CC Resolution No. 21-040 Approving the Renewal and Collection of Existing Storm Drain Fee with no Increase in Rates for FY 21-22 RESOLUTION NO. 21-040
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 2021-2022
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 26, 2021; and
WHEREAS, notice of the proposed rates was published in a local
newspaper on 5/14/2021 and 5/21/2021; 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.
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Resolution No. 21-040
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. The City Council exercises its independent judgment and finds that this
Resolution does not constitute a project under the requirements of the California
Environmental Quality Act (CEQA) 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 storm drain fee would have
no effect on the environment because it does not involve any change in an existing
City program.
Resolution No. 21-040
Page 3
2. 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.
3. 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."
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4. Schedule of Charges. j
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a. Annual fees for each category of property will be assessed and collected as
follows:
Residential remises 12.00 r 1
p $ /pa ce
Apartment premises $144.00/acre
Commercial/Industrial premises $144.00/acre
Unimproved/Recreational $36.00/acre
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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
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Resolution No. 21-040
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5. Judicial Action to Challenge this Resolution. Any judicial action or
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proceeding to challenge, review, set aside, void, or annul this resolution shall be
brought within 120 days from the date of its adoption.
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PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 1st day of June, 2021, by the following vote:
Vote Members of the City Council
AYES: Paul, Chao, Moore, Wei, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
Darcy Paul, Mayor
Date
City of Cupertino
ATTEST:
Kirsten Squarcia, City Clerk Date
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.
The State 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
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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) is currently in development by the Regional Water
Quality Control Board, and is anticipated to go into effect on July 1, 2022.
In fiscal year 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
2020-2021 included those ongoing enhancements along with increased
allocations of staff time to more accurately reflect time spent on stormwater
pollution prevention tasks.
B. Estimated Expenditures
The total estimated (amended) budget to implement the required programs
described above for fiscal year 2020-2021 was approximately $1,851,253.
Actual expenses for all of fiscal year 20-21 are anticipated to be approximately
$1,552,623. The main reason for coming in under budget is that a large
anticipated storm drain system scoping and maintenance project received
only one unsatisfactory bid and the project will be re-bid in fiscal year 21-22.
The breakdown of past actuals, current actuals as of Q3, and budgeted
expenses for FY 21-22 are as follows:
FY 19-20 FY 20-21 Q3 FY 21-22
Actuals 7/1/2020-3/31/2021 Requested Budget
Staffing $564,050 $597,789 $872,261
Materials $33,941 $39,025 $55,435
Contract Services $487,171 $218,348 $614,373
Allocations $118,029 $171,409 $405,672
Cost Share&
$838 $1000 $46,868
Rebate Programs
Total Expenses $ 1,204,029 $1,027,571 $1,994,609
Expected Final $1,552,623
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.') j
State NPDES2 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
Community Engagement- Creek Cleanup &Watershed Monitoring
Events
' 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
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Staff to Conduct Public Education, Training and Outreach j
CA Product Stewardship Council membership (Extended Producer
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Responsibility)
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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
2020-2021 tax roll and direct-billed, the revenue from the two fees will total
approximately $1,472,447.
FY 20-21 Assessed Actuals
1992 Storm Drain Fee $375,883.44
Clean Water and Storm Protection Fee $1,096,563.78
Total Assessed $1,472,447.22
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 2020-2021 tax roll totals $375,883.44 Those fees were
applied to 15,938 single-family residential parcels, 485 commercial parcels,
and 129 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. j
2019 Clean Water and Storm Protection Fee a
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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
anlysis of % of impervious area for Cupertino, and rates are further calculated j
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.
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The fees assessed on the 2019-2020 tax rolls totalled $997,669.50. Those fees
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were applied to 15,935 single-family residential parcels, 480 commercial
parcels, and 108 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 $98,894.28
applied to 87 parcels.
The total revenue from the Clean Water and Storm Protection fee for 2020-
2021 is $1,096,563.78.
D. Annual Review
The Clean Water and Storm Protection Fee included annual review
requirements beginning with fiscal year 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 FY20-21 are $1,027,571 and are projected to reach $1,552,623 by the
end of the fiscal year. Projected expenses for FY21-22 are above expected
revenue by$451,509 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 two years have resulted in one.
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 that project and it will be re-bid in FY21-22. After considering the
proposed FY21-22 budget, the remaining balance in Fund 230 is expected.to
be approximately $686,000. This confluence of events is not expected to occur
again, and 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 FY21-22.
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, however that analysis has not been
completed yet for year 2020. The City anticipates that AUP audits of both
calendar year 2020 and 2021 will be completed and reviewed by the Audit
Committee ahead of the next time these fees are brought to Council for
renewal in 2022.
Roger Lee
Director of Public Works