Richmond City Council
January 18, 2022

CCTV INSPECTION
At the time of Coastland’s review of the CCTV videos, Express Sewer’s CCTV inspections had been conducted between MH Q-1 and MH Q-9, and between MH Q-13 and MH Q-25. No inspections have yet been conducted of the 1,144 feet of sanitary sewer between MH Q-9 and MH Q-13.

Express Sewer prepared an exhibit of sewer video locations and a spreadsheet with inspection notes (attached as Appendix A). The exhibit and spreadsheet have color coding for each sewer segment indicating various inspection results. Green colored segments indicate segments where the video captured clear visual images of the pipe interior. Yellow colored sewer segments indicate partial or limited visual images of the pipe interior. CCTV inspection of the remaining sewer segments (red-colored in spreadsheet, not colored on exhibit) did not obtain a clear visual image of the pipe or video inspection was not completed.

The CCTV video inspections conducted to date consist of 4,221 feet of pipe (out of the 5,392 linear feet of sewer per the as-builts). According to Sewer Express, the videos had the following characteristics:
2,735 feet of clear visual inspection (green coded)
1,108 feet of limited clear visual inspection (yellow coded) 379 feet of incomplete or not completed video (red coded) Eight of the videos were incomplete. Five of the incomplete videos recorded inspections for less than 50% of the pipe length. Three of the incomplete videos did not have distances measured so their lengths are unknown. Incomplete videos were generally caused by pipe obstructions, impassable bends, poor access which prevented the inspectors from using the equipment needed to drawdown the water level in the pipe, or for unknown reasons.

REVIEW OF CCTV INSPECTION
Coastland reviewed CCTV videos and prepared inspection reports for each segment as discussed in the section above. All comments are based on NASSCO PACP standards and guidelines. The CCTV inspection reports are attached as Appendix B. A summary table of CCTV inspection observations is included as Table 1.

CONDITIONS ASSESSMENT
Our assessment of pipe conditions was limited to the portions of the pipe that were observable on the inspection video. Most of the CCTV inspection videos are of poor quality in terms of presenting a complete view of wall conditions throughout the entire length of pipe. The CCTV inspections were conducted under extremely difficult site limitations and time restraints (due to tide) so the resulting poor video quality is expected and understandable. Several inspections were incomplete due to obstructions or camera being underwater. Other inspections were blurry or shaky and taken at high speed. Often there were significant periods where the camera was underwater (with zero visibility) or the camera was pointed at the soffit and only portions of the pipe were visible.

A general assessment of pipe deficiencies are summarized below.

Interior Pipe Wall Conditions
According to Express Sewer, the entire reach of Keller Beach sanitary sewer was extremely corroded prior to cleaning. As shown in the post-cleaning images below, the upstream reach of pipe (MH Q-17 to MH Q-25) was generally descaled, while further downstream (MH Q-1 to MHQ- 17) extensive turberculation and wall roughness remains.

MH Q-1 to MH Q-2 MH Q-2 to MH Q-3
MH Q-3 to MH Q-4 MH Q-4 to MH Q-5
MH Q-5 to CO Q-6 CO Q-6 to CO Q-8
(MH Q-7 was not constructed)

CO Q-8 to MH Q-9
No CCTV provided between
MH Q-9 and MH Q-13
MH Q-13 to MH Q-14 MH Q-14 to MH Q-15
MH Q-15 to CO Q-16 CO Q-16 to MH Q-17
MH Q-17 to CO Q-18 CO Q-18 to MH Q-19

MH Q-19 to CO Q-20 CO Q-20 to CO Q-22
CO Q-22 to CO Q-24
(blurry – poor visual)
CO Q-24 to MH Q-25
No holes or cracks were observed in any segment (that was visible) of the Keller Beach sanitary sewer main, though the pipe walls show extensive evidence of pipe corrosion. Corrosion of the pipe walls (with a decrease of the pipe’s structural integrity) has resulted over time due to the presence of corrosive hydrogen sulfide gas, a natural sewer gas, in the unlined pipe. The presence of extensive sags and pipe obstructions further exacerbate the problem by causing organic solids to settle and increases localized hydrogen sulfide gas production in the pipe.

Corrosion will continue to deteriorate the pipe’s structural integrity as long as the pipe remains exposed to sewage gases.

Sags in Pipe Profile
In the Keller Beach sanitary sewer, most segments were observed to remain full of water after cleaning, even after the upstream flow has been plugged. Non-draining gravity pipes are generally caused by sags in the pipe profile or obstructions/pipe roughness. All of these conditions are present in the Keller Beach sanitary sewer to varying degrees.

When water levels are high enough for the camera to be submerged underwater, that is generally an indication of a severe sag in the pipe. Moderate to severe sags were present in twelve (12) of the seventeen (17) inspected pipe segments.

Sags in the pipe profile have likely resulted from inconsistent pipe support from the subgrade due to shifting sand under and around the pipe. Sags are expected to worsen as the pipe’s structural integrity weakens.

Broken Laterals and Missing MH cover
Prior to cleaning, several segments of the pipe were choked with sand, which is evidence of breaks in the collection system, which allows inflow of seawater and sand into the sewer collection

system. Some segments reportably refilled with sand in two weeks, suggesting the defects are extensive. Recent inspection by Bayhawk of sewer laterals on the beach has shown evidence of cracks and breaks. The City is currently undergoing the assessment and repair of these laterals which should significantly reduce the inflow of seawater and sand into Keller Beach sanitary sewer.

CONCLUSIONS
Coastland draws the following conclusions based on our CCTV assessment and understanding of the site conditions.

Poor Pipe Conditions
The Keller Beach sanitary sewer has been in service for approximately 62 years and has reached the end of its useful design life. The pipe that is visible and CCTV inspected is highly corroded and the remaining wall thickness and structural strength is unknown, but clearly compromised.

The sewer main has been partially descaled but remains weakened and increasingly prone to cracks and breaks. The pipe’s profile has extensive sags, and will continue to sag and adjust due to its location in the surf zone under the force of shifting sand and wave action. Laterals are in poor condition with known and suspected defects which the City/Homeowners are obligated to correct.

Poor Access Conditions
Access is poor to the Keller Beach Sewer which makes repair and maintenance difficult and expensive. Access issues include:
Lack of vehicle access to the sewer main on the beach. Limited foot traffic access due to private property and cliffs. Work periods that are restricted to negative/low tide conditions (often 3-4 hours). The sewer pipe is underwater and inaccessible during normal tide conditions. Lack of manholes at sharp bends in the sewer alignment. Bends greater than 30 degrees can block equipment access for maintenance and inspection. Cleanout structures are too small to allow equipment access for maintenance and inspection.
Manhole lids are corroded shut and must be replaced whenever they are opened. Beach access is slippery and creates a hazardous work condition.

High Risk of Environmental Impacts in the Event of Pipe Failure Due to the sewer main’s location in the bay, a pipe failure would cause significant and unavoidable environmental impacts.

Environmental Permitting
Environmental permits will most likely be required for improvements to the sanitary sewer system and may be very difficult to obtain.

RECOMMENDATIONS
Coastland recommends that the City take immediate action to address the following deficiencies in the Keller Beach Sanitary Sewer:
Poor conditions of the sewer main pipe, access points, and laterals; Poor access conditions for repair and maintenance; and High risks and costly environmental impacts in the event of a pipe failure.

For the City’s consideration, Coastland offers two options for making the needed improvements:
repair of the existing system in place, and replacing the sewer main in a new location.

Option 1: Repair of the Existing Sewer Main
The preferred method of repairing the sewer main in place would be Cured-in-Place Pipe (CIPP) lining, which is a completely trenchless repair method which involves a heat or UV-cured resin- impregnated “sock” liner that can be installed through manholes. Express Sewer, a CIPP contractor, evaluated the possibility of CIPP-lining the sewer main and considered the project doable but expensive. The following tasks would likely be required:
Repair the sewer laterals that are causing the sewer main to fill with sand (in progress).

Sewer laterals that are broken or crushed will need to be replaced and reconnected to the sewer main.
Descale the pipe walls of the lower portion of the sewer main and remaining pipe segments not yet cleaned or CCTV inspected using robotic equipment to remove tuberculation and roughness. It should be verified that descaling can be done to the degree that CIPP lining can be applied.
Install manholes at tight bends and as needed for equipment access. This task would require open cut excavation and a system to dewater/dam the excavation area.

Environmental permitting may not allow for open cut excavation in the bay. CIPP-line the sewer mains.
CIPP-line the sewer laterals (if possible) and seal the lateral/main connection with a top- hat.

The benefits of CIPP-lining the sewer main would be to prevent further corrosion and extend the design life of the sewer main. The CIPP-liner would provide some minimal structural wall strength, but would not fully recover the lost pipe strength and ductility which is unknown.

Additional assessment of the existing cast iron pipe thickness and strength would be needed to evaluate whether the CIPP-lined sanitary sewer main would provide sufficient strength to withstand site conditions. The extended design life of the CIPP-lined pipe is difficult to predict.

The drawbacks of the CIPP liner option are that the repair:
Does not provide a full new construction design life to the sewer main facilities, Does not correct sags, and the pipe profile will continue to adjust and degrade, Does not address the poor maintenance access, and
Does not address the high-risk and cost of sanitary sewer overflows into the bay in the event of a pipe break,

Is an extremely costly repair.
Environmental permits will most likely be required for improvements to the sanitary sewer system and may be very difficult to obtain.

Option 2: Replacement of the Keller Beach Sewer in a New Location The replacement of the Keller Beach Sewer in a new location would involve the following tasks:
Conceptual design of lift stations and alignment options, Alternative Analysis,
Survey,
Land or Easement Acquisition,
Detailed Design,
Permitting,
Funding Acquisition,
Construction of new sewer main and lift stations/Abandonment or removal of existing facilities, and
Installation of residential lift stations in houses below the proposed sewer main.

The benefits of this option is that it is capable of addressing all the deficiencies of the existing Keller Beach Sanitary Sewer, and providing a full design life for the new facilities.

The major drawbacks of the sanitary sewer main replacement options are that it:
Is an extremely costly project,
Would take years to implement, and
Would need numerous Homeowners’ participation.

Coastland’s preliminary assessment is that Option 1: CIPP-lining the Keller Beach sewer main may be constructable with additional study (additional CCTV, descaling and pipe material thickness study), but is an expensive repair that does not sufficiently address the deficiencies of the system to render it a cost-effective solution. In addition, environmental permits will most likely be required for improvements to the sanitary sewer system and may be very difficult to obtain. Option 2: Replacement of the Keller Beach Sewer is an expensive solution but it addresses all the system deficiencies. Coastland considers the high cost of replacement to be a necessary expense to avoid the high risk of pipe failure due to aged sanitary sewer system that is difficult to maintain.

Coastland advises the City to conduct its own assessment and take immediate action to address the Keller Beach sanitary sewer deficiencies.

In the short term, Coastland supports the City’s in-progress efforts to CCTV inspect and repair or replace the sewer laterals connecting to the Keller Beach Sanitary Sewer.

11/17/2021 3:52 PM Page 1 of 3
Coastland/NCE/City of Richmond
Keller Beach Sewer CCTV Assessment
Table 1. Summary Table of CCTV Inspection Observations Downstream
MH
Upstream
MH
Direction
of Survey
Pipe
Length
Inspection
Length
% of Pipe
Inspected
Pipe
Size (in)
Pipe
Material Interior Pipe Wall Condition Water Level Condition during Inspection Pipe Features Observed General Inspection Notes MH Q-1 MH Q-2 DS 393 153 39% 12 CI
Severe roughness remains after
descaling efforts, especially on
top half of pipe.

Pipe holding full of water; Water
surface pulled down by
hydronozzle, even so pipe was
typically 20-50% full; Moderate
to severe sags
Start at MH Q-2;
Did not reach MH Q-1;
No laterals observed
Distance indicated on camera was
not accurate; Forward progress in
camera stopped due to obstruction
MH Q-2 MH Q-3 DS 139 139 100% 12 CI
Severe roughness remains after
descaling efforts, especially on
top half of pipe.

Pipe holding full of water; Water
surface pulled down by
hydronozzle, even so pipe was
typically 20-50% full; Moderate
to severe sags
Start at MH Q-3;
Inspection ended at MH Q-2;
No laterals
Complete inspection
MH Q-3 MH Q-4 DS 242 242 100% 12 CI
Severe roughness remains after
descaling efforts, especially on
top half of pipe.

Pipe holding full of water; Water
surface pulled down by
hydronozzle. Water level
5-10% during inspection
Start at MH Q-4;
Inspection ended at MH Q-3;
2 laterals observed
Complete inspection
MH Q-4 MH Q-5 DS 219 Unknown Unknown 12 CI
Severe roughness remains after
descaling efforts. Infiltration
runner observed (at 21:20
minutes)
Pipe holding full of water; Water
surface pulled down by
hydronozzle. Water level
5-10% during inspection
Start at MH Q-5;
Did not reach MH Q-4;
No laterals observed
Distance indicated on camera was
not accurate; Camera stopped due
to unknown impediment
MH Q-4 MH Q-5 US 219 96 44% 12 CI
Severe roughness remains after
descaling efforts, especially top
half of pipe.

Pipe holding full of water; Water
surface pulled down by
hydronozzle, even so pipe was
typically 5-40% full; Moderate
sags
Start at MH Q-4;
Did not reach MH Q-5;
6" sewer connected at
MH Q-4
Distance indicator working;
Inspection abandoned by debris in
pipe.

MH Q-5 CO Q-6 DS
(reverse) 305 291 95% 12 CI Significant/Severe roughness remains after descaling efforts.

Pipe holding almost full of water;
Camera underwater; Severe sags
Start at CO Q-6;
Did not reach MH Q-5;
No laterals observed
Inspected in reverse. Distance
indicator not working. Poor visual -
view obscured by pull-rope. No
survey from CO-6 for 14.3'.

Inspection abandoned at sharp 30-
degree bend.

CO Q-6
CO Q-8
(MH Q-7
was not
constructed)
DS
(reverse) 357 Unknown Unknown 12 CI
Unknown: Pipe wall visible for
only 11 seconds of video. Severe
roughness remains after
descaling efforts.

Pipe full of water during survey:

Camera underwater; Severe sags
Start at CO Q-8;
Did not reach CO Q-6;
No laterals observed
Pull back with push camera;
Unusable footage due to equipment
limitations because of poor access;
Only visual was 11 seconds on
partial pipe wall (16:08 - 16:19)
CO Q-8 MH Q-9 DS 182 21.7 12% 12 CI
Significant/Severe roughness
remains after descaling efforts.

Only 22' of pipe was observed.

Inspectors unable to plug off
flows for TV inspection due to
large line coming in from
neighborhood. Pipe at start
flowing 40-50%. Camera
underwater; Severe sags
Start at MH Q-9;
Did not reach CO Q-8;
No laterals observed
Camera blocked by tuburculated
corrosion at 22'
MH Q-9 MH Q-10 257 0 0% 12 CI No CCTV provided
MH Q-10 CO Q-11 166 0 0% 12 CI No CCTV provided
CO Q-11 MH Q-12 393 0 0% 12 CI No CCTV provided
MH Q-12 MH Q-13 328 0 0% 12 CI No CCTV provided

11/17/2021 3:52 PM Page 2 of 3
MH Q-13 MH Q-14 DS 261 261 100% 12 CI
Significant/severe roughness
observed, expecially top half of
pipe; Grease observed
Pipe was empty during
inspection. Water surface pulled
down by hydronozzle. Camera
underwater
Start at MH Q-14;
Intruding lateral at 161.1';
Inspection ended at MH Q-13
Complete inspection
MH Q-14 MH Q-15 DS 173 Unknown Unknown 12 CI
Severe roughness observed,
expecially top half of pipe; Deep
sags present throughout pipe
Water level 25-100%; Camera
underwater; Severe sags
Start at MH Q-15;
Did not reach MH Q-14;
High-flowing lateral into MH Q-15;
Visual poor due to high water level
MH Q-15 CO Q-16 DS 252 45 18% 10 CI Severe roughness observed, especially top half of pipe.

Water level 15-50%; Moderate to
severe sags
Start at CO Q-16;
Did not reach MH Q-15
Camera blocked by tuburculated
corrosion at 45'
MH Q-15 CO Q-16 US 252 15 6% 10 CI Unknown:

No pipe visual
Inspectors unable to drawdown
water due to reverse setup;
Camera underwater 0-15'+;
Severe sag
Start at MH Q-15;
Did not reach CO Q-16;
No visual due to high water;
Inspection abandoned at 15'; Could
not drawdown water due to poor
access conditions from CO;
CO Q-16 MH Q-17 DS 207 208 100% 10 CI Significant/Severe roughness observed
Water level 5-50%; Moderate to
severe sags
Start at MH Q-17;
Lateral at 188.1';
Bend at 206';
Ended at CO Q-16
Good pipe visual; Difficulty passing
bend in pipe
MH Q-17 CO Q-18 DS
(reverse) 246 246 100% 10 CI
Pipe visual is poor; Where pipe is
clear, pipe appears to be fully
descaled. Evidence of significant
pipe corrosion, especially top half
of pipe.

Water level 5-100%
Severe sags (camera underwater)
last third of pipe up to MH Q-17
Start at MH Q-17;
Push cam to CO Q-18;
Pull back with hydronozzle;
Ended at CO Q-18
Poor pipe visual; rapid/shaky
footage; only one side of pipe in
view; no stills to inspect pipe
condition; distance meter not
working
CO Q-18 MH Q-19 US
(reverse) 185 185 100% 10 CI Pipe walls are fully descaled after cleaning. Rough wall surface.

Pipe holds water, may be due to
sags. Water level 10-20% in
reverse footage
Start at MH Q-19;
Push cam to CO Q-18;
Pull back with hydronozzle;
2 laterals observed;
Ended at MH Q-19
Pipe inspected in reverse. MH Q-19
appears to be possible source of I/I
and should be inspected.

MH Q-19 CO Q-20 DS 201 201 100% 8 CI Pipe walls are fully descaled after cleaning. Rough wall surface.

Water level 5-100%
Severe sags (camera underwater)
Start at CO Q-20;
Push cam to MH Q-19;
Pull back with hydronozzle;
1 lateral observed at 5';
Ended at CO Q-20
Push cam operated in reverse. Poor
visual: rapid/shaky footage; no stills
to inspect wall condition
CO Q-20 CO Q-22 US
(reverse) 273 273 100% 8 CI
Rough wall surface. Pipe walls
are fully descaled after cleaning.

Poor visual (blurry and rapid
return footage)
Low water level in most of
reverse footage due to
hydronozzle. Severe sags; Camera
underwater 206'-226'
Start at CO Q-22;
Ended at CO Q-20;
Pull back with hydronozzle;
Ended at CO Q-22
Push cam operated in reverse. Poor
visual: rapid/shaky footage; no stills
to inspect wall condition
CO Q-22 CO Q-24 DS
(reverse) 344 344 100% 8 CI
Very poor visual (blurry and
rapid). Rough wall surface. Pipe
walls appear to be fully descaled
after cleaning.

Low water level in footage due to
hydronozzle.

Start at CO Q-24;
End at CO Q-22
Push cam operated in reverse. Poor
visual: rapid/shaky footage; no stills
to inspect wall condition
CO Q-24 MH Q-25 DS 307 274 89% 8 CI
Rough wall surface. Pipe walls
are fully descaled after cleaning.

Poor visual (blurry and rapid
return footage)
Water level 5-25%
Start at MH Q-25;
2 laterals observed;
Did not reach CO Q-24
Push cam operated in reverse. Poor
visual: rapid/shaky footage; no stills
to inspect wall condition; complete
inspection (including US footage)
Coastland/NCE/City of Richmond
Keller Beach Sewer CCTV Assessment
Table 1. Summary Table of CCTV Inspection Observations Downstream
MH
Upstream
MH
Direction
of Survey
Pipe
Length
Inspection
Length
% of Pipe
Inspected
Pipe
Size (in)
Pipe
Material Interior Pipe Wall Condition Water Level Condition during Inspection Pipe Features Observed General Inspection Notes

11/17/2021 3:52 PM Page 3 of 3
CO Q-24 MH Q-25 US 307 70 23% 8 CI
Rough wall surface. Pipe walls
are fully descaled after cleaning.

Poor visual (rapid footage)
Water level 5-10%
Start at CO Q-24;
1 lateral observed (overlapping
DS inspection);
Did not reach MH Q-25
Push cam operated in reverse. Poor
visual: rapid/shaky footage; no stills
to inspect wall condition; complete
inspection (including DS footage)
Coastland/NCE/City of Richmond
Keller Beach Sewer CCTV Assessment
Table 1. Summary Table of CCTV Inspection Observations Downstream
MH
Upstream
MH
Direction
of Survey
Pipe
Length
Inspection
Length
% of Pipe
Inspected
Pipe
Size (in)
Pipe
Material Interior Pipe Wall Condition Water Level Condition during Inspection Pipe Features Observed General Inspection Notes

APPENDIX A:

EXPRESS SEWER NOTES AND EXHIBIT

City of Richmond
Keller Beach Sewer Video Notes
Start Node End Node Distance Notes
MH 4 MH 3 237.0
Left Tap @ 78.8'
Left Tap @ 210.3'
Clear visual
MH 3 MH 2 137.0 Pipe holding full pipe water, used Vaccon to pull water down for TV inspection MH 2 MH 1 393.0 Pipe holding full pipe water, used Vaccon to pull water down for TV inspection MH 5 MH 4 233.0 Pipe holding full pipe water, used Vaccon to pull water down for TV inspection Part 1 MH 4 MH 5 96.0 Pipe holding full pipe water, used Vaccon to pull water down for TV inspection Part 2 CO 6 MH 5 320.0
Pipe holding almost full pipe water, no acces with mainline TV camera from US CO. Inspected from downstream to upstream CO-06. Pulled back camera while recording to capture visual of pipe. Operator wheel rolled distance and made it to MH 5 Clear visual from 319.8' - 203.8'
Belly from 203.8' (Approximately 3 - 5 ft no clear visual) hard to determine due to distance staying at 203.8' on pull back.

Clear visual approximately from 198.8' - 58.1'
Belly approximately from 58.1' - 14.3', TV truck got a visual up to the bend There is still an unclear visual from CO 6 up to 14.3'
CO 8 CO 6 357.0
Pipe holding full pipe water, no accress thru lamphole for mainline TV camera, camerad with push camera and pulled back live.Clear visual @ 16:08 - 16:19 from video (Distance stayed at

0.0 Ft throughout video, couldn't determine distance).

Operator wheeled rolled distance from CO 8 to CO 6. 357' MH 9 CO 8 21.7
Unable to plug off flows for TV inspection due to large line coming in from neighborhood.

Pipe at start flowing 40-50%. Clear visual up to 21.7'
Unable to pass corrosion in pipe at 21.7'. Pipe has severe scaling that camera could not pass and cleaning crew could not remove with chain flail.

Line is incomplete
MH 17 CO 16 208.0
Pipe is in fair condition, some areas of moderate to severe scaling. Left Tap @ 188.1' 45 bend in pipe 3' from CO 16
CO 16 MH 15 45.0
Attempted to Tv inspect pipe from MH15 reverse but too much water to get visual. Set up from MH 17, ran camera down to CO16. Started TV inspection, Clear visual to 45 ft.

Severe corrosion @ 45.3', unable to pass
Did not meet up, line is incomplete Part 1
MH 15 CO 16 153.0
Belly from 0.0' - 15.3'
Unable to Camera due to line holding water and reverse setup Did not meet up, line is incomplete Part 2
MH 19 CO 18 189.0
Mainline holds water, Tv insopected while Jetting to pull water out of pipe. Captured clear video of pipe during pull back with footage. Left Tap @ 42.5' Left Tap @ 94.4'
Clear visual from pull back
CO 18 MH 17 246.0
Unable to access with main line camera, unable to push with push camera, operator had to pull push camera in with hydro nozzle and then video while pulling camera back. There are sections in the video that have clear and not clear visual.

Operator made it to MH 17. Footage distance shows 0.0 throughtout due to process.

Operator verifies footage with wheel roller.

CO 20 MH 19 201.0 Clear visual
CO 22 CO 20 275.0
Unable to access with main line camera, unable to push with push camera, operator had to pull push camera in with hydro nozzle and then video while pulling camera back, 7:08 mark CO 24 CO 22 344.0
Unable to access with main line camera, unable to push with push camera, operator had to pull push camera in with hydro nozzle and then video while pulling camera back with hydro running to capture video. Footage distance shows 0.0 throughtout due to process. operator verifies footage with wheel roller.

MH 25 CO 24 274.0
Left Tap @ 232'10"
Left Tap @ 177'4"
No clear visual from 0'0" - 13'0"
Line is incomplete
Overlapped with inspection #2, confirmed by locating Part 1 CO 24 MH 25 70.0
Right Tap @ 58'7"
Right Tap @ 67'5"
Overlapped with inspection #1, confirmed by locating Part 2 MH 15 MH 14 162.0
Pipe Has poor grade , crew fighting water and areas of corrosion in pipe. Crew had to follow hydro nozzle close for visual. Close to nozzle video 0 - 162' then debris, unable to pass end of video
MH 14 MH 13 260.0
Left Tap @ 161.2'
Clear Visual
Segment of belly @ 232.0' - 242.4'Page 378 of 509

APPENDIX B:

CCTV INSPECTION REPORTS

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 3/22/2021 Length: 152.8' inspected out of 393' (incomplete) Street: 3+92.95 Material: CI
Upstream MH: MH Q-2 Pipe Diameter: 12"
Downstream MH: MH Q-1 Direction of Video: Downstream
Distance (feet) Code Clock/
Position Comment Image

0.0 AMH Q-2
MWL
>50%
Only top of pipe
visible

0.5 Severe internal
corrosion

16.2 Severe internal
corrosion

16.2 MWL
20%
Severe internal
corrosion

16.2 MGO
cam in pipe view
17m44s, mostly under
water

16.2 MWL 20% with vac wash

16.2 MGP 09 unk, possible tap?
(18:32)

16.2 SCP 08-03 S01 (18:34)

16.2 MGP 09 unk, unsure if void
(18:41)

43.5 MCU cam tilted & aimed to
soffit right after

64.0 MCU Camera underwater

66.4 MGO cam stationary 26m to
40m,

77.1 MGO cam in motion but
choppy video
131.2 MWL 35%
131.2 MGO cam stationary,
difficulty moving
forward
152.8 OBZ 03-09
no forward progress
from here (51:30 to
end of video)
152.8 MSA Survey abandoned

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 3/22/2021 Total Length: 139' - complete inspection Street: 5+29.63 Material: CI
Upstream MH: MH Q-3 Pipe Diameter: 12"
Downstream MH: MH Q-2 Direction of Video: Downstream
Distance (feet) Code Clock/Positi
on Comment Image

0.0 AMH Q-3

0.0 MWL 20% with power wash

0.0 SZ 09-04 S01, is this SCP?

15.1 SZ F01

15.1 SZ 07-05 S02, throughout line

99.5 OBR 04-08 20%, removed by jet wash
105.3 DAZ 05, 07 S03
122.7 DAZ F03
123.9 MWL(S) 40%, S04
130.8 MGO cam rotated 90 degrees
132.1 MGO equip issue, cam has no
traction

140.4 AMH Q-2, adjusted from 137.3

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 3/22/2021 Total Length: 242' - complete inspection Street: 7+71.85 Material: CI
Upstream MH: MH Q-4 Pipe Diameter: 12"
Downstream MH: MH Q-3 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.0 AMH Q-4

0.0 MWL 10%

0.0 SCP 07-04 S01

6.0 OBZ 04-08

21.9 MGP 10 possible TFC

46.0 MWL 5%

78.8 TFA 09 adjusted distance, was 82.5
on approach
101.3 OBZ 04-08 S02 repetitive
210.3 TFA 09 adjusted distance, was 212.3
on approach
237.4 AMH Q-3, dist adjusted from 239.4

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 3/23/2021 Total Length: Unknown distance inspected out of 219' (incomplete) Street: 9+90.03 Material: CI
Upstream MH: MH Q-5 Pipe Diameter: 12"
Downstream MH: MH Q-4 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image
0*
Minutes of video
because distance
indicator was not
working
AMH Q-5

0.0 MWL 20%

0.0 SCP 07-05 S01
16:12 MGP dist adjusted to 232.8 prior to
start of survey
17:00 MGO distance remains 232.8 during
survey
17:59 OBZ 04-08
18:09 MWL 5%
21:20 IR 2:00 Infiltration runner
46:47 OBZ 03-09 30% blocked
47:33 to end MGO-MSA
no progress, would eventually
lose visibility (possibly MCU),
not completed

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 3/24/2021 Total Length: 96' out of 219' (incomplete) Street: 9+90.03 Material: CI
Upstream MH: MH Q-5 Pipe Diameter: 12"
Downstream MH: MH Q-4 Direction of Video: Upstream
Distance (feet) Code Clock/Position Comment Image

0.0 AMH Q-4:

0.0 MWL 20% Lateral at manhole

0.0 SCP 07-05 S01

17.6 MGO cam unsteady

20.7 SCP

22.3 MWL 40%

88.9 MGP debris

96.1 MWL 5%

96.1 MSA Abandoned, 2 of 2

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/2/2021 Total Length: 319.8'
Street: 12+95.89 Material: CI
Upstream MH: CO Q-6 Pipe Diameter: 12"
Downstream MH: MH Q-5 Direction of Video: Downstream (reverse) Distance (feet) Code Clock/Position Comment Image

0.0 AMH At MH Q-5

0.0 MCU S01 Camera underwater (no image)
319.8 MCU F01 Camera underwater (no image)
319.8 ACO At MH Q-6
319.8 MGO
camera on grade, in reverse
(pulled); distance remains
319.8
10:56 SCP 07-05 S02
11:47 MWL 20%
12:11 MCU S03 Camera underwater (no image)
20:53 MCU F03 Camera underwater (no image)
23:03 MCU S04 Camera underwater (no image)
34:03 MGO camera stopped, 14.3'
distance; possibly at bend
34:24 MGO end of survey

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/5/2021 Total Length: Unknown distance out of 357' Street: 16+52.06 Material: CI
Upstream MH: CO Q-8 Pipe Diameter: 12"
Downstream MH: CO Q-6 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.00 ACO At CO Q-8
MGP
16:08 - 16:19 per survey, 6
seconds:

Camera in reverse, mostly
MCU, DAE/DAGS 08-09

0.00 MSA no usable footage

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/7/2021 Total Length: 21.7' inspected out of 182' (incomplete) Street: 18+08.07 Material: CI
Upstream MH: MH Q-9 Pipe Diameter: 12"
Downstream MH: CO Q-8 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.0 AMH Q-9

0.0 MWL

4.9 SCP 03

5.9 MWL 50%

6.5 MCU Camera underwater

7.3 MGP out of MCU

8.9 MGP possible RMB

9.0 MCU Camera underwater (no images)

11.7 DAE 09-03 S01

13.9 DAE 09-03 S01, distance adjusted

6.0 MGP distance adjusted from 13.9

6.0 MCU Camera underwater (no images)

10.9 MGP out of MCU, distance
adjusted

13.1 MCU S02 Camera underwater (no images)
Camera underwater (no images)

21.7 MCU F02 Camera underwater (no images)

21.7 MSA no forward progress Camera underwater (no images)

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 7/14/2021 Total Length: 260 - complete inspection Street: 32+05.23 Material: CI
Upstream MH: MH Q-14 Pipe Diameter: 12"
Downstream MH: MH Q-13 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.0 AMH Q-14

0.0 MWL 20%

0.0 MGP prewash, MWL to 5%

0.0 SRI 09-03 S01

10.3 SCP 08-05 at joint

28.7 SCP 08-04

71.3 SCP 08-02

78.1 SSS 02 S01

85.4 SSS F01
102.5 SSS 10 S02
109.4 SSS F02
109.4 SCP 07-05 at joint

111.3 SSS 11-01
116.1 SSS 02
123.4 SSS 10-03
126.6 SCP 09-05 at joint
136.9 SSS 10-03 S03
154.4 MWL 20%
161.1 TBI 11 1-inch intrusion
197.0 MWLS 50%, S04
203.8 SCP 09-04
210.0 SCP 09-04 at joint
215.3 MGP 03
232.2 H or SCP 01
231.2 MGO-MCU cam aimed at soffit Camera underwater (no image) 255.5 MCU Camera underwater (no image)
260.0 AMH Q-13

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 5/28/2021 Total Length: Unknown distance out of 173' - incomplete Street: 33+78.23 Material: CI
Upstream MH: MH Q-15 Pipe Diameter: 12"
Downstream MH: MH Q-14 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.0 AMH Q-15

0.0 MWL 25%

0.0 SSS 09-03 S01

7.3 MGO cam titled 90 deg left

15.8 SSS F01

15.8 SCP 09-03 S02

19.7 MCU Camera underwater (no image)

53.8 54.4 MCU Camera underwater (no image)

74.6 OBZ 02-09
- MGO-MSA
poor visibility, multiple
blackouts/MCU thorughout
remainder of video (from 44-
min mark to end)

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/21/2021 Total Length: 45' out of 252' (incomplete) Street: 36+30.20 Material: CI
Upstream MH: CO Q-16 Pipe Diameter: 10"
Downstream MH: MH Q-15 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.0 ACO At CO Q-16

0.0 MWL 50%

0.0 DAE 09-03 S01

3.9 MCU Camera underwater (no image)

5.6 DAE F01

5.6 MWL 25%

6.0 SSC 10-02 S02

40.2 SSC F02

41.4 SCP 12-12 at/near joint

44.3 to 45.2 MGP 12-03

45.3 MSA Abandoned, equipment
retrieved Inspection incomplete due to severe corrosion obstruction

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/22/2021 Total Length: 15.3' out of 252' (incomplete) Street: 36+30.20 Material: CI
Upstream MH: CO Q-16 Pipe Diameter: 10"
Downstream MH: MH Q-15 Direction of Video: Upstream
Distance (feet) Code Clock/Position Comment Image

0.00 AMH Q-15

0.00 MWL 100%

0.00 MGP Surcharged up the structure

0.00 MCU Camera underwater (no image)

6.00 MGP will attempt vac behind cam

15.30 MSA Abandoned

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/21/2021 Total Length: 207.9 - complete inspection Street: 38+37.70 Material: CI
Upstream MH: MH Q-17 Pipe Diameter: 10"
Downstream MH: CO Q-16 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.0 AMH

0.0 MWL

9.4 SSS 08-12 S01, repetitive throughout

11.7 SRI 09-03 S02
111.2 MWL 40%
141.3 SCP 08-04
147.4 SCP 08-04
148.1 MGP cam mostly submerged,
difficulty with forward motion
163.9 SCP 08-04
184.2 SCP 08-04

188.1 TF 09, w/ OBZ 03-09, 50%
188.3 MWL 40%, submerged
195.6 MGP used VAC to drop MWL,
unsure if there's MWLS
203.0 MGO cam stationary for minutes,
no forward progress Difficulty passing bend in pipe
207.9 ACO Q-16; mid-line, looks more
like TFC 11 o'clock

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/30/2021 Total Length: 246 - complete inspection Street: 40+83.63 Material: CI
Upstream MH: CO Q-18 Pipe Diameter: 10"
Downstream MH: MH Q-17 Direction of Video: Downstream (Push camera with hydronozzle in reverse) Distance (feet) Code Clock/Position Comment Image

0.0 ACO At CO Q-18

0.0 MWL surcharged at structure

0.0 MGO
footage out of focus, appears
to be pushing cam on
grade/invert; distance
remains 0.0' throughout
06:51 MGP-AMH
At MH Q-17 per survey note;
cam on grade (not
centered/elevated); blurred,
out of focus; footage by video
timestamp, not by distance,
cam in reverse
07:49 MGO start of reverse footage
07:57 MWL 40%, out of focus
07:58 MCU Camera underwater (no image)
08:05 OBZ 05-07 S01, debris
08:47 MGO cam unstable
09:23 MGO cam unstable
14:05 ACO At CO Q-18, end of reverse
footage

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/29/2021 Total Length: 185 - complete inspection Street: 42+68.13 Material: CI
Upstream MH: MH Q-19 Pipe Diameter: 10"
Downstream MH: CO Q-18 Direction of Video: Upstream (Push camera with hydronozzle in reverse) Distance (feet) Code Clock/Position Comment Image

0.0 AMH Q-19

0.2 MWL 20% (20:53)

0.5 SSS 10-02 S01, throughout pipe

24.9 MGP abrupt drop

29.3 MWL 10%

42.5 TBI 11 4" lat, 2" intrusion

91.9 obz 04-08

94.4 TF 09 4" lat
134.6 OBZ 03-09 50% blocked, chain flailed
140.7 MGO blackout, no actrivity 10:35 -
42:00

94.8 MGP
42:00 resumed, dist from
140.7, may have been
retrieved
119.1 MGO turbulent footage (44:39)
124.9 MCU (46:07) Camera underwater (no image)

131.5 MGO cam tilted 90d
counterclockwise
132.7 MCU Camera underwater (no image)
156.5 MGO blacked out approx 5min
159.7 MGO cam too close to cleaning
equip, very poor visibility
173.4 MGO-MCU blackout, no visibility (1:01:13
to 1:44:05) Camera underwater (no image)
173.7 MGO turbulent footage, cam very
close to cleaning equip
189.2 ACO Q-18
189.2 MGO reverse survey, no new
findings

0.0 AMH Q-19
CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 4/29/2021 Total Length: 185 - complete inspection Street: 42+68.13 Material: CI
Upstream MH: MH Q-19 Pipe Diameter: 10"
Downstream MH: CO Q-18 Direction of Video: Upstream (Push camera with hydronozzle in reverse) Distance (feet) Code Clock/Position Comment Image

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 5/4/2021 Total Length: 201' - inspection complete Street: 44+69.26 Material: CI
Upstream MH: CO Q-20 Pipe Diameter: 8"
Downstream MH: MH Q-19 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image

0.00 ACO At CO Q-20

0.00 MWL
12' 11" DAGS 03-06 at joint maybe
16' 0" MGO cam unsteady
73' 10" MCU Camera underwater (no image)
111' 10" MWL 10%
112' 7" MCU S01 Camera underwater (no image)
200' 5" MCU F01 Camera underwater (no image)
201' 1" MGO-MCU no visibility Camera underwater (no image) 200' 8" MGO retrieved, reverse
185' 2" SSS-SCP 03-09 unclear
154' 5" MGO turbulent, cam unsteady
5' 3" TB 10 not panned, no other info
-0' 1" MGP
-0' 5" MGP
-0' 5" ACO Q-20

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 5/4/2021 Total Length: 273' - complete inspection Street: 47+42.13 Material: CI
Upstream MH: CO Q-22 Pipe Diameter: 8"
Downstream MH: CO Q-20 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image
0' 0" ACO Q-22; turbulent & very poor
visibility throughout
2' 6" MWL 20%
2' 6" TF 09 not panned, other info
8' 9" DAZ 04-08 S01
197' 4 " MGO no visibility 04:41 to 06:16
275' 0" ACO Q-20, start of backwards
survey
273' 7' MCU Camera underwater (no image)
262' 7" MGO
poor visibility throughout,
unable to perform
assessment

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 3/22/2021 Total Length: 344' - complete inspection but low value due to blurry image Street: 58+86.31 Material: CI
Upstream MH: CO Q-24 Pipe Diameter: 8"
Downstream MH: CO Q-22 Direction of Video: DS per header Distance (feet) Code Clock/Position Comment Image

0.0 ACO At CO Q-24

0.0 MWL 15%

0.0 MGO pushed on grade, 0.0' throughout; footage out of focus 17:05 MGP-ACO
cam on grade (not
centered/elevated); blurred,
out of focus; footage by video
timestamp, not by distance,
cam in reverse
17:19 MCU S01 Camera underwater (no image)
18:47 MCU F01 Camera underwater (no image)
18:54 MWL 15%
18:59 MGO cam out of focus, poor video
quality, unable to review
24:07 DAGS 04-07 S02
24:25 DAGS F02
26:54 ACO

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 5/14/2021 Total Length: 70' out of 307' - incomplete Street: 53+93.25 Material: CI
Upstream MH: MH Q-25 Pipe Diameter: 8"
Downstream MH: CO Q-24 Direction of Video: Upstream
Distance (feet) Code Clock/Position Comment Image

0.0 ACO Q-24
2' 1" MGP Start of survey
2' 1" MGO
push cam very unsteady; poor
image quality; splashback at
forward motion, frequent
MCU
3' 9" MWS 30%
57' 9" DZ or RBB 03-05
58' 9" T 03 no other info
67' 5" T 03 no other info
70' 0" MSA Abandoned, 2 of 2

CCTV Observation Report
Client: NCE/City of Richmond
Project Name: Keller Beach Sewer CCTV Assessment
Date of CCTV: 5/14/2021 Total Length: 274' out of 307' - incomplete Street: 53+93.25 Material: CI
Upstream MH: MH Q-25 Pipe Diameter: 8"
Downstream MH: CO Q-24 Direction of Video: Downstream
Distance (feet) Code Clock/Position Comment Image
0' 0" AMH Q-25
1' 3" MCU-MGO turbulent, poor visibility
15' 4" MWL 5%
25' 8" SSS 11-05 at joint
36' 1" MGO cam aimed at 3 o'cl barrel
62' 10" SCP 02-04
78' 6" MGP debris
203' 0" MGP in reverse, general condition
ok
257' 10" MGP in reverse, general condition
ok
274' 0" MSA 11:13, will continue from CO
Q-24 per survey

January 18, 2022

Public Works

DATE: January 18, 2022
TO: Mayor Butt and Members of the City Council
FROM:
(List all relevant/responsive staff
persons)
Joe Leach, PE, Public Works Director
Greg Hardesty, Parks & Landscaping Superintendent

Subject:
(This will appear on the agenda)
Resolution ordering the preparation of the annual
engineer’s report for Fiscal Year 2022-2023 regarding
improvements and costs for the Marina Bay Landscape
and Lighting Maintenance District
FINANCIAL IMPACT: The proposed expenditure of $7,750 is funded in the approved Fiscal Year 2021-2022 Department of Public
Works Operational Budget (11533931-400201).

PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)
Click or tap here to enter text.

STATEMENT OF THE
ISSUE:

The proposed resolution initiates the process for the
annual levy of a benefit assessment for the Marina Bay
Landscape and Lighting Maintenance District by ordering the preparation of the fiscal year 2022-2023 Engineer’s Rep ort for this District.

RECOMMENDED ACTION:
(This will appear on the agenda)
ADOPT a resolution ordering the preparation of the
annual engineer’s report for Fiscal Year 2022-2023
regarding improvements and costs for the Marina Bay
Landscape and Lighting Maintenance District – Public
Works Department (Joe Leach 510-620-5478).

AGENDA
REPORT

January 18, 2022
DISCUSSION:

On July 28, 2009, the City Council adopted Resolution No. 83-09, approving the formation of the new Landscape and Lighting District and the founding Engineer’s Report, establishing the rate of assessment, authorizing annual increases thereof, and ordering maintenance services within the Marina Bay Landscaping and Lighting Maintenance District. The rate of assessment for this District must be confirmed annually by action of the City Council.

In accordance with Section 12.60.240 of the Richmond Municipal Code, and in accordance with State law, the first step in this process is to orde r the preparation of an Engineer’s Report of assessment for the 2022 -2023 fiscal year. As required by Section

12.060.250 of the Richmond Municipal Code, a copy of the report and a property owner response form will be mailed to all owners of real property subject to the annual benefit assessment as a subsequent part of the process. The City Council will be asked to hold a public hearing and accept the Engineer’s Report to then finalize the process.

DOCUMENTS ATTACHED:

Attachment 1 – Resolution

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RICHMOND, CALIFORNIA ORDERING PREPARATION OF THE ANNUAL ENGINEER’S REPORT FOR FISCAL YEAR 2022-2023 REGARDING IMPROVEMENTS AND

COSTS FOR THE MARINA BAY LANDSCAPE AND LIGHTING MAINTENANCE

DISTRICT

WHEREAS, by Resolution Number 83-09 dated July 28, 2009, the City Council of the City of Richmond established assessment rates for the Marina Bay Landscape and Lighting Maintenance District and authorized annual increases thereof; and

WHEREAS, the City Council of the City of Richmond now wishes to determine whether the rates of assessment for Fiscal Year 2022-2023 should be amended.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RICHMOND DOES HEREBY RESOLVE AS FOLLOWS:

(1) The Engineer shall prepare a report that describes any proposed new improvements or any substantial changes in existing improvements.

(2) The Engineer shall file the report with the City Clerk for consideration by the City Council.

PASSED, APPROVED AND ADOPTED this 18th day of January 2022.

------------------------

I certify that the foregoing Resolution No. was duly passed, approved and adopted by the City Council of the City of Richmond, California, at a regular meeting of said City Council held on the 18th day of January 2022, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

CLERK OF THE CITY OF RICHMOND

Approved:

Mayor

Approved as to form:

City Attorney

January 18, 2022

Public Works

DATE: January 18, 2022
TO: Mayor Butt and Members of the City Council
FROM:
(List all relevant/responsive staff
persons)
Joe Leach, PE, Public Works Director
Greg Hardesty, Parks & Landscaping Superintendent
Subject:
(This will appear on the agenda)
Resolution ordering the preparation of the annual
engineer’s report for fiscal year 2022-2023 regarding
improvements and costs for the Hilltop Landscape
Maintenance District
FINANCIAL IMPACT: The proposed expenditure of $10,750 was funded in the approved Fiscal Year 2021-2022 - Public Works
Department Operational Budget (11233731-400201).

PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)
Click or tap here to enter text.

STATEMENT OF THE
ISSUE:

The proposed resolution initiates the process for the
annual levy of a benefit assessment for the Hilltop
Landscape Maintenance District by ordering the
preparation of the Fiscal Year 2022-2023 Engineer’s
Report for this District
RECOMMENDED ACTION:
(This will appear on the agenda)
ADOPT a resolution ordering the preparation of the
Engineer’s Report for Fiscal Year 2022-2023 regarding
improvements and costs for the Hilltop Landscape
Maintenance District - Public Works Department (Joe
Leach 510-620-5478/Greg Hardesty 510-620-6920).

AGENDA
REPORT

January 18, 2022
DISCUSSION:

On June 23, 1998, the City Council adopted Resolution No. 91-98, approving the Engineer’s Report, establishing the rate of assessment, authorizing annual increases thereof, and ordering maintenance services within the Hilltop Landscape Maintenance District. The rate of assessment for this District must be confirmed annually by action of the City Council.

In accordance with Section 12.60.240 of the Richmond Municipal Code, and in accordance with State law, the first step in this process is to order the preparation of an Engineer’s Report of assessment for the 2022-2023 fiscal year. As required by Section

12.060.250 of the Richmond Municipal Code, a copy of the report and a property owner response form will be mailed to all owners of real property subject to the annual benefit assessment as a subsequent part of the process. The City Council will be asked to hold a public hearing and accept the Engineer’s Report to then finalize the process.

DOCUMENTS ATTACHED:

Attachment 1 – Resolution

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RICHMOND, CALIFORNIA ORDERING PREPARATION OF AN ENGINEER’S REPORT FOR FISCAL YEAR 2022-2023 REGARDING IMPROVEMENTS AND COSTS FOR THE

HILLTOP LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT

WHEREAS, by Resolution Number 91-98 dated June 23, 1998, the City Council of the City of Richmond established for the Hilltop Landscape Maintenance Assessment District rates assessment and authorized annual increases thereof; and

WHEREAS, the City Council of the City of Richmond now wishes to determine whether the rates of assessment for Fiscal Year 2022-2023 should be amended.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RICHMOND DOES HEREBY RESOLVE AS FOLLOWS:

(1) The Engineer shall prepare a report that describes any proposed new improvements or any substantial changes in existing improvements.

(2) The Engineer shall file the report with the City Clerk for consideration by the City Council.

PASSED, APPROVED AND ADOPTED this 18th day of January 2022.

------------------------

I certify that the foregoing Resolution No. was duly passed, approved and adopted by the City Council of the City of Richmond, California, at a regular meeting of said City Council held on the 18th day of January 2022, by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

CLERK OF THE CITY OF RICHMOND

Approved:

Mayor

Approved as to form:

City Attorney

January 18, 2022

City Clerk's Office

DATE: January 18, 2022
TO: Mayor Butt and Members of the City Council
FROM:
(List all relevant/responsive staff
persons)
Pamela Christian, City Clerk

Subject:
(This will appear on the agenda)
Redistricting Public Hearing – 7:00 P.M.

FINANCIAL IMPACT: There is no specific financial impact from tonight’s public hearing.

PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)

STATEMENT OF THE
ISSUE:

The City retained National Demographics Corporation to
help reestablish the district boundaries within the City of Richmond based on the 2020 Census data. State law
requires that new district maps must be adopted by
April 17, 2022, for the November 2022 election.

RECOMMENDED ACTION:
(This will appear on the agenda)
HOLD A PUBLIC HEARING AT 7:00 P.M. to RECEIVE
public input on draft maps of voting district boundaries as part of the City’s requirement to redistrict the City after the release of the 2020 census data. National
Demographics Corporation will lead the process – City
Clerk’s Office (Pamela Christian 510-620-6513).

DISCUSSION:

AGENDA
REPORT

January 18, 2022
At the January 14, 2020, City Council Meeting, the City Council adopted Ordinance No. 4-20 and approved District Map #115B establishing the boundaries for district elections in the City of Richmond. The Council set the election sequence to Districts 1, 5, and 6 to begin with the November 3, 2020 election; and Districts 2, 3, and 4 to begin with the November 2022 election.

Every 10 years, local governments must use new census data to redraw their district lines to reflect how local populations have changed. Assembly Bill 849 (2019) requires cities and counties to engage communities in the redistricting process by holding public hearings and/or workshops and doing public outreach, including to non-English- speaking communities. Below is an account of outreach efforts. New district maps must be adopted by the Council no later than April 17, 2022, for the November 2022 election.

NDC will guide the City to reestablish the district boundaries. The redistricting process will involve several public hearings that will allow for significant public input on the formation of the districts. Spanish translation services will be available at all public hearings.

Redistricting outreach to date:
 E-mail sent with flyers to the Community Outreach group, John Gioia’s Office, Richmond Promise, ECIA Listserv (non-profits), Katrinka Ruk (Council of Industries), Chamber of Commerce, LEAP, Employment & Training, Malcom Marshall (Richmond Pulse), Mike Kinney (Richmond Standard), Gonzalo Ochoa (23rd St. Merchants Association), and Daniel Butt (Pt. Richmond Business Association).
 Flyer announced on the Mayor’s Office social media, press release, City’s social media, and KCRT.
 Flyer sent to Jan Mignone, Stephanie Ny, and Garland Ellis, Neighborhood Council PIO. Stephanie forwarded the e-mail to ALL Neighborhood Councils.  Posted flyers at all community centers, 440 and 450 Civic Center Plaza buildings, and at the main library
 E-mail blast with flyers sent to parents of the WCCUSD  Gabino Arredondo distributed flyers to various businesses he frequents  Continuous announcement on the City’s electronic marquee Flyer continuously posted in the City Manager’s Weekly Report Please visit the Redistricting webpage at: www.ci.richmond.ca.us/Redistricting for more information.

DOCUMENTS ATTACHED:

Attachment 1 – NDC Presentation
Attachment 2 – Public Hearing Notice
Attachment 3 – Flyer announcing public hearings

City of Richmond
Redistricting Draft Maps
January 18, 2022 Shalice Tilton, Senior Consultant
National Demographics Corporation

2 Redistricting Process
2 Step Description
First Pre-Draft Hearing
July 6, 2021
• Held prior to release of draft maps.
• Educate and solicit input on the communities in the Districts.

Second Pre-Draft Hearing
September 14, 2021
• Held prior to release of draft maps.
• Educate and solicit input on the communities in the Districts.

Public Workshop
August 25, 2021: 2 & 6 p.m.
• Public workshops held to review redistricting process and introduction to mapping tools.

Public Workshop
December 6, 2021
• Public workshops held to review redistricting process and introduction to mapping tools.

First Draft Map Hearing
January 18, 2022
• Public Hearings to discuss, revise the draft maps; discuss the election sequence.

Second Draft Map Hearing
February 1, 2022
• Public Hearings to discuss the draft maps; discuss the election sequence; select a map
Map Adoption
By April 17, 2022
• Final map must be posted at least 7 days prior to adoption.

3 Equal Population
Federal Voting Rights Act
No Racial Gerrymandering
Minimize voters shifted to
different election years
Respect voters’ choices /
continuity in office
Future population growth
Preserving the core of
existing districts
Federal Laws California Criteria
for Cities

1. Geographically contiguous

2. Undivided neighborhoods and
“communities of interest”
(Socio-economic geographic areas
that should be kept together)

3. Easily identifiable boundaries

4. Compact
(Do not bypass one group of people
to get to a more distant group of
people)
Prohibited:
“Shall not favor or discriminate against a
political party.”
Other Traditional
Redistricting Principles
3 Redistricting Rules and Goals

4 Demographic Summary of Existing Districts
Using official 2020 prisoner-adjusted Census population.

Each of the five Council districts must contain about 19,465 people. There should be no greater than a 10% deviation between the greatest populated district and the least populated district. The existing districts have a 14.66% overall deviation.

Using official 2020 prisoner-adjusted Census population.

Each of the five Council districts must contain about 19,465 people. There should be no greater than a 10% deviation between the greatest populated district and the least populated district. The existing districts have a 14.66% overall deviation.

5 Draft Maps Summary
Number # Districts Contiguous Pop Bal Deviation Max CVAP Latino
Max CVAP
NH White
Max CVAP
NH Black
Max CVAP
NH AAPI Pairs
Current 6 Y Y 14.66% 52.61% 33.27% 41.73% 27.34% D5 2; D6 2 101 6 Y N 21.38% N/A N/A N/A N/A D5 4
102 6 Y Y 9.98% 42.29% 42.65% 54.03% 26.86% D5 2; D6 2
103 6 N N 13.13% N/A N/A N/A N/A D5 2; D6 3
104 6 N* N* 10.40% 53.09% 32.44% 42.96% 27.00% D2 2; D3 3 105 6 N* Y 9.68% 53.09% 32.62% 42.90% 26.71% D2 2; D3 3 106 6+Unassign N N 11.49% N/A N/A N/A N/A D4 3
106b 6 Y Y 9.85% 46.49% 45.34% 49.28% 26.52% D4 3
107 6 N N 14.04% N/A N/A N/A N/A D4 3; D5 3
201 6 Y Y 7.37% 52.61% 33.27% 43.47% 27.61% D5 2; D6 2
202 6 Y Y 8.58% 52.61% 33.27% 43.47% 27.07% D5 2; D6 2
203 6 Y Y 6.41% 52.61% 45.95% 50.05% 26.86% D5 2
*Could easily be modified for balance. Maximum 53.09% 45.95% 54.03% 27.61% Minimum 42.29% 32.44% 42.90% 26.52%
City of Richmond - Draft Maps

6 Not Population Balanced or Not Contiguous

7 Deviation: 10.40%
Not contiguous
Pairs two in D2
Pairs two in D3
Deviation: 10.40%
Not contiguous
Pairs two in D2
Pairs two in D3Page 429 of 509
8 Deviation: 9.68%
Not contiguous
Pairs two in D2
Pairs three in D3
Deviation: 9.68%
Not contiguous
Pairs two in D2
Pairs three in D3Page 430 of 509
9 Deviation: 9.98%
Pairs two in D5
Pairs two in D6
Deviation: 9.98%
Pairs two in D5
Pairs two in D6Page 431 of 509
10 Deviation: 9.85%
Pairs three in D4
Deviation: 9.85%
Pairs three in D4Page 432 of 509
11 Deviation: 7.37%
Pairs two in D5
Pairs two in D6
Deviation: 7.37%
Pairs two in D5
Pairs two in D6Page 433 of 509
12 Deviation: 8.58%
Pairs two in D5
Pairs two in D6
Deviation: 8.58%
Pairs two in D5
Pairs two in D6Page 434 of 509
13 Deviation: 6.41%
Pairs two in D5
Deviation: 6.41%
Pairs two in D5Page 435 of 509
14 Proposed Sequencing
14  Election Year 2022: Districts 2, 3, 4
 Election Year 2024: Districts 1, 5, 6
 After focus maps are identified, it is recommended the City Council review and, if needed, adjust the district number assignments.

15 Public Hearing & Discussion
15  Which map or map(s)
do you prefer?
 Goal is to identify 1-2
focus maps.
 Any revisions to those
maps?
Next Public Hearing:

February 1, 2022
 Which map or map(s)
do you prefer?
 Goal is to identify 1-2
focus maps.
 Any revisions to those
maps?
Next Public Hearing:

February 1, 2022

NOTICE OF PUBLIC HEARING

NOTICE IS HEREBY GIVEN that on Tuesday, September 14, 2021, at the hour of 7:00 p.m., or as soon thereafter as the matter may be heard, the City Council will conduct a public hearing via Zoom to consider the following item:

Receive public input regarding composition of voting districts as part of the City’s requirement to redistrict the City after the release of the 2020 census data.

At the public hearing described in this notice, the City Council may receive staff presentations on an overview of the process and City demographics and receive public testimony to be used in establishing options for district boundaries and adopt mandatory and permissive districting criteria, pursuant to El ections Code section 10010 and Government Code section 34886.

All interested persons are invited to present their view s and comments on this matter .

Written statements may be filed with the City Clerk via email at [email protected] at any time prior to the hearing scheduled herein or by mail: City Hall, 450 Civic Center Plaza , 3rd Floor, Richmond, 94804. Mailed statements must be received by 1 p.m. the day of the hearing. Oral statements may be made at said hearing via Zoom:
https://zoom.us/j/99312205643?pwd=MDdqNnRmS2k4ZkRTOWhlUldQOUF1Zz09 Passcode: ccmeeting
See published agenda for other ways to participate. Spanish translation services will be available at all redistricting public hearings. Translation for other languages may be available upon request prior to the day of the hearing.

By Order of the Richmond City Council:

Pamela Christian
City Clerk

Dated: August 30, 2021
Published: September 4 and 11, 2021

Approved as to form:

James Atencio
Senior Assistant City Attorney

AVISO: Para obtener ayuda interpretativa con esta noticia, por favor llame a la oficina de la Secretaria Municipal, al (510) 620-6513. Page 438 of 509 How to get involved??
visit:
www.ci.richmond.ca.us/Redistricting
Share your specific thoughts now, draw a
map or attend a public hearing!
Send comments and draft maps to:
[email protected]
For more information, visit:
www.ci.richmond.ca.us/Redistricting (510) 620-6513, ext. 9 The City Council will be holding the final
two post-draft public hearings on January
18 and February 1, 2022, at 7 p.m.

Due to COVID-19, this may be a virtual
event.

Spanish Translation will be available!
The City of Richmond is Redistricting after
the 2020 Census count in time for the
November 2022 Election
City Council Redistricting!!

¿Como participar?Visite:www.ci.richmond.ca.us/Redistricting ¡¡Cambio de distritos del
Concejo Municipal!!

Para mas informacion, visite:
www.ci.richmond.ca.us/Redistricting (510) 620-6513, ext. 9 Comparta sus ideas especificas ahora,
dibuje un mapa, o participe en una
audiencia pública! Envíe comentarios y
mapas preliminares a:
[email protected]

La Ciudad de Richmond está cambiando los
distritos de la ciudad debido al Censo del 2020
para la Elección de noviembre 2022.

El Concejo Municipal de la Ciudad de Richmond
tendrá las dos últimas audiencias públicas
posteriores al mapa preliminar, el 18 de enero y 1
de febrero, 2022, a las 7 p.m. Debido a COVID-19,
esto puede ser un evento virtual.

Traducción en español estará disponible.

www.ci.richmond.ca.us/Redistricting

JOIN THE

CONVERSATION
Redistricting determines which
neighborhood and communities are
grouped together into a district for
purposes of electing a
councilmember.

UNASE A LA
CONVERSACIÓN
La redistribución de distritos
determina qué vecindarios y
comunidades se agrupan en un
distrito con el propósito de elegir
un concejal.

January 18, 2022

Community Development

DATE: January 18, 2022
TO: Mayor Butt and Members of the City Council
FROM:
(List all relevant/responsive staff
persons)
Lina Velasco, Director of Community Development
James Atencio, Senior Assistant City Attorney

Subject:
(This will appear on the agenda)
Amendments to Richmond Municipal Code (RMC) Article

15.04.615 to extend amortization period for
nonconforming land uses related to the storage and
handling of coal and petroleum coke to December 31,
2026 (PLN21-427)
FINANCIAL IMPACT: There is no direct impact to the General Fund related to adopting this ordinance. However, if approved, this action would settle on-going litigation and could result in cost savings from having to defend the City in the litigation.

PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)
January 21, 2020, and February 4, 2020

STATEMENT OF THE
ISSUE:

In February 2020, the City Council adopted Ordinance
No. 05-20 N.S. (“Ordinance”) adding new Article

15.04.615 to the Richmond Municipal Code (“RMC”) to
prohibit new land uses and phase out existing land uses related to the storage and handling of coal and petroleum coke and making conforming amendments to the RMC
for internal consistency. The Ordinance required existing land uses to cease storing and handling coal and
petroleum coke by the end of a three-year amortization
period, with the possibility of an extension. The Levin- Richmond Terminal Corporation, the owner of the sole
known existing facility affected by the Ordinance; Phillips 66 Company; and Wolverine Fuels Sales, LLC (together,
the “Companies”), filed five lawsuits challenging the
AGENDA
REPORT

January 18, 2022
Ordinance. As part of a settlement agreement to resolve the litigation, the City agreed that staff would present to the Planning Commission and City Council an ordinance
amending RMC Article 15.04.615 to extend the
amortization period for the cessation of existing coal and petroleum coke storage and handling uses until
December 31, 2026, for consideration and possible
adoption. Under the settlement agreement, if the Council decides to adopt the amendment, then the Companies
would dismiss the litigation, waive any right to seek an extension of the amortization period, and promptly
implement a series of additional dust control measures to mitigate dust emissions from their operations. If the
Council decides to adopt the amendment, it must first
determine whether the amendment is subject to or
exempt from the California Environmental Quality Act
(“CEQA”).

RECOMMENDED ACTION:
(This will appear on the agenda)
INTRODUCE an ordinance (first reading) amending
Richmond Municipal Code Sections 15.04.615.050.C and

15.04.615.010.B to extend the amortization period for
existing nonconforming land uses related to coal and
petroleum coke storage and handling and require the
discontinuation of all such uses by December 31, 2026;
and; DETERMINE that the ordinance is exempt from the
California Environmental Quality Act (“CEQA”) because it is not a Project under CEQA (CEQA Guidelines section
15378) and because it is exempt from CEQA pursuant to
CEQA Guidelines sections 15301 (existing facilities
exemption), 15307 (action to protect natural resources), 15308 (action to protect the environment), and/or
15061(b)(3) (“Common Sense” exemption where there is
no reasonable possibility of a significant effect on the environment) – Community Development Department
(Lina Velasco 510-620-6841).

DISCUSSION:

Background
In 2019, several years after coal and petroleum coke exports through the City of Richmond began to dramatically increase, the Council directed staff to propose an ordinance prohibiting new and phasing out existing land uses related to coal and petroleum coke storage and handling. On February 4, 2020, the City Council approved

January 18, 2022
Ordinance No. 05-20 N.S. (“Ordinance”), adding Article 15.04.615 to the Richmond Municipal Code (“RMC”), prohibiting the storage and handling of coal and petroleum coke within the City effective March 5, 2020, and providing a 3-year “amortization period” for continued storage and handling of coal and petroleum coke at existing facilities.

At the time the Ordinance was adopted, and at present, the Levin-Richmond Terminal (“Levin” or the “Levin Terminal”) is the only known existing facility in the City of Richmond that stores and handles coal and petroleum coke. The coal stored and handled by Levin is received by rail from Wolverine Fuels, LLC (“Wolverine”), in Utah, and the petroleum coke stored and handled by Levin is received by truck from Phillips 66 Company (“Phillips 66”) in Rodeo, California.

In March 2020, Levin, Wolverine, and Phillips 66 (together, the “Companies”) filed a total of five lawsuits—three in the United States District Court for the Northern District of California and two in Contra Costa County Superior Court—alleging, among other claims, that the Ordinance violates constitutional protections, is federally preempted, and violates the California Environmental Quality Act (“CEQA”). On August 27, 2020, the Northern District granted in part and denied in part the City’s motions to dismiss the complaints filed by Levin, Wolverine, and Phillips 66. Three months later, the Northern District provisionally granted the State of Utah’s motion to file a complaint in intervention in the litigation on the side of Levin, Wolverine, and Phillips 66. The litigation in federal court is ongoing.

The City successfully defended the two state-court cases before the Contra Costa County Superior Court. In January 2021, Levin appealed one of the two state-court cases to the Court of Appeal, where it is currently pending.

In early 2021, the City, Levin, and Wolverine participated in a mediation before the Honorable Elizabeth D. Laporte, a retired federal judge, and engaged in subsequent settlement discussions for several months. In connection with the settlement discussions, the City’s representatives, including Councilmembers Jimenez and Martinez, have observed operations at the Terminal. As a result of these discussions, the City and the Companies entered into a settlement agreement on November 12, 2021, to potentially resolve the litigation. A copy of the agreement is attached hereto as Attachment 2.

The Settlement Agreement
The settlement agreement provides that City staff will present a specific amendment to RMC Article 15.04.615 to the Planning Commission and City Council for their consideration. If adopted, the proposed amendment would extend the amortization period for existing uses related to coal and petroleum coke storage and handling from March 5, 2023, to December 31, 2026. The Council retains complete discretion whether to approve, disapprove, or modify the proposed amendment.

If the Council adopts the proposed amendment (see Exhibit A of Attachment 1) exactly as set forth in the settlement agreement, then the Companies would be required to

January 18, 2022
dismiss the litigation with prejudice. Further, Levin would waive its ability to seek an extension to the amortization period—meaning that there would be no possibility that coal and petroleum coke storage and handling would continue in the City beyond December 31, 2026.

Provided that the Council adopts the proposed amendment, the settlement agreement also requires the Companies to promptly implement a series of additional dust control measures to reduce pollution from their operations during the amortization period. For example, the Levin Terminal would, among other things, (1) install a canopy over conveyors used to unload coal from trains; (2) install additional wind fences to reduce wind-blown dust emissions from coal stockpiles; (3) increase the height of barriers blocking petroleum coke operations from the wind; (4) add additional water misters to reduce dust emissions from coal stockpiles and unloading facilities; (5) suspend shiploading operations if 30-minute average wind speeds exceed 18 miles per hour, a threshold that is half the current threshold; and (6) expand sweeping operations to prevent fugitive dust from leaving the facility. Additionally, Wolverine would apply an additional binding agent to blanket the top of each rail car transporting coal to the Levin Terminal to reduce dust emissions during transportation of the coal, including through the City. The settlement agreement allows the City to inspect the Levin Terminal to ensure that Levin is complying with these terms.

Finally, as part of the settlement agreement, the Companies would also agree not to challenge the City’s adoption of the proposed amendment. And, if another party should challenge the proposed amendment, Levin would pay for the City’s costs incurred in defending the proposed amendment.

The settlement agreement eliminates litigation risk and uncertainty. While the City believes its positions are meritorious, an adverse decision at the Northern District of California or on appeal could delay the cessation of coal and petroleum coke storage and handling in Richmond for several years or even indefinitely. Even if the City were to successfully defend the litigation, the current Ordinance allows Levin to seek an extension of the amortization period. Under the current Ordinance, the City must grant such an extension if Levin can show it is warranted to avoid an unconstitutional taking.

Thus, absent the settlement agreement, it is uncertain whether coal and petroleum coke storage and handling will cease on March 5, 2023, the current end of the amortization period. In contrast, if the Council decides to adopt the proposed amendment, the settlement agreement dictates that coal and petroleum coke storage and handling will cease on December 31, 2026, with no possibility of an extension.

The settlement agreement also requires additional dust control measures that will yield meaningful reductions in pollution while coal and petroleum coke operations are still continuing. The additional wind barriers, water misting, dust suppressants, and operational changes—including a requirement that shiploading operations halt when average wind speeds exceed 18 miles per hour, compared to the current 35 mile-per- hour threshold—would not be implemented absent the settlement agreement. Further, the requirement that Wolverine add an additional dust suppressant to its rail cars to reduce dust emissions from coal transported through Richmond would benefit

January 18, 2022
neighborhoods along the rail route in addition to neighborhoods near the Levin Terminal.

Finally, the settlement agreement would provide the Levin-Richmond Terminal with additional time to transition to other, less polluting commodities. By facilitating this transition, the settlement agreement would lead to the retention of jobs at the Levin- Richmond Terminal and corresponding economic benefits. Settling the litigation could also save the City hundreds of thousands of dollars in attorneys’ fees that could otherwise be required to bring the lawsuits to trial.

Summary of Proposed Ordinance
The proposed ordinance consists of the proposed amendment contained in the settlement agreement. The proposed ordinance would amend RMC Section

15.04.615.050.C to extend the amortization period and require the discontinuation of nonconforming land uses by December 31, 2026, rather than March 5, 2023. The proposed ordinance would also amend RMC Section 15.04.615.010.B to be consistent with the amended Section 15.04.615.050.C.

Public Comments:

Prior to or at the Planning Commission hearing held on December 2, 2021, the Planning Commission received a letter from Chris Schaeffer, President and CEO of Levin Enterprises, Inc. In the letter, included here as Attachment 3, Mr. Schaeffer stated that the Levin Richmond Terminal Corporation, Richmond Pacific Railroad Corporation, and Levin Enterprises, Inc. support the proposed amendments of Article 15.04.615. considered by the Planning Commission on December 2.

PLANNING COMMISSION RECOMMENDATION
On December 2, 2021, the Planning Commission held a public hearing to consider whether to recommend the adoption of the proposed ordinance. After taking public testimony and comment, the Planning Commission voted unanimously to adopt Resolution No. 21-23 (see Attachment 4), recommending that the City Council adopt the proposed ordinance (see Attachment 1).

GENERAL PLAN CONSISTENCY
The proposed ordinance is consistent with and supports the goals outlined in the Health and Wellness Element of the City’s General Plan. For example, the proposed ordinance supports Goal HW9: Improved Environmental Quality. Under this goal, the City will “[c]ontinue to support projects that improve the quality of built and natural environments to support a thriving community and to reduce disparate health and environmental impacts, especially to low-income and disadvantaged communities. Clean air, water and soil, and a healthy eco-system are critical for human development and contribute to reduced toxic exposure, incidence of disease and environmental degradation.” The proposed ordinance supports this goal because the additional dust control measures it would trigger would reduce particulate matter emissions and toxic exposure, thus promoting clean air and reducing the pollution burdens borne disproportionately by

January 18, 2022
individuals living and working near certain industrial areas and rail lines. Further, the proposed ordinance supports this goal by eliminating the risk that the phase-out of coal and petroleum coke storage and handling would be invalidated in litigation and thus never take effect.

ENVIRONMENTAL REVIEW:

The proposed ordinance is exempt from the California Environmental Quality Act (“CEQA”). First, it is not a Project under CEQA and is therefore exempt pursuant to CEQA Guidelines section 15378. Second, it is exempt from CEQA pursuant to CEQA Guidelines sections 15301 (operation, permitting, or minor alteration of existing private facilities involving negligible or no expansion of existing or former use), 15307 (action to protect natural resources), 15308 (action to protect the environment), and/or 15061(b)(3) (“Common Sense” exemption where there is no reasonable possibility of a significant effect on the environment).

The proposed ordinance is exempt under the existing facilities exemption because its effect would be to permit the continued operation and minor alteration (the latter to implement the dust control measures described above) of a single existing use—coal and petroleum coke storage and handling at the Levin-Richmond Terminal—for a limited duration. The existing use would not be expanded—indeed, under the terms of the current Ordinance, existing nonconforming uses may not increase the amount of coal or petroleum coke stored or handled beyond average annual amounts stored or handled prior to the Ordinance’s effective date, nor may they expand the footprint of such operations. RMC 15.04.615.050.D.

The proposed ordinance is also exempt as an action to protect natural resources and the environment because the additional dust control measures that it would trigger would reduce particulate matter pollution in Richmond’s neighborhoods and San Francisco Bay. By increasing physical wind barriers; adding binding agents, including suppressants and additional water misting; suspending coal and petroleum coke unloading operations during high- and moderate-wind events; increasing sweeping of areas near coal and petroleum coke operations; and implementing other dust control measures detailed in the settlement agreement, the proposed ordinance would decrease fugitive dust emissions that harm human health and marine habitats. Further, there is currently a risk that pending litigation challenging the existing Ordinance would succeed, and coal and petroleum coke storage and handling would continue indefinitely; or, alternatively, that Levin would apply for and receive an extension to the amortization period to continue coal and petroleum coke storage and handling for an indeterminate number of years. The proposed ordinance is exempt as an action to protect the environment and natural resources because, in addition to the dust control measures it would trigger, it would eliminate litigation risk and uncertainty and guarantee that coal and petroleum coke storage and handling operations in the City will stop at a definite time. For the same reasons, the proposed ordinance is exempt under the common sense exemption.

CONCLUSION:

January 18, 2022
Staff is recommending that the City Council adopt the proposed ordinance amending Sections 15.04.615.050.C and 15.04.615.010.B to extend the amortization period for existing nonconforming land uses related to coal and petroleum coke storage and handling and require the discontinuation of all such uses by December 31, 2026.

DOCUMENTS ATTACHED:

Attachment 1 – Draft Ordinance
Exhibit A – Proposed Ordinance Amendments in Redline
Attachment 2 – Settlement Agreement
Attachment 3 – Letter from Levin Enterprises, Inc.

Attachment 4 – PC Resolution No. 21-23

cc: Richmond-Levin Terminal

1446154.1 1 of 5
ATTACHMENT 1

ORDINANCE No. _________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RICHMOND AMENDING ARTICLE 15.04.61 5 OF THE RICH MOND MUNICIPAL CODE TO E XTEND THE

AMORTIZATION PERIOD FOR NONCONFORMING LAND USES RE LATED TO THE

STORAGE AND HANDLING OF C OAL AND PETROLEUM COKE TO DECEMBER 31, 2026

WHEREAS, on February 4, 2020, the City Council adopted Ordinance No. 05-20 N.S. (“Existing Ordinance”), adding Article 15.04.615 to the Richmond Municipal Code (“RMC”), prohibiting the storage and handling of coal and petroleum coke within the City effective March 5, 2020, and providing a 3-year “amortization period” for continued storage and handling of coal and petcoke at existing facilities; and

WHEREAS, at the time of adoption of the Existing Ordinance and at present, the Levin-Richmond Terminal is the only known existing facility in the City of Richmond that stores and handles coal and petcoke; and

WHEREAS, in March 2020, Levin and two companies shipping coal and petroleum coke through the Levin Terminal (together, the “Companies”) filed a total of five lawsuits in state and federal courts challenging the Existing Ordinance; and

WHEREAS, the City successfully defended the two cases before the state trial court, and one of those two cases is currently before the Court of Appeal; and

WHEREAS, the three federal court cases remain pending; and

WHEREAS, in early 2021, the City and the Companies participated in a mediation before a retired federal judge, and thereafter engaged in settlement discussions, which culminated in a settlement agreement to potentially resolve the litigation; and

WHEREAS, the settlement agreement was fully executed and became effective on November 12, 2021; and

WHEREAS, the settlement agreement provides that City staff shall present an amendment to RMC Article 15.04.615, specifically amending RMC Sections

15.04.615.050.C and 15.04.615.010.B, to the Planning Commission and City Council for their consideration; and

WHEREAS, the proposed amendment, if adopted, would extend the amortization period from March 5, 2023, to December 31, 2026; and

WHEREAS, if the City Council adopts the proposed amendment, the Companies would take various actions, including dismissing the litigation, waiving Levin’s ability to seek an extension to the amortization period, and implementing a series of additional

1446154.1 2 of 5
dust control measures to reduce pollution from their operations during the amortization period; and

WHEREAS, notwithstanding the settlement agreement, the City Council retains full discretion to adopt, reject, or modify the proposed amendment; and

WHEREAS, Article XI, Section 5 of the California Constitution provides that the City, as a home rule charter city, has the power to make and enforce all ordinances and regulations with respect to municipal affairs, and Article XI, Section 7, empowers the City to enact measures that protect and promote the health, safety, and/or welfare of its citizens; and

WHEREAS, Article II, Section 1, Paragraph 6 of the Charter of the City of Richmond states that the City shall have and exercise police powers, make all necessary police and sanitary regulations, and adopt ordinances and prescribe penalties for the violation thereof; and

WHEREAS, on December 2, 2021, the Planning Commission held a duly and properly noticed public hearing to consider a recommendation to the City Council on the proposed amendments to RMC Sections 15.04.615.050.C and 15.04.615.010.B; and

WHEREAS, the Planning Commission considered the agenda report, all public comments, the proposed amendments to RMC Sections 15.04.615.050.C and

15.04.615.010.B as set forth in Exhibit A of this Ordinance and incorporated by reference herein, and the applicable provisions of the RMC (“the Record”) and voted to recommend adoption of an ordinance making the proposed amendments; and

WHEREAS, on January 11, 2022, the City Council held a duly and properly noticed public hearing to consider the proposed amendments to RMC Sections

15.04.615.050.C and 15.04.615.010.B as set forth in Exhibit A of this Ordinance and incorporated by reference herein; and

WHEREAS, the City Council considered the agenda report, all public comments, the proposed amendments, and the applicable provisions of the RMC (“the Record”); and

WHEREAS, the City Council finds and determines:

1) Pursuant to California Environmental Quality Act (“CEQA”) Guidelines § 15378 and California Public Resources Code § 21065, the amendments to RMC Sections 15.04.615.050.C and 15.04.615.010.B extending the amortization period for nonconforming uses related to coal and petroleum coke storage and handling to December 31, 2026, are not a “project” because their adoption is not an activity that has the potential for a direct physical change or reasonably foreseeable indirect physical change in the environment; and

2) Even if the amendments to RMC Sections 15.04.615.050.C and

15.04.615.010.B qualified as a “project” subject to CEQA, they are exempt from CEQA pursuant to CEQA Guidelines § 15301, as an operation of, permit for, or minor alteration

1446154.1 3 of 5
of existing facilities involving negligible or no expansion of existing or former use; CEQA Guidelines §§ 15307 and 15308, as an action to protect natural resources and the environment, respectively; and CEQA Guidelines § 15061(b)(3), because there is no possibility that this activity will have a significant impact on the physical environment; and

3) The facts set forth in the recitals in this Ordinance are true and correct and incorporated by reference. The recitals constitute findings in this matter and, together with the agenda report, other written reports, public testimony, and other information contained in the record, are an adequate and appropriate evidentiary basis for the actions taken in this Ordinance; and

4) Amended Sections 15.04.615.050.C and 15.04.615.010.B are consistent with the General Plan, Richmond Municipal Code, and applicable State law; and

5) Amended Sections 15.04.615.050.C and 15.04.615.010.B will not be detrimental to the public interest, health, safety, convenience, or welfare.

SECTION I. Municipal Code Amendments.

NOW THEREFORE BE IT RESOLVED, that the City Council hereby adopts an ordinance amending Sections 15.04.615.050.C and 15.04.615.010.B of the Richmond Municipal Code extending the amortization period for nonconforming uses related to the storage and handling of coal and petroleum coke to December 31, 2026, based on the following findings required per RMC Section 15.04.814.050:

A. The proposed amendment is consistent with the General Plan.

Supporting Statement of Fact: Criteria Satisfied. The proposed amendment is consistent with and supports the goals outlined in the Health and Wellness Element of the City’s General Plan. For example, the amendment supports Goal HW9: Improved Environmental Quality. Under this goal, the City shall “[c]ontinue to support projects that improve the quality of built and natural environments to support a thriving community and to reduce disparate health and environmental impacts, especially to low-income and disadvantaged communities. Clean air, water and soil, and a healthy eco-system are critical for human development and contribute to reduced toxic exposure, incidence of disease and environmental degradation.” The amendment supports this goal because the additional dust control measures it would trigger would reduce particulate matter emissions and toxic exposure, thus promoting clean air and reducing the pollution burdens borne disproportionately by individuals living and working near certain industrial areas and rail lines. Further, the amendment supports this goal by eliminating the risk that the phase-out of coal and petroleum coke storage and handling would be invalidated in litigation and thus never take effect.

B. The proposed amendment is necessary for public health, safety, and general welfare or will be of benefit to the public.

Supporting Statement of Fact: Criteria Satisfied. The proposed amendment and the provisions of the settlement agreement that it would trigger would (1) reduce particulate

1446154.1 4 of 5
matter emissions by requiring the implementation of additional dust control measures, and (2) eliminate the risk that the phase-out of coal and petroleum coke storage and handling would be invalidated in litigation and thus never take effect. Further, the proposed amendment would provide the Levin Terminal with additional time to transition to other, less polluting commodities. By facilitating this transition, the proposed amendment would lead to the retention of jobs at the Levin Terminal and corresponding economic benefits.

C. The proposed amendment has been reviewed in compliance with the requirements of the California Environmental Quality Act.

Supporting Statement of Fact: Criteria Satisfied. The proposed ordinance is exempt from the California Environmental Quality Act (“CEQA”). First, it is not a Project under CEQA and is therefore exempt pursuant to CEQA Guidelines section 15378. Second, it is exempt from CEQA pursuant to CEQA Guidelines sections 15301 (operation, permitting, or minor alteration of existing private facilities involving negligible or no expansion of existing or former use), 15307 (action to protect natural resources), 15308 (action to protect the environment), and/or 15061(b)(3) (“Common Sense” exemption where there is no reasonable possibility of a significant effect on the environment).

D. For a change to the Zoning Maps, that the subject property is suitable for the uses permitted in the proposed zone in terms of access, size of parcel, relationship to similar or related uses, and other relevant considerations, and that the proposed change of zoning district is not detrimental to the use of adjacent properties.

Supporting Statement of Fact: Criteria Satisfied. The proposed amendments to not involve a zoning map change. The proposed amendments are only changes to the Zoning Ordinance text.

SECTION II. The City Council of the City of Richmond does ordain as follows: Amends sections 15.04.615.050.C and 15.04.615.010.B of the Richmond Municipal Code to extend the amortization period for nonconforming uses related to the storage and handling of coal and petroleum coke to December 31, 2026. The amendments are attached to this Ordinance as Exhibit A and incorporated by reference herein.

SECTION III. Severability.

If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be unconstitutional or invalid, the remaining portions of this Ordinance shall remain in full force and effect. The City Council hereby declares that it would have passed each section, subsection, paragraph, sentence, clause, or phrase of this Ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, paragraph, sentence, clause, or phrase.

SECTION IV. Effective Date.

1446154.1 5 of 5
All applications filed after or pending upon the date of final passage and adoption of this Ordinance shall be subject to this Ordinance. This Ordinance becomes effective thirty (30) days after its final passage and adoption.

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First introduced at a regular meeting of the City Council of the City of Richmond held January 11, 2022 and finally passed and adopted at a regular meeting held ______________________ by the following vote:

AYES:

NOES:

ABSTENTIONS:

ABSENT:

________________________________

CLERK OF THE CITY OF RICHMOND

(SEAL)

Approved:

______________________
Mayor

Approved as to form:

______________________
City Attorney

Attachment: Exhibit A: Draft Zoning Text Amendments

EXHIBIT A

ARTICLE 15.04.615 - PROHIBITION OF THE STORAGE AND HANDLING OF COAL AND PETROLEUM COKE

15.04.615.010 - Purpose.

A. This article is intended to protect and promote the health, safety, and welfare of the City's citizens, visitors, and workers by reducing the release of pollutants into the environment as a result of coal and petroleum coke storage and handling. This article is also intended to reduce the public health, safety, or welfare impacts (including, without limitation, adverse impacts to property values, aesthetics, and economic interests) caused by the storage and handling of coal and petroleum coke.

B. This article bans the establishment and/or expansion of storage and handling of coal and/or petroleum coke throughout the City of Richmond, with certain exceptions. The article also phases out existing allowed uses of land involving the storage and handling of coal and petroleum coke, by providing an three-year amortization period for such existing allowed uses to transition to other lawful uses and materials. This amortization period is intended to strike a proper balance between protecting the public from the health hazards of coal and petroleum coke storage and handling, while also protecting existing jobs and providing sufficient time for businesses to transition.

C. This article is not intended to, and shall not be interpreted to regulate or applied to prohibit the transportation of coal and/or petroleum coke, for example, by train or marine vessel, including without limitation through the City of Richmond or to or from a coal or petroleum coke storage and handling facility.

15.04.615.020 - Definitions.

As used in this article, the following terms have the following meanings:

A. “Coal” means a solid, brittle, carbonaceous rock classified as anthracite, bituminous, subbituminous, or lignite by the American Society for Testing and Materials ("ASTM") Designation D388-77.

B. “Petroleum Coke” means a solid carbonaceous residue produced from a coker after cracking and distillation from petroleum refining operations, including such residues produced by petroleum upgraders in addition to petroleum refining.

C. “Coal or Petroleum Coke Storage and Handling Facility” means an existing or proposed site or facility, including all contiguous land, structures, other appurtenances, and improvements thereon, or any part thereof, where coal or petroleum coke is or may be stored or handled.

D. “Effective Date” means the date that Ordinance No. 05-20, adding Article 15.04.615 to the Richmond Municipal Code, took effect.

E. “Owner or Operator” means any person who has legal title to any coal or petroleum coke storage and handling facility; who has charge, care, or control of any coal or petroleum coke storage and handling facility; who is in possession of any coal or petroleum coke storage and handling facility or any part thereof; and/or who is entitled to control or direct the management of any coal or petroleum coke storage and handling facility.

F. “Store or Handle, or Storing or Handling, or Storage or Handling” means to allow or maintain any pile, including without limitation covered and uncovered piles, piles located above ground, underground, or within containers, or to load, unload, stockpile, or otherwise handle and/or manage, temporarily or permanently, coal and/or petroleum coke.

15.04.615.030 - Prohibition on Storage and/or Handling of Coal or Petroleum Coke.

The storage and handling of coal and petroleum coke at a coal or petroleum coke storage and handling facility is prohibited in all zoning districts.

15.04.615.040 - Exemptions.

The following non-commercial uses are exempt from the provisions of this Article 15.04.615: residential, educational, scientific, recreational, religious, or cultural uses in which persons store or handle small amounts of coal or petroleum coke.

15.04.615.050 - Amortization Period for Nonconforming Uses.

A. Notwithstanding any provision in this Code to the contrary, this section shall apply to all existing land uses that do not conform with the requirements of Section 15.04.615.030 of this Code as of the effective date.

B. As used in this section, "nonconforming land use" means any lawful coal or petroleum coke storage and handling facility in existence prior to the effective date.

C. Except as otherwise provided in this section, all nonconforming land uses shall be discontinued by December 31, 2026 within three years after the effective date. The three-year period from the March 5, 2020 after the effective date of Ordinance No. 05-20 N.S. through December 31, 2026, shall be referred to as the "amortization period."
D. Nonconforming land uses shall not increase the amount of coal or petroleum coke stored or handled in a calendar year beyond the average amount of coal or petroleum coke stored or handled annually at the coal or petroleum coke storage and handling facility in the three years prior to the effective date.

Nonconforming land uses shall not expand the footprint of coal or petroleum coke storage or handling activities at the coal or petroleum coke storage and handling facility.

E. Within two months of the effective date, the Zoning Administrator shall use reasonable efforts to identify and provide notice to all owners or operators of any coal or petroleum coke storage and handling facility informing them that they must do either of the following: (a) discontinue any nonconforming land use before the conclusion of the amortization period; or (b) apply for an extension of the amortization period pursuant to sub-section F of this section. Failure to receive notice from the Zoning Administrator shall not excuse an owner or operator from compliance with the provisions of this section.

F. Any affected owner or operator of a nonconforming land use may apply to the Planning Commission for an extension of the amortization period on a form provided by the Director pursuant to Section

15.04.803.020. The affected owner or operator shall pay any applicable fees established pursuant to that section. Applications for an extension of the amortization period shall be submitted no later than 12 months prior to the end of the amortization period. The Planning Commission shall conduct a duly

noticed public hearing to consider the application for extension of the amortization period within a reasonable time after the application has been deemed complete by the Zoning Administrator.

1. "Limited Notice (Type B)" shall be provided pursuant to Section 15.04.803.070 of this Code not less than 24 calendar days prior to the date of the hearing.

2. In deciding whether to extend the amortization period, the Planning Commission shall consider all documentary and oral evidence and testimony submitted prior to the conclusion of the hearing. As part of the application, an amortization analysis shall be prepared, at the applicant's expense, by an expert retained by the City, prior to Planning Commission consideration.

3. The Planning Commission shall grant an extension of the amortization period if it finds, based on substantial evidence, that such extension is necessary to prevent an unconstitutional taking of property without compensation or to avoid a violation of state or federal law. Any extension so granted shall be the minimum necessary to prevent such impairment or violation. In no event shall the Planning Commission grant any extension if it finds that continuing the nonconforming land use would constitute a public nuisance under Civil Code Sections 3479 and 3480.

4. The Planning Commission's decision shall be based upon the following factors, where applicable:
a. The cost to the applicant of acquiring the affected property and the applicant's reasonable investment-backed expectations at the time the property was acquired; b. The present actual or depreciated value of the affected property and improvements with and without the nonconforming land use;
c. The total length of time the nonconforming land use has existed and the remaining useful life of the nonconforming land use;
d. The applicant's investments in the nonconforming land use and whether and to what extent the applicant will have recouped those investments before the conclusion of the amortization period; e. The salvage value of any improvements that may be used for purposes other than the nonconforming land use;
f. The remaining value and allowed uses of the property after discontinuing the nonconforming land use; g. Whether the nonconforming land use interferes with the use and enjoyment of land of nearby property owners or residents, or interferes with or threatens the public health, safety, and welfare of the community;
h. The extent to which the nonconforming land use on the property is incompatible with surrounding uses and properties; and
i. Any other factor the Planning Commission reasonably determines is related to determining whether the investment in the nonconforming land use has been recovered.

5. The owner or operator requesting the extension shall have the burden of demonstrating that it is entitled to an extension under sub-section F above. The Planning Commission's determination under this sub-section may be appealed to the City Council in the same manner as prescribed in Section

15.04.803.140 of this Code.

K. Nothing in this section is intended to affect or restrict the City's authority to immediately terminate, discontinue, or abate any land uses found to be a nuisance, or that are otherwise operating unlawfully, including a nonconforming land use. This article does not create or confer any vested rights.

15.04.615.060 - Violations; Declaration of a Nuisance; Abatement.

Any land use that fails to comply with or violates any provision of this article is hereby declared to be an unlawful nuisance. Any land use declared to be a nuisance pursuant to this section may be subject to the abatement procedures established in Section 15.04.815.040 and Chapter 9.22 of this Code.

15.04.615.070 - Exceptions; Procedures.

A. The provisions of this article shall not be applicable to the extent, but only to the extent, that they would violate the constitution or laws of the United States or of the State of California.

B. In the event a property owner contends that the application of this article effects an unconstitutional taking of property without compensation, the property owner may request, and the Planning Commission shall grant, an exception to application of any provision of the article if the Planning Commission finds, based on substantial evidence, that both (1) the application of any aspect of the article would constitute an unconstitutional taking of property, and (2) the exception will allow continued land uses only to the minimum extent necessary to avoid such a taking; provided, however, that in the case of nonconforming uses, the procedures set forth in Section 15.04.615.050.F shall govern. The property owner shall have the burden of demonstrating that it is entitled to an exception under this sub-section. The Planning Commission's determination under this sub-section may be appealed to the City Council in the same manner as prescribed in Section 15.04.803.140 of this Code.

15.04.615.080 - Non-applicability to Transportation of Coal and/or Petroleum Coke.

Notwithstanding anything to the contrary contained in this article, this article is not intended to and shall not be interpreted to regulate the transportation of coal and/or petroleum coke, for example, by train or marine vessel, including without limitation through the City of Richmond or to or from a coal or petroleum coke storage and handling facility.

15.04.615.090 - Conflicting Provisions.

Where a conflict exists between the requirements in this article and applicable requirements contained in other provisions of this Code, the applicable requirements of this article shall prevail.

1 SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is by and between the City of Richmond, California, and the City Council of the City of Richmond (collectively, the “City”), on the one hand, and Levin Richmond Terminal Corporation, Richmond Pacific Railroad Corporation, and Levin Enterprises, Inc. (collectively, “Levin”); Wolverine Fuels Sales, LLC (“Wolverine”); Phillips 66 Company (“Phillips 66”); and the State of Utah (“Utah”), on the other hand. The City, Levin, Wolverine, Phillips 66 and Utah are collectively referred to as the “Parties,” and individually as a “Party,” to this Agreement.

RECITALS
WHEREAS, on February 4, 2020, the City approved an ordinance prohibiting the storage and handling of coal and petroleum coke (“petcoke”) within the City, effective March 5, 2020, and providing a 3-year “amortization period” for continued storage and handling of coal and petcoke at existing facilities. Ordinance No. 05-20 N.S., Richmond Municipal Code (“RMC”) Article 15.04.615, also amending RMC Section 15.04.104.010 (“Ordinance”).

WHEREAS, Levin owns and operates a marine terminal (“Terminal”) and related rail services in the City of Richmond that includes storage and handling of coal and petcoke.

WHEREAS, the Terminal was, at the time of adoption of the Ordinance, and is the only known existing facility in the City of Richmond that stores and handles coal and petcoke.

WHEREAS, the coal stored and handled by Levin is received by rail from Wolverine in Utah.

WHEREAS, the petcoke stored and handled by Levin is received by truck from Phillips 66 in Rodeo, California.

WHEREAS, on March 4, 2020, Levin filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the Northern District of California alleging that the Ordinance violates constitutional protections and is federally preempted. Levin Richmond Terminal Corporation, et al., v. City of Richmond, et al., Case. No. 3:20-cv-01609-YGR.

WHEREAS, on March 4, 2020, Wolverine filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the Northern District of California alleging that the Ordinance violates constitutional protections and is federally preempted.

Wolverine Fuels Sales, LLC, v. City of Richmond, et al., Case. No. 3:20-cv-01614-YGR.

WHEREAS, on March 6, 2020, Phillips 66 filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the Northern District of California alleging that the Ordinance violates constitutional protections. Phillips 66 Company v. City of Richmond, et al., Case. No. 3:20-cv-01643-YGR.

WHEREAS, on March 4, 2020, Levin filed a Verified Petition for a Writ of Mandate in the California Superior Court for the County of Contra Costa alleging that the Ordinance violates the California Environmental Quality Act (“CEQA”), is an arbitrary and capricious exercise of Attachment 2

2 police power, and constitutes impermissible spot zoning. Levin Richmond Terminal Corporation, et al., v. City of Richmond, et al., Superior Court Case No. N20-0464.

WHEREAS, on March 6, 2020, Phillips 66 filed a Verified Petition for a Writ of Mandate in the California Superior Court for the County of Contra Costa alleging that the Ordinance violates CEQA and is an arbitrary and capricious exercise of police power. Phillips 66 Company, v. City of Richmond, et al., Superior Court Case No. N20-0460.

WHEREAS, on August 27, 2020, the United States District Court for the Northern District of California (1) granted in part and denied in part the City’s motions to dismiss the complaints filed by Levin, Wolverine and Phillips 66, and (2) granted Sierra Club and Baykeeper limited intervention in the litigation brought by Levin, Wolverine, and Phillips 66 relating to the Ordinance.

WHEREAS, on November 25, 2020, the United States District Court for the Northern District of California provisionally granted Utah’s motion to file a complaint in intervention in the litigation brought by Levin, Wolverine, and Phillips 66, which complaint was deemed filed, alleging that the Ordinance violates constitutional protections.

WHEREAS, on December 24, 2020, the Superior Court for the County of Contra Costa entered Orders in Case Nos. N20-0464 and N20-0460 denying the petitions for writ of mandate.

WHEREAS, on January 22, 2021, Levin filed a Notice of Appeal of Case No. N20-0464.

Levin Richmond Terminal Corporation, et al. v. City of Richmond, et al., Court of Appeal Case No. A162086.

WHEREAS, the federal and state court lawsuits described above are collectively referred to herein as “the Litigation.”
WHEREAS, the City disputes each of the claims brought by Levin, Wolverine, Phillips 66, and Utah in the Litigation.

WHEREAS, on February 22, 2021, the City, Levin and Wolverine participated in a mediation before the Honorable Elizabeth D. Laporte (retired) and engaged in subsequent settlement discussions.

WHEREAS, in connection with the settlement discussions, City’s representatives, including certain City Councilmembers, have observed operations at the Terminal, and the City Council has discussed the proposed settlement in closed session.

WHEREAS, the Parties enter into this Agreement to resolve all pending claims discussed in these Recitals, to provide additional time to facilitate a transition to storage and handling of other commodities at the Terminal, and to require implementation of additional, interim dust control measures at the Terminal and for shipment of coal to the Terminal, without the time, expense and uncertainty of further litigation.

WHEREAS, implementation of the dust control measures contemplated under this Agreement would address the City’s concerns by providing significant additional environmental

3 protections than are required under the Ordinance, and would eliminate the uncertainty of the results of the Litigation—including the potential that the Ordinance could be enjoined or invalidated—by establishing a date certain for discontinuation of coal and petcoke storage and handling at the Terminal.

WHEREAS, the Parties understand that the amendment to the Ordinance contemplated by this Agreement is subject to discretionary approval by the City Council of the City of Richmond (“City Council”) following a public hearing, and that this Agreement will be subject to a request for continuing jurisdiction of the United States District Court for the Northern District of California to ensure implementation and enforcement.

AGREEMENT
NOW THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and promises set forth in this Agreement, and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the Parties agree to each of the following conditions and terms:

A. Proposed Amendment to Ordinance
Within sixty (60) days of the Effective Date of this Agreement, unless the Parties agree in a signed writing to extend this time, City staff shall present to the Richmond Planning Commission for its consideration an amendment to the Ordinance, as set forth in sub-section A.1 below (“Proposed Amendment”). Within forty-five (45) days after the Planning Commission’s consideration of the Proposed Amendment, unless the Parties agree in a signed writing to extend this time, City staff shall present the Proposed Amendment to the City Council for its consideration.

1. Amortization Period for Existing Facilities
The Proposed Amendment shall consist of the following revisions to the Ordinance:
(a) RMC Section 15.04.615.050.C:

Except as otherwise provided in this Section, all nonconforming land uses shall be discontinued by December 31, 2026 within three years after the effective date.

The three year period from the March 5, 2020 after the effective date of Ordinance No. 05-20 N.S. through December 31, 2026, shall be referred to as the “amortization period.”
(b) RMC Section 15.04.615.010.B:

This article bans the establishment and/or expansion of storage and handling of coal and/or petroleum coke throughout the City of Richmond, with certain exceptions. The Article also phases out existing allowed uses of land involving the storage and handling of coal and petroleum coke, by providing an three-year amortization period for such existing allowed uses to transition to other lawful uses and materials. This amortization period is intended to strike a proper balance

4 between protecting the public from the health hazards of coal and petroleum coke storage and handling, while also protecting existing jobs and providing sufficient time for businesses to transition.

2. Procedure for Adoption of Proposed Amendment
(a) City staff shall recommend that (a) the City Planning Commission consider and recommend adoption of, and (b) the City Council consider and adopt an amendment to the Ordinance that enacts, and is limited to, the Proposed Amendment exactly as set forth in subsection A.1 above. The Parties acknowledge the City Council’s discretion to approve, disapprove, or modify the Proposed Amendment, and that nothing in this Agreement shall be construed to limit that discretion.
(b) If the City Council does not approve the Proposed Amendment by February 28, 2022, or disapproves or modifies the Proposed Amendment, then this Agreement shall terminate and be null and void.
(c) If the City Council approves the Proposed Amendment at a first and second reading by February 28, 2022, thereby adopting the Proposed Amendment exactly as set forth in section A.1 above, then the Parties shall proceed with performance of this Agreement. (d) If the City approves the Proposed Amendment as set forth in Section A.2(c) above, the City shall within five (5) working days thereafter file any notice required or permitted under Public Resources Code section 21152.

B. Facilitation of Transition to Other Commodities
During the amortization period set forth in the Proposed Amendment, and for a period of three (3) years thereafter, the City shall process, promptly and in good faith, any application for review of a permit or other approval necessary to transition to storage and handling of commodities other than coal and petcoke at the Terminal, unless the City determines, based on applicable zoning and/or substantial evidence, that storage and handling of the proposed alternative commodities would be unlawful, non-conforming, or harmful to public health in the City of Richmond.

C. Implementation of Additional Dust Control Measures
During the amortization period set forth in the Proposed Amendment, and subject to the terms and conditions of this Agreement, Levin, Wolverine and Phillips 66 agree to their respective dust control measures set forth below and in Exhibits A, B and C hereto, for coal and petcoke shipments to the Terminal and storage and handling of coal and petcoke at the Terminal.

1. Subject to the terms and conditions of this Agreement, Levin shall implement the additional dust control measures for coal and petcoke operations at the Terminal set forth in Exhibit A hereto, and shall maintain all such additional dust control measures for coal and petcoke operations at the Terminal through December 31, 2026.

5 (a) Promptly following the City’s adoption of the Proposed Amendment, Levin shall apply to the City for the necessary building permit and design review approvals (“Applications”) to construct (i) the canopy over the rail unloading facility conveyors, and (ii) the wind fences for stockpiles, as provided in Sections A.2 and A.3 of Exhibit A hereto. Levin shall thereafter promptly and in good faith respond to any requests by the City for additional information necessary to process the Applications.
(b) The City shall process Levin’s Applications promptly and in good faith. (c) Levin shall complete construction of the canopy within six (6) months of when the City approves the Application(s) for the canopy; and Levin shall complete construction of the wind fences within six (6) months of when the City approves the Application(s) for the wind fences.
(d) In the event that either Levin or the City contends that the other Party has failed to act promptly or in good faith with respect to the Applications, that Party may invoke the dispute resolution provisions of Section H, below. In the event that Levin contends that the City’s approval of the canopy or wind fences substantially differs from what Levin has proposed, Levin may invoke the dispute resolution provisions of Section H, below. (e) The six (6) month periods specified in Section C.1(c) above shall be tolled during the pendency of any dispute resolution proceedings and any resulting litigation under Section H, below.

2. Subject to the terms and conditions of this Agreement, Levin shall continue to maintain the existing dust control measures for coal and petcoke handling and storage at the Terminal set forth in Exhibit A hereto through December 31, 2026. Levin shall have no responsibility under this Agreement for any dust control measures except those identified in Exhibit A.

3. As further described in Exhibit B, Wolverine has represented that it currently applies Crown PDC 8020 binding agent, as a process dust control measure, to coal as it is being loaded into rail cars in Utah (“Existing Dust Control Measure”). Subject to the terms and conditions of this Agreement: (a) Wolverine shall continue its Existing Dust Control Measure, or an equally effective process dust control binding agent, for all coal shipments to the Terminal through December 31, 2026; and (b) within one (1) month of the City’s Adoption of the Proposed Amendment and continuing through December 31, 2026, Wolverine shall also apply Crown PDC 8020, or an equally effective process dust control binding agent, to blanket the top of each rail car transporting coal to the Terminal, as further described in Exhibit B. Wolverine shall have no responsibility under this Agreement for any dust control measures except those identified in Exhibit B.

4. As further described in Exhibit C, Phillips 66 has represented that it currently applies a dust suppressant/binding agent to petcoke while it is being loaded in each truck, and tarps each truck, prior to shipment of petcoke from Rodeo for delivery to the Terminal (“Existing PetCoke Dust Control Measures”). Subject to the terms and conditions of this Agreement, Phillips 66 shall continue to apply its Existing PetCoke Dust Control Measures, as set forth in

6 Exhibit C, through December 31, 2026. Phillips 66 shall have no responsibility under this Agreement for any dust control measures except those identified in Exhibit C.

5. In the event that the City adopts the Proposed Amendment but later modifies the Proposed Amendment or the Ordinance prior to December 31, 2026 in a manner that either (1) shortens the duration of the amortization period or (2) imposes additional restrictions on the storage and handling of coal and petcoke at the Terminal, then Levin, Wolverine and/or Phillips 66 may, in their sole discretion, elect to terminate this Agreement by providing Notice of such election to the City pursuant to Section I. Upon such election, this Agreement shall be null and void, and Levin, Wolverine and/or Phillips 66 may proceed with the Litigation (in the event that it has not yet been dismissed with prejudice) and/or initiate new litigation challenging such actions by the City. If either Levin, Wolverine or Phillips 66 elects to terminate the Agreement, then the Agreement shall terminate as to all Parties, and the Parties shall have no further obligations under the Agreement.

6. During the amortization period and for a period of twelve (12) months thereafter, the City shall have the right, but not the obligation, to inspect the Terminal, pursuant to the Inspection Protocol attached hereto as Exhibit D, in order to assess compliance with this Agreement. The City may conduct such inspections up to three (3) times per calendar year during the amortization period and one (1) time during the twelve (12) month period thereafter.

D. Dismissal of Litigation

1. Subject to the City’s adoption of the Proposed Amendment, Levin, Wolverine, Phillips 66 and Utah shall file requests for dismissal with prejudice of their respective complaints in the United States District Court for the Northern District of California within thirty (30) days after the expiration of the ninety (90) day limitations period for challenges to the City Council’s adoption of the Proposed Amendment under Government Code section 65009(c); provided, however, that there is no litigation filed challenging the City Council’s adoption of the Proposed Amendment (“Third Party Challenge”) within that ninety (90) day limitations period. In the event of any Third Party Challenge, then the Parties shall proceed as set forth in Section E, below.

2. Subject to the City’s adoption of the Proposed Amendment, Levin shall file a request for dismissal of the appeal in its State Court CEQA action within thirty (30) days after the expiration of the ninety (90) day limitations period for challenges to the City Council’s adoption of the Proposed Amendment under Government Code section 65009(c); provided, however, that there is no Third Party Challenge within that ninety (90) day limitations period. In the event of any Third Party Challenge, then the Parties shall proceed as set forth in Section E, below.

3. In the event the City Council finds the Proposed Amendment to be exempt from CEQA but the City fails to file a notice of exemption (“NOE”) as provided herein, the dismissals under Sections D.1 and D.2 above shall occur within thirty (30) days after the expiration of the one-hundred eighty (180) day limitations period for challenges to the City Council’s adoption of the Proposed Amendment under Public Resources Code Section 21167(a); provided, however, that there is no Third Party Challenge filed within that one-hundred eighty (180) day limitations

7 period. In the event of any Third Party Challenge, then the Parties shall proceed as set forth in Section E, below.

4. In the event the City Council does not find the Proposed Amendment to be exempt from CEQA, this Agreement shall terminate and be null and void.

E. Third Party Challenge

1. “Third Party Challenge,” as used in this Agreement, shall mean a timely filed action, by any person or entity that is not a Party to this Agreement, seeking judicial review of the City Council’s adoption of the Proposed Amendment.

2. In the event of a Third Party Challenge to the City Council’s adoption of the Proposed Amendment, the Litigation shall not be dismissed during the pendency of the Third Party Challenge, and the Parties agree to file a joint request that the Litigation be stayed pending the outcome of any such Third Party Challenge, and to cooperate in good faith in defending the Proposed Amendment against any such Third Party Challenge.

3. In the event that the federal and state courts grant the stays requested in the Litigation pursuant to Section E.2 above, and a final judgment is entered in the City’s favor upholding the Proposed Amendment in any Third Party Challenge(s), then Levin, Wolverine, Phillips 66 and Utah shall file requests for dismissal of the Litigation within thirty (30) days after the latter of the following: (a) the expiration of the time period to appeal such judgment in the Third Party Challenge(s); or (b) the issuance of a remittitur following any appeal in which the Proposed Amendment is upheld in the Third Party Challenge.

4. In the event the federal or state court declines to issue any stay requested pursuant to paragraph E.2 above, then Levin, Wolverine and/or Phillips 66 may, in their sole discretion, elect to terminate this Agreement and proceed with the Litigation by providing Notice to the City of such election pursuant to Section I below. Prior to making any such election, the parties shall meet and confer pursuant to Section H below to discuss in good faith whether the purposes of this Agreement can still be achieved in the absence of a stay. If either Levin, Wolverine or Phillips 66 elects to terminate the Agreement, then the Agreement shall terminate as to all Parties and the City shall have no further obligations under the Agreement.

5. The City shall defend the Proposed Amendment against any Third Party Challenge, at the direction of the City Attorney’s Office and the City Council, consistent with the City Charter and the purposes of this Agreement. Levin and/or Wolverine may join the City, as real parties in interest and/or by motion to intervene, in defending the City’s adoption of the Proposed Amendment against any Third Party Challenge. Levin shall indemnify and hold harmless the City from and against any Third Party Challenge, including, but not limited to, any claims brought against the City or any of its agents, officers, officials, or employees to attack, set aside, void, or annul the City’s actions or omissions related to the Proposed Amendments and/or their adoption. This indemnification shall include, but not be limited to, damages, attorneys’ fees, and/or costs awarded against the City, if any, and the City’s costs of suit, reasonable attorneys’ fees, and other costs, liabilities, and expenses incurred in connection with such proceeding. Upon commencement of any such Third Party Challenge to the Proposed

8 Amendment, the City and Levin shall meet in good faith to establish a mutually acceptable method of defending such action.

6. The Parties agree that the Proposed Amendment, extending the amortization through December 31, 2026, shall not be affected by the pendency of any Third Party Challenge, unless a court of competent jurisdiction expressly orders otherwise.

7. In the event that a court of competent jurisdiction enjoins, sets aside, or invalidates the City’s adoption of the Proposed Amendment in response to a Third Party Challenge, then (1) Levin, Wolverine and Phillips 66 shall be relieved of any further obligations to comply with their respective dust control measures set forth in Section C above, pending final judgment and issuance of the remittitur on any appeal; and (2) Levin, Wolverine and/or Phillips 66 may, in their sole discretion, elect to terminate this Agreement and proceed with the Litigation or initiate new litigation by providing Notice to the City of such election pursuant to Section I below.

F. Compliance with Ordinance and Waiver of Extension of Amortization Period Subject to the terms and conditions of this Agreement, Levin agrees to comply with all provisions of the Ordinance as modified by the Proposed Amendment. In amplification of the foregoing, and subject to the terms and conditions of this Agreement, Levin expressly agrees that, no later than December 31, 2026, Levin shall cease all storage and handling of coal and petcoke at the Terminal and shall not thereafter store or handle any coal or petcoke at the Terminal. Subject to the terms and conditions of this Agreement, Levin further agrees not to request or seek, and waives any right to request or seek, an extension of the amortization period under RMC Section 15.04.615.050 or any other provision of law.

G. Non-opposition to Ordinance as Modified by Proposed Amendment Subject to the terms and conditions of this Agreement, Levin, Wolverine, Phillips 66 and Utah (“Plaintiffs”) agree not to file any litigation challenging the City’s adoption of the Proposed Amendment or implementation or enforcement of the Ordinance as modified by the Proposed Amendment. Except as provided for continuation of the Litigation or initiation of litigation in Sections C.5, D, E and H of this Agreement, Plaintiffs each waive any and all claims that were or could have been brought as part of the Litigation.

Subject to the terms and conditions of this Agreement, the Parties agree not to support, encourage, or assist, either directly or indirectly, any Third Party Challenge to the City’s adoption of the Proposed Amendment, or implementation or enforcement of the Ordinance as modified by the Proposed Amendment.

Notwithstanding anything in the foregoing paragraph, in the event that a Third Party Challenge is filed, Plaintiffs may continue the Litigation or initiate new litigation, subject to Sections C.5, D, E and H of this Agreement.

9 H. Continuing Jurisdiction of the Court and Dispute Resolution Within thirty (30) days of the Effective Date of this Agreement, the Parties shall jointly request that the Honorable Yvonne Gonzalez Rogers, United States District Court Judge for the Northern District of California, maintain continuing jurisdiction of the Court over the pending federal litigation relating to the Ordinance and the matters relating to this Agreement and the Proposed Amendment, to and including resolution of any motion filed prior to March 31, 2027 to enforce the Ordinance as modified by the Proposed Amendment and the rights and obligations of the Parties to this Agreement.

If a dispute arises between the Parties under this Agreement, or any Party alleges a breach of this Agreement, the Parties shall meet and confer within ten (10) business days after one Party provides written notification to another Party of the grounds for the dispute or the nature of the alleged breach. At the meet and confer, the Parties shall attempt in good faith to resolve the dispute or the alleged breach without the need for court intervention. If such dispute(s) cannot be resolved through the meet and confer process, any party may file a motion to enforce the Agreement in the federal litigation or, if the alleged breach occurs after the federal litigation has terminated, by filing a new action. Venue for any such action that is filed prior to March 31, 2027, shall be in the United States District Court of the Northern District of California, as provided above. Venue for any such action that is filed after March 31, 2027 shall be in the Superior Court for the County of Contra Costa.

I. Notices
Any notice relating to this Agreement shall be sent by the noticing Party, both by email and by First Class mail, to the applicable address(es) of the noticed Party or Parties and their attorney(s) below. Each Party shall give notice in writing to the other Parties of a change in Party representative to whom, or change of address to which, notices should be sent.

For the City:

Teresa Stricker
City Attorney
James Atencio
Senior Assistant City Attorney
City of Richmond
450 Civic Center Plaza
Richmond, CA 94804
E-mail: [email protected], [email protected] Tel: (510) 620-6509
Robert Perlmutter
Aaron Stanton
Shute Mihaly & Weinberger LLP
396 Hayes Street
San Francisco, CA 94102
E-mail: [email protected], [email protected]

10 Tel: (415) 552-7272
For Levin:

James Holland
Vice President, Facilities,
Equipment and Environment
Patrick O’Driscoll
Chief Operating Officer
Levin-Richmond Terminal Corporation
402 Wright Avenue
Richmond CA 94804
E-mail: [email protected], [email protected] Telephone: (510) 232-4422
R. Christopher Locke
Sarah P. Bell
Linda Sobczynski
Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Email: [email protected], [email protected], [email protected] Telephone: (415) 954-4400
For Wolverine:

Brian S. Settles
Chief Administrative Officer & General Counsel
Wolverine Fuels Sales, LLC
9815 South Monroe Street, Suite 203
Sandy, UT 84070
Email: [email protected]
Telephone: (801) 695-9107
John F. Barg
Barg Coffin Lewis & Trapp, LLP
600 Montgomery Street, Suite 525
San Francisco, CA 94111
E-mail: [email protected]
Telephone: (415) 228-5440
For Phillips 66:

Manager, Rodeo Refinery
Phillips 66 Company
1380 San Pablo Avenue
Rodeo, CA 94572

11 Telephone: (510) 245-4415
Ronald Van Buskirk
Pillsbury Winthrop Shaw Pittman LLP
Four Embarcadero Center, 22nd Floor
San Francisco, CA 94111-5998
E-mail: [email protected]
Telephone: (415) 983-1496
For Utah:

Anthony Rampton
Utah Assistant Attorney General
5110 State Office Building
Post Office Box 142477
Salt Lake City, UT 84114-2477
E-mail: [email protected]
Telephone: (801) 537-9819
J. General Provisions

1. Attorneys’ Fees. Each Party shall bear its own attorneys’ fees and costs incurred in connection with the Litigation, mediation and settlement proceedings relating to the Ordinance. In any future dispute arising out of or related to the enforcement of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.

2. Retention of Rights. Other than as expressly set forth in this Agreement, the Parties retain all rights under existing law.

3. Parties’ Acknowledgment of Terms. Each Party hereby represents that it has carefully and fully read and reviewed this Agreement and that it has had an opportunity to consult with its respective counsel, and hereby represents that the contents of this Agreement are understood and accepted.

4. Interpretation and Applicable Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California without regard to principles of conflicts of law.

5. Assignment. All the rights, duties and obligations set forth in this Agreement shall inure to the benefit of and be binding upon the Parties and their successors and assigns.

6. Counterparts. This Agreement may be executed in one or more counterparts, all of which together shall constitute one original agreement. Telecopy, electronic, and/or facsimile copies of original signatures shall be deemed to be originally executed counterparts of this Agreement.

7. Headings. The headings used in this Agreement are for convenience of reference and shall not be used to define any provision.

12 8. Entire Agreement In Writing. This is an integrated agreement. This Agreement, including Exhibits A through D to this Agreement, constitutes the entire agreement between the Parties hereto with respect to the subject matter set forth herein and supersedes all previous or contemporaneous negotiations, commitments (oral or written), and writings with respect to the subject matter set forth herein.

9. Modification or Amendment. This Agreement and each of its provisions may be modified or amended only by written agreement executed by all Parties to this Agreement.

10. No Representations or Warranties. This Agreement is given voluntarily, free of undue influence, coercion, duress, menace, or fraud of any kind. Except as otherwise expressly set forth in this Agreement, no Party, nor any officer, agent, employee, representative, or attorney of or for any Party, has made any statement or representation to any other Party regarding any fact relied upon in entering this Agreement, and no Party is relying upon any statement, representation, or promise of any other Party, nor of any officer, agent, employee, representative, or attorney of or for any Party, in executing this Agreement or in making the settlement provided herein, except as expressly stated in this Agreement.

11. Negotiated Agreement. The Parties acknowledge they have negotiated this Agreement and agree that the terms shall not be construed against the Party preparing it, but instead shall be construed as if the Parties jointly prepared this Agreement. Any uncertainty or ambiguity shall not be interpreted against any one Party.

12. Authority. Each of the persons signing this Agreement on behalf of a Party represents and warrants that he or she has actual authority and capacity to execute this Agreement on behalf of the Party and to bind it to all the terms of this Agreement.

13. Agreement Admissible. The Parties agree this Agreement is admissible in any action to enforce the Agreement.

14. No Admission. This Agreement and its terms and conditions, and any proceedings under this Agreement, are for settlement of disputed claims and are not intended to be, and shall not in any event be construed or deemed to be, an admission or concession on the part of the Parties, or any of them, of any liability or wrongdoing whatsoever. By agreeing to the language of the Proposed Amendment and the terms and conditions of this Agreement, neither Levin, Wolverine nor Phillips 66 agrees, admits or concedes that coal or petcoke transport, storage and/or handling pose any health hazards. Neither this Agreement nor any negotiations or proceedings in pursuance of this Agreement shall be offered or received in any action or proceeding as an admission or concession of liability or wrongdoing of any nature on the part of the Parties, or any of them, or anyone acting on their respective behalves.

15. Effective Date. Subject to and following City Council approval, the Effective Date of this Agreement shall be the last date of signature of the persons authorized to sign on behalf of each respective Party below, pursuant to Section J.12 herein.

Nov. 9, 2021

EXHIBIT A – SETTLEMENT AGREEMENT

LEVIN RICHMOND TERMINAL DUST CONTROL MEASURES
During the amortization period set forth in the Proposed Amendment, and subject to the terms and conditions of the Settlement Agreement, Levin agrees to continue existing dust control measures, and implement the additional dust control measures set forth herein, for storage and handling of coal and petcoke at the Terminal.

A. Subject to the City’s adoption of the Proposed Amendment, and subject further to the terms and conditions of the Settlement Agreement, Levin shall implement the following additional dust control measures for coal and petcoke operations at the Terminal, and shall maintain such additional dust control measures for coal and petcoke operations at the Terminal through December 31, 2026:

1. Direct transloading of coal: Commencing upon the City’s adoption of the Proposed Amendment, when coal train deliveries and vessel arrivals reasonably permit, Levin shall transfer coal directly from the rail unloading facility via conveyor and shiploader into the holds of receiving vessels. At all other times, Levin shall temporarily store coal in a stockpile in accordance with the terms and conditions set forth below.

2. Canopy over rail unloading facility conveyors: Within thirty (30) days of the City’s adoption of the Proposed Amendment, Levin shall apply for the necessary building permit and design review approvals to cover and enclose the four conveyors on the east side of the rail unloading facility on the north, east and south sides by gray fabric designed for wind speed and dust reduction fitted over a tubular steel/z-bar truss structure. For illustrative purposes, a conceptual drawing of this canopy is attached to this Exhibit A as Attachment 1.

3. Wind fences for stockpiles: Within thirty (30) days of the City’s adoption of the Proposed Amendment, Levin shall apply for the necessary building permit and design review approvals to install and maintain wind fences, consisting of a six (6) foot high chain link fence covered with gray wind reduction fabric along the northern portions of existing stockpile wind buffer containers. For illustrative purposes, a photograph of an installed section of wind fence is attached to this Exhibit A as Attachment 2.

4. Conveyor scraper maintenance: Commencing upon the City’s adoption of the Proposed Amendment, Levin shall (1) implement and/or maintain scrapers at the point of return of each conveyor segment used to handle coal; and (2) remove material that has accumulated below the scrapers after completion of each ship loading event.

5. Supplemental conveyor area sweeping: Commencing within four (4) months of the City’s adoption of the Proposed Amendment, Levin shall supplement existing mechanical and manual sweeping with additional sweeping, as needed, for any accumulated coal beneath each conveyor segment no later than 24 hours after completion of each ship loading event. Levin shall continue to comply with all BAAQMD regulations applicable to the Terminal and shall make its BAAQMD Bulk Material Site

Monitoring reports (Regulations 6-1 and 6-6) available to the City for inspection as set forth in the Inspection Protocol attached to the Settlement Agreement as Exhibit D.

6. Petcoke cell wind buffers: Commencing within six (6) months of the City’s adoption of the Proposed Amendment, Levin shall increase the height of the top of the two sides of the petcoke conveyor cells that are positioned perpendicular to the vessel to be twelve (12) feet above ground surface.

7. Additional water misters for stockpiles:
(a) Commencing within six (6) months of the City’s adoption of the Proposed Amendment, a minimum of 50 high pressure MicroCool (or equivalent) water misters shall be fitted and maintained along of the top of, and/or spanning across, the existing coal stockpile wind buffer containers. (b) Commencing within six (6) months of the City’s adoption of the Proposed Amendment, a minimum of 50 high pressure MicroCool (or equivalent) water misters shall be fitted and maintained along the top of, and/or spanning across, the existing petcoke stockpile wind buffer containers.

8. Additional water misters in rail car unloading facility: Commencing within six (6) months of the City’s adoption of the Proposed Amendment, a minimum of 45 additional high pressure MicroCool (or equivalent) water misters shall be fitted and maintained within the existing rail car unloading facility.

9. Procedures for mister operation during business operations: Levin shall implement and maintain the following procedures for operation of water misters:
(a) Water misters in the rail car unloading facility shall be operated continuously during unloading of coal from rail cars; (b) Except during rain events, water misters at conveyor transfer points shall be operated continuously during movement of coal or petcoke on conveyors;
(c) Except during rain events, water misters at stockpiles shall be operated continuously during movement of coal or petcoke from stockpiles to conveyors or vessels;
(d) Except during rain events, water misters at stockpiles shall be operated during business operations when the 30-minute average wind speed exceeds 18 miles per hour, as measured at the Terminal’s meteorological station; (e) Terminal personnel shall observe water misters during operation and shall promptly repair or replace any misters that appear to be clogged or otherwise not functioning properly; and

(f) “Rain events,” as used herein, shall mean detectable precipitation as measured at the Terminal’s meteorological station.

10. Suspension of ship loading during high wind events: Ship loading operations shall be suspended if the 30-minute average wind speed exceeds 18 miles per hour, until the 30-minute average wind speed falls below 18 miles per hour, as measured at the Terminal’s meteorological station. Levin shall document and keep records of any instances when ship loading operations are suspended pursuant to this provision (“Suspension Events”). No later than January 31st of each calendar year, commencing January 31, 2023 and continuing through January 31, 2027, Levin shall provide the City with the date, time, and 15-minute (or lower) average wind speed data in a Microsoft Excel digital file for the preceding calendar year and with a list of any Suspension Events during the preceding calendar year.

B. Levin shall continue to maintain existing dust control measures for coal and petcoke handling and storage at the Terminal through December 31, 2026:

1. Enclosed rail car unloading facility: Unloading of coal from rail cars at the Terminal shall be conducted within the existing rail car unloading facility.

2. Covered conveyors with water misters: Existing covers on conveyors at the Terminal, and existing water misters at conveyor transfer points, shall be maintained, repaired and replaced as necessary.

3. Wind buffers around stockpile areas: Shipping containers shall be maintained to serve as wind buffers and to contain the coal stockpile and petcoke stockpile at the Terminal.

4. Sweeping of Terminal and adjacent areas: Sweeping of paved areas within the Terminal and on immediately adjacent streets shall be performed daily during business operations, utilizing a regenerative air sweeper and/or a PM10 brush model sweeper. Levin shall also comply with all other sweeping provisions in its adopted Stormwater Pollution Prevention Plan (“SWPPP”).

5. Clamshell bucket maintenance: Levin shall continue to use welding to add metal as a sacrificial material along the edges of the clamshell buckets used to transfer petcoke from the conveyor cell to vessels, in accordance with the Clamshell Bucket Maintenance Procedure attached hereto as Attachment 3.

ATTACHMENT 1 – CONCEPTUAL DRAWING OF CANOPY
EXHIBIT A – SETTLEMENT AGREEMENT

LEVIN RICHMOND TERMINAL DUST CONTROL MEASURES
 Canopy enclosing conveyors at rail car unloading facility would be approximately 57 feet wide, 37 feet long, and 26 feet high, consistent with adjacent structures  Structure would be tubular steel and z-bar truss covered with a gray wind reduction fabric  End of canopy to be partially enclosed with fabric for additional wind and dust control  Canopy would be removable to facilitate maintenance when conveyors are not operating

ATTACHMENT 2 – ILLUSTRATIVE PHOTO OF WIND FENCES
EXHIBIT A – SETTLEMENT AGREEMENT

LEVIN RICHMOND TERMINAL DUST CONTROL MEASURES
Wind fences to be installed along northern portions of existing stockpile wind buffer containers.  Six foot high chain link fence on existing containers  Fabric covering designed for wind and dust reduction

ATTACHMENT 3 – CLAMSHELL BUCKET MAINTENANCE PROCEDURE
EXHIBIT A – SETTLEMENT AGREEMENT

LEVIN RICHMOND TERMINAL DUST CONTROL MEASURES
After installing the Clamshell bucket the Crane Operator shall operate the bucket, opening and closing it while the Oiler inspects it for smooth mechanical operation and full closure of the bucket. Particular attention shall be paid to the sealing edges or “lips” on the bucket to determine that no gap greater than 1/32 of an inch exists on the closure face. The width of the lip of each bucket is a 1/4 of an inch or greater flat surface that matches with the lip on the other half of the bucket. The typical edge closure does not allow light to be seen through the closed lips.

At the start of each shift and during the lunch break, the bucket shall be lubricated and inspected by the Oiler for leaks and complete closure at the lips.

During operation, the clamshell bucket shall not be overfilled such that material spills out the top. If necessary, the Crane Operator shall adjust the load by partially opening and closing the bucket before leaving the contained material pile being transferred. If the Crane Operator observes material dropping from the bucket, the bucket must be replaced with a fully serviced bucket or repaired in place before continuing operations.

When the clamshell bucket is removed from the crane, it shall be serviced before being stored for future use. Servicing includes placing the bucket on the service rack and inspection of the mechanical and hydraulic components by the crane crew. The fabrication shop crew shall then inspect and repair the bucket lips as needed at the closure surfaces.

The fabrication shop crew shall pay particular attention to the corners of the bucket since these surfaces experience the most wear. In operation loading calcined coke, the bottom of the bucket lips and the corners are ground down by repeated bucket closure on the concrete pad. The fabrication shop crew typically spends one or more shifts, after each ship loading, welding and grinding clamshell bucket lips to ensure a tight seal when the bucket is closed.

EXHIBIT B – SETTLEMENT AGREEMENT
WOLVERINE’S DUST CONTROL MEASURES
During the amortization period set forth in the Proposed Amendment, and subject to the terms and conditions of the Settlement Agreement, Wolverine agrees to continue existing dust control measures and implement the additional dust control measures set forth herein for rail shipments of coal to the Terminal:

A. Crown Products & Services (“Crown”) currently applies Crown PDC 8020 to coal as it is being loaded into rail cars in Utah to reduce coal dust emissions. The Crown PDC 8020 acts as a binding agent to mitigate airborne dust and keep coal particles from escaping during the loading process. Wolverine will continue this practice during the amortization period, utilizing Crown PDC 8020 or an equivalent dust suppression product, subject to the terms and conditions of the Settlement Agreement.

B. As a further dust suppression measure to be undertaken during the amortization period and subject to the terms and conditions of the Settlement Agreement, Wolverine will ensure that Crown PDC 8020 or an equivalent dust suppression product will be applied to the top of each loaded rail car to “blanket” the coal, further minimizing coal dust emissions during transport of the coal to Levin Richmond Terminal in Richmond, California. The rail car topping product will be applied in a manner and amount to be industry standard and effective.

36087\14410587.1
EXHIBIT C – SETTLEMENT AGREEMENT
PHILLIPS 66’S DUST CONTROL MEASURES
During the amortization period set forth in the Proposed Amendment, and subject to the terms and conditions of the Settlement Agreement, Phillips 66 agrees to continue existing dust control measures for shipments of petroleum coke to the Terminal:

A. Phillips 66 currently applies an industrial oil to petroleum coke destined for delivery to the Terminal. The purpose of the industrial oil is to act as a binding agent to mitigate airborne dust and keep petroleum coke particles from becoming airborne. The industrial oil is applied to the petroleum coke as it leaves the cooler at the Phillips 66 Carbon Plant.

B. Additionally, Phillips 66 monitors the moisture content of lump shipments of petroleum coke and adjusts the industrial oil treatment accordingly, sometimes applying an additional dust treatment as the petroleum coke is loaded into the trucks at the Phillips 66 Carbon Plant.

C. Trucks carrying petroleum coke to the Terminal include tarping during transportation.

Phillips 66 will continue these practices during the amortization period, subject to the terms and conditions of the Settlement Agreement.

EXHIBIT D – SETTLEMENT AGREEMENT

INSPECTION PROTOCOL FOR LEVIN RICHMOND TERMINAL
Inspections of the Terminal pursuant to Section C.6 of the Settlement Agreement (“Inspections” or “Inspection”) shall be conducted as follows:

A. Notice and Scheduling of Inspections

1. Up to three (3) times per year during the amortization period, the City may request that Levin provide the City with all dates during the next thirty (30) days when Levin anticipates the Terminal will be actively conducting coal or petroleum coke (“petcoke”) ship loading operations (“Ship Loading Operations”). Within three (3) business days of receiving such request, Levin shall respond with the most accurate information regarding Ship Loading Operations available for the next thirty (30) day period. Within three (3) business days of receiving Levin’s response, the City shall provide Levin with notice of the date(s) proposed for the Inspection(s).

2. The City shall notice each Inspection to occur during business hours of 8:00 a.m. to 3:00 p.m., Monday through Friday, excluding holidays.

3. The City shall provide further notice twenty-four (24) hours prior to the start of each Inspection, except that if City notices an Inspection for the business day following a weekend or holiday, City shall provide notice 24 hours before the end of the business day preceding such weekend or holiday.

4. For Inspections during the amortization period, if Levin learns that Ship Loading Operations will not be occurring during the date and time noticed by the City for an Inspection, Levin shall notify the City as soon as possible. In that event, Levin shall provide the City with all dates within the next thirty (30) days that Levin anticipates Ship Loading Operations will be occurring at the Terminal. The City may, in its discretion, elect to proceed with the Inspection as previously noticed or may reschedule the Inspection for one of the dates provided by Levin. In the event the City elects to reschedule, the City shall promptly notify Levin that it will not be proceeding with the originally noticed Inspection and shall provide Levin with the notices required under Sections A.1-A.3 above for the newly selected date and time.

5. Levin and the City shall make good faith, reasonable efforts to schedule dates and times for the Inspections on the dates noticed by the City.

6. For the Inspection after the amortization period, the City shall provide Levin with notice of a proposed Inspection at least ten (10) days prior to the proposed Inspection. Within three (3) business days of receiving such notice, Levin shall respond with any comments on the proposed date and time for the Inspection and, if necessary, shall propose alternative dates and times. Within three (3) days of receiving such response, the City shall provide notice of an Inspection from among the alternative dates and times identified by Levin. The City shall provide further notice as set forth in Section A.3 above.

7. Formal notices, requests, and responses pursuant to this Section A shall be provided between Levin and the City as described in Section I of the Settlement Agreement. The City and

Levin representatives identified in Section I of the Settlement Agreement may also communicate in good faith via telephone and email in order to schedule Inspections.

B. Attendees and Safety Measures

1. When it notices an Inspection, the City shall provide the names of the City officials, employees, counsel and/or consultant (“City Representatives”) who will attend the Inspection. No more than three (3) City Representatives may attend any given Inspection on behalf of the City.

2. City Representatives attending the inspection shall:
a. Provide valid, government-issued photo identification (e.g., valid California driver’s license) at the Terminal security office and sign in prior to the beginning of the Inspection;
b. Wear fully enclosed shoes during the Inspection, as well as safety gear provided by Levin, including safety vests, hard hats, safety glasses, and ear plugs; c. Follow necessary safety and security protocols as directed by Levin, remain with the Levin representative during the Inspection, and comply with the instructions of the Levin representative during the Inspection;
d. Observe all applicable COVID safety protocols while at the Terminal and during the Inspection, including any applicable requirements for face masks and/or social distancing, which shall be the sole responsibility of the City Representatives; and
e. Refrain from smoking at the Terminal and during the Inspection.

3. City Representatives may have brief, private conversations during the Inspection, at sufficient distance to be out of earshot but within view of the Levin representative and at a location deemed safe by the Levin representative. The time used for these conversations shall be included within the total duration allotted for the Inspection.

C. Scope and Conduct of Inspection

1. The City shall make reasonable efforts to minimize the time it takes to complete its Inspection. In no event shall an inspection last longer than two (2) hours.

2. The City’s Inspection may include viewing of the following areas and facilities at the Terminal, subject to safety requirements determined by Levin:
a. Rail unloading facility;
b. Water misters in rail car unloading facility;
c. Rail unloading facility conveyors;
d. Canopy over rail unloading facility conveyors;

e. Conveyor scrapers at point of return of each conveyor segment used to handle coal;
f. Covered conveyors used to handle coal and/or petroleum coke, including water misters at conveyor transfer points;
g. Outdoor areas beneath conveyor segments and along conveyor paths; h. Clamshell buckets;
i. Petcoke conveyor cells;
j. Wind buffer containers around stockpile areas, including any wind fences along northern portions of stockpile wind buffer containers; k. Water misters for stockpiles;
l. Meteorological station, including the station itself and the location where meteorological data from the station is viewed and/or interpreted; m. Any areas and facilities used for the maintenance and cleaning of the facilities and equipment listed above, including paved areas subject to sweeping operations at the Terminal;
n. All other outdoor areas of the Terminal reasonably related to coal and/or petcoke storage and handling operations and
o. The Terminal’s BAAQMD Bulk Material Site Monitoring Reports (Regulations 6-1 and 6-6), pursuant to Section A.5 of Exhibit A to the Settlement Agreement.

3. Levin shall have no obligation to cease operations during any Inspection, or to allow City Representatives to observe operations from locations deemed by Levin to pose safety issues.

4. The City’s Inspection may include the taking of photographs and/or video of discrete facilities within the Terminal. Photographs and/or video taken by City Representatives during the Inspection may be used solely for the purposes of verifying compliance or non-compliance with, and enforcing the terms of, the Settlement Agreement and shall not be published or disclosed to third parties except as provided under Section C.5 below. The City shall provide Levin with any photographs and/or videos taken by City Representatives during the Inspection within five (5) days of such Inspection.

5. The City and Levin agree that photographs and/or video taken during Inspections may be admissible in any action to enforce the terms of the Settlement Agreement.

RESOLUTION NO. 21-23

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF RICHMOND

RECOMMENDING THAT THE CITY COUNCIL OF THE CITY OF RICHMOND ADOPT AN ORDINANCE AMENDING ARTICLE 15.04.615 TO EXTEND THE

AMORTIZATION PERIOD FOR NONCONFORMING LAND USES RELATED TO THE

STORAGE AND HANDLING OF COAL AND PETROLEUM COKE TO DECEMBER 31,2026
WHEREAS, on February 4, 2020, the City Council adopted Ordinance No. 05-20 N.S. ("Ordinance"), adding Article 15.04.615 to the Richmond Municipal Code ("RMC"), prohibiting the storage and handling of coal and petroleum coke within the City effective March 5, 2020, and providing a 3-year "amortization period" for continued storage and handling of coal and petcoke at existing facilities;
WHEREAS, at the time of adoption of the Ordinance and at present, the Levin- Richmond Terminal is the only known existing facility in the City of Richmond that stores and handles coal and petcoke;
WHEREAS, in March 2020, Levin and two companies shipping coal and petroleum coke through the Levin Terminal (together, the "Companies") filed a total of five lawsuits in state and federal courts challenging Ordinance No. 05-20 N.S.; WHEREAS, the City successfully defended the two cases before the state trial court, and one of those two cases is currently before the Court of Appeal; WHEREAS, the three federal court cases remain pending;
WHEREAS, in early 2021, the City and the Companies participated in a mediation before a retired federal judge, and thereafter engaged in settlement discussions, which culminated in a settlement agreement to potentially resolve the litigation;
WHEREAS, the settlement agreement was fully executed and became effective on November 12, 2021;
WHEREAS, the settlement agreement provides that City staff shall present an amendment to RMC Article 1 5.04.615 to the Planning Commission and City Council for their consideration;
WHEREAS, the proposed amendment, if adopted, would extend the amortization period from March 5, 2023, to December 31, 2026;
WHEREAS, if the City Council adopts the proposed amendments, the Companies would take various actions, including dismissing the litigation, waiving Levin's ability to seek an extension to the amortization period, and implementing a series of additional dust control measures to reduce pollution from their operations during the amortization period;
1436534.2 1 of 4 Resolution No. 19-29

WHEREAS, Article Xl, Section 5 of the California Constitution provides that the City, as a home rule charter city, has the power to make and enforce all ordinances and regulations with respect to municipal affairs, and Article Xl, Section 7, empowers the City to enact measures that protect and promote the health, safety, and/or welfare of its citizens;
WHEREAS, Article II, Section 1, Paragraph 6 of the Charter of the City of Richmond states that the City shall have and exercise police powers, make all necessary police and sanitary regulations, and adopt ordinances and prescribe penalties for the violation thereof;
WHEREAS, on December 2, 2021, the Planning Commission held a duly and properly noticed public hearing to consider a recommendation to the City Council on the proposed amendment to Chapter 15.04.615 of the Richmond Municipal Code shown in Exhibit A to this Resolution and incorporated herein by reference; and WHEREAS, the Planning Commission has considered the agenda report, all public comments, and the proposed amendment to Chapter 15.04.615 as set forth in Exhibit A of this Resolution and the applicable provisions of the Richmond Municipal Code ("the Record");
NOW THEREFORE BE IT RESOLVED, that the Planning Commission hereby recommends that the City Council adopt an ordinance amending Article 15.04.615 to extend the amortization period for nonconforming land uses related to the storage and handling of coal and petroleum coke to December 31, 2026, and makes the following findings as required by RMC Section 15.04.814.050:

A. The proposed amendment is consistent with the General Plan.

Supporting Statement of Fact: Criteria Satisfied. The proposed ordinance is consistent with and supports the goals outlined in the Health and Wellness Element of the City's General Plan. For example, the ordinance supports Goal HW9: Improved Environmental Quality. Under this goal, the City shall "[c]ontinue to support: projects that improve the quality of built and natural environments to support a thriving community and to reduce disparate health and environmental impacts, especially to low-income and disadvantaged communities. Clean air, water and soil, and a healthy eco-system are critical for human development and contribute to reduced toxic exposure, incidence of disease and environmental degradation." The proposed ordinance supports this goal because the additional dust control measures it would trigger would reduce particulate matter emissions and toxic exposure, thus promoting clean air and reducing the pollution burdens borne disproportionately by individuals living and working near certain industrial areas and rail lines. Further, the proposed ordinance supports this goal by eliminating the risk that the phase-out of coal and petroleum coke storage and handling would be invalidated in litigation and thus never take effect.

B. The proposed amendment is necessary for public health, safety, and general welfare or will be of benefit to the public.
1436534.2 2 of 4 Resolution No. 19-29

Supporting Statement of Fact: Criteria Satisfied. The Planning Commission finds that the proposed ordinance is necessary for public health, safety, and welfare, and will be of benefit to the public. Specifically, the Planning Commission finds that the proposed ordinance and the provisions of the settlement agreement that it would trigger would reduce particulate matter emissions by requiring the implementation of additional dust control measures, and that it would eliminate the risk that the phase-out of coal and petroleum coke storage and handling would be invalidated in litigation and thus never take effect. Further, the proposed amendments would provide the Levin Terminal with additional time to transition to other, less polluting commodities. By facilitating this transition, the proposed amendments would lead to the retention of jobs at the Levin Terminal and corresponding economic benefits.

C. The proposed amendment has been reviewed in compliance with the requirements of the California Environmental Quality Act.

Supporting Statement of Fact: Criteria Satisfied. The proposed ordinance is exempt from the California Environmental Quality Act ("CEQA"), First, it is not a Project under CEQA and is therefore exempt pursuant to CEQA Guidelines section 15378. Second, it is exempt from CEQA pursuant to CEQA Guidelines sections 15301 (operation, permitting, or minor alteration of existing private facilities involving negligible or no expansion of existing or former use), 15307 (action to protect natural resources), 15308 (action to protect the environment), and/or 15061(b)(3) ("Common Sense" exemption where there is no reasonable possibility of a significant effect on the environment).

D. For a change to the Zoning Maps, that the subject property is suitable for the uses permitted in the proposed zone in terms of access, size of parcel, relationship to similar or related uses, and other relevant considerations, and that the proposed change of zoning district is not detrimental to the use of adjacent properties.

Supportino Statement of Fact: Criteria Satisfied. The proposed amendments do not involve a zoning map change. The Zoning Amendments are only changes to the Zoning Ordinance text.

NOW THEREFORE BE IT RESOLVED, that the Planning Commission hereby recommends to the City Council that it adopt an ordinance amending Article 15.04.615 of the Richmond Municipal Code as shown in Exhibit A to this Resolution to extend the amortization period for nonconforming uses related to coal and petroleum coke storage and handling to December 31 ,2026.

I HEREBY CERTIFY that the foregoing Resolution was adopted by the Planning Commission of the City of Richmond at a regular meeting held on December 2, 2021.

Ayes:

Noes:
1436534.2 3 of 4 Resolution No. 19-29

Absent:

Abstain:

David Tucker
Planning Commission Chair
Approved as to Form:
^-L^-
Jgrfi^§ Atencio
lior Assistant City Attorney
Attachment: Exhibit A: Article 15.04.615, as amended
1436534.2 4 of 4 Resolution No. 19-29

January 18, 2022

Public Works

DATE: January 18, 2022
TO: Mayor Butt and Members of the City Council
FROM:
(List all relevant/responsive staff
persons)
Joe Leach, P.E., Public Works Director

Subject:
(This will appear on the agenda)
Temporary (45-day) Moratorium on certain building
permits related to sewer connections to the Keller Beach Sanitary Sewer
FINANCIAL IMPACT: The proposed urgency ordinance would have a temporary adverse impact on City finances in that the
City would not be able to issue any building permits for new construction requiring connections to the Keller
Beach Sanitary Sewer. Building permits for new
construction typically include impact fees paid for Fire, Police, Parks, Library, Community Center, traffic, storm drainage, and sewer connection fees.

PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)
None

STATEMENT OF THE
ISSUE:

The City recently completed an assessment and CCTV
analysis of the Keller Beach Sanitary Sewer and
interceptor. The assessment has determined that the
Keller Beach interceptor has severe internal corrosion, sand deposits, defective laterals, buried manholes, and limited maintenance access. The current conditions
indicate pipe failure is an imminent possibility that would be exacerbated by additional connections and/or
increased use of the Keller Beach Sanitary Sewer
(KBSS). The proposed urgency ordinance would impose
an immediate 45-day moratorium on the issuance of
building permits for certain development activities
requiring new connections to the KBSS in order for the
AGENDA
REPORT

January 18, 2022
City to evaluate remediation options and development
alternatives in lieu of connection to the KBSS.

RECOMMENDED ACTION:
(This will appear on the agenda)
ADOPT an urgency ordinance, pursuant to Government
Code Section 65858, establishing a temporary
moratorium (45 days) on the issuance of certain building permits for development requiring new sewer
connections to the Keller Beach Sanitary Sewer – Public Works Department (Joe Leach 510-620-5478).

DISCUSSION:

Background:

The Keller Beach Sanitary Sewer consists of 5,392 linear feet of 8-to-12-inch concrete- encased cast iron pipe. The pipeline, constructed in 1959, is located off Keller Beach in the San Francisco Bay and is submerged during average tides. The location of the sewer is indicated by a red line in the image below and extends from sanitary sewer manhole MH Q-1 (adjacent to the Keller Beach sanitary sewer pump station) to sanitary sewer manhole MH Q-25.

Access to the sanitary sewer pipeline for maintenance or repair is extremely difficult because the manholes are submerged during high tides, and vehicles cannot get within fifty feet of the pipeline due to the cliffs and private property. Access for foot traffic is also limited to public beach access and through private properties. These conditions make it difficult to get appropriate equipment in the area to maintain the pipeline.

January 18, 2022

Assessment of Keller Beach Sanitary Sewer:

On November 17, 2021, the City received a commissioned study and assessment of the KBSS system. The study confirmed the City’s concerns regarding the sustainability and increased use of the KBSS sewer interceptor and other infrastructure. The following issues have been identified:

 Poor Pipe Conditions: KBSS sewer has been in service for approximately 62 years and has reached the end of its useful design life. The pipe that is visible and CCTV inspected is highly corroded and the remaining wall thickness and structural strength is unknown, but clearly compromised. The sewer main has been partially descaled but remains weakened and increasingly prone to cracks and breaks. The pipe’s profile has extensive sags and will continue to sag and adjust due to its location in the surf zone under the force of shifting sand and wave action. Laterals are in poor condition with known and suspected defects which the City/Homeowners are obligated to correct.

 Limited Access for Maintenance and Repair: No vehicle access to beach, limited walkability due to cliffs and private property, and restricted work periods due to the ocean tides all contribute to limited sustainability of KBSS.

 Environmental Risk: Due to location of KBSS, paired with its condition, infrastructure failures would likely result in severe environmental harm and an inability to quickly remediate damage/leaks. In addition to environmental harm, the City faces extensive liability in the event of a major leak into the San Francisco Bay.

Adoption of Sewer Moratorium as Urgency Measure

State statutes and case law support the right of a legislative body to consider and enact a moratorium on the issuance of development entitlements and building permits when a public agency is studying or intends to study a proposed general plan or zoning change that might affect the issuance of such permits for development. Government Code § 65858 authorizes cities and counties to adopt an ordinance prohibiting uses that may be in conflict with a contemplated planning or zoning proposal. The State law also establishes procedures the City must follow prior to adoption of an interim ordinance establishing a development moratorium. Such an ordinance does not require a public hearing and requires only one reading becoming effective immediately upon adoption.

Adoption of an urgency ordinance does, however, require a four-fifths vote, which, in Richmond, would mean 6 of 7 members of the City Council.

Adoption of an interim ordinance requires findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approvals of additional entitlements for use would result in that threat to public health safety or welfare, as stated in the first sentence of §65858 (c). An urgency ordinance can be in effect up to

January 18, 2022
45 days, with potential extensions in the aggregate of two (2) years. As used in this paragraph, "current and immediate threat" means a significant, quantifiable, direct and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date that the ordinance is adopted by the legislative body". Adverse impacts upon welfare are not sufficient to extend the ordinance in this case. In addition, the health and safety impacts would have to be measured based on "public health or safety standards, policies, or conditions" as stated in §65858 (c)(1 ). Examples of situation where such findings could be made might be proposed housing within a flash flood prone area, or in an area with a failed sanitary sewer system. There would be a clear connection between development approval, objective health or safety standards, and immediate threat to public health, safety, or welfare.

Adoption and implementation of this urgency ordinance is exempt from the provisions of the California Environmental Quality Act (“CEQA”) pursuant to State CEQA Guidelines section 15061(b)(3) because it can be seen with certainty that there is no possibility that the ordinance or its implementation would have a significant effect on the environment.

Separately, Government Code § 66300 prohibits moratoriums impacting housing development “other than to specifically protect against an imminent threat to the health and safety of persons residing in, or within the immediate vicinity of, the area subject to the moratorium…” Further, any such moratorium shall not be enforced until the ordinance has been submitted to and approved by the Department of Housing and Community Development (“HCD”). The City has consulted with HCD and has submitted the moratorium ordinance and supporting documentation for HCD’s review. Given the failing KBSS infrastructure and its environmentally sensitive area, an imminent threat exists that would be worsened with new sewer connections to KBSS. The narrow scope of the moratorium and its temporary nature demonstrate that the moratorium is not a pretense for limiting housing development, but addresses an ongoing imminent threat to the health and safety of residents that would be severely impacted in the event of KBSS’s failure.

An urgency ordinance may remain in effect for only 45 days unless it is extended by another four-fifths vote . After notice and a hearing, a local government can extend the Moratorium for ten months and 15 days, with the option of an additional one-year extension. In other words, an urgency ordinance can be extended so that its full duration is up to two years. Any extension requires a four-fifths vote of the local legislative body. California law requires that a moratorium ordinance contain findings stating why the ordinance is needed to address a current and immediate threat to public health, safety, or welfare. Special findings regarding a specific quantifiable adverse impact will also need to be made at the extension hearing as the Moratorium impacts the potential to develop multi-family housing units.

Separately, Government Code § 66300 prohibits moratoriums impacting housing development “other than to specifically protect against an imminent threat to the health and safety of persons residing in, or within the immediate vicinity of, the area subject to

January 18, 2022
the moratorium…” Further, any such moratorium shall not be enforced until the ordinance has been submitted to and approved by the Department of Housing and Community Development (“HCD”). The City has consulted with HCD and has submitted the moratorium ordinance and supporting documentation for HCD’s review. Given the failing KBSS infrastructure and its environmentally sensitive area, an imminent threat exists that would be worsened with new sewer connections to KBSS. The narrow scope of the moratorium and its temporary nature demonstrate that the moratorium is not a pretense for limiting housing development but addresses an ongoing imminent threat to the health and safety of residents that would be severely impacted in the event of KBSS’s failure.

Prior to the expiration of an interim ordinance or an extension, the legislative body is required to issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance.

Rationale for Recommendation:

The City provides sewer service to all the residential lots in Point Richmond, with at least 290 residences on the West Side of Point Richmond connecting to the KBSS interceptor, and approximately 362 parcels that would ordinarily require connecting to KBSS. Given the condition and location of the KBSS interceptor, additional connections to the pipeline increases the risk of pipeline failure and/or leaks, causing extensive environmental harm with limited City ability to remediate the failure and stop the damage. The Public Works Department has begun analyzing potential alternatives for development in the Keller Beach area, including pump stations to connect residences to alternate sewer mains. Additionally, preparing and implementing remediation efforts to address the existing pipeline conditions, including potential relocation of the KBSS interceptor are underway.

The infrastructure deficiencies that impede new development in and around the Keller Beach Sanitary Sewer also impose substantial burdens on the area’s existing residents.

In light of the sewer system’s physical condition and precarious location, a comprehensive plan is necessary to determine how the vacant land and existing residences should be developed and/or improved, given the public safety concerns related to potential pipeline failure of the KBSS interceptor. Over the past five year, the City has seen an increase in development application for infill development on vacant lots that would require new connections to the KBSS interceptor. Currently, there are 13 approved projects, six with issued permits, and 2 with permits currently under review.

The proposed moratorium would not impact projects that are currently under construction but would restrict the ability of approved projects to obtain building permits until a solution or interim solution is identified. Any project that is delayed due to the moratorium would be automatically extended for the time the moratorium is in place.

The purpose of adopting an urgency ordinance and imposing a moratorium on building permits that would require a new sewer connection to the KBSS is to allow time to develop a strategy for undertaking necessary long-range planning, as well as the

January 18, 2022
identification of actions that can be undertaken in the near term to improve the safety of the residents in the Keller Beach area. It would be irresponsible for the City to allow new sewer connections to the KBSS, as the strain on the already deteriorated system would be exacerbated, placing the environment and current residents in the vicinity at significant risk. The location of the KBSS interceptor places severe burdens on the City’s emergency response capabilities and reducing or at least preventing the increase of risk related to the potential failure of the KBSS is necessary.

The City has also begun to identify and develop options and procedures to allow for development in the Keller Beach area during the moratorium and in advance of the KBSS’ rehabilitation and/or potential relocation. To that end, this moratorium provides the City with time to review and promulgate policies that will allow for development without additional strain/risk to existing infrastructure. Several issues related to the allowance of privately funded and/or maintained pump stations to bypass the KBSS interceptor are being studied, including, but not limited to the location of alternate infrastructure, the implementation and/or design of facilities, operation and maintenance cost allocations, and how subsequent property owners will compensate owners that initially invested in alternate infrastructure.

ALTERNATIVES CONSIDERED:

1. Limit time of moratorium

2. Moratorium to include new sewer connections and increased usage

3. Take no action

DOCUMENTS ATTACHED:

Attachment 1 – Draft Urgency Ordinance
Attachment 2 – Keller Beach Map
Attachment 3 – Government Code Section 65858

Ord. No.

ORDINANCE NO. ____________

AN URGENCY ORDINANCE, PURSUANT TO GOVERNMENT CODE SECTION 65858, BY THE CITY COUNCIL OF THE CITY OF RICHMOND, ESTABLISHING A

TEMPORARY MORATORIUM ON THE ISSUANCE OF BUILDING PERMITS

REQUIRING SEWER CONNECTIONS TO THE KELLER BEACH SANITARY SEWER; AND DECLARING THE URGENCY THEROF
______________________________________________________________________________

WHEREAS, the Keller Beach Sanitary Sewer was constructed in 1959 and consists of 5,392 linear feet of 8 to 12 inch concrete-encased cast iron interceptor pipe and twenty five (25) sewer structures located within the pipeline, consisting of seventeen (17) manholes and eight (8) cleanouts (“KBSS”); and

WHEREAS, KBSS is located off of Keller Beach in the San Francisco Bay, and remains submerged during ordinary tides, making repair and maintenance of the sewer very difficult due to the limited hours where the sewer can be reached and hazardous conditions; and

WHEREAS, there are approximately two hundred and ninety (290) existing connections to KBSS and 362 parcels of land located on the West Side of Point Richmond for which certain development and building activities would require a sewer connection to the KBSS (Sewer Moratorium Area, attached and incorporated as Exhibit A); and

WHEREAS, on November 17, 2021, the City received a commissioned assessment and CCTV analysis regarding KBSS. The report suggested performing immediate remediation of the KBSS and potential removal and replacement of portions of KBSS to a different location; and

WHEREAS, portions of KBSS have severe internal corrosion, sand deposits, defective laterals, buried manholes, and limited maintenance access. The current conditions indicate pipe failure is an imminent possibility that would be exacerbated by additional connections to KBSS; and

WHEREAS, certain portions of KBSS’ profile have significant sags due to inconsistent pipe support from the subgrade sand under and around the pipe and will continue to weaken KBSS’ structural integrity with the addition of new sewer connections; and

WHEREAS, KBSS’ interior walls are highly corroded and the remaining wall thickness and structural strength is unknown: and

WHEREAS, sand and seawater has been found in KBSS, indicating breaks and leaks in the collection system, including cracked sewer laterals. The City has begun identifying and repairing damaged laterals to limit further damage; and

WHEREAS, given the location of the KBSS, pipe failure and/or sewage leaks would result in significant environmental harm with the limited ability to quickly remediate the damage and/or leaks due to limited accessibility; and

WHEREAS, additional development requiring sewer connections to KBSS poses an immediate threat to the public health, safety, and welfare, for the above stated reasons; and

WHEREAS, the City of Richmond Public Works Department is in the process of studying long term solutions to the maintenance and/or relocation of KBSS, mitigation efforts to reduce the risk of pipe failure, and developing sewer connection alternatives for future development in the Sewer Moratorium Area; and

WHEREAS, the City Council finds and determines that the issuance of building permits requiring a new connection to KBSS during the moratorium, in which remediation solutions and alternative sewer service options are being studied, the deteriorating condition of KBSS infrastructure would be exacerbated, creating an imminent threat to public health, safety, and welfare;

Ord. No.

WHEREAS, the City of Richmond has recently received an increasing number of applications for development requiring a sewer connection to KBSS; and

WHEREAS, specifically the City has 13 approved projects, six with issued permits, and 2 with permits currently under review; and

WHEREAS, these issues constitute a current and immediate threat to the public health, safety, and welfare, within the meaning of Government Code Section 65858; and

WHEREAS, the approval of any building permits which would require a new sewer connection to KBSS, which are not authorized by this Ordinance, would result in these threats to the public health, safety, and welfare; and

WHEREAS, Government Code Section 65858 authorizes the City Council to adopt an urgency ordinance by a four fifths vote to temporarily prevent development and/or construction that threatens the public health, safety, and welfare of citizens residing in the Sewer Moratorium Area; and

WHEREAS, Government Code Section 66300 authorizes a moratorium impacting housing development only where such a moratorium would protect against an imminent threat to the health and safety of person residing in, or within the immediate vicinity of, the area subject to the moratorium and after the Department of Housing and Community Development has reviewed said moratorium; and

WHEREAS, the City has consulted with and submitted this ordinance to the Department of Housing and Community Development for review pursuant to Government Code Section 66300, and this ordinance shall not be enforceable until the City has received said approval that this moratorium specifically protects against the imminent threat to the health and safety of persons residing in, or within the immediate vicinity of the Sewer Moratorium Area; and

WHEREAS, the Richmond City Council has determined that a temporary moratorium on the issuance of building permits requiring a new sewer connection to KBSS is necessary to preserve the public health, safety, and welfare, and to protect against the imminent threat to the health and safety of person residing in the Sewer Moratorium Area, and the “Whereas” clauses above taken together constitute the City Council’s statements and reasons constituting such necessity and urgency.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Richmond does ordain as follows:

SECTION 1. The City Council finds and determines the foregoing recitals to be true and correct are incorporated herein by reference as it set forth in full.

SECTION 2. The City Council finds and determines for the reasons stated in the recitals, the adoption of this Ordinance is exempt from CEQA under Section 15061(b)(3), 15307, and 15308 of the State CEQA Guidelines.

SECTION 3. Moratorium. A 45-day moratorium is hereby imposed on the issuance and/or approval of all building permits that would require a new sewer connection to the Keller Beach Sanitary Sewer, further identified in the attached and incorporated Exhibit A.

Accordingly, no such permit or entitlement may be issued or approved while this moratorium, as it may be extended, is in effect. For the purposes of this Ordinance, “sewer connection” means connecting a building’s drainage system which conveys the discharge from soil, waste, and other drainage pipes of a business or residence, to the City’s sewer main and/or other applicable sewer infrastructure.

SECTION 4. Term of Moratorium. In accordance with Government Code Section 65858, this Ordinance shall be in full force and effect for a period of 45 days from the date of its adoption, i.e., from January 18, 2022 through and including March 4, 2022, or when the Department of Housing and Community Development approves this moratorium, whichever occurs later. This 45-day period may be extended by the City Council in accordance with the

Ord. No.

provisions in Government Code Section 65858.

SECTION 5. Exceptions. The following development activities within the City limits requiring a sewer connection to Keller Beach Sanitary Sewer identified in Exhibit A are exempt from the moratorium established in Sections 3 and 4:

a. All projects (if any) that have vested rights to a new sewer connection because of previously submitted and fully complete applications and issued building permits;

b. Projects ordinarily requiring a connection to the Keller Beach Sanitary Sewer for which the owner/developer submits a design for the extension of a sewer main to an alternative segment, the design which is approved by the City Engineer and/or Public Works Director, and the property owner/developer agrees to be solely responsible for all costs and expenses of installing and maintaining said sewer main, among other terms and conditions provided by the City in an executed and recorded written agreement between the City and property owner/developer to this effect.

SECTION 6. A development application for which a sewer connection to the Keller Beach Sanitary Sewer is required may be processed during the moratorium and any extension of the moratorium. However, the application shall be processed at the applicant’s sole cost and expense and with the understanding that no building permit shall be issued until the moratorium, including any extension of the moratorium, has expired and that, such permit may not be issued if it is inconsistent with any amendments to the municipal code, ordinances, or regulations that are amended by reason of the review that occurs during the moratorium. During the effective period of this moratorium, time periods requiring the commencement of a proposed use or construction shall be tolled for existing entitlements and/or entitlements approved during the effective period of the moratorium, for the duration of time that the moratorium is in effect.

SECTION 7. Petition for Relief from Moratorium. Any person who has applied for a permit or entitlement which would be affected by this Moratorium, and who contends that the Moratorium as applied to them would be unlawful under Federal, State, or local law or regulation, may submit a written application to the Planning Commission requesting relief from the Moratorium. The request for relief from moratorium shall identify the name and address of the applicant, the affected application number, and shall state how the Moratorium as applied to them would be unlawful under Federal, State or local law or regulation. The Planning Commission, or their designee, shall mail to the applicant a written determination accepting or rejecting the request for relief from Moratorium.

SECTION 8. The City Clerk shall certify to the passage and adoption of this Ordinance causing it to be posted, as required by the law, and it shall thereafter be in full force and effect.

This Ordinance shall become effective immediately as an urgency ordinance, in order to protect the public health, safety, and welfare.

SECTION 9. For the term of this ordinance, as set forth in Section 4 hereof, the provisions of this ordinance shall gover n, to the extent there is any conflict between the provisions of this ordinance and the provisions of any other City Code, ordinance, resolution or policy, and all such conflicting provisions shall be suspended.

SECTION 10. This Ordinance is enacted pur suant to the City of Richmond’s general police powers, Article II of the Charter of the City of Richmond, Article XI of the California Constitution, and Government Code Section 65858.

SECTION 11. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council declares that is would have adopted this Ordinance and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause, or phrase be declared invalid.

-----------------------------------

Ord. No.

Ord. No.

I hereby certify that the foregoing Ordinance of the Council of the City of Richmond was duly passed and adopted at a meeting thereof held January 18, 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTION:

______________________________
Clerk of the City of Richmond
(SEAL)

Approved:

_________________________
Mayor

Approved as to form:

_________________________
City Attorney

Exhibit A: Sewer Moratorium Area

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WESTERN DR TEWKSBURY AVE

PACIFIC AVE
GOLDEN
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MARINE ST

CONTRA COSTA ST

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CASTRO ST

GRANDVIEW CT

SANTA FE AVE
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GARRARD
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HIGHST
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LOBOS CT

CYPRESSPOINTRD

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CLARENCE ST
VACCA
ST

SUMMIT PL

LOBOSAVE COTTAGE AVE

SCENICAVE

BISHOP ALY

CLIFFSIDE CT

OCEAN AVE

CASEY DR

NICHOLL AVE

PIEDMONT
PL

DORNAN DR

RAILROAD AVE

TUNNEL AVE
W

ASHINGTONCT
EDDYST

DELFINO AVE

PARK PL

TERRACE
AVE

VINE AVE
ALLEY
WATER
ST

BISHOP AVE
F7SS1
Keller Beach
Pump Station
1 inch = 300 feet
0 300 600
Feet
I
Legend
Parcels
Sewer Fitting
$1 Lamphole, Active
$1 Lamphole, Private
$1 Lamphole, Buried
Other
Ð%î" Wye
Sewer Manhole
!!2 Active
!!2 Buried
Sewer Structure
[Ú PumpStation
Sewer Force Main
Force Main
Sewer Gravity Main
Active
Relief
Abandoned
PUBLIC
WORKS

DEPARTMENT

KELLER BEACH LINE
Parcles Leading to Keller Beach Line
Use Code
Occupied
No Data
Common area parcels in PUD s (open spaces, recreational facilities) Government-owned, with or without buildings (federal, state, city, BART) Industrial Vacant Land (not part of industrial park or P. and D.) Miscellaneous improvements, 1 site Multiple Vacant
Residential Vacant, 1 site (includes PUD sites) Residential Vacant, unbuildable October 2021

State of California

GOVERNMENT CODE
Section 65858
65858. (a)  Without following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a county, city, including a charter city, or city and county, to protect the public safety, health, and welfare, may adopt as an urgency measure an interim ordinance prohibiting an y uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time. That ur gency measure shall require a four-fifths vote of the le gislative body for adoption. The interim ordinance shall be of no further force and effect 45 days from its date of adoption. After notice pursuant to Section 65090 and public hearing, the le gislative body may e xtend the interim ordinance for 10 months and 15 days and subsequently extend the interim ordinance for one year . Any extension shall also require a four -fifths vote for adoption. Not more than two extensions may be adopted.
(b)  Alternatively, an interim ordinance may be adopted by a four -fifths v ote following notice pursuant to Section 65090 and public hearing, in which case it shall be of no further force and effect 45 days from its date of adoption. After notice pursuant to Section 65090 and public hearing, the le gislative body may by a four -fifths vote extend the interim ordinance for 22 months and 15 days. (c)  The legislative body shall not adopt or extend any interim ordinance pursuant to this section unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdi visions, use permits, v ariances, b uilding permits, or an y other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare. In addition, any interim ordinance adopted pursuant to this section that has the effect of denying approvals needed for the de velopment of projects with a significant component of multifamily housing may not be e xtended except upon written findings adopted by the legislative body, supported by substantial e vidence on the record, that all of the following conditions exist:
(1)  The continued appro val of the de velopment of multif amily housing projects would have a specific, adv erse impact upon the public health or safety . As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as the y existed on the date that the ordinance is adopted by the legislative body.

STATE OF CALIFORNIA

AUTHENTICATED

ELECTRONIC LEGAL MATERIAL

(2)  The interim ordinance is necessary to mitig ate or avoid the specific, adv erse impact identified pursuant to paragraph (1).
(3)  There is no feasible alternative to satisfactorily mitigate or avoid the specific, adverse impact identified pursuant to paragraph (1) as well or better , with a less burdensome or restrictive effect, than the adoption of the proposed interim ordinance. (d)  Ten days prior to the expiration of that interim ordinance or any extension, the legislative body shall issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance. (e)  When an interim ordinance has been adopted, e very subsequent ordinance adopted pursuant to this section, co vering the whole or a part of the same property , shall automatically terminate and be of no further force or effect upon the termination of the first interim ordinance or an y extension of the ordinance as pro vided in this section.
(f)  Notwithstanding subdivision (e), upon termination of a prior interim ordinance, the legislative body may adopt another interim ordinance pursuant to this section provided that the new interim ordinance is adopted to protect the public safety, health, and welfare from an e vent, occurrence, or set of circumstances dif ferent from the event, occurrence, or set of circumstances that led to the adoption of the prior interim ordinance.
(g)  For purposes of this section, “de velopment of multifamily housing projects” does not include the demolition, con version, rede velopment, or rehabilitation of multifamily housing that is af fordable to lo wer income households, as defined in Section 50079.5 of the Health and Safety Code, or that will result in an increase in the price or reduction of the number of af fordable units in a multif amily housing project.
(h)  For purposes of this section, “projects with a significant component of multifamily housing” means projects in which multifamily housing consists of at least one-third of the total square footage of the project.
(Amended by Stats. 2001, Ch. 939, Sec. 1. Effective January 1, 2002.)