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2017-08-372 - Amending Stormwater Utility 18605 NW 27 Ave., Miami Gardens, Florida 33056 City of Miami Gardens Agenda Cover Memo Council Meeting Date: July 12,, 2017 Item Type: (Enter X in box) Resolution Ordinance Other X Fiscal Impact: (Enter X in box) Yes No Ordinance Reading: (Enter X in box) 1st Reading 2nd Reading x X Public Hearing: (Enter X in box) Yes No Yes No x Funding Source: Revenue Advertising Requirement: (Enter X in box) Yes No x Contract/P.O. Required: (Enter X in box) Yes No RFP/RFQ/Bid #: N/A X Sponsor Name Cameron D. Benson, City Manager Department: City Manager City Manager’ s Office Short Title: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AMENDING CHAPTER 26, ARTICLE II (“STORMWATER UTILITY”), SECTION 26-26 “FEE SCHEDULE AND PAYMENT”, SECTION 26-29 “REQUEST FOR ADJUSTMENT”, SECTION 26-31 “ENFORCEMENT AND PENALTIES”, AND ADDING SECTION 26-32 “PROHIBITIONS GENERALLY”, AND SECTION 26-32 “PERMITS, PLAN REVIEWS, INSPECTIONS, AND ADMINISTRATIVE FEES” OF THE CODE OF ORDINANCES; PROVIDING FOR ADOPTION OF REPRESENTATIONS; REPEALING ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR INCLUSION IN CODE; PROVIDING AN EFFECTIVE DATE Staff Summary: Background On May 10, 2017 Council approved the increase of stormwater fees from $4.00 to $6.00 per ERU per month. The revenue derived from this fee is to cover the costs for capital projects as well as maintenance of the stormwater system. In the FY 2017 budget, the Fleet Manager submitted a five year vehicle replacement plan to replace the 10 year old Street Sweeper and the two Vacuum Trucks. 18605 NW 27 Ave., Miami Gardens, Florida 33056 Current Situation The monthly stormwater bill for each non-residential property is charged for the impervious surface. Impervious area is defined as any part of any parcel of land that has been modified by the action of persons which reduce the land's natural ability to absorb and hold rainfall. This includes areas that have been cleared, graded, paved (parking lots), graveled, compacted, or covered with structures (building footprint). The base charge is the same used for the residential properties - $6.00 per ERU per month. However, the present value of one ERU for nonresidential property is 1,548 square feet of impervious area which is divided into their total impervious area and then multiplied by the $6.00 per ERU. Staff is proposing a 35% reduction cost to properties over 10 acres. The property owner will need to complete an application for the cost reduction with the following, in order to receive reimbursement after paying the total stormwater fees: 1. The properties will need to maintain a valid National Pollutant Discharge Elimination System (NPDES) stormwater discharge permit. The property owner must send the stormwater management utility director a copy of the NPDES Permit and subsequent renewals. 2. Property owners must demonstrate that their existing stormwater or new Stormwater Control Measure controls the volume and quality of stormwater generated from their immediate Developed Property (onsite) by providing facts, opinions, survey data, and signed and sealed engineering reports and calculations to substantiate their reduction. 3. The property owner’s must maintain preventive/corrective maintenance program for all critical facilities and systems of treatment and control (or related appurtenances) which are installed or used by the owner or operator to achieve the goals of this law. Property owner must document all operation and maintenance activities and provide the City with a report annually by April 30. Therefore, failure to maintain the stormwater facilities onsite or provide the above information of maintenance or other pertinence information to the City may result in a denial of the cost reduction request for the following year. Analysis One example of a problem of properties over 10 acres (approximately 56 properties) is the flooding of parking lots where they are not being maintained. Therefore, this proposed cost reduction will be a way of property owners having an incentive in maintaining their stormwater system and the actual stormwater on the property and document their maintenance activities through the year. Staff reviewed the entire the ordinance and found other sections needed to be revised and/or added:  Sec. 26-26: Fee Schedule and Payment - the collection of stormwater management utility fees through the tax roll as a non-ad valorem fee;  Sec. 26-31: Enforcement/Penalties – aligns Ordinance with Florida State Statue 197.172;  Sec. 26-32: Prohibitions – lists nine prohibited acts, authority to issue cease and deist orders for prohibited activities, and liability for pollution abatement; and  Establishes Sec. 26-33: Permits, Plan Reviews, Inspections, and Administrative Fees. Fiscal Impact 18605 NW 27 Ave., Miami Gardens, Florida 33056 This proposed 35% cost reduction with the new stormwater fee of $6.00 per ERU will generate additional revenue of approximately $1.5 million based on FY 2017 certification. Proposed Action: Recommend Council approval of the Stormwater 35% cost reduction for non-residential properties over 10 acres and other changes/additions in the ordinance. Attachment: Attachment #1: Chapter 26 – Utilities – Article II – Stormwater Management Ordinance  Chapter 26 - UTILITIES  ARTICLE I. - IN GENERAL  Secs. 26-1—26-19. - Reserved.  ARTICLE II. - STORMWATER UTILITY  Sec. 26-20. - Intent. It is the purpose and intent of the city to create a municipal stormwater utility pursuant to F.S. § 403.0893(1), as amended from time to time, and to establish stormwater utility fees to be levied against all developed property in the city in the amounts sufficient to plan, control, operate and maintain the city's stormwater management system pursuant to F.S. § 403.0891(3). (Ord. No. 2006-25-106, § 2(1), 12-13-2006)  Sec. 26-21. - Construction. This article shall be liberally construed to protect the public health, safety, and welfare, and to effectuate the purposes set forth herein. (Ord. No. 2006-25-106, § 2(2), 12-13-2006)  Sec. 26-22. - Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Developed property means real property within the city on which improvements have been made to foster commercial, residential or civic use, and/or any property on which impervious structures have been placed. For new construction, a property shall be considered developed for purposes of this article: (1) Upon issuance of a certificate of occupancy or upon completion of construction or final inspection if no such certificate is issued; or (2) Where construction is at least 50 percent complete and construction is halted for a period of three months. Equivalent residential unit (ERU) means the representative average impervious area of single-family residential property located in the city. Impervious area means any part of any parcel of land that has been modified by the action of persons to reduce the land's natural ability to absorb and hold rainfall. This includes areas that have been cleared, graded, paved, graveled, or compacted, or covered with structures. Excluded are all lawns, landscape areas, and gardens or farming areas. Manager means the city manager or his/her designee. Multifamily property means all residential development not classified as single-family residential. Nonresidential property means all property not zoned or used as single-family or multifamily residential property as defined in this article. Residential property means any later parcel developed exclusively for residential purposes, including but not limited to, single-family homes, manufactured homes, multifamily apartment buildings and condominiums, and transient rentals such as hotels and motels. Single-family property means all single-family detached residential dwelling structures. All other residential development shall be classified as multifamily. Stormwater means that part of precipitation that travels over natural, altered, or improved surfaces to the nearest stream, canal, or channel or impoundment and may appear in surface waters. Stormwater management plan means an approved plan for receiving, handling, and transporting storm and surface waters within the city stormwater management system. Stormwater management system means all natural and manmade elements used to convey stormwater from the first point of impact with the surface of the earth to a suitable outlet location internal or external to the boundaries of the city. The stormwater management system includes all pipes, channels, streams, canals, ditches, wetlands, sinkholes, detention/retention basins, ponds, secondary canals and their rights-of-way, and other stormwater conveyance and treatment facilities, whether public or private. Stormwater management utility director means the designee of the city manager responsible for implementing the stormwater management utility function. Undeveloped property means all real property within the city which does not meet the definition of developed property. (Ord. No. 2006-25-106, § 2(3), 12-13-2006)  Sec. 26-23. - Utility established. (a) There is hereby created and established a stormwater management utility) program, which shall provide the operational means of implementing and carrying out the functional requirements of the stormwater management system. The stormwater management utility program shall be part of the overall utility systems of the city. (b) The governing body of the stormwater utility program shall be the city council. (Ord. No. 2006-25-106, § 2(3), 12-13-2006)  Sec. 26-24. - Customer base. All real property within the jurisdictional boundaries of the city shall be subject to stormwater management utility fees unless specifically exempted. The fees shall apply to all tax-exempt properties, including properties of federal, state, city, and county agencies and nonprofit organizations. (Ord. No. 2006-25-106, § 2(4), 12-13-2006)  Sec. 26-25. - Utility fee categories. (a) Stormwater management utility fees are established and amended as necessary to be sufficient to plan, construct, operate, and maintain the stormwater management system, as required by F.S. § 403.0891(3). All lots and parcels subject to stormwater management utility fees in the city are divided into three classes as follows: (1) Single-family property. Each single-family property shall be considered 1.0 ERUs for billing purposes. (2) Multifamily. Each multifamily unit shall be considered as 0.6 ERUs for billing purposes. (3) Houses of worship. Houses of worship classified by the county property appraiser as land use type 71 shall be assessed a monthly utility fee which is 50 percent of the fee for nonresidential developed property calculated pursuant to subsection (a)(4) of this section. (4) Nonresidential property. The monthly utility fee for all nonresidential properties shall be billed and calculated in accordance with the following formula: The value of one ERU for nonresidential property is hereby determined to be 1,548 1.730 square feet of impervious area. (1,548 s1,730 quare feet of impervious area = 1.0 ERU). In instances where multiple utility customers occupy a developed property, the city shall implement a rational and equitable proration related to the occupancy contained thereon for billing purposes. The utility fee shall = (Number of nonresidential ERUs) x (rate per ERU) A minimum value of one (1.0) ERU shall be assigned to each nonresidential property. (b) For the purposes of calculating stormwater management utility fees, the calculation of ERUs is based upon property usage, as determined by the city and based on, but not limited by, state and county land use codes, local business licenses, city land development regulations, and site inspections. (c) The number of ERUs calculated for each account shall be rounded to the nearest 1/100 of a whole number. (Ord. No. 2006-25-106, § 2(5), 12-13-2006)  Sec. 26-26. - Fee schedule and payment. (a) The fee schedule shall be adopted by separate resolution to be amended by the city council from time to time. (b) Stormwater management utility fees shall be billed and collected as a separate line item on utility account bills. The city is authorized to utilize the county as an acceptable third party to perform billing services. (c) Bills for stormwater management utility fees shall be payable at the same time and in the same manner and subject to the penalties as provided in this article. (d) Separate accounts for stormwater utility services only may be established if other utilities are not furnished to the property. (e) The owner of the property is ultimately responsible for all stormwater management utility fees imposed under this article. (Ord. No. 2006-25-106, § 2(6), 12-13-2006)  Sec. 26-27. - Exemptions. The following real property located in the city shall be exempt from the imposition of stormwater management utility fees: (1) Undeveloped property; (2) Paved or improved public rights-of-way; (3) Agriculture-classified properties under agriculture uses. (Ord. No. 2006-25-106, § 2(7), 12-13-2006)  Sec. 26-28. - Stormwater utility enterprise funds. (a) A stormwater management utility enterprise fund (the fund) account, into which all revenues from stormwater management utility fees, connection charges, grants, or other funding sources shall be deposited and from which all expenditures related to the stormwater management utility shall be paid, is hereby established. (b) Accounting and reporting procedures shall be consistent with state general law. Expenditures from the fund for activities that are not related to the city stormwater management utility shall not be permitted, except for a prorated charge for general government services as is in effect for other city utility operations. (c) The monies within the fund shall be used for the exclusive use of the city's stormwater management utility, including, but not limited to, the following: (1) Stormwater management services, such as studies, design, permit review, planned preparation, and development review; (2) Operation, maintenance, repair, and replacement of the stormwater collection, storage, treatment, and conveyance infrastructure; (3) Project cost related to constructing major or minor structural improvements to the stormwater- related infrastructure as provided in any city stormwater management plan; (4) Administrative costs associated with the management of the stormwater management utility fee; (5) Debt service financing of stormwater-related capital improvements defined in any city stormwater management plan including city's pro rata share of the county stormwater utility revenue bond series 1999 and series 2004; (6) Funding of any studies, including water quantity and quality monitoring aerial photography and geotechnical work associated with the planning of stormwater-related infrastructure. (Ord. No. 2006-25-106, § 2(8), 12-13-2006)  Sec. 26-29. - Request for adjustment. All requests for adjustment of the stormwater management utility fee shall be submitted to the stormwater management utility director and shall be reviewed as follows: (1) All requests shall be in writing and set forth in detail the grounds upon which an adjustment is sought. All requests shall be judged on the basis of the amount of impervious area on the lot or parcel, and/or additional or enhanced stormwater facility on or serving the lot or parcel. No credit shall be given for the installation of facilities required by county or city development codes or state stormwater regulations. (2) Adjustment requests made during the first calendar year that the fee is imposed shall be reviewed by the stormwater management utility director within a one-year period from the date of submission. Adjustments resulting from such requests shall be retroactive to the effective date of the ordinance from which this article is derived. (3) All adjustment requests received after the first calendar year that the fee is imposed shall be reviewed by the stormwater management utility director within a four-month period from the date of submission. Adjustments resulting from such requests shall be retroactive to the date of submission of the adjustment request, but shall not exceed one year. (4) The customer or property-owner requesting the adjustment may be required, at his/her own cost, to provide supplemental information to the stormwater management utility director, including, but not limited to, facts, opinions, survey data, and engineering to substantiate customer's case. Failure to provide such information may result in a denial of the adjustment request. (5) The stormwater management utility director shall provide the person requesting the adjustment with a written determination of the request within the time provided herein. Any adjustments shall be prorated monthly. (Ord. No. 2006-25-106, § 2(9), 12-13-2006)  Sec. 26-30. - Appeal process. Any customer or property owner who disputes the result of a request made to the stormwater management utility director for adjustment may petition in writing to the city manager for a review of said charges. The decision of the city manager shall be final. (Ord. No. 2006-25-106, § 2(10), 12-13-2006)  Sec. 26-31. - Enforcement and penalties. (a) Stormwater utility fees shall be payable when due and, if late, shall be subject to a ten percent late charge. Any unpaid balance for such fees and late charges shall be subject to an interest charge at the rate of eight percent per annum. Imposition of such interest charge shall commence 60 days after the past due date of the fees set forth on the utility bill. Nonpayment of any portion of the stormwater utility fee shall be considered as nonpayment of all other utilities appearing on the bill and may result in the termination of all utility services appearing on the bill. (b) All fees, late charge and interest accruing, thereupon due and owing to the utility which remain unpaid 60 days after the past due date of the fees shall become a lien against and upon the developed property for which the fees are due and owing to the same extent and character as alien for a special assessment. Until fully paid and discharged, said fees, late charges, and interest accrued thereupon shall be, remain, and constitute a special assessment lien equal in rank and dignity with the lien of ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles, and claims in, to or against the developed property involved for the period of five years from the date said fees, late charges, and interest accrued thereupon, become a lien as set forth in this article. Said lien may be enforced and satisfied by the city, on behalf of the stormwater management utility, pursuant to F.S. ch. 173, as amended from time to time, or any other method permitted by law. The lien provided for herein shall not be deemed to be in lieu of any other legal remedies for recovery of said fee, late charges, and accrued interest available in the city and to the utility. The following conditions shall apply: (1) Notice. For fees which become more than 60 days past due and unpaid, the city or the stormwater management utility shall cause to be filed in the county public records, a notice of lien or statement showing a legal description of the property against which the lien is claimed, its location by street and number, the name of the owner, and an accurate statement of the fees and late charges then unpaid. A copy of such notice of lien may be mailed within a reasonable time to the owner of the property involved as shown by the records of the county tax collector. (2) Appeals. A property owner shall have ten days after receipt of a bill to request an appeal in writing to the city's code enforcement special master. Said request shall be mailed to the attention of the finance director, shall be in writing, and shall state the basis for the appeal. Upon receipt of a notice of appeal, the city shall schedule a hearing before the special master and shall provide notice of the date of the hearing to the property owner by certified mail. If a request for an appeal is not filed within the ten-day time frame, the lien shall be deemed valid. If the city is the prevailing party on appeal, a $100.00 administrative fee shall be assessed against the property owner. (3) Satisfaction. Liens may be discharged and satisfied by payment to the city, on behalf of the utility, of the aggregate amounts specified in the notice of lien, together with interest accrued thereon, and all filing and recording fees. When any such lien has been fully paid or discharged, the city shall cause evidence of the satisfaction and discharge of such lien to be filed with the office of the clerk of the circuit court of the county. Any person, firm, corporation, or other legal entity, other than the present owner of the property involved, who fully pays any such lien shall be entitled to an assignment of lien and shall be subrogated to the rights of the city and the utility with respect to the enforcement of such lien. (4) Exemption to notice. Notwithstanding other provisions to the contrary herein, the city on behalf of the stormwater management utility shall have the discretion not to file notices of lien for fees, late charges, and interest accrued thereupon in an amount less than $100.00. If the city or the stormwater management utility elects not to file a notice of lien, said fees, late charges, and accrued interest shall remain as debts due and owing in accordance with the provisions of this article. (5) Certificates verifying amount of debt. The utility is authorized and directed to execute and deliver upon request written certificates certifying the amount of fees, late charges, and interest accrued thereupon, which are due and owing to the utility and the city, for any developed property which is subject to payment of said fees, or the utility may certify that no fees, late charges or accrued interest are due and owing. Said certificates shall be binding upon the city and the utility. Third party requests for certificates may incur a reasonable charge based on administration and clerical time to research, produce and transmit said certificates. (Ord. No. 2006-25-106, § 2(11), 12-13-2006; Ord. No. 2007-30-136, § 2(11), 11-12-2007)