CC Resolution No. 22-069 approving the renewal and collection of the 2019 Clean Water and Storm Protection Fee with no increase in rates for fiscal year 2022-23RESOLUTION NO. 22-069
A RESOLUTION OF THE CUPERTINO CITY COUNCIL APPROVING THE
RENEWAL AND COLLECTION OF THE EXISTING 2019 CLEAN WATER
AND STORM PROTECTION FEE FOR FISCAL YEAR 2022-2023
WHEREAS, on March 5, 2019, the City Council of the City of Cupertino
adopted Resolution 19-022 initiating proceedings to obtain approval of the
proposed 2019 Clean Water and Storm Protection Fee ("Fee"), which is a property
related fee conforming to Article XIII D, Section 6 of the California Constitution,
and approved the Fee Report for the Water Quality and Flood Protection Fee ("Fee
Report") which sets forth the basis and the amount of the 2019 Clean Water and
Storm Protection Fee on various parcels of land in order to finance, in compliance
with Article XIIID of the Constitution, the costs of the City's Clean Water and
Storm Protection Program; and
WHEREAS, on March 18, 2019, a notice of public hearing was mailed to all
property owners whose property would be subject to the Fee, in accordance with
California Health and Safety Code Section 5473.1; and
WHEREAS, on May 7, 2019, the City Council adopted Resolution 19-041 finding
that a majority protest does not exist and ordering a mailed ballot proceeding for
the proposed Fee proceeding in accordance with Article XIII of the Constih1tion,
Section 53755.5 of the Government Code; and
WHEREAS, on May 7, 2019, the City Council introduced Ordinance No. 19-2183
establishing Chapter 3.38 of the Municipal Code to establish the Clean Water and
Storm Protection Fee; and
WHEREAS, on May 17, 2019, ballots were mailed to all property owners whose
property would be subject to the Fee; and
WHEREAS, on July 17, 2019, by its Resolution 19-096 the City Council adopted
Ordinance No. 19-2183 establishing Chapter 3.38 of the Municipal Code, found
that the Fee was approved by 51.15% of the returned ballots from property owners
of the property subject to the Fee and thereby ordered that the Fee for fiscal year
2019-20 be levied at the rates specified in the Fee Report; and
WHEREAS, Sections 3.38.040 through 3.38.070 of the Ordinance establishing the
2019 Clean Water and Storm Protection Fee allow the City Council to review the
Resolution No. 22-069
Page 2
Fee annually and apply a rate increase based on the change in the Consumer Price
Index ("CPI") up to a maximum increase of 3% in any single year, and to collect
the Fee on the property tax roll in the same manner, by the same persons, and at
the same time as, the general taxes; and
WHEREAS, the City Council of the City of Cupertino finds and determines as
follows:
1. There is a need in the City to continue collecting the Clean Water and Storm
Protection Fee to cover the costs of the Clean Water and Storm Protection Program;
and
2. 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, which are to be charged the Fee. These relationships or nexus are
described in more detail in the above referenced Fee Report; and
3. The amounts of the Fee for each category of property, as set forth below in
the Schedule of Charges, are reasonable amounts, because the amounts are based
on the methodology established in the Fee Report.
NOW, THEREFORE, BE IT RESOLVED, by the City Council, that:
1. The City Council exercises its independent judgment and finds that this
Resolution does not constitute a project under the requirements of the California
Quality Act of 1970 and the State CEQA Guidelines (collectively, "CEQA")
because it has no potential for resulting in physical change in the environment,
either directly or indirectly . In the event that this Resolution is found to be a project
under CEQA, it is subject to the exemption contained in CEQA Guidelines section
15061(b)(3) because it can be seen with certainty that there is no possibility that
continued collection of an existing fee, with no change in use of the fee, may have
a significant effect on the environment. In this circumstance, the Resolution
continuing to charge the Clean Water Act and Storm Protection Fee would have
no effect on the environment because it does not involve any change in an existing
City program.
Resolution No. 22-069
Page3
2. Charges. The 2019 Clean Water and Storm Protection Fee shall continue to
be charged to each parcel within the City to contribute to the costs of the City's
Clean Water and Storm Protection Program. The Fee charged to each parcel will
not be increased for Fiscal Year 2022-2023.
3. Use of Revenue. The revenue derived from said Fee shall be used in
connection with implementing and enforcing Chapters 3.38 of the Cupertino
Municipal Code titled "Clean Water and Storm Protection Fee" and Chapter 9.18
titled "Stormwater Pollution Prevention and Watershed Protection."
4. Schedule of Charges.
a. Annual fees for each category of property will be assessed and collected
as follows :
Land Use Category Fee
Single Fan.lily Re sidenlial*
Sn1all (under 0.13 a.ere) $ 36.58 per parcel
lvredium (0.13 -0.22 acre) $ 44.42 per parcel
Large (0.23 -0 .4 0 acre) $ 55.58 per parcel
Extra Lru:ge (over 0.40 acre) $ 106.42 per parcel
Condo 1 (1 sto1y) $ 36.58 per parcel
Condo 2 (2+ stories) $ 11.99 per parcel
Non-Single-Family Residential~*
Multi-Family Residential $ 30.88 per 0.1 acre
Comme1:cial/Retail/Indus trial $ 40.38 per0.1 ac re
Office $ 30.88 per 0.1 acre
duu:d1/fostittttio11al $ 26.13 per 0.1 ac re
S::hool (w/playfield) $ 19.00 pe r 0.1 ac re
Park $ 7.13 per0.1 acre
Vacant $ 2.38 per 0.1 ac re
!Open Space/Agric-ulttU'al no d1arge
Low Iinpact Development Adjustn.1ent*** 25% Fee R.eduction
.. Single-Family Residential (SFR) category also includes du-bi-and four-pl ex units
.... Non-SFR parcels are charged per the tenth of an acre or portion thereof
.... "Low Impact Devel opment Adjustment only applies to condimium and non-SFR
7/11/22
Resolution No. 22-069
Page4
5. 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.
PASS ED AND ADOPTED at a special meeting of the City Council of the City of
Cupertino this 9t1, day of June, 2022, by the following vote:
Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
L2 ~0 Darcy Paul, ~
City of Cupertino
ATTEST:
k--'±-, J_~ ~
7 z
0
Kirsten Squarcia, City Clerk
7 /;<c, /?~ Z Z..
Date
Date
Resolution No. 22-069
Pages
ENGINEER'S REPORT
EXHIBIT A
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 storm water 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.
The San Francisco Bay Regional Water Quality Control Board (Water Board)
approved the first Municipal Regional Permit (MRP) on October 14, 2009 and,
on Nov ember 18, 2015, adopted the second r e gional permit (MRP 2.0) with
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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) is
currently in development by the Regional Water Quality Control Board, and is
anticipated to go into effect 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 more than 2000 drain inlets,
146 of which are fitted with full trash capture devices, and 90 miles of storm
drainage pipes. Maintenance of these assets includes twice per year cleaning of
inlets and trash capture devices and 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. The
budget for FY 21-22 maintained those adjustments and no significant changes
in those areas are expected for FY 22-23.
B. Estimated Expenditures
The total estimated (amended) budget to implement the required programs
described above for FY 21-22 was approximately $2,131,092. Actual expenses
for all of FY 21-22 are anticipated to be approximately $1,849,806. The main
reason for coming in under budget is that a large anticipated storm drain
system scoping and maintenance project was anticipated to be re-bid in FY 21-
22, but has not been re-bid or completed.
Resolution No. 22-069
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The breakdown of past actuals, current actuals as of Q3, and budgeted
expenses for FY 22-23 are as follows:
FY 20-21 FY 21-22 Q3 FY 22-23
Actuals 7/1/2021-3/31/2022 Requested Budget
Staffing $794,374 $630,877 $913,468
Materials $41,286 $47,717 $63,924
Contract $300,633 $247,458 $678,462 Services
Allocations $228,545 $306,854 $332,864
Cost Share &
Rebate $9,828 $3,606 $41,706
Programs
Total Expenses $1,374,665 $1,236,511 $2,030,424
Expected Final $1,849,806
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
Support High School Students' Watershed and Creek Education Support
De Anza College and Community Environmental Education
1 EOA, Inc. is the environmental engineering and regu latory consu lting firm that manages the Santa C lara
Va ll ey Urban Runoff Pollution Prevention Program for the co-permittees www .eoainc .com
2 NPDES: National Pollutant Discharge Elimination System
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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 2021-2022 tax roll
and direct-billed, the revenue from the two fees will total approximately
$1,467,386.
FY 21-22 Assessed Actuals
1992 Storm Drain Fee $370,508
Clean Water and Storm Protection Fee $1,096,879
Total Assessed $1,467,386
1992 Storm Drain Fee
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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 2021-2022 tax roll totals $370,508. Those fees were
applied to 15,944 single-family residential parcels, 485 commercial parcels, and
126 parcels in other categories (office, institutional, school park, vacant, etc.).
Each parcel was identified and a fee established in a separate report submitted
to the County entitled Certification of Special Assessment Annual Enrollment.
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 2021 -2022 tax rolls totaled $998,393. Those fees were
applied to 15,942 single-family residential parcels, 481 commercial parcels, and
111 parcels in other categories (office, institutional, school park, vacant, etc.).
Fees billed directly to parcel-owners that do not receive property tax bills (such
as schools and government) totaled $98,486 applied to 96 parcels.
The total revenue from the Clean Water and Storm Protection fee for 2021-2022
is $1,096,879 .
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
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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 FY21-22 are $1,236,511 and are projected to reach $1,849,806 by the end of
the fiscal year. Projected expenses for FY22-23 are above expected revenue by
$555A76 but there is available balance in Fund 230 to make up the difference.
The intention of the fee assessments is only to cover costs and not accrue a
balance, however several factors over the past three years have resulted in fund
balance. 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 $248A36, but no acceptable bids
were received for that project and then it was not conducted in FY21-22 either.
An RFP is currently under development to conduct an initial outfall survey to
inform needed repair planning that would likely happen in FY 22-23. After
considering the expected expenditures from FY21-22, the remaining balance in
Fund 230 is expected to be approximately $714A24. It is recommended that
Fund 230 be used to cover the anticipated shortfall with no impact to the
General Fund and no increase in the assessed fees for FY22-23.
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
2020 (Attachment D) and no exceptions were noted. The City anticipates that
the AUP audits of calendar years 2021 and 2022 will be completed and
reviewed by the Audit Committee ahead of the next time these fees are brought
to Council for renewal in 2023 .
Chad Mosley
Assistant Director of Public Works/City
Engineer