TITLE 3 - Index

CHAPTER 3.01 – CITY FEES
3.01.100 Authority of City Council to Fix Fees

CHAPTER 3.04 - DISPOSITION OF FEES
3.04.010 Collections by chief of police and recorder--Payment to treasurer and general fund
3.04.020 Payment procedure--Receipts

CHAPTER 3.08 - CITY FUNDS
3.08.090 Off-street parking fund--Created--Deposits
3.08.100 Off-street parking fund--Use of funds--Warrants
3.08.110 Off-street parking fund--Construction of provisions

CHAPTER 3.12 - PAST DUE ACCOUNTS
3.12.010 Interest rate designated
3.12.020 Limitation on interest accumulation
3.12.030 Reduction or waiver of collection authorized when

CHAPTER 3.16 - IMPROVEMENT FINANCING
3.16.010 Council findings
3.16.020 Special revolving fund--Established--Transfer of funds—Purpose
3.16.030 Procedures for alternate financing and loans
3.16.040 Interest rates on loans
3.16.050 Disposition of interest earned
3.16.060 Disposition of fund earnings--Discontinuance of fund procedures

CHAPTER 3.20 – ADEQUATE PUBLIC FACILITIES AND CONTRIBUTION
3.20.010 General
3.20.020 Findings Required
3.20.030 Qualified Public Facility
3.20.040 Impact Study
3.20.050 Alternate Findings Allowed
3.20.060 Conditions and Limits
3.20.070 Project Determination
3.20.080 Final Determination
3.20.090 Application of Funds
3.20.100 Time Limits

CHAPTER 3.24 - CLAIMS FOR COMPENSATION

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CHAPTER 3.32- RIGHT OF WAY PRIVILEGE TAX

3.32.010 Purpose
3.32.020 Definitions
3.32.030 Tax Imposed
3.32.040 Amount of Tax
3.32.050 Payment; Interest on late payments
3.32.060 Accounting and Audit
3.32.070 Confidential/Proprietary Information
3.32.080 Refunds
3.32.090 Exemptions
3.32.100 Notice of Amendments
3.32.110 Preemption and Severability

CHAPTER 3.36- MOTOR VEHICLE FUEL TAX

 3.36.010 Title
 3.36.020 Definitions
 3.36.030 Tax Imposed
 3.36.040 Amount and Payment
 3.36.050 Permit Requirements
 3.36.060 Permit Applications and Issuance
 3.36.070 Failure to Secure Permit
 3.36.080 Revocation of Permit 
 3.36.090 Cancellation of Permit 
 3.36.100 Remedies Cumulative
 3.36.110 Payment of Tax and Delinquency
 3.36.120 Monthly Statement of Dealer 
 3.36.130 Failure to File Monthly Statement
 3.36.140 Billing Purchasers
 3.36.150 Failure to Provide Invoice or Delivery Tag
 3.36.160 Transporting Motor Vehicle Fuel in Bulk 
 3.36.170 Exemption of Export Fuel
 3.36.180 Sales to Armed Forces Exempted
 3.36.190 Fuel in Vehicles Coming Into City Not Taxed 
 3.36.200 Refunds 
 3.36.210 Examination and Investigations 
 3.36.220Limitation on Credit for or Refund of Overpayment and on Assessment of Additional Tax
 3.36.230 Examining Books and Accounts of Carrier Motor Vehicle Fuel 
 3.36.240 Records to be Kept by Dealers and Fuel Handler
 3.36.250 Records to be Kept Three Years 
 3.36.260 Use of Tax Revenues 
 3.36.270 Administration

TITLE 3 - REVENUE AND FINANCE

Chapters:
3.01 City Fees
3.04 Disposition of Fees
3.08 City Funds
3.12 Past Due Accounts
3.16 Improvement Financing
3.20 Adequate Public Facilities and Contribution
3.24 Claims for Compensation (Ballot Measure 7-2000)

CHAPTER 3.01 – CITY FEES

Legislative History: Ord 1759 (1998)

Sections:
3.01.100 Authority of City Council to Fix Fees .

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3.01.100  Authority of City Council to Fix Fees.  The City Council may, by resolution, fix fees to be applicable whenever the City provides a service or incurs a cost, whether or not the service provided or the cost incurred is expressly identified in an ordinance or statute stating that a fee may be charged or a cost recovered.

CHAPTER 3.04 – DISPOSITION OF FEES

Sections:

3.04.010 Collections by chief of police and recorder --Payment to treasurer and general fund
3.04.020 Payment procedure --Receipts

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3.04.010 Collections by Chief of Police and Recorder - Payment to Treasurer and General Fund.  All fees and moneys for whatever purpose allowed or paid to the Chief of Police and Recorder or either of them for services performed by them in their official capacity shall be the property of the city and shall be paid to the City Treasurer and by him placed in the general fund of the City.

3.04.020 Payment Procedure - Receipts.  The Chief of Police shall pay all fees and moneys collected by him to the City Recorder and shall take a receipt therefor, and the City Recorder shall pay all fees and moneys so received from the chief of police and all fees and moneys collected by him as such recorder to the City Treasurer, taking the receipt of the treasurer therefor.

CHAPTER 3.08 - CITY FUNDS

Sections:
3.08.090 Off-street parking fund--Created--Deposits
3.08.100 Off-street parking fund--Use of funds--Warrants
3.08.110 Off-street parking fund--Construction of Provisions

(Sections 3.08.050 - 3.08.080 deleted) Ord 1728, part 1996)

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3.08.090 Off-Street Parking Fund - Created - Deposits.  There is created a special fund to be used for acquisition and development of property for off-street parking to be known as "off-street parking fund," and into which shall be placed, from time to time, such money derived from parking meters and from fines levied for violation of the ordinance governing parking meters as the council may determine to deposit in such fund. 

3.08.100 Off-Street Parking Fund - Use of Funds - Warrants.  The money in the off-street parking fund shall be used only for the purchase and improvement of property to be used for off-street parking and administration, engineering and legal costs connected with the purchase, acquisition, construction and improvement of said off-street parking and financing of the same, and for no other purposes. Warrants drawn against such fund shall be plainly marked "off-street parking fund." 

3.08.110 Off-Street Parking Fund - Construction of Provisions.  Nothing contained in Sections 3.08.090 through 3.08.100 shall prevent the council from discontinuing such off-street parking fund at any time, nor prevent the return of the money deposited in such fund to the parking meter fund or to such other funds to which it may be legally transferred. 

 

CHAPTER 3.12 - PAST DUE ACCOUNTS

Sections:
3.12.010 Interest rate designated.
3.12.020 Limitation on interest accumulation.
3.12.030 Reduction or waiver of collection authorized when.

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3.12.010   Interest Rate Designated.  All amounts due to the city, including taxes, for which an interest rate is not otherwise provided shall bear interest from due date until paid at a rate not to exceed the maximum rate allowed by law. 

3.12.020 Limitation on Interest Accumulation.  Interest collected on any account shall not exceed twenty years. 

3.12.030 Reduction or Waiver of Collection Authorized When. The Council by a majority vote of the full Council may waive the collection of interest or reduce the rate of interest in accounts more than ten years past due when it would appear to enforce collection of the same would be inequitable under all conditions. 

 

CHAPTER 3.16 - IMPROVEMENT FINANCING

Sections:
3.16.010 Council findings
3.16.020 Special revolving fund--Established-- Transfer of funds--Purpose
3.16.030 Procedures for alternate financing and loans
3.16.040 Interest rates on loans
3.16.050 Disposition of interest earned
3.16.060 Disposition of fund earnings--Discontinuance of fund procedures

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3.16.010  Council Findings. 

A. The Council finds that certain small street, sidewalk and sewer improvements in the city have not been made for the reason that the total cost of each such project is not sufficient to justify the issuance of Bancroft bonds, entailing the incidental expense thereof, but that the making of such street, sidewalk and sewer improvements is desirable and necessary for the preservation-of the peace, health and safety of the city and its inhabitants; and that there is a great public good which can be provided for the general public of the city in addition to the benefits received by those who would be specially benefited through the promotion and completion of such street, sidewalk and sewer projects; and

B. The Council further finds that many of such small projects are retarded by the fact that the property owners benefited cannot pay cash for the same and in some cares are unwilling to apply for the method of financing furnished through Bancroft bonds, and the high rate of interest accompanying the same over a ten-year period; and

C. The Council further finds that the application for, and the doing of the work of many of such small improvements could be promoted by the establishment by the city of a small revolving fund to be made available for the financing of such improvements; and

D. The Council further finds that there are moneys in excess of the sum hereinafter mentioned on hand in its water department which are not required for payment of indebtedness, and which are currently available for promoting such financing on the part of the city; and

E. Whereas it is desirable to establish a fund in the nature of that abovementioned, at this time.  (Ord. 956, 1952)

3.16.020 Special Revolving Fund - Established - Transfer of Funds - Purpose.  There is designated and appropriated from moneys now not earmarked for any special purpose within the funds held by the city, and credited to the water department, the sum of sixty thousand dollars which shall be known as "special revolving fund," which fund shall be used only for the purpose of financing such improvements to streets, sidewalks and sewers as may be designated by the Council by ordinance, resolution or motion duly entered in writing upon the minutes of a regular, special or adjourned meeting of the Council.  (Ord. 1151, 1962; Ord. 956, 1952)


3.16.030 Procedures for Alternate Financing and Loans.  Should the Council determine in writing, prior to, at, or after the passage of an ordinance determining that any improvement work within the city shall be done, the Council may provide that those especially benefited by such improvement work shall be permitted to take advantage of the alternate financing provided for in this chapter in lieu of cash payment or of financing under the Bancroft Bonding Act of the state.  Such determination shall be entered upon the minutes of a regular, special or adjourned meeting of the Council.  After such determination the procedure set forth in the charter and ordinances of the city for the collection and assessment of benefits against all lots, parts of lots and parcels of land benefited by such improvement in accordance with the charter and ordinances of the city shall be followed in all particulars, except that after docketing the liens assessed against the lots, parts of lots and parcels of land benefited by the various projects, and in receiving payment therefor, the alternate procedure set out in this section shall be followed:

A. In the enactment of an ordinance providing for the assessing of the liens against said lots, parts of lots and parcels of land, such ordinance shall specifically direct the City Recorder to enter in the lien docket of the city a statement of the respective amounts of benefits assessed upon each lot, part of lot or parcel of land benefited by such improvement, together with the names of the owners thereof, and upon such entry in the lien docket the amount so entered shall be a lien and a charge upon the respective lots, parts of lots and parcels of land against which the same are pledged.  Such liens shall be first and prior to all other liens that the laws of the state will allow them to be, against such property.

B. The property owners benefited by such improvement, within the time required by the Charter of the city, (twenty days after the same is entered in the lien docket), or such additional time as may be permitted by the Council, shall pay such liens in full, or shall make application under the Bancroft Bonding Act of the state, or shall make application for alternate financing through the special revolving fund set up in Section 3.16.020, and the city may proceed to foreclose any such liens other than a bonded lien under the Bancroft Bonding Act of the state, twenty days after the same have been entered in the lien docket if arrangements satisfactory to the city have not been made for the payment thereof either by cash payment or by application for financing under this chapter; or if the assessment so financed has become delinquent, whether or not previous payments have been made, and such liens may be foreclosed under Title V, Chapter 9, O.C.L.A. (ORS 88.010--88.100, 93.720, 93.760, 408.440) as now or hereafter amended, or as may be otherwise provided by the charter and ordinances of the city for the foreclosure of liens entered upon the lien dockets of the city.
       
C. The owners against whom liens are assessed under this chapter may make arrangements satisfactory to the city to pay such liens in accordance with the plan of the city herein set out; such owner shall make application for payment of such lien upon a form to be provided by the City Recorder for such application; provided, however, that in no case shall the alternate financing herein provided be larger in amount than the owner could have financed under the provisions of the Bancroft Bonding Act; and provided further, that no such lien shall be paid off in more then six semiannual installments.  The city may prescribe a smaller number of equal semiannual installments for the retirement of such liens if the Council deems such shorter period proper, necessary or convenient in the premises.  But nothing herein contained shall prevent the owner from paying off all or any part of such lien at any time together with interest to the date of such payment.


D. It is a special limitation under this chapter that the city may in no event have outstanding upon its general lien docket unpaid liens financed through such special revolving fund, payable in installments as provided herein, together with interest accruing thereon, in excess of the sum of sixty thousand dollars (but this provision shall have no effect with relation to the bonded lien docket of the city).  Should there be such unpaid liens accruing interest upon the same in excess of the sum of sixty thousand dollars, the city may not permit further liens to be created under this chapter or financed through such special revolving fund.  (Ord. 1478, 1980; Ord. 1151, 1962; Ord. 956, 1952)

3.16.040 Interest Rates on Loans.

A. The interest rate on funds hereafter loaned by the City to individual property owners for street, sidewalk, and sewer improvements shall be at the rate set by City Council. (Ord 1728, 1996; Ord. 1478, 1980; Ord. 1367, 1975)

3.16.050 Disposition of Interest Earned. 


  
A. All interest earned through such financing shall be and become a part of the assessment improvement revolving fund.
(Ord 1728, part 1996)

B. Notwithstanding the provisions heretofore made in this chapter, all appropriations made from the revolving fund in excess of the twenty thousand dollar limit is ratified and approved the same as though such authority existed at the time the action was taken.  The lien of the assessment for the funds advanced upon the lands benefited is ratified.  (Ord. 1151 (part), 1962:  Ord. 956 §4, 1952)

3.16.060 Disposition of Fund Earnings - Discontinuance of Fund Procedures.  All earnings of such special revolving fund shall be and becomes the property of the city through the appropriate fund and shall be credited to such fund, and nothing contained in this chapter shall prevent the city from discontinuing such special revolving fund at any time that it seems desirable to do so.  Upon the discontinuance of such special revolving fund, all funds then on hand shall be paid into the appropriate fund and such fund shall be kept open only for the purpose of receiving payments and of enforcing the payment of liens until all payments financed by such fund have been repaid to the city through such fund, or are declared by the Council to be uncollectible, or unenforceable through foreclosure of lien or otherwise.  (Ord 1728, 1996; Ord. 956, 1952)

 

CHAPTER 3.20 – ADEQUATE PUBLIC FACILITIES AND CONTRIBUTION

Legislative History: Ord. 1770 (1999); Ord. 1907 (2006)

Sections:
3.20.010 General
3.20.020 Findings Required
3.20.030 Qualified Public Facility
3.20.040 Impact Study
3.20.050 Alternate Findings Allowed
3.20.060 Conditions and Limits
3.20.070 Project Determination
3.20.080 Final Determination
3.20.090 Application of Funds
3.20.100 Time Limits

3.20.010 General. 

A. Upon review of any land use application to which Goal 11 applies, affirmative findings may be made that adequate public facilities exist with respect to a public facility if, in addition to the requirements of this code the hearing body can make the affirmative findings required in Section 3.20.020 below, and the public facility with respect to which the Section 3.20.020 findings are made is a qualified public facility pursuant to Section 3.20.030 below. 
 
B. As used in this Chapter, the terms “development proposal” and “proposed development” refer to any land use application to which Goal 11 applies, except zone changes and comprehensive plan amendments. 
C. Notwithstanding anything to the contrary in this Chapter, the applicant shall have the burden of proving the adequacy of public facilities.


3.20.020 Findings Required.  In order to find, under this Chapter, that adequate public facilities exist with respect to a public facility, or that the level of service on a street or at an intersection is acceptable, the following findings must first be made:

A. The public facility is currently, or as a result of the proposed development will become, an inadequate public facility and/or does not or will not operate at an acceptable level of service.  This finding must point to the specific evidence in the record that supports this finding.
B. The proposed development will impact the public facility and to what extent the proposed development will impact the public facility.  The finding addressing the extent of the impact shall point to specific evidence in the record in support of the finding. 
C. A description of the improvements necessary to make the facility an adequate public facility and/or make it operate at an acceptable level of service (“Necessary Improvements”) and the estimated costs of the Necessary Improvements (“Improvement Costs”).
D. Why a condition of approval requiring the applicant to contribute to the improvement of the public facility is reasonably related to the impacts of the proposed development on the public facility.
E. The impact of the proposed development is or is not roughly proportional to the Necessary Improvements and Improvement Costs.
F. If the impact of the proposed development is not roughly proportional to the Necessary Improvements and Improvement Costs, the impact of the proposed development is roughly proportional to a specified dollar amount of, or proportion in terms of percentages of the Improvement Costs for the public facility (“Proportionate Contribution”).  This finding shall explain with reasonable particularity the determination of rough proportionality.


3.20.030   Qualified Public Facility.  A qualified public facility is a public facility that is subject to public facilities planning under the Comprehensive Plan; part of an existing public facilities plan; and for which the City has a designated improvement fund, which fund may or may not be currently funded.


3.20.040  Impact Study.  The applicant shall provide adequate, reliable and quantifiable information as to the extent the proposed development will impact the public facility.  If the information is not sufficient for the City to determine the impact proposed development will have on a public facility, the applicant shall provide, at the applicant’s cost, an impact study prepared by a registered professional engineer licensed in the State of Oregon with respect to the proposed development and facility being studied, if a study has not already been prepared by the City.  The City Engineer has the authority to determine whether an impact study is required and to set the scope of the study.  The cost of the study, whether provided by the applicant or by the City, shall be included in the Improvement Costs.


3.20.050 Alternative Findings Allowed.  This Chapter does not preclude the hearing body from otherwise finding that adequate public facilities exist or cannot exist (even if the findings under Section 3.20.020 can be made) with respect to a public facility or that a street or intersection is operating at an acceptable level of service or cannot so operate for other reasons supported by the record. In other words, if other reasons and evidence in the record support a finding of the existence of adequate public facilities, the applicant shall not be required to make a Proportionate Contribution payment.


3.20.060  Conditions and Limits.  If the hearing body makes affirmative findings pursuant to Section 3.20.020 above and the development proposal is approved, approval shall be conditioned on the following:

A. The applicant’s written agreement to pay the Proportionate Contribution specified in Section 3.20.020(F) above.  The agreement shall provide that full payment, partial payment or the posting of acceptable security must be made to the City on or before the commencement of any work on and issuance of any permit for the subject property under the development proposal.  The condition shall also provide that if payment is not made as provided in this Chapter, the City Council shall assess the Proportionate Contribution against the subject property by resolution and shall enter the assessment resolution in the docket of city liens and record the same in the Hood River County Assessor’s real property records.
 
B. The determination under this Chapter of the applicant’s Proportionate Contribution to the Necessary Improvements of the public facility shall be final and neither the applicant, nor the applicant’s successors and assigns, shall be entitled to a refund or credit in the event the total actual costs to the City of the Necessary Improvements are less than the Improvement Costs.  Similarly, the City shall not be entitled to seek additional contribution from an applicant or the applicant’s successors and assigns if the total actual costs to the City of the Necessary Improvements exceeds the Improvement Costs.


3.20.070 Project Determination.  An owner or owners of real property that is served by a public facility and who anticipate(s) that development may occur in phases, may apply to the City for a determination under this Section (“Project Determination”).  The application form shall be provided by the City and the request shall be heard by the Planning Commission in accordance with the procedures under Chapter 17.09.  The application shall describe the subject properties with respect to which the Project Determination is sought.  The provisions of this section shall be in addition to the other applicable provisions of this Chapter.

A. The findings required by this Chapter shall also include the following:

1. Legal description(s) of the additional property(ies) to be covered by the findings in Section 3.20.020 above.
2. The findings in Section 3.20.020 above shall be based on the level and intensity of development that could occur on the subject property under the applicable zoning if the applicant does not have a development proposal, or on a proposed level and intensity of development under the applicable zoning to which the applicant agrees to commit.  The level and intensity of allowable development shall be described with reasonable particularity.

B. Approval shall be conditioned upon development occurring at or below the level and intensity considered under the applicable zoning at the time the findings are made.

C. The applicant, and the applicant’s successors and assigns, shall be responsible for making the payment pursuant to Section 3.20.060(A) above and no work shall occur on or any permit (including any subsequent development permit) be issued for any of the subject properties prior to receipt by the City of the payment.  All of the subject parcels shall be subject to the lien described in Section 3.20.060(A).

D. A Project Determination under this Section 3.20.070 shall constitute compliance with Goal 11 with respect to adequacy of public facilities and findings of adequate public facilities and/or acceptable level of service (with respect to a street or intersection) for all subsequent development proposals on the subject properties submitted in accordance with the condition in Section 3.20.070(B) above.

3.20.080 Final Determination.  Subject to any right to appeal the City’s decision under this code and state and federal law, the determination under this Chapter of the applicant’s Proportionate Contribution to the Necessary Improvements of the public facility shall be final and neither the applicant, nor the applicant’s successors and assigns, shall be entitled to a refund or credit in the event the total actual costs to the City of the Necessary Improvements are less than the Improvement Costs.  Similarly, the City shall not be entitled to seek additional contribution from an applicant or the applicant’s successors and assigns if the total actual costs to the City of the Necessary Improvements exceeds the Improvement Costs.  This section does not preclude reimbursement of amounts paid in excess of the Proportionate Contribution pursuant to an agreement between the City and applicant, or as may otherwise be required by ordinance, statute, or other law.

3.20.090 Application of Funds.  Proportionate Contribution funds received by the City shall be deposited in a designated fund and applied by the City to the construction and installation of the Necessary Improvements.  (See Ord. 1849.)  Any unused Proportionate Contribution funds remaining upon completion and the City’s acceptance of the Necessary Improvements shall remain in the designated City fund and may be used by the City only for improvements to public facilities in accordance with the designated fund.

3.20.100 Time Limits.  Findings made pursuant to this Chapter shall be valid for as long as the underlying permit for the development proposal is valid, including any extensions thereof.  A Project Determination shall be valid for a period of eighteen (18) months, but may be extended by the Planning Director upon application made to the Planning Director at least 30 days prior to expiration.  The Project Determination may be extended for additional periods of up to one year each if there has been no substantial change in circumstances.

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CHAPTER 3.24 – CLAIMS FOR COMPENSATION

Legislative History: Ord. 1867(2004) Ord. 1770 (1999)

Sections:
3.24.010 Purpose
3.24.020 Definitions
3.24.030 Claim Filing Procedures; Pre-application Conference
3.24.040 City Manager Investigation and Recommendation
3.24.050 City Council Public Hearing
3.24.060 City Council Action on Claim
3.24.070 Private Cause of Action
3.24.080 Availability of Funds to Pay Claims
3.24.090 Attorney Fees
3.24.100 Applicable State Law

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3.24.010 Purpose.  The purpose of this Chapter is to provide procedures and standards for claims for compensation made pursuant to 2004 Measure 37.

3.24.020 Definitions.  As used in this Chapter, the following words and phrases shall have the following meaning:

City Manager.  The City Manager of the City, or the City Manager’s designee.
Claim.  A written demand for compensation filed under Ballot Measure 37 (2004).  Claims shall not be considered “made” under Ballot Measure 37 until the City accepts the claim after the requirements for making the claim under this Chapter are met by the owner.
Exempt Land Use Regulation.  A land use regulation that:  (a) restricts or prohibits activities commonly and historically recognized as public nuisances under common law, including Hood River Municipal Code Chapter 8.08, and the criminal laws of Oregon and other offenses enumerated in the Hood River Municipal Code; (b) restricts or prohibits activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, pollution control regulations, and regulations or standards that regulate construction and performance standards for water, wastewater, transportation or public utility systems; (c) is required in order to comply with federal law; (d) restricts or prohibits the use of property for the purpose of selling pornography or performing nude dancing; or (e) was enacted prior to the date of acquisition of the property by the owner or a family member of the owner.
Family Member.  The wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by any one or combination of these family members or the owner of the property.


Land Use Regulation.  Includes:
(a) Any statute regulating the use of land or any interest therein;
(b) Administrative rules and goals of the Land Conservation and Development Commission; and
(c) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances;

Owner.  The present owner of the property, or any interest therein.

Valid Claim.  A claim submitted by the owner of real property that is subject to a land use regulation adopted or enforced by the city that restricts the use of the private real property in a manner that reduces the fair market value of the real property.

3.24.030 Claim Filing Procedures; Pre-Application Conference.

A. A person seeking to file a claim under this chapter must be the present owner of the property that is the subject of the claim at the time the claim is submitted. The claim shall be filed with the City Manager’s office, or another city office if so designated by the City Manager.

B.  A claim shall be submitted on a form provided by the city and shall include:
1. The name(s), address(es) and telephone number(s) of all owners, and anyone with any interest in the property, including lien holders, trustees, renters, lessees, and a description of the ownership interest of each;
2. The address, tax lot, and legal description of the real property that is the subject of the claim, together with a title report issued no more than 30 days prior to the submission of the claim that reflects the ownership interest in the property, or other documentation reflecting sole ownership of the property by the claimant, and the date the property was acquired;
3. The current land use regulation(s) that allegedly restricts the use of the real property and allegedly causes a reduction in the fair market value of the subject property;
4. The amount of the claim, based on the alleged reduction in value of the real property supported by an appraisal by an appraiser licensed by the Appraiser Certification and Licensure Board of the State of Oregon;
5. Copies of any leases or Covenants, Conditions and Restrictions (“CCRs”) applicable to the real property, if any, that impose restrictions on the use of the property;
6.  Any other information required by the City Manager to be included on the form or with the claim.  Without limiting the foregoing, the City Manager may require one or more written appraisals in a form prescribed by the City Manager.

C. The claim shall include an application fee to cover the costs of processing, including completeness review, and including the cost of one appraisal if required by the City Manager.

D. Notwithstanding a claimant’s failure to provide all of the information required by subsection B of this section, the city may review and act on a claim.

E. Prior to submitting a claim, the owner shall schedule and attend a pre-application meeting with the City Manager to discuss the claim.  The pre-application conference shall follow the procedure set by the City Manager and may include a filing fee which shall be set by Council resolution.
1. The City Manager is not authorized to settle any claims at the pre-application conference.
2. The pre-application conference is valid for six months from the date it  is held.

3.24.040 City Manager Investigation and Recommendation.

A. Following an investigation of a claim, the City Manager shall forward a recommendation to the city council that the claim be:
1. Denied;
2. Investigated further;
3. Declared valid, and waive or modify the land use regulation, or compensate the claimant upon completion of an appraisal; or
4. Evaluated with the expectation of the city acquiring the property by condemnation.

B.  Prior to making the recommendation in subsection A above, the City Manager shall mail notice of the claim to the owner and to all owners of record of property within at least 400 feet of the subject property, as listed on the most recent property tax assessment roll.  Additional mailed notice shall be provided to persons requesting notice and to the Department of Land Conservation and Development, Oregon Department of Justice, and such others as the city may designate by Council resolution.  The notice shall also be published in the Hood River News at least once prior to the public hearing.

C. The City Manager’s notice under subsection B shall:
1. State the basis of the claim, the amount of compensation sought and the regulation that causes the compensation to be alleged to be due.
2. Identify the property by street address or other easily understood reference.
3. State that affected property owners may provide written comments on the claim, and provide the date written comments are due and the date, time and location of the hearing.  Include a general explanation of the requirements for submission of written comments, testimony, and evidence.
4. Identify the city representative and telephone number to contact and obtain additional information.
5. State that a copy of the claim and supporting documents submitted by the owner are available for inspection at no cost, and that copies will be provided at a reasonable cost.
6. The notice shall include the date, time, and location of the public hearing and state that only affected property owners may submit written comments or testimony or participate in the hearing.

3.24.050 City Council Public Hearing. The City Council shall conduct a public hearing before taking final action on a recommendation from the City Manager.  Only affected property owners may participate.

3.24.060 City Council Action on Claim.

A. Upon conclusion of the public hearing, and prior to the expiration of 180 days from the date the claim was filed, the City Council shall adopt a resolution that:
1. Determines that the claim does not meet the requirements of Measure 37 and this chapter, and denies the claim; or
2. Determines that the claim is valid and either directs that the claimant be compensated in an amount set forth in the Resolution for the reduction in value of the property, or remove, modify or direct that the challenged land use regulation not be applied to the property (waive); or determines that the city should acquire the property.

B.  The City Council’s decision to remove, waive or modify a land use regulation or to compensate the owner shall be based on whether the public interest would be better served by compensating the owner or by removing, waiving or modifying the challenged land use regulation with respect to the subject property.

C. If the City Council removes, waives, or modifies the challenged land use regulation, it may, at its discretion, put back into effect with respect to the subject property, all of the land use regulations in effect at the time the claimant acquired the property.
D. A decision by the Council to remove or modify a land use regulation shall be personal to the claimant(s) and shall automatically become invalid and void upon the transfer of any ownership interest in the subject property by the claimant(s) to any person.  Following voiding of the decision because of transfer, any use of the property must be consistent with all regulations in effect at the time of transfer, or as thereafter amended.  Should a development or use not be consistent with such regulations, then the use may be declared a public nuisance and abated as provided in Chapter 8.08 of this code.
E. The City Council may establish any relevant conditions of approval for compensation, should compensation be granted, or for any other action taken under this section.
F. A copy of the City Council’s resolution adopted under this section shall be recorded on the property in the deed records of Hood River County.
G. The Planning Department shall be responsible for keeping track of City Council decisions removing, waiving or modifying land use regulations on the City zoning map.  Alterations to the City zoning map under this provision are not be land use decisions.

3.24.070 Private Cause of Action.  If the City Council’s approval of a claim by removing or modifying a land use regulation causes a reduction in value of other property in the City, the owner(s) of the other property shall have a cause of action in the appropriate Oregon Circuit Court to recover from the claimant the amount of the reduction, and shall also be entitled to attorney’s fees.  This section does not create a cause of action against the City.

3.24.080  Availability of Funds to Pay Claims.  Compensation can only be paid based on the availability and appropriation of funds for this purpose, unless a person other than the city agrees in writing to compensate the owner for the diminution in value in lieu of the city removing, waiving or modifying the land use regulation causing the diminution, and the person enters into a contract approved by the City Attorney among the City, the owner and the person providing for the compensation.

3.24.090  Attorney Fees.  If a claim is denied or not fully paid within 180 days of the date of filing a complete claim, and the owner commences suit or action to collect compensation, if the city is the prevailing party in the action, then the city shall be entitled to any sum that a court, including any appellate court, may adjudge reasonable as attorney’s fees.

3.24.100  Applicable State Law.  For all claims filed with the city, the applicable state law is Measure 37 (2004) as amended, modified, or clarified by subsequent amendments or regulations adopted by the Oregon State Legislature or Oregon State Administrative Agencies.  Any claim that has not been processed completely under this chapter shall be subject to any such amendments, modifications, and clarifications or other actions taken at the state level and this chapter shall be read in a manner so as not to conflict.  This chapter is adopted solely to address claims filed under Measure 37 (2004) and no rights independent of Measure 37 (2004) are created by adoption of this chapter.

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CHAPTER 3.32 - RIGHT OF WAY REIVILEGE TAX

Legislative History:  Ord. 1970 (2009)

SECTIONS:
3.32.010 Purpose
3.32.020 Definitions
3.32.030 Tax Imposed
3.32.040 Amount of Tax
3.32.050 Payment; Interest on late payments
3.32.060 Accounting and Audit
3.32.070 Confidential/Proprietary Information
3.32.080 Refunds
3.32.090 Exemptions
3.32.100 Notice of Amendments
3.32.110 Preemption and Severability
 
3.32.010 Purpose.  The purpose of this chapter is to require utilities and others occupying public rights of way to compensate the public for the use of those rights of way and to assure that the City’s costs related to maintenance, administration and preservation of rights of way for such use are paid for by those who cause such costs.  Provisions regarding the occupation and use of the rights of way are located in Chapter 13.36 of this code.

3.32.020 Definitions.  As used in this chapter, the following terms have the following meanings:

“Equipment or Facilities” means any tangible component, whether referred to singly or collectively, installed, maintained, or operated by a utility.

“Right of Way” has the same meaning as in HRMC Sections 13.52.010 and 13.36.020.
 
“Telecommunications services” means the transmission for hire of information in electromagnetic frequency, electric or optical form, including, but not limited to, voice, video or data, whether or not the transmission medium is owned by the provider itself and whether or not the transmission medium is wireline.  Telecommunications service includes all forms of telephone services and voice, data and video transport, but does not include: (1) cable service; (2) open video system service as defined 47 C.F.R. 76; (3) private communications system services; (4) over-the-air radio or television broadcasting to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto; and (5) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act of 1996. 

“Gross revenues” has the meaning given that term in ORS 221.515 for purposes of Section 3.32.040(A).  For purposes of Section 3.32.040(B), "gross revenues" means any and all revenue derived from utility operations within the City, of any kind, nature or form, without deduction for expense, less net uncollectibles and excluding public purpose charges in any tariff approved by the Oregon Public Utility Commission.  Gross revenues does not include proceeds from the sale of bonds, mortgages, or other evidence of indebtedness, securities, stock, or wholesale sales to another when the purchaser is not the ultimate consumer.
“Utility” means a person required to pay the privilege tax under this chapter.

13.32.030 Tax Imposed.  Except as otherwise provided in this chapter, a privilege tax (also known as a right of way use fee) is imposed on all persons who have or place equipment or facilities in or on rights of way in the City.  The compensation charged and paid for use of the public right of way provided for in this chapter is separate from and in addition to any and all federal, state, local, and City charges as may be levied, imposed or due from a utility, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of utility services.


3.32.040  Amount of Tax.  The privilege tax is established by resolution of the City Council or, if not separately established by resolution, as follows:

A.  The privilege tax for a telecommunications utility as defined in ORS 759.005, with equipment or facilities in the right of way and who provides service within the City is 7% of gross revenues as defined in ORS 221.515 .
B.  The privilege tax for all others with equipment or facilities in rights of way within the City and serving City residents is 5% of gross revenues earned within the City, but in no event no less than $1,000 per quarter.  All others includes, but is not limited to, telecommunications services providers, except telecommunications utilities.
C.  The privilege tax for those with antennas or other facilities in the right of way, e.g., wireless/CMRS providers, will be as negotiated and agreed to by the City and provider.
D.  The privilege tax for persons who do not provide service within the City but who have equipment or facilities in rights of way is $.75 per calendar quarter per foot of line, wire, pipe, or conduit in the right of way.
E.  The privilege tax is cumulative for each utility service provided by a utility.
F.  The calculation of the privilege tax required by this section is subject to all applicable limitations imposed by federal or state law.
G.  Privilege tax payments required by this section shall be reduced by any franchise fee payments received by the City, but in no case will be less than $0.


3.32.050 Payment; Interest on late payments.
A.  The privilege tax shall be paid quarterly on or before the last day of the month following the end of the quarter. Unless otherwise agreed to by the City in writing, quarters shall end on March 31, June 30, September 30 and December 31 of each year. Each payment shall be accompanied by an accounting of applicable gross revenues and a calculation of the amount payable.  The privilege tax may be paid monthly pursuant to a written agreement with the City Finance Director.
B. If the privilege tax is not received by the City on or before the due date, interest shall be owed on the privilege tax in the amount of 12% per annum from the date due to the date on which the payment is received by the City.


3.32.060  Accounting and Audit.  
A.  The City may, at any time within 3 years of receipt of an accounting required in Section 3.32.060, investigate any accounting submitted and determine the accuracy of the amount reported.  If the utility failed to submit the required accounting or as part of the investigation of an accounting and upon receipt of a written request from the City, the utility shall make available for investigation all records, including historical records and books of the utility necessary for verification of payments and/or accountings.  The investigation may be done by the City or any person selected by the City.  Neither acceptance of payment nor a failure to make an investigation shall be deemed to prevent subsequent investigation by the City, or to estop the City from collecting any amount due.
B.  If, upon investigation or otherwise, the fee or tax paid is determined to be excessive, a refund of the excess will be paid.  If the fee paid is found to be insufficient, the City shall notify the utility of the amount of the deficiency and demand payment of the amount.  Any liability for underpayment or overpayment is limited to the 3 year audit period.
C.  If a utility fails to properly report the true amount of gross revenue or other basis from all accounts within the City as determined by the City after investigation, a late payment charge of 2% of the total amount due will be owed on the under-reported gross revenue calculated from the 1st day of the calendar quarter in which the error occurred to the date on which the City received payment, compounded monthly. The late payment charge shall be due at the same time that the utility is required to make payment of any insufficiency of the privilege tax.  If the insufficiency is greater than 15% of the total amount due or if at arbitration, trial or on appeal it is determined that the insufficiency is due to fraud and/or intent to evade the tax, a penalty of 25% of the amount of the total tax shall be paid in addition to the amount due and the late payment charge.
D.  Within 10 days from the receipt of notice from the City that the privilege tax paid is insufficient and that payment is demanded, the utility may appeal to the City Council.  The appeal must be in writing and specifying the grounds of appeal.  If no appeal is taken, if the Council decides adversely, or if the Council decides that any other amount is due, the City shall proceed to collect the amount determined to be due and unpaid.
E.  In addition to any other penalties prescribed by law, if a utility fails to make payment of any deficiency determined to be due and unpaid in accordance with the provisions of this subsection within 10 days of final determination, the City Manager may suspend any license or permit issued by the City to the utility.


3.32.070  Confidential/Proprietary Information.  When requested by the utility, and subject to the provisions of state law and the Oregon Public Records laws, the City shall treat as confidential any public record or information provide and designated by the utility as confidential.

3.32.080   Refunds.  In the event that a utility is ordered to refund any revenues by a governmental entity or agency with jurisdiction to make such an order and the refund will affect the privilege tax paid pursuant to this chapter, the calculation of the privilege tax shall not include the refund except pursuant to a mutually agreed upon schedule.  If there is a substantial budgetary impact to the City, the schedule may include spreading the impact of the refund on the future privilege tax to be paid to the City over a period of time commencing the 1st full fiscal year following the ordering of the refund.  The schedule shall minimize the administrative impact to the utility and may include interest on the unpaid refund.  This section does not apply to credits or other rate adjustments that regularly occur pursuant to a utility’s OPUC approved tariff schedules.

3.32.090  Exemptions.  Any facility placed in the right of way solely to provide service for transportation or vehicular use of the right of way is exempt from the tax.
3.32.100  Notice of Amendments.  The City shall provide not less than 30 days prior written notice of any amendments to this chapter to all utilities paying the privilege tax required by this chapter.  Failure to provide the notice required by this section does not affect the validity of the proceedings or the amendment(s).


3.32.110  Preemption and Severability.
A.  The provisions of this chapter shall be interpreted to be consistent with applicable federal and state law, and shall be interpreted, to the extent possible, to cover only matters not preempted by federal or state law.
B.  If anything in this chapter is for any reason declared or held to be invalid or unenforceable by any court of competent jurisdiction or superseded by state or federal law, rule, regulation or decision, the remainder of this chapter shall not be affected thereby but shall be deemed as a separate and distinct and independent provision, and such holding shall not affect the validity of the remaining parts of this chapter and each remaining part shall be valid and enforceable to the fullest extent permitted by law.  In the event any provision is preempted by federal or state law, rule or regulation, the provision shall be preempted only to the extent required by law and any portion not preempted shall survive.  If any federal or state law resulting in preemption is later repealed, rescinded, amended or otherwise changed to end the preemption, the provision shall immediately return to full force and effect and be binding without further action by the City.

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CHAPTER 3.36 - MOTOR VEHICLE FUEL TAX

Legislative History:  Ord. 1971 (2009)

 3.36.010 Title
 3.36.020 Definitions
 3.36.030 Tax Imposed
 3.36.040 Amount and Payment
 3.36.050 Permit Requirements
 3.36.060 Permit Applications and Issuance
 3.36.070 Failure to Secure Permit
 3.36.080 Revocation of Permit 
 3.36.090 Cancellation of Permit 
 3.36.100 Remedies Cumulative
 3.36.110 Payment of Tax and Delinquency
 3.36.120 Monthly Statement of Dealer 
 3.36.130 Failure to File Monthly Statement
 3.36.140 Billing Purchasers
 3.36.150 Failure to Provide Invoice or Delivery Tag
 3.36.160 Transporting Motor Vehicle Fuel in Bulk 
 3.36.170 Exemption of Export Fuel
 3.36.180 Sales to Armed Forces Exempted
 3.36.190 Fuel in Vehicles Coming Into City Not Taxed 
 3.36.200 Refunds 
 3.36.210 Examination and Investigations 
 3.36.220Limitation on Credit for or Refund of Overpayment and on Assessment of Additional Tax
 3.36.230 Examining Books and Accounts of Carrier Motor Vehicle Fuel 
 3.36.240 Records to be Kept by Dealers and Fuel Handler
 3.36.250 Records to be Kept Three Years 
 3.36.260 Use of Tax Revenues 
 3.36.270 Administration

3.36.010  Title:  This chapter may be referred to as the "City of Hood River Motor Vehicle Fuel Tax Ordinance.”

 3.36.020  Definitions.  As used in this chapter, unless the context requires otherwise:

 “City” means the City of Hood River, or any authorized agent of the City authorized to perform the duties of the City under this chapter.
 
"Dealer" means any person who:

  (A)  Supplies or imports motor vehicle fuel for sale, use or distribution in, and after the same reaches the City, but "dealer" does not include any person who imports into the City motor vehicle fuel in quantities of 500 gallons or less purchased from a supplier who is permitted as a dealer hereunder and who assumes liability for the payment of the applicable motor vehicle fuel tax to the City;

  (B)  Produces, refines, manufactures or compounds motor vehicle fuels in the City for use, distribution or sale in the City; or

  (C)  Acquires in the City for sale, use or distribution in the City motor vehicle fuels with respect to which there has been no motor vehicle fuel tax previously incurred.

 "Distributor" means, in addition to its ordinary meaning, the deliverer of motor vehicle fuel by a dealer to any service station or into any tank, storage facility or series of tanks or storage facilities connected by pipelines, from which motor vehicle fuel is withdrawn directly for sale or for delivery into the fuel tanks or motor vehicles whether or not the service station, tank or storage facility is owned, operated or con¬trolled by the dealer.

 "Highway" means every way, thoroughfare and place of whatever nature, open for use of the public for the purpose of vehicular travel.

 "Motor Vehicle" means all vehicles, engines or machines, moveable or immovable, operated or propelled by the use of motor vehicle fuel.

 "Motor Vehicle Fuel" means and includes gasoline, diesel, mogas, methanol, and any other flammable or combustible gas or liquid, by whatever name such gasoline, diesel, mogas, methanol, gas or liquid is known or sold, usable as fuel for the operation of motor vehicles, except gas, diesel, mogas, methanol, or liquid, the chief use of which, as determined by the City, is for purposes other than the propulsion of motor vehicles upon the highways.  Propane fuel and motor vehicle fuel used exclusively as a structural heating source are excluded as a taxable motor vehicle fuel.

 "Service Station" means and includes any place operated for the purpose of retailing and delivering motor vehicle fuel into the fuel tanks of motor vehicles.

 "State" means State of Oregon.

 3.36.030  Tax Imposed.  A motor vehicle fuel tax is hereby imposed on every dealer operating within the corporate limits of the City.  All dealers shall pay the motor vehicle fuel tax monthly as directed by the City.

 A.  A person who is not a permitted dealer shall not accept or receive motor vehicle fuel in the City from a person who supplies or imports motor vehicle fuel who does not hold a valid motor vehicle fuel dealer permit in the City. If a person is not a permitted dealer under this chapter and accepts or receives motor vehicle fuel, the purchaser and receiver shall be responsible for all taxes, interests and penalties prescribed herein.

 B.  A permitted dealer who accepts or receives motor vehicle fuel from a person who does not hold a valid dealer permit in this City, shall pay the tax imposed by this chapter to the City, upon the sale, use or distribution of the motor vehicle fuel.

 3.36.040  Amount and Payment.

 A.  Subject to subsections B and C of this section, in addition to any fees or taxes otherwise provided by law, every dealer engaging in his own name, or in the name of others, or in the name of his representatives or agents in the City, in the sale, use or distribution of motor vehicle fuel, shall:

  1.  Not later than the 25th day of each calendar month, render a statement to the City, of all motor vehicle fuel sold, used or distributed by the dealer in the City as well as all such fuel sold, used or distributed in the City by a purchaser thereof upon which sale, use or distribution the dealer has assumed liability for the applicable motor vehicle fuel tax during the preceding calendar month.

  2.  Pay a motor vehicle fuel tax computed on the basis of three cents ($.03) per gallon of such motor vehicle fuel so sold, used or distributed as shown by such statement in the manner and within the time provided in this chapter.

 B.  In lieu of claiming refund of the tax as provided in 3.36.200, or of any prior erroneous payment of motor vehicle fuel tax made to the City by the dealer, the dealer may show such motor vehicle fuel as a credit or deduction on the monthly statement and payment of tax.

 C.  The motor vehicle fuel tax shall not be imposed wherever it is prohibited by the Constitution or laws of the United States or of the State of Oregon.

 3.36.050  Permit Requirements. No dealer shall sell, use, or distribute any motor vehicle fuel until the dealer has secured a dealer permit as required herein.

 3.36.060  Permit Applications and Issuance.

 A.  Every person, before becoming a dealer in motor vehicle fuel in this City shall make an application to the City, for a permit authorizing the person to engage in business as a dealer.

 B.  Applications for the permit must be made on forms prescribed, prepared and furnished by the City.

 C.  Applications shall be accompanied by a duly acknowledged certificate containing:

 1.  The business name under which the dealer is transacting business in the City;

2.  The place of business and location of distributing stations in the City and in areas adjacent to the City limits in the State of Oregon; and

3.  The name and address of the managing agent, the names and addresses of the several persons constituting the firm or partnership and, if a corporation, the corporate name under which it is authorized to transact business and the names and addresses of its principal officers and registered agent, as well as primary transport carrier.

 D.  If the permit application is complete and accepted for filing, the City shall issue to the dealer a permit in such form as the City may prescribe to transact business in the City. The permit so issued is not assignable, and is valid only for the dealer in whose name issued.

 E.  The City Recorder's Office shall keep on file a copy of all applications and/or permits.

 F.  The City may charge a fee for the application, the amount of which is set by resolution of the City Council.

3.36.070  Failure to Secure Permit.

 A.  If a dealer sells, distributes or uses any motor vehicle fuel without first filing the certificate and securing the permit required by this chapter, the motor vehicle fuel tax shall immediately be due and payable on account of all motor vehicle fuel sold, distributed or used.

B.  The City shall proceed forthwith to determine, from the best available sources, the amount of the tax, and it shall assess the tax in the amount found due, together with a penalty of 100 percent of the tax, and shall make its certificate of such assessment and penalty. In any suit or proceeding to collect such tax or penalty or both, the certificate is prima facie evidence that the dealer therein named is indebted to the City in the amount of the tax and penalty therein stated.

 C.  Any tax or penalty so assessed may be collected in the manner prescribed in 3.36. 110 with reference to delinquency in payment of the tax or by any action at law.

 D.  In the event any suit or action is instituted to enforce this section, if the City is the prevailing part, the City is entitled to recover reasonably attorney fees at trial and upon appeal, in addition to all other sums provided by law.

 3.36.080  Revocation of Permit.  The City shall revoke the permit of any dealer or fuel¬-handler refusing or neglecting to comply with any provision of this chapter. The City shall mail by certified mail addressed to such dealer at their last known address appearing on the files, a notice of intention to cancel. The notice shall give the reason for the cancellation. The cancellation shall become effective without further notice if within 10 days from the mailing of the notice the dealer has not made good its default or delin¬quency.

 3.36.090  Cancellation of Permit.

 A.  The City may, upon written request of a dealer, cancel any permit issued to the dealer.  The City shall, upon approving the dealer’s cancellation request, cancel the permit effective not later than 30 days from the date of receipt of the written request.

 B.  If the City determines that the person to whom a permit has been issued is no longer engaged in the business of a dealer, the City may cancel the permit after 30 days' notice has been mailed to the last known address of the dealer.

 3.36.100  Remedies Cumulative.  Except as otherwise provided in sections 3.36.110 and .130, the remedies provided above are cumulative. No action taken pursuant to those sections shall relieve any person from the penalty provisions of this chapter or code.

 3.36.110  Payment of Tax and Delinquency.

 A.  The motor vehicle fuel tax imposed by this chapter shall be paid on or before the 25th day of each month.  Payment shall be made to the City, or as otherwise directed by the City.

 B.  Except as provided in subsection D, if the tax is not paid as required by subsection A, a penalty of one percent (1.0%) of the tax owed shall be assessed and immediately due and payable.

 C.  Except as provided in subsection D, if the tax and penalty required by subsection B are not received on or before the close of business on the last day of the month in which the payment is due, a further penalty of ten percent (10.0%) shall be paid in addition to the penalty provided for in subsection B.

 D.  If the City determines that the delinquency was due to reasonable cause and without any intent to avoid payment, the City may waive the penalties provided by subsections B and C of this section. Penalties imposed by this section shall not apply when the penalty provided in Section 3.36.070 has been assessed and paid.

 E.  If any person fails to pay the motor vehicle fuel tax or any penalty provided for by this chapter, the amount thereof shall be collected from such person for the use of the City. The City shall commence and prosecute to final determination in any court of competent jurisdiction an action to collect the same.

 F.  In the event any suit or action is instituted to collect the motor vehicle fuel tax or any penalty provided for by this ordinance, the City shall be entitled to recover from the person sued reasonable attorney's fees at trial or upon appeal of such suit or action, in addition to all other sums provided by law.

 G.  No dealer who collects from any person the tax provided herein shall knowingly and willfully fail to report and pay the same to the City as required by this chapter.

 3.36.120  Monthly Statement of Dealer.  Every dealer in motor vehicle fuel shall provide to the City, on or before the 25th day of each month, on forms prescribed, prepared and furnished by the City, a signed statement of the number of gallons of motor vehicle fuel sold, distributed, or used by the dealer during the preceding calendar month. The statement shall be signed by the permit holder.  All statements submitted pursuant to this section are public records.

 3.36.130  Failure to File Monthly Statement.  If any dealer fails to file the report required by Section 3.36.120, the City shall proceed forthwith to determine from the best available sources the amount of motor vehicle fuel sold, distributed, or used by the dealer for the period unreported, and such determination shall be prima facie evidence of the amount of fuel sold, distributed, or used.  The City shall immediately assess the dealer for the motor vehicle fuel tax in the amount so determined, adding thereto a penalty of 10 percent for failure to report.  The penalty shall be cumulative to other penalties provided in this code. In any suit brought to enforce the rights of the City under this section, the above determination showing the amount of tax, penalties and costs unpaid by any dealer and that the same are due and unpaid to the City is prima facie evidence of the facts as shown.

 3.36.140  Billing Purchasers. Bills shall be rendered to all purchasers of motor vehicle fuel by dealers in motor vehicle fuel. The bills shall separately state and describe to the satisfaction of the City the different products shipped thereunder and shall be serially numbered except where other sales invoice controls to the City are maintained. The bills required hereunder may be the same as those required under ORS 319.210.

 3.36.150  Failure to Provide Invoice or Delivery Tag. No person shall receive and accept motor vehicle fuel from any dealer, or pay for the same, or sell or offer the shipment for sale, unless the motor vehicle fuel is accompanied by an invoice or delivery tag showing the date upon which shipment was delivered and the name of the dealer in motor vehicle fuel.

3.36.160  Transporting Motor Vehicle Fuel in Bulk. Every person operating any conveyance for the purpose of hauling, transporting or delivering motor vehicle fuel in bulk shall, before entering upon the public highways of the City with such conveyance, have and possess during the entire time of his hauling or transporting such motor vehicle fuel an invoice, bill of sale or other written statement showing the number of gallons, the true name and address of the seller or consignor, and the true name and address of the buyer or consignee, if any, of the same. The person hauling such motor vehicle fuel shall at the request of any officer authorized by law to inquire into or investigate such matters, produce and offer for inspection the invoice, bill of sale or other statement.

 3.36.170  Exemption of Export Fuel.

 A.  The motor vehicle fuel tax imposed by this chapter does not apply to motor vehicle fuel:

  1.  Exported from the City by a dealer; or

  2.  Sold by a dealer for export outside the City by the purchaser in containers other than the fuel tank of a motor vehicle, but every dealer shall be required to report such exports and sales to the City in such detail as may be required.

 B.  In support of any exemption from motor vehicle fuel taxes claimed under this section other than in the case of stock transfers or deliveries in the dealer’s own equipment, every dealer must execute and file with the City an export certificate in such form as shall be prescribed, prepared and furnished by the City, containing a statement, made by some person having actual knowledge of the fact of such exportation, that the motor vehicle fuel has been exported from the City, and giving such details with reference to such shipment as may be required. The City may demand of any dealer such additional data as is deemed necessary in support of any such certificate, and failure to supply such data will constitute a waiver of all right to exemption claimed by virtue of such certificate. The City may, in a case where it believes no useful purpose would be served by filing of an export certificate, waive the filing of the certificate.

 C.  Any motor vehicle fuel carried from the City in the fuel tank of a motor vehicle is not considered exported from the City.

 D.  No person shall, through false statement, trick or device, or otherwise, obtain motor vehicle fuel for export as to which the City motor vehicle fuel tax has not been paid and fail to export the same, or any portion thereof, or cause the motor vehicle fuel or any portion thereof not to be exported, or divert or cause to be diverted the motor vehicle fuel or any portion thereof to be used, distributed or sold in the City and fail to notify the City and the dealer from whom the motor vehicle fuel was originally purchased of their act.

 E.  No dealer or other person shall conspire with any person to withhold from export, or divert from export or to return motor vehicle fuel to the City for sale or use so as to avoid any of the fees imposed herein.

F.  In support of any exemption from taxes on account of sales of motor vehicle fuel for export by the purchaser, the dealer shall retain in his files for at least three years an export certifi¬cate executed by the purchaser in such form and containing such information as is prescribed by the City. This certificate shall be prima facie evidence of the exportation of the motor vehicle fuel to which it applies only if accepted by the dealer in good faith.

 3.36.180  Sales to Armed Forces Exempted.  The motor vehicle fuel tax imposed by this chapter does not apply to any motor vehicle fuel sold to the Armed Forces of the United States for use in ships, aircraft or for export from the City; but every dealer shall be required to report such sales to the City in such detail as may be required. A certificate by an authorized officer of such Armed Forces shall be accepted by the dealer as sufficient proof that the sale is for the purpose specified in the certificate.

 3.36.190  Fuel in Vehicles Coming Into City Not Taxed.  Any person coming into the City in a motor vehicle may transport in the fuel tank of such vehicle motor vehicle fuel for their own use only and for the purpose of operating the motor vehicle without securing a license or paying the tax provided in this chapter, or complying with any of the provisions imposed upon dealers herein, but if the motor vehicle fuel so brought into the City is removed from the fuel tank of the vehicle or used for any purpose other than the propulsion of the vehicle, the person so importing the fuel into the City shall be subject to all provisions herein applying to dealers.

 3.36.200  Refunds.  Refunds will be made pursuant to ORS. 319.280 to 319.320.

 3.36.210  Examination and Investigations.  The City may make any examination of accounts, records, stocks, facilities and equipment of dealers, service stations and other persons engaged in storing, selling or distributing motor vehicle fuel or other petroleum products within this City, and such other investigations as it considers necessary in carrying out the provisions of this chapter. If the examinations or investigations disclose that any reports of dealers or other persons theretofore filed with the City pursuant to the require¬ments herein, have shown incorrectly the amount of gallons of motor vehicle fuel distributed or the tax accruing thereon, the City may make such changes in subsequent reports and payments of such dealers or other persons, or may make such refunds, as may be necessary to correct the errors by its examinations or investigations.

3.36.220  Limitation on Credit for or Refund of Overpayment and on Assessment of Additional Tax.

 A.  Except as otherwise provided in this chapter, any credit for erroneous overpayment of tax made by a dealer taken on a subsequent return or any claim for refund of tax erroneously overpaid filed by a dealer must be so taken or filed within three years after the date on which the overpayment was made to the City.

 B.  Except in the case of a fraudulent report or neglect to make a report, every notice of additional tax proposed to be assessed under this chapter shall be served on dealers within three years from the date upon which such additional taxes become due.

3.36.230  Examining Books and Accounts of Carrier Motor Vehicle Fuel.  The City may at any time during normal business hours examine the books and accounts of any carrier of motor vehicle fuel operating within the City for the purpose of checking shipments or use of motor vehicle fuel, detecting diversions thereof or evasion of taxes in enforcing the provisions of this chapter.

3.36.240  Records to be Kept by Dealers.  Every dealer in motor vehicle fuel shall keep a record in such form as may be prescribed by the City of all purchases, receipts, sales and distribu¬tion of motor vehicle fuel. The records shall include copies of all invoices or bills of all such sales and purchases, and shall at all times during the business hours of the day be subject to inspection by the City.

 3.36.250  Records to be Kept Three Years.  Every dealer shall maintain and keep, for a period of three years, all records of motor vehicle fuel used, sold and distributed within the City by such dealer, together with stock records, invoices, bills of lading and other pertinent papers as may be required by the City.  In the event the records are not kept within the State of Oregon, the dealer shall reimburse the City for all travel, lodging, and related expenses incurred in examining the records. The amount of such expenses shall be assessed in addition to the tax imposed hereunder.

 3.36.260  Use of Tax Revenues.

 A.  For the purposes of this section, net revenue means the revenue from the tax and penalties imposed by this chapter remaining after providing for the cost of administration and any refunds and credits authorized herein.

 B.  The net revenue shall be used only for the construction, reconstruction, improve¬ment, repair, maintenance, operation and use of City public right of way, as that term is defined in Chapter 13.52.

 3.36.270  Administration. The City Manager is responsible for administering this chapter. The City Manager may enter into an agreement with the Oregon Department of Transportation as an authorized agent for the implementation and administration of this chapter.

Section 2.  Tax Effective Date.  The tax imposed by this chapter shall take effect on the date specified in a resolution of the City Council, but in no event no earlier than July 1, 2009.

Section 3.  Sunset Provision.  This ordinance shall automatically terminate and the City shall cease to impose and collect the tax provided by this ordinance if Hood River County adopts a motor vehicle fuel tax ordinance applicable to the City and agrees, by written agreement with the City, to allocate a portion of the County’s motor vehicle fuel tax net revenues to the City in an amount acceptable to the City Council.  The termination date shall be as specified in the agreement between the City and County.

Section 4.  Severability. If any portion of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this ordinance.

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