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CC Resolution No. 23-066 approving the renewal and collection of the 1992 Storm Drain Fee with no increase in rates for Fiscal Year (FY) 2023-24 RESOLUTION NO. 23-066 A RESOLUTION OF THE CUPERTINO CITY COUNCIL APPROVING THE RENEWAL AND COLLECTION OF THE EXISTING STORM DRAIN FEE WITH NO INCREASE IN RATES FOR FISCAL YEAR 2023-2024 WHEREAS, the City Council of the City of Cupertino enacted Municipal Code Chapter 3.36 to meet the requirements of the federally mandated Stormwater Pollution Prevention and Management Program, federal regulations, and the City’s National Pollution Discharge Elimination System (NPDES) permit and establishing the authority for imposing and charging a storm drainage service charge (“storm drain fee” or “fee”); and WHEREAS, Municipal Code Chapter 9.18 provides regulations and gives legal effect to the Municipal Regional Permit issued to the City and assures ongoing compliance with the most recent version of the City’s NPDES permit regarding the effect of urban stormwater runoff on the ability of the City’s storm drain system to comply with federal and state laws; and WHEREAS, in 1992 the City adopted a storm drain fee based on the City’s Master Storm Drain Study runoff coefficients and average area of impervious surface per acre based on the type of land use of each parcel; and WHEREAS, a written report titled “Engineer’s Report, Assessment of Fees for Storm Drainage Purposes Nonpoint Source Pollution Program” (“report”), concerning the method of assessing fees to fund the City’s Stormwater Management Program, was prepared by the Director of Public Works pursuant to Section 3.36.080(B) of the City’s Municipal Code and filed with the City Clerk on May 31, 2023; and WHEREAS, notice of the proposed rates was published in a local newspaper on 5/19/2023 and 5/26/2023; and WHEREAS, the City Council of the City of Cupertino finds and determines as follows: 1. After considering the “Engineer’s Report, Assessment of Fees for Storm Drainage Purposes Nonpoint Source Pollution Program,” attached hereto as Exhibit A and incorporated herein, and the testimony received at this public hearing, the City Council hereby approves the report. Resolution No. 23-066 Page 2 2. There is a need in the City to continue collecting a storm drain fee to cover the costs of federal and state requirements, as heretofore described, in that properties within the City will not otherwise contribute a portion of costs toward this program and without the availability of such storm drain fee, the City’s general fund will further be negatively impacted in such a manner as to jeopardize other essential services. 3. The facts and evidence presented establish that there is a reasonable relationship between the need for this fee and the impacts for which this fee shall be used, and that there is a reasonable relationship between the fee’s use and the properties that are to be charged this fee. These relationships or nexus are described in more detail in the above-referenced Engineer’s Report. 4. The amounts of the fee for each category of property, as set forth below, are reasonable amounts, because the fee is based on the percent of impervious area established in the Master Plan, City of Cupertino Storm Drainage System and are below the amount needed to recover the cost of storm drainage services. 5. It is further determined that each and every parcel of land to which the fee applies will, and has received, a benefit of flood control from the storm drainage system and that the fees imposed herein on each such parcel are in conformity with, and in fact lower than, the benefits that such parcel has received as further described in the report. NOW, THEREFORE, BE IT RESOLVED, by the City Council, that: 1. Charge. The storm drain fee shall continue to be charged to each parcel within the City, unless exempt, to contribute to the costs of the City’s federal and state requirements for Nonpoint Source Control and a Stormwater Management Program. 2. Use of Revenue. The revenue derived from said fee shall be used in connection with implementing and enforcing Chapters 3.36 of the Cupertino Municipal Code titled “Storm Drainage Service Charge” and Chapter 9.18 titled “Stormwater Pollution Prevention and Watershed Protection.” 3. Schedule of Charges. Resolution No. 23-066 Page 3 a. Annual fees for each category of property will be assessed and collected as follows: Residential premises $ 12.00/parcel Apartment premises $144.00/acre Commercial/Industrial premises $144.00/acre Unimproved/Recreational $ 36.00/acre b. The following public properties are exempt from, and shall not be assessed the environmental fee: Cupertino Sanitary District Santa Clara County Santa Clara Valley Water District Southern Pacific Transportation Company State of California The Santa Clara County Fire Department The City of Cupertino The Cupertino Union School District The Foothill-De Anza Community College District The Fremont Union High School District The MidPeninsula Regional Open Space District United States of America 4. Judicial Action to Challenge this Resolution. Any judicial action or proceeding to challenge, review, set aside, void, or annul this resolution shall be brought within 120 days from the date of its adoption. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6th day of June 2023, by the following vote: Resolution No. 23-066 Page 4 Members of the City Council AYES: Wei, Mohan, Chao, Fruen, Moore NOES: None ABSENT: None ABSTAIN: None SIGNED: ________ Hung Wei, Mayor City of Cupertino ________________________ Date ATTEST: ________________________ Kirsten Squarcia, City Clerk ________________________ Date 6/13/23 6/20/23 Resolution No. 23-066 Page 5 EXHIBIT A ENGINEER'S REPORT ASSESSMENT OF FEES FOR STORM DRAINAGE PURPOSES NONPOINT SOURCE POLLUTION PROGRAM A. Program Description and Purpose The purpose of this assessment is to collect fees to fund the City of Cupertino's Nonpoint Source Pollution Prevention Program mandated by the Environmental Protection Agency (EPA) and the Clean Water Act. Regulations by the EPA and the State of California require cities to take specific actions to eliminate or control pollutants in waters of the State. The term "nonpoint source pollution" represents a process whereby pollutants, debris, trash, sediment and chemicals which accumulate on streets, in neighborhoods, at construction sites, in parking lots, and on other exposed surfaces are washed off by rainfall and carried away by stormwater runoff (via city drain inlets and pipes installed for flood control) into local creeks and the San Francisco Bay. Sources of these pollutants may include automobile exhaust and oil, pesticides, fertilizers, eroded soil, detergents, pet waste, paint, litter, and other material carried through the City's storm drainage system without treatment directly to the Bay. Many of these pollutants are hazardous to aquatic and human life. The City of Cupertino has implemented several mandated and pro-active programs to mitigate this problem. Among other activities, these programs include an illegal storm drain discharge investigation and elimination complaint response program; scheduled proactive inspections of outdoor housekeeping practices at business sites within the City; bi-weekly sweeping of residential streets and weekly sweeping of commercial streets; installation of trash capture devices and curb drain inlet screens to prevent litter from entering the City's storm drainage system; inspection and cleaning of storm drain structures and trash capture devices; public education and engagement with teachers and students, educational activities offered at City events; and a popular, unique, and well- established District-wide third-grade creek education & field trip program led by the City's naturalist at McClellan Ranch Preserve and Stevens Creek. Resolution No. 23-066 Page 6 The San Francisco Bay Regional Water Quality Control Board (Water Board) approved the first Municipal Regional Permit (MRP) on October 14, 2009, and, on November 18, 2015, adopted the second regional permit (MRP 2.0) with additional requirements that became effective on January 1, 2016. MRP 2.0 was issued to the City of Cupertino and 75 agencies or co-permittees which discharge storm water through municipal drainage systems to local creeks and the San Francisco Bay. The City of Cupertino and 14 other co-permittees in Santa Clara County are members of the Santa Clara Valley Urban Runoff Pollution Prevention Program (SCVURPPP) which works collaboratively to maintain compliance with MRP 2.0. In addition to conducting local activities, City staff work closely with the other SCVURPPP jurisdictions to implement pollution prevention, source control, monitoring, and educational programs. A further update and reissuance of the Municipal Regional Permit (MRP 3.0) was adopted by the Regional Water Quality Control Board and became effective on July 1, 2022. In FY 2019-2020, the Nonpoint Source budget was increased to accommodate a new street sweeping contract, enhanced assessment and maintenance of aging structures, and additional staff to clean and maintain the city’s storm drain system. The City’s storm drain system consists of 2092 drain inlets and 90 miles of storm drainage pipes. Of the drain inlets 178 are fitted with full trash capture devices and 281 have curb screens. Maintenance of these assets includes twice per year cleaning of inlets and trash capture devices which protects the city from flooding while preventing stormwater pollution. The budget for FY 20-21 included those ongoing enhancements along with increased allocations of staff time to more accurately reflect time spent on stormwater pollution prevention tasks. A total of 5.07 full time employees are included in the Nonpoint Source program budget across 21 positions with varying allocations of a person’s time. One maintenance worker is covered at 100%, the Nonpoint Source inspector is at 95%, and the remaining positions are covered at between 2% - 60%. The budget for FY 21-22 and FY 22-23 maintained those adjustments and no changes in those areas are expected for FY 23 -24. B. Estimated Expenditures The total estimated (amended) budget to implement the required programs described above for FY 22-23 was approximately $2,127,933. Actual expenses for all of FY 22-23 are anticipated to be approximately $2,025,222. Resolution No. 23-066 Page 7 The breakdown of past actuals, current actuals as of Q3, and budgeted expenses for FY 23-24 are as follows: FY 21-22 Actuals FY 22-23 Q3 7/1/2022 – 3/31/2023 FY 23-24 Requested Budget Staffing $844,326 $687,122 $947,538 Materials $56,287 $56,956 $73,748 Contract Services $322,762 $226,051 $678,920 Allocations $406,269 $249,823 $344,797 Cost Share & Rebate Programs $13,373 $9,159 $23,206 Total Expenses $1,643,017 $1,229,111 $2,068,209 Expected Final $2,025,222 Activities undertaken within the Nonpoint Source program for permit compliance: Countywide Program SCVURPPP Program Assessment - Regional Permit Implementation Regional Watershed Monitoring (administered by EOA, Inc.1) State NPDES 2 Permit Fees Countywide Public Education and Municipal Staff Training CA Stormwater Quality Association (CASQA) Participation County Policy Development Operations and Maintenance Catch Basin and Frequent Trash Capture Device Cleaning Installation of Trash Capture and Retractable Screen Devices On-call Emergency Spill and Discharge Response Staff and Equipment to Implement City's Mandated Litter Reduction Plan Street Sweeping (weekly in commercial areas) City Public Education Awareness Public Outreach Materials & Events Third-Grade Creek Education for Local Schools 1 EOA, Inc. is the environmental engineering and regulatory consulting firm that manages the Santa Clara Valley Urban Runoff Pollution Prevention Program for the co-permittees www.eoainc.com 2 NPDES: National Pollutant Discharge Elimination System Resolution No. 23-066 Page 8 Support High School Students' Watershed and Creek Education Support De Anza College and Community Environmental Education Community Engagement - Creek Cleanup & Watershed Monitoring Events Staff to Conduct Public Education, Training and Outreach CA Product Stewardship Council membership (Extended Producer Responsibility) Local Programs Development, Administration, and Evaluation of Mandated Programs Environmental Impact and New and Redevelopment Review Rain barrel, rain garden, and permeable pavement rebates Ordinance Revisions Database Maintenance Illegal Discharge Complaint Investigation and Enforcement Industrial/Commercial Discharger Inspection Program Construction Site Inspection Program Verification of Treatment Measure Maintenance by Private Property Owners Low Impact Development (LID) and Green Infrastructure Management Litter Reduction Education and Enforcement City's Participation in Multiple Countywide and Regional Programs Annual Parcel Stormwater Fee Assessment Other Staffing Costs Cost Allocations C. Revenue And Assessment Revenues generated to fund this program come from two fees assessed on parcels in Cupertino. The Storm Drain Fee was established in 1992. Revenues from that fee are inadequate to meet the expenses associated with maintaining the storm drain system in Cupertino and ensuring compliance with the MRP, so the Clean Water and Storm Protection fee was established in 2019 and first appeared on 2019-2020 property tax bills. As assessed on the 2022-2023 tax roll and direct billed, the revenue from the two fees will total approximately $1,467,386. FY 22-23 Assessed Actuals Resolution No. 23-066 Page 9 1992 Storm Drain Fee $375,569 Clean Water and Storm Protection Fee $1,101,239 Total Assessed $1,476,808 1992 Storm Drain Fee Fees are based on a factor calculated from the City's Master Storm Drain Study runoff coefficients and average area of impervious surface per acre based on type of land-use development. The factor for each category is based on a comparison to an average residential parcel assigned a factor of one. Certain parcel-owners such as schools and government entities were exempt from such fees in 1992 and as such are not assessed this fee. The fee assessed on the 2022-2023 tax roll totaled $375,569. Those fees were applied to 16,558 residential, commercial, and vacant or recreational use parcels. 2019 Clean Water and Storm Protection Fee The Clean Water and Storm Protection Fee is imposed on properties that shed water, directly or indirectly, into the City’s storm drainage system, and is calculated to be proportionate to the amount of stormwater runoff contributed by each parcel, which is in turn proportionate to the amount of impervious surface area. The details of the methodology are described in the Fee Report as prepared by SCI in February of 2019 that is attached to the Clean Water and Storm Protection fee ordinance. The calculations are informed by the City’s 2018 Storm Drain Master Plan, which includes an analysis of the percentage of impervious area for Cupertino, and rates are further calculated by parcel size and land use category. Unlike the 1992 fee, the Clean Water and Storm Protection fee is subject to treatment under prop 218 and as such all parcels are assessed the fees without exemptions. The fees assessed on the 2022-2023 tax rolls totaled $1,002,324. Those fees were applied to 16,539 parcels in fourteen categories including single-family residential parcels in four sizes, condominiums, and apartments, commercial, office, institutional, recreational, and vacant. Fees billed directly to parcel- Resolution No. 23-066 Page 10 owners that do not receive property tax bills (such as schools and government) totaled $98,915 applied to 96 parcels. The total revenue invoiced from the Clean Water and Storm Protection fee for 2022-2023 is $1,101,239. For both fees, in coordination with the City’s contracted consultant for this purpose, each parcel was identified, and a fee established in a separate report submitted to the County entitled Certification of Special Assessment Annual Enrollment which lists the APN and fee associated fee. The consultant used by the City, SCI, prepares both forms and submits them to the County in accordance with the annual deadline in early August so that the fees can appear on the property tax bills. Additionally, SCI staff are available to answer questions via a phone number provided on the tax bill. D. Annual Review The Clean Water and Storm Protection Fee included annual review requirements beginning with FY 2020-2021 as described in ordinance 19-2183 (Chapter 3.38 of the Cupertino Municipal Code). Section 3.38.040 describes the review process and allows for an annual increase based on the change in CPI as of December each year up to 3% maximum if actual additional costs are incurred. The expenses attributed to the Nonpoint Source Program through third quarter of FY22-23 are $1,229,111 and are projected to reach $2,025,222 by the end of the fiscal year. That expected total is about $102,711 below the approved budget for FY22-23; however, it is above expected revenue by approximately $548,000. Available balance in Fund 230 is sufficient to make up the difference for FY22-23 but will be exhausted during FY23-24. The intention of the fee assessments is only to cover costs and not accrue a balance, however several factors resulted in fund balance accruing. In 2019, before the Clean Water and Storm Protection Fee ballot measure passed, a General Fund subsidy had already been budgeted and transferred that was ultimately not needed. In FY19-20 the program came in under budget largely because true staffing cost allocations had not yet been applied, something that was corrected for FY20-21. In FY20-21 a storm drain video and repair project was anticipated at $248,436, but no acceptable bids were received for the Resolution No. 23-066 Page 11 project, and it was also not conducted in FY21-22. An RFP was conducted in winter 2023 for an initial outfall survey to inform needed repair planning that will likely begin in late FY22-23, but at less than the full budgeted amount for the storm drain video and repair project. The fund 230 balance was $917,878 at the beginning of FY22-23. After covering the shortfall from the projected expenditures from FY22-23, the remaining balance in Fund 230 at the end of the fiscal year is expected to be approximately $369,400 heading into FY 23-24. The requested budget for FY 23-24 totals $2,068,209. With anticipated revenue at $1,477,239, which indicates a projected shortfall of $522,300. That shortfall will exhaust the remaining fund balance in Fund 230, meaning that an increase to the Clean Water and Storm Protection fee is now recommended to reduce the draw upon the General Fund to cover the difference. A 3% increase to the Clean Water and Storm Protection fee would result an increase of $1.33 per year for residents in the most common size of residential property and would generate approximately $33,000 per year additional revenue. That increase will not bridge the expected shortfall after exhausting the Fund 230 balance, but it will reduce the funding request of the General Fund. A full year of expenses and revenues for the Nonpoint Source Program were audited under the City’s annual external audit and reviewed by the City’s Audit Committee. An additional Agreed-Upon Procedures (AUP) audit specific to the Nonpoint Source Program was developed to further assess this program using a calendar year cycle. The AUP was performed on calendar year 2021 (Attachment D) and no exceptions were noted. The City anticipates that the AUP audits of calendar years 2022 and 2023 will be completed and reviewed by the Audit Committee ahead of the next time these fees are brought to Council for renewal in 2024. Chad Mosley Assistant Director of Public Works/City Engineer