.10.130 shall be assessed, including the cost of the audit.
Section 5.10.040 Rock. Sand and Gravel (Aggregate) Extraction and Processing Tax.
A. Every person who engages in the principal business of extracting orprocessing rock,sand
I C�
and gravel (aggregate) from or on any real property located within the City, for the purpose of
commercial use or sale, shall pay a general business license tax on each ton of material excavated
from or processing in the City according to the following schedule:
$0.10 per ton for any quantity of rock up to and including one million tons
$0.12 per ton for any quantity of rock, sand or gravel in excess of one (1)million tons but
less that 2 million tons;
50.14 per ton for any quantity of rock of 2 million tons or more;
IAdj m'Ord'Ord.2441 wpd 3
The rate of tax commencing shall be adjusted annually in July of each year in accordance with the
Consumer Price Index,for all urban consumers for LosAngeles/Anaheim/Riverside(or substantially
equivalent index).
B. The tax on the processing or extraction of rock, sand and gravel (aggregate) and
businesses as set forth herein, shall begin on January 1,2001, and shall be paid and collected by the
City quarterly, beginning April 1, 2001. The returns for the tax shall be submitted by the persons
engaged in said principal business within 15 days following the end of each quarter for which the
tax is due,,on July 1,October 1,January I and April I of each calendar year,subject to the penalties
for failure to pay the said tax as set forth in this Chapter.
C. The City Treasurer shall provide each person in the principal business with a form for
reporting the quarterly return. All returns shall indicate:
(1) The tonnage of rock, sand and gravel (aggregate) extracted and processed during
the prior calendar quarter from property located within the City of Redlands.
(2) The tonnage of rock, sand and gravel (aggregate) extracted during the prior
calendar quarter from property located outside the City, and processed within the
City, which is taxed by another city or county, and the rate of tax which has been
collected by the other city or county for the same material.
(3) The tonnage of rock, sand and gravel (aggregate) shipped from extraction or
processing facilities located within the City to concrete batch plants,asphalt batch
I
plants and other processing or manufacturing facilities that utilize aggregate
materials.
(4) The tonnage of concrete, asphalt or other processed materials shipped form
processing facilities located within the City. Concrete and asphalt materials shall
be taxed at a rate to be determined by the City based on approximate aggregate
content, per cubic yard of concrete, asphalt or other processed material shipped.
Oth6r products processed on the site where aggregate is used as a constituent in an
end product will be taxed based on the approximate aggregate content.
(5) The current tax rate imposed by the City.
D. Information provided on the quarterly return shall not be considered conclusive as to the
information it contains, will not prevent the City from collecting the appropriate amount which is
actually due and payable, and shall be subject to review, audit and verification.
L\djm','OrdOrd,2441,wpd 4
Section 5.10.050 Credit for Sales Taxes Generated and Paid.
An person required to pay a business license tax for conducting a business subject to this
Any -7
Chapter shall have credited against the amount of business license tax due and owing for any year,
an amount equal to the sales tax generated and paid to the City by thdt business during the year.
Section 5.10.060 Record Keging: Retention of Records and Right of Inspection.
It shall be the duty of every person liable for the reporting and payment to the City of any
business license tax imposed by this Chapter to keep and preserve, for a period of not less than three
(3) years, all records as may be necessary to determine the amount of such tax as he may have been
liable for the reporting of and payment to the City. The City Treasurer shall have the right and
authority to examine or cause to examine, audit and inspect such books and records as may be
necessary to determine the amount of tax due and payable, and shall have the authority to enforce
all provisions of this Chapter.
Section 5.10.070 Failure to Remit Tax When Due: Penaltv
A. Any person who engages in a business which is subject to this Chapter who fails to remit
any tax imposed hereby within the time required, shall pay a penaliy often(10)percent per annum,
compounded,of the amount of tax in addition to the amount owed. Such penalty shall be added by
the City Treasurer on the first day of each month after the due date thereof. In addition to the penalty
set forth above, the City shall also collect all of its administrative costs, attorneys' fees and other
costs incurred by in enforcing this Chapter.
B. If the City Treasurer determines that the nonpayment or underpayment of any remittance
due under this Chapter is due to fraud,a penalty of twenty-five(25)percent of the amount of the tax
shall be added thereto in addition to the penalties stated hereinabove.
. C. Every penalty imposed and such interest as accrues under the provisions of this Section
-shall become a part of the tax required to be paid by this Chapter.
D. The penalty set forth herein shall be in addition to any other applicable penalty for a
violation of this Chapter, or any other recourse or remedy available to the City by law.
Section 5.10.080 Pavment of Other Fees or Taxes Not Excused.
Any person required to pay a business license tax for conducting a business under this
Chapter shall not be relieved from the payment of any other permit charge, fee or tax for the
privilege of conducting such business required under any other provision of this Code or any other
ordinance or regulation of the City or other agency, and such person shall remain subject to all
applicable regulatory provisions.
1:',djm�Ord\Ord.2"I.wpd 5
Section 5.10.090 Exemption from Tax.
A. In the event that the extraction of any of the rock,sand and gravel(aggregate)processed
by the person responsible for paying the tax is in fact taxed by any other city or county,and the other
city or county also allows a reduction in tax under the same circumstances,then the tax so paid on
the materials so processed may be reduced by as much as the amount paid to the other city or county,
but in no event shall the reduction be more than one-half(V2) of the rate charged by the City.
B.'No business license tax shall be required under this Chapter of or from any person exempt
from the business license tax by virtue of the constitution or any applicable statutes of the United
States or the State of California.
C. No business license tax shall be required under this Chapter of or from any governmental
agency or subdivision and the employees thereof, but only to the extent they are engaged in the
business of such governmental agencies or subdivisions.
D. Any person claiming a business license tax exemption under this Chapter has the burden
of furnishing to the City Treasurer such information as the City Treasurer may require to support the
claim or eligibility for exemption.
Section 5.10.100 Taxes a Debt to City: Actions for Collection of Taxes.
The amount of any business license tax, penalty or interest, or any combination thereof,
imposed by the provisions of this Chapter shall be deemed a debt to the City. An action may be
commenced in the name of the City in any court of competent jurisdiction for the amount of any
delinquent business tax,penalties, interest,charges and administrative costs incurred in connection
therewith, including attorneys' fees.
Section 5.10.110 Misrepresentation.
No person shall knowingly or intentionally misrepresent any material fact in applying or or
paying for the business license tax certificate.
Section 5.10.120 Amendments.
The procedural provisions of this Chapter may be amended by ordinance duly enacted by the
City Council.
Section 5.10.1 30 General Penalty for Violations.
No person, whether as p principal, agent, employee or otherwise, shall violate, cause the
violation of, or otherwise fall to comply with any of the requirements of this Chapter. Every act
prohibited or declared unlawful,and every failure to perform an act made mandatory,shall constitute
I:kdjm\Ord\Ord.2441-wpd 6
and be prosecuted as a misdemeanor as set forth in Chapter 1.24 of this Code.
Section 5.10.140 Severability.
If any section,subsection,sentence,clause or phrase of this Chapter or the application thereof
is for any reason held to be invalid or unconstitutional by a decision of any court of competent
jurisdiction, the validity of the remaining portions of this Chapter, the application thereof, and the
tax imposed shall not be affected thereby but shall remain in full force and effect, it being the
intention of the City Council and the voters to adopt each and every section,subsection,part,clause,
sentence and phrase regardless of whether any other section, subsection, part, clause, sentence or
phrase or the application thereof is held to be invalid or unconstitutional.
Section 5.10.150 Effective Date.
The ordinance enacting this Chapter as a part of this Code and levying the business license
tax described herein shall be effective ten (10) days after the date on which the City Council has
declared that the voters of the City of Redlands have approved that ordinance by a majority of the
votes cast by the electors voting on the tax proposal set forth in the ordinance.
Section 2. The City Attorney is hereby designated and directed to prepare a summary of this
ordinance, which shall be published in a newspaper of general circulation in the City of Redlands.
A certified copy of the full text of the Ordinance shall be posted and available in the office of the
City Clerk.
Section 3. The Mayor shall sign this Ordinance and the City Clerk shall attest and certify
the passage and adoption of this Ordinance if a majority of the voters voting in the City's special
election on November 7, 2000 approve that measure asking whether the voters approve this
ordinance.
ADOPTED, SIGNED AND APPROVED this day of , 2000.
Mayor of the City of Redlands
Attest:
City Clerk
L djm\0rd\0rd.2441.wpd 7