PART 3 – PRIVATE LANDOWNER ENCROACHMENT(S) INTO UNIMPROVED
PORTIONS OF PUBLIC ROW
12.30.170 – Private Landowner Encroachments
(a) As a general rule, a Landowner has no authorization to construct or place Facilities in the ROW. Under special circumstances, Facilities may be allowed on a ROW provided the Landowner applies for, and enters into, an Encroachment Agreement. No placement or building of Facilities in the ROW adjacent to, or abutting, Landowner’s property shall be allowed without an Encroachment Agreement. (b) Generally, all provisions of Part(s) 1 and 2 shall apply to this Part 3; except, in the event of conflict, the provisions hereof shall apply to this Part 3. (c) The Encroachment Agreement shall be in a form approved by the City Attorney; and include all relevant provisions of this Chapter; and be enforceable by the City. As a license, the Encroachment is revocable, pursuant to Part 6 hereof, at any time. (d) Exemptions.
(1) A Landowner may install minimal, low-height landscaping (e.g., ground cover; native grasses; succulents) in the adjacent or abutting ROW without an Encroachment Agreement.
(2) A Landowner may install curb cuts and driveways if part of a permitted improvement to provide on-site parking. See RMC Chapter 12.36.
12.30.180 – Encroachment Agreement Application
(a) To apply, the Landowner shall send a letter to the City Engineer requesting an Encroachment Agreement. The Landowner’s written communication shall provide justification(s) as to why the proposed encroachment into the ROW creates a unique circumstance necessitating an Encroachment Agreement.
The Landowner’s written letter of application shall include each of the following:
(1) Name, address, and telephone number of the Applicant; (2) Name, address, and telephone number of the contractor(s) if a contractor will perform any proposed work;
(3) Location, purpose, extent, and nature of the proposed work; (4) Period of time when the proposed work will be performed; (5) Traffic and pedestrian control plan for the proposed work’s location; (6) Certificate of insurance from Applicant’s and contractor’s insurance carrier in a form satisfactory to the City;
(7) Detailed plan(s) showing all Facilities to be located in the ROW, including the material of construction; horizontal and vertical locations with respect to property and grade line(s); existing utilities; and all other pertinent Facilities; (8) The City shall provide written notice by first class mail to adjacent and abutting owners of properties located within 300 feet of the proposed Encroachment.
(9) Any other specifications, analyses, or materials required by the City Engineer to describe the work; its location in, and its effect on, the ROW, including the mode of operation, maintenance and use;
(10) Encroachment Agreement fee set forth in the City’s Master Fee Schedule. (11) A deposit sufficient to cover the cost of notice specified by Section
12.30.200, below.
(12) A deposit sufficient to cover costs of preparation and recordation of the Encroachment Agreement as determined by the City Attorney and shall include title review.
(b) When the written application for the Encroachment is submitted to the City, the Owner must also:
(1) Post and maintain notices at proposed Encroachment’s initial and terminal point(s) and every 300 feet in between, unless the length is less than 100 feet, in which case only one (1) notice need be posted at a prominent and readily visible location;
(2) Notices will be sized eleven by seventeen inches (11” x 17”) and include one (1)-inch minimum sized letters containing:
(A) Applicant’s name(s), address(es), and telephone number(s); (B) Description and diagram of proposed Encroachment;
(C) Proposed Encroachment project’s start and completion date(s); (D) Contact person’s name, address and twenty-four (24)-hour telephone number for proposed Encroachment, if different from (2)(A), above; (E) Location and date of public hearing on application; (F) Method by which interested parties may acquire a copy of said application.
(3) The notice(s) shall remain posted in good condition so long as the project is active and until its completion.
(c) In signing the application, the Landowner attests that all information in support of the application is true and correct.
12.30.190 – Findings and Conditions
(a) Applicants shall be subject to the conditions that follow below:
(1) Findings.
(A) Complete application contains all necessary, supporting information. (B) The Encroachment does not conflict with adopted street improvements or similar plans, or any in development or that can be anticipated. (C) The Encroachment does not pose a public health or safety hazard as determined by City Engineer.
(D) The Encroachment does not substantially obscure the main property frontage.
(E) The Encroachment does not adversely impact or affect adjacent properties; and/or result in Facilities discordant or inconsistent with other structures placed or erected upon the main property or in the existing ROW; and or make gratuitous use of ROW if the property is not strictly necessary for the proposed use.
(F) The Encroachment has a sufficient setback from street curbs or pavement edges and does not negatively impact the area’s reasonable use. A standard setback should be no fewer than three (3) feet, subject to City Engineer’s determination that the area’s conditions or environment allows otherwise. (G) The Encroachment conflicts with a specific condition below, but the Encroachment is warranted due to special circumstances specifically identified and addressed in the Encroachment Agreement.
(2) Conditions.
(A) Landowner shall obtain all necessary approvals from City’s Planning, Building, and Engineering Department(s), and any impacted utility companies or video service providers, prior to the placement and construction of Encroachment(s).
(B) Landowner shall provide City with Certificates of General Liability Insurance, subject to the City Attorney’s and City Manager’s satisfaction. Landowner will provide these Certificates to the City annually by the anniversary date.
Landowner must notify City thirty (30) days prior to any cancellation or change in their insurance.
(C) Placement and construction of the Encroachment, if granted, shall be solely at the landowner’s expense. City Engineer shall establish standards by which the Encroachment shall be placed and shall be constructed in conformance with same.
(D) Landowner shall maintain the Encroachment as required by City Engineer and shall remove any and all of the Encroachment without any expense to, or replacement of improvements by City or public utility company upon ninety (90) days’ notice by City, or immediately by City, whenever, in City’s opinion, the condition of the Encroachment is determined to constitute a hazard to safety, health or public welfare or the affected area is needed for municipal or public utility purposes. City Engineer may require a deposit, or other security in a form approved by the City Attorney, for any damage to infrastructure or removal of the Encroachment. Following the removal of the Encroachment, the Landowner shall restore the ROW to a condition approximately the same as the condition of the right of way prior to installation of the encroachments. (E) Landowner shall remove the curb side parking in front of the Encroachment if the City determines that public health or safety necessitates it. (F) Landowner shall maintain the area over which said Encroachment is located, in a manner the City Engineer requires, for the life of the Encroachment Agreement.
(G) Landowner shall restore the sidewalks over the Encroachment for the public use when the Encroachment is terminated, modified, deviated from the original Encroachment improvement, or rescinded by City for any reasons. (H) Landowners shall indemnify, defend, and hold harmless City and all its Councilmembers, employees, officers and agents from all liability, claims, suits, damages, attorney’s fees, costs and expenses resulting from injury or damage to persons or property which may result from the maintenance, placement and/or construction of the Encroachment.
(I) Insurance.
(i) Landowner shall provide certificates of general liability insurance satisfactory to the City Attorney and Risk Manager. Certificates of liability insurance must be provided to the City annually.
(ii) Landowner must notify City thirty (30) days prior to cancellation or change in said insurance. General Liability insurance with minimum limits of $1 million per occurrence and $2 million in the aggregate shall be maintained at all times during the term of the Encroachment Agreement. (iii) Additional insured: The City, its officers, officials, employees, agents and volunteers are to be named as additional insureds for all liability arising out of ownership, maintenance or use of the part of the premises located within the Encroachment area. An additional insured form CG 2012, or equivalent, is required. Landowner shall provide Certificate of
Insurance naming the City as additional insured with the liability insurance limit(s) of $1 million for each occurrence and $2 million in the aggregate. (iv) Landowner’s insurance coverage must be primary as it pertains to the City, and the City’s insurance or self-insurance shall not be called upon to contribute to any loss or claim.
(v) Landowner’s insurance will provide a waiver of subrogation in favor of the City by virtue of payment of loss by landowner’s insurance coverage. (vi) Landowner shall maintain continuous coverage for the life of the Encroachment Agreement. Should Landowner fail to maintain insurance as required, the City may take such action as it deems necessary to protect the City’s interests. Such action may include, but is not limited to, termination of the Encroachment Agreement or other action as the City deems appropriate.
(vii) If the Encroachment Agreement application is approved, the finalized Encroachment Agreement shall be recorded in the office of the County Recorder of Contra Costa County, California. The terms and conditions of the Encroachment Agreement shall be binding on the legal owner(s) of the property and any legal successor(s) or assign(s), including future bona fide purchaser(s).
(J) The Encroachment does not obstruct:
(i) More than nine (9) feet of a one (1)-way street travel lane, which includes space for a four (4)-foot sidewalk on one side; (ii) More than eighteen (18) feet of two (2)-way street travel lanes, which includes space for a four (4)-foot sidewalk on one side.
12.30.200 – Public Hearing Required
All Encroachment Agreement applications shall be subject to a public hearing by the granting authority, which shall be the City Council.
(a) The City Council shall conduct a public hearing on the application for an Encroachment Agreement. The City Clerk’s Office shall set a time and place for such hearing, which shall be held within thirty (30) days of the City’s receipt of a complete application.
(b) At least ten (10) days before the public hearing, the City shall make available to the public copies of the Encroachment Agreement application in the office of the City Clerk. (c) Additionally, at least ten (10) days before the hearing, if the hearing date is different than the date on the notice provided in Section 12.30.180, the date on the posted notice shall be corrected.
(d) In addition to the posting of notice, a public hearing notice shall be mailed not fewer than ten (10) days prior to the date of such hearing to all property owners having property, and each residential or other unit, within three hundred (300) feet of the application’s subject property.
(e) After receiving public comment at the hearing, the City Council shall approve, deny, or modify the Encroachment Agreement based on the required findings of Section
12.30.190 within thirty (30) days following the hearing. (f) Findings for approving an Encroachment Agreement are set forth in Section
12.30.190(a)(1)(A-G).
(g) The City shall promptly notify the Applicant in writing of its decision on the Encroachment Agreement application. The City shall also mail notice of its decision to members of the public who have requested notice.
PART 4 – EASEMENTS
12.30.210 – Easements
(a) In addition to any other method for the creation of an Easement, an Easement may be created by a recorded declaration and covenant of Easement made by an owner of real property to the City, or granted by the City, in accordance with the procedures set forth in this chapter.
(b) Purpose. An Easement may be created pursuant to this chapter for one or more of the following purposes: parking, ingress, egress, emergency access, light and air access, landscaping, open space purposes, or other purposes in accordance with law. (c) Methods of Creation.
(1) Dedication.
(A) With City’s consent, an irrevocable offer of dedication may be made of real property for any public purpose, including, but not limited to, streets, highways, paths, alleys, including access rights and abutter’s rights, drainage, open space, public utility or other public Easements, parks, or other public places.
(B) Dedication shall be executed, acknowledged, and recorded in the same manner as a conveyance of real property and in a form approved by the City Attorney.
(C) Such offer of dedication, when recorded in the office of the county recorder where the property is located, shall be irrevocable. Any offer must be accepted to be effective pursuant to section (B), above. Once the offer is recorded and irrevocable, it can be accepted by the City Council.
(D) Offer of dedication for street and highway purposes may be terminated and right to accept offer may be abandoned pursuant to the Street Vacation provisions below, in Part 5.
(E) The above procedure shall be alternative to any other procedure authorized by law.
(2) Ordinance.
(A) The City Council may adopt an ordinance pursuant to Government Code Section 65870, et seq., imposing a private covenant for a public Easement as follows:
(1) Recording a covenant of Easement made by an owner of real property to the City.
(2) At the time of the recording, all real property benefited or burdened by the covenant shall be in common ownership.
(3) Covenant shall be effective when recorded and shall act as an easement pursuant to Chapter 3 (commencing with Section 801) of Title 2 of Part 2 of Division 2 of the California Civil Code, except that it shall not merge into any other interest in the real property.
Section 1104 of the Civil Code shall be applicable to conveyance of the affected real property.
(4) A covenant of Easement so recorded shall describe the real property subject to the easement and the real property benefited thereby. The covenant of Easement shall also identify the approval, permit, or designation granted which relied upon or required the covenant.
(5) A covenant executed pursuant to this section shall be enforceable by the City. Covenants shall run with the land and shall be equitable servitudes. The City’s interest may include the streets and highways and other interests abutting the burdened property. (6) The creation or release of the interests may require review by the Planning Commission for conformity with the General Plan under California Government Code Section 65402.
(7) Ordinance shall provide a procedure for the release of the covenant. The procedure shall require a public hearing by the agency designated by the ordinance for that purpose. The hearing shall be held at the request of any person whether or not that person has title to the real property.
(8) Upon a determination that the restriction of the property is no longer necessary to achieve the City’s land use goals, a release shall be recorded by the City in the county where the restricted property is located.
(9) The ordinance may provide for the imposition of fees to recover the reasonable costs of processing the release from those persons requesting the release pursuant to this section.
PART 5 – STREET VACATIONS
12.30.220 – Street Vacations
(a) Under certain conditions, an existing public Easement may no longer be necessary due to a variety of reasons such as changed conditions, topography, etc. The property owner can seek a vacation of an Easement by submitting an application and paying the applicable fees. The City typically only has Easement-holder status in the ROW of public streets, alleys, or walks, and the adjoining property owners have the underlying fee interest. Applicant should contact a title company to perform a title search of the underlying fee interest of the proposed vacation area prior to submitting application. If the City owns the underlying fee interest, a request for purchase of the City-owned property must be processed through the appropriate City department. (b) Applications may be obtained from City Engineer. Requirements include payment of filing fees as listed in the Master Fee Agreement, signature of the Applicant, a legal description, and a scaled plot plan.
12.30.230 – Summary Vacations
(a) Pursuant to California Streets and Highways Code section 8300, et seq., if the vacation affects a street or highway, the following circumstances will qualify for a summary vacation:
(1) The street or highway has been superseded by relocation, and the vacation would not terminate all access to another person’s property or terminate a public service Easement; or
(2) For a period of five (5) consecutive years, the street or highway has been impassable for vehicular travel, and no public money was expended for maintenance purposes during the same period; or
(3) The street or highway is excess ROW and not required for street or highway purpose(s); or
(4) The portion of a street or highway to be vacated lies within property under one (1) ownership and does not continue through such ownership or end touching property of another.
(b) If the vacation would affect a public service Easement, the following circumstances would qualify for summary vacation:
(1) The Easement has not been used for its dedicated purpose for five (5) consecutive years immediately preceding the proposed vacation; or (2) The date of dedication or acquisition is fewer than five (5) years, but more than one (1) year, immediately preceding the proposed vacation, and the Easement was not used continuously since that date; or
(3) The Easement has been superseded by relocation, and there are no public facilities located within the Easement.
12.30.240 – General Vacations
If the proposed vacation does not meet any of the criteria in Section 12.30.230 it is a General vacation.
(a) City Council may, on its own initiative, may hold a public hearing on the street vacation whose process shall follow Streets and Highway Code Section 8300, et seq. and as amended from time to time.
(b) City Council’s decision is final and not subject to appeal. City Council may conditionally approve a vacation and thus any conditions must be complied with prior to the vacation becoming effective.
(c) Once the City Council adopts its Resolution of Vacation, which is then recorded with the County, the vacation shall be complete.
PART 6 – VIOLATIONS—Revocation and other penalties., REVOCATIONS,
OTHER PENALTIES, AND APPEALS
12.30.250 – Violations and Other Penalties.
Any violation of this Chapter may be enforced either as an infraction or as a, misdemeanor, or by any remedy available to the City under this Code or under State law.this Code or state or federal law(s). These provisions are equally applicable to enforcement action(s), including of Permits and Encroachment Agreements. Potential enforcement measures include but are not limited to the following::
(1a) Fine. Whenever a City Inspector finds that a video service provider, utilityanyone or special districtany entity subject to this Chapter is placing, or has placed or is placing, an encroachment in the public right-of-wayROW without the appropriate Permit, the video service provider, utility or special district shall be required toCity Inspector will require (1) stop work, if construction is on-going,ongoing; (2) applyapplication for a Permit,; and (3) pay both thepayment of Permit fee and a fine equal to the permit feesame;
(2)
(b) Violations and Penalties.
(1) Working without a Permit may result in an Administrative Citation, a Stop Work Order, and a mandate to apply and pay for the required Permit. (2) The following violations may result in an administrative citation:
(A) General.
(i) Failure to abide by the requirements of Chapter 12.30. (ii) Violation of any Permit condition(s).
(iii) Failure apply for and obtain a Permit.
(iv) Failure to maintain a Permit on-site.
(v) Improper public notice.
(B) Excavation (Streets and Paving).
(i) Failure to hold a pre-construction meeting in advance of a “Major Project.”
(ii) Improper site protection (e.g., improper plating, path of travel, barricading, etc.)
(iii) Improper trench trimming.
(iv) Trenches left open after allowed work hours when not backfilled and covered.
(v) Failure to comply with trench restoration requirements. (vi) Improper housekeeping (e.g., failure to remove spoil, dirty site, no sweeping, etc.).
(vii) Failure to provide notice will result in an Administrative Citation and a Stop Work Order.
(viii) Any other excavation code violations.
(c) Suspension. Whenever the
When City Engineer finds that a suspension of an encroachment permit is necessary to protect the protection of public health or safety from imminent danger, the necessitates suspension of Encroachment Permit, City Engineer may immediately suspend any such permitthe Permit immediately, pending a hearing for remedial action or revocation. The Engineer shall, within three (3) working days of the emergency suspension, give written notice of such .
12.30.260 – Procedures for Suspension or Revocation.
(a) Within three (3) working days of the emergency suspension to the permittee, by or revocation, City Engineer will give Permittee written notice of same. Notice shall be delivered to Permittee’s last known address by personal service or by first-class mail, postage prepaid, to the last known address of the permittee. The permittee may,.
(b) Within fifteen (15) days afterfollowing service of such a written notice offor either suspension, or revocation, Permittee may file with the City Manager a request for hearing regarding the suspension.with the City Manager or his or her designee . City Manager shall schedule a hearing on the suspension or revocation within five (5) working days of receipt of a request for hearing. If the City Manager or his or her designee,
(c) After the hearing, if City Manager finds that the public health or safety requires correction or alteration of any condition caused by, or existing on the site of, the encroachment, he or sheCity Manager shall issue one or more of the following:
(A) An1) Order to correct any particular noncompliance, (B) A;
(2) Revocation of the encroachment permit,
(C) A Permit;
(3) Continued suspension of the encroachment Encroachment Permit, until such time as the dangerous condition is corrected, (D) A;
(4) Modification or reinstatement of the encroachment Encroachment Permit, with necessary conditions as necessary to prevent public harm to the public.
The City Manager or his or her designee shall, within ten (10) days of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the City Manager or his or her designee shall be final, except a decision to revoke the permit which may be appealed to the City Council in accordance with Section
12.30.060(b) of this chapter;
(3) Revocation. The Engineer may recommend that the City (d) City Manager revoke a permit where she or he finds that:
(A)The permittee has violated any provision of this Code or condition of the permit,
(B) The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter, or
(C) The encroachment for which the permit was granted adversely affects the safety, capacity or integrity of the City's public right-of-way or increases the City's liability exposure,
(D) The encroachment is causing the City to incur substantial additional maintenance costs, or
(E) Material misrepresentations, omissions or inaccuracies were made in the application for the permit.
The Engineer shall give the permittee at least ten (10) days' written notice of a hearing before the City Manager or his or her designee on the proposed revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. If, after reviewing all evidence presented before or at the public hearing, the City Manager or his or her designee makes any one of the five findings set forth above, he or she may revoke the permit. The City Manager or his or her designee shall, within ten (10) days after the close of the hearing, shall render a written opinion, stating the findings upon which the decision is based, and the action taken. TheCity Manager’s decision of the City Manager or his or her designee may be appealed to the City Council in accordanceby filing a written appeal with Section 12.30.060(b) of this chapter the City Clerk within ten (10) business days of the date notice of the decision is mailed to the Permittee.
(Source: Ordinance No. 21-08 N.S.)
12.30.270 – Revocation.
(a) City Engineer may recommend that City Manager revoke a Permit or Encroachment Agreement when:
(1) Permittee has violated any provision of this Code or any Permit condition; or (2) Permittee fails to pay any required fees or to post or maintain any bond or insurance this Chapter requires; or
(3) Encroachment for which the Permit was granted adversely affects safety, capacity or integrity of City’s ROW or increases City’s liability exposure; or (4) Encroachment causes City to incur substantial additional maintenance costs; or
(E) Permit application contained material misrepresentations, omissions, or inaccuracies.
12.30.280 – Appeals.
(a) Decisions on Permits and Encroachment Agreements.
(1) Denial. City Engineer shall put their decision to grant or to deny a Permit in writing and deliver it to Applicant within five (5) calendar days following the decision. Notice of a decision to deny the Permit shall enumerate the reason(s) for denial.
(2) Approval. City shall post a notice of decision to approve a Permit at its Engineering Services’ public counter beginning on the date of the decision. The approval notice shall be posted at the site of the encroachment for no fewer than ten (10) calendar days beginning within five (5) calendar days from the date of City Engineer’s the decision. This cumulative period of 10 days shall be known as the “appeal period.”
(b) Appeal Period.
No Permit shall be issued until after the ten (10)-day appeal period expires. If City does not receive a timely filed appeal, it may issue the Permit after the appeal period expires.
If City receives a timely filed appeal, it shall not issue a permit until the appeal’s final resolution.
12.30.290 – Appeals and Hearings.
(a) Any person aggrieved by City Engineer’s decision may appeal by submitting a written appeal to City Clerk within fifteen (15) days of the date of the decision. Appeal fee shall be remitted as listed in the City's Master Fee Schedule at the time of appeal submission.
(b) City Council shall hold a hearing on the appeal at a regularly scheduled meeting not fewer than fourteen (14) days and not greater than forty-five (45) days after City receives the appeal. City shall provide appellant at least ten (10) days’ written notice of the hearing’s date and time. City Council’s decision on the appeal shall be final and binding.
Chapter 12.30 - VIDEO SERVICE PROVIDER, UTILITY AND SPECIAL
DISTRICT ENCROACHMENTS
12.30.010 - Purpose.
The public rights-of-way are unique public resources held in trust for the benefit of the public. These physically limited resources require proper management to maximize their efficiency and minimize the costs to taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, and to minimize the inconvenience to and negative effects on the public from use of the public rights-of-way by video service providers, utilities and special districts.
12.30.020 - Definitions.
As used in this chapter:
"Agency" means the Richmond Community Redevelopment Agency, a public body corporate and politic.
"Arterial street" means any street with a traffic volume of 7,500 to 15,000 vehicles per day, including Barrett Avenue, Castro Ranch Road, Garrard Boulevard, Harbor Way, Macdonald Avenue, Pennsylvania Avenue, Potrero Avenue, Rheem Avenue, Seventh Street, Solano Avenue and Thirty-Seventh Street.
"City" means the government of the City of Richmond, a chartered city and a municipal corporation duly organized and validly existing under the laws of the State of California, and all departments, divisions and offices thereof. "Communications service equipment" and "communications service facilities" mean the equipment and facilities used by a video service provider to provide cable or video service.
"Encroach" means constructing or placing temporary or permanent structures, improvements, facilities or materials in, on, over, or under any public right-of-way or using any right-of-way so as to prevent, obstruct, or
interfere with the normal use of that way, including, but not limited to, the performance of any of the following acts:
(1) Excavating or disturbing the public right-of-way;
(2) Erecting or maintaining any post, sign, pole, fence, guard-rail, wall, pipe, conduit, cable, wire, communication service equipment, or other facility or structure on, over, or under a public right-of-way; (3) Planting any tree, shrub, grass or other growing thing within the public right-of-way;
(4) Placing or leaving on the public right-of-way any rubbish, brush, earth or other material;
(5) Constructing, placing, or maintaining on, over, under or within a public right-of-way any pathway, sidewalk, driveway or other surfacing; any culvert or other surface drainage or subsurface drainage facility; or any pipe, conduit, wire, communication service equipment or facilities, or cable;
(6) Constructing, placing, planting or maintaining any structure, embankment, excavation, tree or other object adjacent to the public right-of-way which causes or may cause an encroachment. "Engineer" means the City Engineer, or his or her designee. "Facility" means any fiber-optic, co-axial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain; manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including curbs around planter areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls; benches; stockpiles; building materials; and other appurtenances or tangible thing located in, upon, above, beneath, or across any public right-of-way.
"Major arterial street" means any street with a traffic volume of more than 15,000 vehicles per day, including Carlson Boulevard, Central Avenue,
Cutting Boulevard, Hilltop Drive, May Road, R.H. Miller Drive, San Pablo Avenue, San Pablo Dam Road, Thirteenth Street, Twenty-Second Street and Twenty-Third Street.
"Permittee" means any person, video service provider, utility or special district that has been issued a permit pursuant to this chapter, including any lawful successor, transferee, or assignee of the original permittee. All obligations, responsibilities, and other requirements of the permittee shall be binding on successors in interest of the original permittee. "Person" means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer or employee of any of them or any other entity which is recognized by law as the subject of rights or duties, not including the City of Richmond, the Richmond Community Redevelopment Agency, or the City's or Agency's officers, employees or agents.
"Public right-of-way" means the area in, upon, above, beneath, or across any land or interest therein which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for or dedicated to the use of the general public for travel, and includes any public street, road, highway, freeway, bridge, lane, court, alley, boulevard, sidewalk, median, parkway or emergency vehicle easement.
"Public street" means the full width of the surfaced or traveled portion, including shoulders, of any road, street, path, lane or alley dedicated to, reserved for or used by or for the general public when those roads, streets, paths, lanes and alleys have been accepted as and declared to be part of the city system of public streets, except highways forming a part of the State highway system.
"Special district" means any agency of the State for the local performance of governmental or proprietary functions within limited boundaries, and includes a county service area, a maintenance district or area, an improvement district or improvement zone, or any other zone or area formed for the purpose of designating an area within which a property tax rate will be levied to pay for a service or improvement benefitting that area.
"Structure" means any physical alteration or improvement, including, but not limited to, a building, post, cabinet, fence, vault, sign, pole, guard-rail, wall, facility, pedestrian walking path, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe, embankment or excavation. "Underground utility district" has the meaning set forth in Chapter 12.48 of this Code.
"Utility" means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to State law or local franchise is entitled to install its facilities in the public rights-of-way.
"Video service" has the meaning set forth in California Public Utilities Code Section 5830(s).
"Video service provider" has the meaning set forth in California Public Utilities Code Section 5830(t) and, in addition, refers collectively to any cable operator as defined in Public Utilities Code Section 5830(b), or open-video system operator as defined in Public Utilities Code Section 5830(n).
12.30.030 - Applicability.
(a) Except as specified in subsection (b), below, before placing any encroachment in, on, over, or under any public right-of-way within the City, a video service provider, utility, or special district must obtain a permit in accordance with this chapter.
(b) Notwithstanding subsection (a), above, no permit shall be required pursuant to this chapter for any of the following:
(1) The actions of any officer or employee of the City or Agency engaged in the discharge of official duties;
(2) The performance of work under contracts to the City or Agency, including work for City or Agency projects;
(3) Encroachments existing prior to the effective date of this chapter; provided, however, that nothing in this chapter shall preclude the Engineer from requiring an appropriate permit or license for or
removal of any such preexisting encroachment where the Engineer determines the encroachment adversely affects the safety, capacity or integrity of the City's public right-of-way;
(4) Maintenance or repair by a video service provider, utility or special district of existing pipes, facilities, conduits or other structures lawfully on or under a public right-of-way where such maintenance or repair work will not disrupt traffic in an arterial or major arterial street; (5) The making of an emergency street cut or excavation in the public right-of-way by a video service provider, utility or special district to repair a broken or defective pipe, facility or conduit lawfully on or under a public arterial street, as may be necessary for the preservation of life and property when an urgent necessity therefor arises and the offices of the City are closed, provided that reasonable vehicular and pedestrian barriers or other traffic controls shall be provided during the performance of any such repairs. The video service provider, utility or special district performing the repair work shall notify the City's Engineering Department and Police Department by telephone at the time any such repair work is commenced and must apply for a permit within one calendar day after the offices of the City are again opened; (6) Tree work, including, but not limited to, planting, trimming, or removal of any new or existing tree within the public right-of-way where a permit has been issued for such work pursuant to Chapter
10.08 of this Code, and no traffic lane closure is anticipated; (7) Sidewalk cafes and restaurants, which shall be governed by the provisions and requirements of Chapter 15.04 of this Code; (8) Street closures for special events specifically approved by the City Council.
(c) Any video service provider, utility or special district encroachment that requires but does not have a permit shall be deemed a violation of this chapter and a public nuisance, which may be abated by the City pursuant to any applicable provision of law including, but not limited to, Chapter 9.22 of this Code.
12.30.040 - Application.
(a) An application for a video service provider, utility or special district encroachment permit, including renewal of an existing permit, shall be on a form prescribed by the Engineer, shall be signed by the applicant, and shall include all of the following materials unless the submittal is waived in writing by the Engineer:
(1) The name, address and telephone number of the applicant; (2) The name, address and telephone number of the contractor(s) if any proposed work is to be done by a contractor(s);
(3) The location, purpose, extent and nature of the proposed work; (4) The period of time when the proposed work will be performed; (5) A traffic and pedestrian control plan for the location of the proposed work; (6) A certificate of insurance from the applicant and contractor's insurance carrier in a form satisfactory to the City, and naming the City as additional insureds;
(7) A key map and detailed improvement plan showing all facilities to be located in the public right-of-way, including the material of construction and horizontal and vertical locations with respect to the property lines and grade lines, existing utilities and all other pertinent facilities and information required by the Engineer. Unless exempted by State law, the detailed improvement plan shall be prepared by a California Registered Professional Civil Engineer;
(8) Any other specifications, analyses or materials the Engineer may require to describe the work, its location in and its effect on the right-of-way, including the mode of operation, maintenance and use;
(9) Current maps and records of the underground facilities at the site; (10) The encroachment permit fee set forth in the City's Master Fee Schedule.
(b) For those applications where an aboveground encroachment is proposed, the Engineer shall provide written notice by first class mail to occupants and to owners (as shown on the County Assessor's latest tax roll) of properties located within 300 feet of the proposed encroachment, and to the Neighborhood Council and any homeowners' association in the neighborhood of the proposed encroachment, advising of the filing of an application for approval of an encroachment into the public right-of-way, describing the proposed encroachment and its location, and providing an opportunity to submit written comments regarding the application to the Engineer within fifteen (15) days from the date of the letter and prior to the
Engineer's action on the application. Notwithstanding the foregoing, no notice shall be required for any application limited to installation of utility poles, anchors or small cabinets less than four (4) cubic feet in size or for any underground excavations or related work.
(c) In signing the application, the applicant attests that all information provided in support of the application is true and correct. When the applicant has submitted a completed and signed application form, all supporting documents and information, and the required fee, the application will be complete. The Engineer shall act upon an application for a video service provider, utility or special district encroachment permit within sixty (60) days after the application is complete.
(d) A renewal application, supporting materials, and fee must be submitted at least sixty (60) days prior to the termination date of a video service provider, utility or special district encroachment permit or the permit may lapse. A lapsed permit may be deemed a violation of this chapter and the unpermitted encroachment may be considered a public nuisance, subject to abatement by the City pursuant to any applicable provision of law including but not limited to Chapter 9.22 of this Code.
12.30.050 - Findings and conditions.
A video service provider, utility or special district encroachment permit shall be approved by the Engineer upon making the following findings, and shall be subject to all requirements of this chapter and to all of the following conditions:
(1) Findings.
(A) The proposed encroachment has no potential for causing a significant effect on the environment.
(B) The application is complete and all of the necessary supporting information has been provided.
(C) The applicant has made reasonable efforts to erect, construct, use, operate, and maintain facilities underground; provided, however, from and after the effective date of the establishment of any underground utility district, the applicant shall erect, construct, use, operate, and
maintain its facilities underground. Where undergrounding is not feasible (except in any area declared to be an underground utility district), the applicant has made reasonable efforts to co-locate facilities on existing poles or other aboveground structures. (D) The proposed location of the facilities is the best available option to minimize adverse impacts on the use of the public right-of-way and on adjoining properties.
(E) If the application is for a renewal of an existing permit, the permittee is in compliance with the current permit and conditions. (F) With the conditions imposed, the proposed encroachment shall not be detrimental to the public health, safety and welfare. (2) Conditions.
(A) All application materials are incorporated into the permit by reference and all representations made in the application are conditions of permit approval.
(B) The permittee and all of its contractors performing work in the public right-of-way shall secure a policy of broad form commercial general liability insurance naming the City as additional insured in an amount not less than two million dollars ($2,000,000.00) per occurrence, or as approved by the City's risk manager, unless permittee is exempt by law from having to procure such insurance before establishing or maintaining any works or facilities in, on, under or above the public right-of-way. All contractors' policies secured in compliance with this condition shall be in effect for the duration of the contractor's work in the public right-of-way; all permittees' policies secured in compliance with this condition shall be in effect for as long as the encroachment remains in the public right-of-way. (C) The permittee and all of its contractors performing work in the public right-of-way shall furnish to the City, and file with the City Clerk, a corporate surety bond to guaranty the faithful performance of the construction of such work and a separate bond to secure payment of the claims of laborers, mechanics, and material suppliers employed in the construction of such work. The performance bond and payment
bond shall each be in an amount equal to one hundred percent (100%) of the total amount of the cost of construction of the work to be performed in the public right-of-way. All bonds shall be issued by a corporate surety admitted in the State of California and shall name the City as a co-obligee.
(D) All work done under the permit shall conform to standard specifications or, in the absence of standard specifications, to recognized standards of design, construction and practices in placing encroachments in, on, under or above the public right-of-way. (E) All facilities shall be constructed, operated, and maintained in the time, place and manner that cause the least interference with the public's use of the public right-of-way, the City's management and use of the right-of-way, and the rights or reasonable convenience of property owners who adjoin the public right-of-way.
(F) Except when emergency repairs are required, at least forty-eight (48) hours prior to commencing any work that will obstruct or impede the flow of vehicular and/or pedestrian traffic, the permittee shall post the area that will be affected with notifications satisfactory to the Engineer.
(G) During construction, the permittee shall keep a copy of the permit issued pursuant to this chapter at the job site.
(H) During construction and maintenance, the permittee shall provide appropriate traffic warnings, safeguards and controls, as approved by the Engineer.
(I) During construction and maintenance, the permittee shall provide temporary pedestrian access facilities as necessary to comply with local, State and Federal law, including the Americans with Disabilities Act, and with the written direction of the Engineer, if any. (J) The permittee shall maintain all structures, facilities, and landscaping within the encroachment area in a safe and clean manner, and shall at all times observe and enforce all applicable local, State, and Federal safety orders, rules and regulations.
(K) The permittee shall promptly remove all graffiti on any structure or facility within the encroachment area.
(L) The permittee shall notify the Richmond Police Department and the Engineer and shall promptly repair any damage to structures or facilities caused by criminal activity, including, but not limited to, theft of copper.
(M) As may be required by Section 4216 et seq. of the California Government Code, the permittee shall contact Underground Service Alert (USA) prior to commencing, and as appropriate during, any permitted work.
(N) Upon the request of any person who has contracted to perform work on a public right-of-way, the permittee shall provide accurate detailed information regarding the location of its existing and proposed structures in the public right-of-way.
(O) To the maximum extent allowed by law, permittee shall indemnify, defend, release, and hold harmless the City, its agents, officers, employees, boards, commissions and contractors ("Indemnitees") against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including claims for any injury to or death of any person or damage to property or other liability of any nature, including, but not limited to, Attorney's and expert fees and court costs, arising out of or connected in any way with the installation, operation and maintenance of any facilities in, or the use of any public right-of-way by, permittee or permittee's employees, officers, officials, agents, transferees, contractors or subcontractors pursuant to the permit or agreement issued under this chapter; provided, that the obligation to indemnify the City under this subsection shall not apply to any liabilities, losses, claims, actions, causes of action or demands caused by indemnitee's sole negligence, willful misconduct or criminal acts.
(P) To the maximum extent allowed by law, permittee shall indemnify, defend, release, and hold harmless Indemnitees against any claim, action or proceeding brought to attack, set aside, void or annul the environmental review process for and/or approval of a permit issued pursuant to this chapter.
(Q) The City reserves the right to inspect any structure or facility installed in the public right-of-way and to demand of the permittee timely correction of any deficiencies in operation or maintenance. The City further reserves the right to demand at any time that within ten (10) business days the permittee produce current, complete and accurate maps, plans, diagrams, and records pertaining to any structure or facility installed in the public right-of-way. (R) Installation or construction of structures and facilities in the public right-of-way shall be completed and all construction-related damage to the public right-of-way shall be repaired within two (2) years from the date the encroachment permit is issued, unless for good cause the Engineer grants a written extension of the time to complete installation, construction or repair.
(S) The permittee shall operate and use the structures and facilities placed in the public right-of-way solely and exclusively for the purposes and uses expressly stated in the application. A change in purpose, use, or operator of the structures and facilities requires approval of a transfer in accordance with Section 12.30.080 of this chapter.
(T) The Engineer reserves the right to suspend
the encroachment permit if necessary to protect the public from imminent danger and to take such action as is necessary to correct the condition posing the danger. In the event of an emergency suspension, the Engineer shall notify the permittee and provide an opportunity for a hearing in accordance with the procedures set forth in Section 12.30.090 of this chapter.
(U) If placement of structures and/or facilities in the public right-of-way conflicts with the City's construction, reconstruction or maintenance work in the public right-of-way, the permittee shall, at its own expense, relocate the structures and/or facilities in accordance with Section
12.30.070 of this chapter.
(V) When the facilities and/or structures encroaching in the public right-of-way are removed and/or abandoned, the permittee shall, at its own expense, restore the public right-of-way to a condition the same as or better than its condition before the facilities and/or structures
were installed. Failure to so restore the public right-of-way may be deemed a violation of this chapter and a public nuisance, subject to abatement by the City pursuant to any applicable provision of law including, but not limited to, Chapter 9.22 of this Code. (W) Such other reasonable conditions, including installation of facilities or structures to address accessibility and drainage, as may be deemed necessary by the Engineer to protect the public health, safety and welfare.
(X) Notwithstanding anything to the contrary in Section 12.30.050(1)(C) of this chapter, whenever any area of the City is declared to be an underground utility district, it shall be unlawful for any video service provider, utility or special district to erect, construct, use, operate or maintain their facilities aboveground.
(3) Where the insurance and indemnification conditions stated in subsection (2), above, conflict with the provisions of a franchise or other agreement between a video service provider, utility or special district and the City or State, the provisions of such franchise or other agreement shall apply. (4) A video service provider, utility or special district encroachment permit shall terminate on the date specified therein, or upon abandonment of the facilities and/or structures constructed pursuant to such permit. If no date is specified in the encroachment permit, it shall be considered to be of indeterminate duration.
12.30.060 - Posting and appeal.
(a) Posting of Decision. The Engineer's decision to grant or to deny a permit shall be in writing and shall be delivered to the applicant within five (5) calendar days of the decision. Notice of a decision to deny a permit shall specify the reason(s) for denial. Notice of a decision to approve a permit shall be posted at the City of Richmond Engineering Services public counter commencing on the date of the decision and shall be posted at the site of the approved encroachment for a period of not less than ten (10) calendar days commencing within five (5) calendar days from the date of the decision (cumulatively, the "appeal period"). No permit shall be issued until after the expiration of the appeal period, if no appeal is timely filed, or until the final resolution of any appeal.
(b) Appeal. Any person aggrieved by the Engineer's decision on a video service provider, utility or special district encroachment permit application may appeal by submitting a written appeal to the City Clerk, along with the applicable appeal fee as provided in the City's Master Fee Schedule, within fifteen (15) days of the date of the decision. The City Council shall hold a hearing on the appeal at a regularly scheduled meeting not less than fourteen (14) days and not more than forty-five (45) days after receipt of the appeal, and shall give the applicant and the appellant at least ten (10) days written notice of the date and time of the hearing. The decision by the City Council on the appeal shall be final.
12.30.070 - Relocation of facilities.
(a) If any future construction, reconstruction or maintenance work is required by the City or Agency in the public right-of-way that necessitates the relocation, removal or abandonment of an encroachment, the permittee shall relocate, remove or abandon the encroachment at the permittee's sole expense, unless such requirement is in conflict with any applicable State or local statute or franchise.
(b) When relocation is required, the Engineer shall make written demand of the permittee that the encroachment be relocated within the public right-ofway to a satisfactory location provided by the Engineer, and shall designate a reasonable time for such relocation or removal. In determining what is a reasonable time under this section, the Engineer shall take into consideration the nature of the encroachment, the urgency of the need for its removal, the cost of its removal, the difficulty of its removal, the value of the property to the owner, and other facts peculiar to the particular situation.
12.30.080 - Transfer.
No video service provider, utility or special district encroachment permit may be transferred by the permittee to another person or entity without the express written consent of the Engineer, at his or her sole discretion.
12.30.090 - Violations—Revocation and other penalties.
Any violation of this Chapter may be enforced either as an infraction or as a misdemeanor, or by any remedy available to the City under this Code or
under State law. Potential enforcement measures include but are not limited to the following:
(1) Fine. Whenever a City inspector finds that a video service provider, utility or special district subject to this chapter has placed or is placing an encroachment in the public right-of-way without the appropriate permit, the video service provider, utility or special district shall be required to (1) stop work, if construction is on-going, (2) apply for a permit, and (3) pay both the permit fee and a fine equal to the permit fee;
(2) Suspension. Whenever the Engineer finds that a suspension of an encroachment permit is necessary to protect the public health or safety from imminent danger, the Engineer may immediately suspend any such permit pending a hearing for remedial action or revocation.
The Engineer shall, within three (3) working days of the emergency suspension, give written notice of such suspension to the permittee, by personal service or by first class mail, postage prepaid, to the last known address of the permittee. The permittee may, within fifteen (15) days after service of such a written notice of suspension, file with the City Manager a request for hearing regarding the suspension. The City Manager or his or her designee shall schedule a hearing on the suspension within five (5) working days of receipt of a request for hearing. If the City Manager or his or her designee, after the hearing, finds that the public health or safety requires correction or alteration of any condition caused by, or existing on the site of
the encroachment, he or she shall issue one or more of the following:
(A) An order to correct any particular noncompliance,
(B) A revocation of the encroachment permit,
(C) A continued suspension of the encroachment permit, until such time as the dangerous condition is corrected,
(D) A modification or reinstatement of the encroachment permit, with conditions as necessary to prevent harm to the public.
The City Manager or his or her designee shall, within ten (10) days of the hearing, render a written opinion, stating the findings upon which the
decision is based, and the action taken. The decision of the City Manager or his or her designee shall be final, except a decision to revoke the permit which may be appealed to the City Council in accordance with Section
12.30.060(b) of this chapter;
(3) Revocation. The Engineer may recommend that the City Manager revoke a permit where she or he finds that:
(A)The permittee has violated any provision of this Code or condition of the permit,
(B) The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter, or (C) The encroachment for which the permit was granted adversely affects the safety, capacity or integrity of the City's public right-of-way or increases the City's liability exposure,
(D) The encroachment is causing the City to incur substantial additional maintenance costs, or
(E) Material misrepresentations, omissions or inaccuracies were made in the application for the permit.
The Engineer shall give the permittee at least ten (10) days' written notice of a hearing before the City Manager or his or her designee on the proposed revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. If, after reviewing all evidence presented before or at the public hearing, the City Manager or his or her designee makes any one of the five findings set forth above, he or she may revoke the permit. The City Manager or his or her designee shall, within ten (10) days after the close of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the City Manager or his or her designee may be appealed to the City Council in accordance with Section 12.30.060(b) of this chapter.
(Source: Ordinance No. 21-08 N.S.)
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Chapter 12.29 - STREET OPENING AND PAVEMENT RESTORATION REGULATIONS
12.29.010 - Purpose.
The public right-of-way is a unique public resource held in trust for the benefit of the public. This physically limited resource requires proper management to maximize its efficiency and minimize the costs to taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public right-of-way, and to minimize the inconvenience to and negative effects on the public from use of the public right-of-way by contractors and utility companies.
To achieve the purpose of this chapter, the City of Richmond shall endeavor to coordinate its Capital Improvement Programs with those of utility companies and franchisees with facilities in, on, under or above the public right-of-way. Information about any planned work in the right-of-way shall be shared at the earliest possible time. Utility owners and franchisees are encouraged to coordinate their street excavations so that all work is done simultaneously and the street is not excavated more than once within a twelve-month period.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.020 - De�nitions.
As used in this chapter:
"Agency" means the Richmond Community Redevelopment Agency, a public body corporate and politic.
"Arterial street" means any street with a traffic volume of 7,500 to 15,000 vehicles per day, including Barrett Avenue, Castro Ranch Road, Garrard Boulevard, Harbour Way, MacDonald Avenue, Pennsylvania Avenue, Potrero Avenue, Rheem Avenue, Seventh Street, Solano Avenue, and Thirty-Seventh Street. "Asphalt concrete" or "AC" means blend of aggregate and asphalt binder meeting the specifications set forth in the City of Richmond Standard Specifications Section 39, "Asphalt Concrete" and the Caltrans Standard Specifications Section 39, "Asphalt Concrete." "Chip seal" (see the definition of "Slurry seal").
"City" means the City of Richmond, a charter city and a municipal corporation duly organized and validly existing under the laws of the State of California, and all departments, divisions, and offices thereof.
"Encroach" means constructing or placing temporary or permanent structures, improvements, facilities or materials in, on, over, or under any public right-of-way or using any right-of-way so as to
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prevent, obstruct, or interfere with the normal use of that way, including but not limited to the performance of any of the following acts:
(1)
(2)
(3)
(4)
(5)
(6)
Excavating or disturbing the public right-of-way;
Erecting or maintaining any post, sign, pole, fence, guard-rail, wall, pipe, conduit, cable, wire, communication service equipment, or other facility or structure on, over, or under a public right-of-way;
Planting any tree, shrub, grass, or other growing thing within the public right-of-way; Placing or leaving on the public right-of-way any rubbish, brush, earth, or material; Constructing, placing, or maintaining on, over, under, or within a public right-of-way any pathway, sidewalk, driveway, or other surfacing; any culvert or other surface drainage or subsurface drainage facility; or any pipe, conduit, wire, communication service equipment or facility, or cable;
Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the public right-of-way which causes or may cause an encroachment.
"Engineer" means the City Engineer, his or her designee. "Excavation" means any trench cuts within the street right-of-way to access or install a utility line or any related facility in excess of four (4) square feet or four (4) feet long, whichever is smaller. All such excavations shall require an encroachment permit.
"Excavator" means the applicant/permittee to whom an encroachment permit is issued for the purposes of excavation.
"Facility" means any fiberoptic, coaxial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain; manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including curbs around planter areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls; benches; stockpiles; building materials; and other appurtenances or tangible things located in, upon, above, beneath, or across any public right-of-way. "Major arterial street" means any street with a traffic volume of more than 15,000 vehicles per day, including Carlson Boulevard, Central Avenue, Cutting Boulevard, Hilltop Drive, May Road, Robert H. Miller Drive, San Pablo Avenue, San Pablo Dam Road, Thirteenth Street, Twenty-Second Street, and TwentyThird Street. "Major defects" means any defects greater than the deficiency tolerances specified in the City of
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Richmond Standard Plans and Details; the Caltrans Standard Specifications and Details; or Individual Contract Plans and Specifications.
"Micro paving" (see the definition of "Slurry seal").
"Micro surfacing" (see the definition of "Slurry seal"). "Permittee" means any person, contractor, utility or special district that has been issued a permit pursuant to this chapter, including any lawful successor, transferee, or assignee of the original permittee.
All obligations, responsibilities, and other requirements of the permittee shall be binding on successors in interest of the original permittee.
"Person" means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer, or employee of any of them or any other entity which is recognized by law as the subject of rights or duties, not including the City of Richmond, the Richmond Community Redevelopment Agency, or the City's or Agency's officers, employees, or agents.
"Prohibition street" means streets that have been reconstructed or resurfaced within the past three to five years (see Section 12.29.030.A, below).
"Public right-of-way" means the area in, upon, above, beneath, or across any land or interest which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for or dedicated to the use of the general public for travel, and includes any public street, road, highway, freeway, bridge, lane, court, alley, boulevard, sidewalk, median, parkway, or emergency vehicle easement.
"Public street" means the full width of the surfaced or travel portion, including shoulders, of any road, street, path, lane, or alley dedicated to, reserved for, or used by or for the general public when those roads, streets, paths, lanes, and alleys have been accepted as and declared to be part of the City system of public streets, except highways forming a part of the State highway system. "Slurry seal" means a mixture of polymer modified asphalt emulsion, mineral aggregate, mineral filler, water, and other additives, properly proportioned, mixed, and spread in accordance with the City of Richmond Standard Plans and Details and the Caltrans Standard Specifications; usually less than ½ inches in thickness.
"Special district" means any agency of the State for the local performance of governmental or proprietary functions within limited boundaries, and includes a county service area, a maintenance district or area, an improvement district or improvement zone, or any other zone or area within which a property tax or assessment will be levied to pay for a service or improvement benefitting that area. "Street overlay" means one or more courses of asphalt construction on an existing pavement; usually
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greater than ½ inches in thickness; generally includes an asphalt leveling course to correct the contour of the old pavement.
"Structure" means any physical alteration or improvement, including but not limited to a building, post, cabinet, fence, vault, sign, pole, guard rail, wall, facility, pedestrian walking path, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe, embankment, or excavation. "Underground utility district" has the meaning set forth in Chapter 12.48 of the Richmond Municipal Code.
"Utility" means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to State law or local franchise is entitled to install its facilities in the public right-of-way.
"Wearing surface defects" mean the defects in the surface of a roadway that is in direct contact with traffic and that resists the resulting abrading, crushing, or other disintegrating action. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.030 - Prohibition period.
(a) Newly constructed or resurfaced streets shall be termed "prohibition streets" within this section. Permission to excavate in prohibition streets will not be granted for five (5) years after the completion of street overlays. An overlay consists of at least a ½-inch thick layer of asphalt.
For those streets with chip seal, slurry seal coating, or micro paving with less than ½ inch of new pavement, the prohibition period shall be for three (3) years. Utilities shall plan well enough in advance to determine alternate methods of making necessary repairs to avoid excavating in newly resurfaced streets. Exceptions to the above policy are as follows:
(1)
(2)
(3)
(4)
(5)
Emergencies that endanger life or property.
Interruption of essential utility service.
Work that is mandated by City, State, or Federal law.
Service for buildings where no other reasonable means of providing service exists.
Situations in which no alternative course of action exists, as determined by the engineer in writing setting forth the facts giving rise to the conclusion that no alternative exists. (b) To excavate in a prohibition street a waiver must be obtained. (1) To request a waiver, the applicant must submit a written request to the engineer. The request must include:
(A)
(B)
The location of the excavation.
Description of the work to be performed.
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(C)
(D)
(E)
(F)
The reason(s) the work was not performed before the street was paved.
The reason(s) the work cannot be deferred until after the prohibition period.
The reason(s) the work cannot be performed at another location.
The reason(s) it is justified to excavate the prohibition street. (2) Any excavation in prohibition streets will be repaired with full lane width paving on the street as follows (refer also to Section 12.29.070, Paving):
(A)
(B)
(C)
(D)
Overlaid or reconstructed streets: All lanes that are affected shall be ground down 2 inches and repaved with 2 inches of asphalt concrete, OR all lanes that are affected shall be resurfaced per Section 12.29.070, Paving.
Slurry sealed, chip sealed, or micro surfaced streets: All lanes that are affected shall be resurfaced per Section 12.29.070, Paving.
A minimum of one (1) feet on either side of the trench shall be resurfaced if the excavation is a lateral cut. For longitudinal trenches the entire length plus one (1) foot on either end shall be resurfaced.
Exception: Full lane width restoration shall not be required if either of the following conditions apply:
(i)
(ii)
The work is not considered an excavation as defined in Section 12.29.020.
The work is being performed on behalf of a low-income household in order to bring an owner-occupied single-family residence into compliance with sanitary sewer regulations at any time other than as part of the sale of the residence. Lowincome is defined as 80% of area median family income. The purpose of this exception is to prevent hardship to property owners of limited means and it shall be interpreted and applied solely to achieve that purpose. (3) Before issuing a permit for work in a prohibition street, the engineer will verify that the applicant has analyzed all feasible alternatives to make the necessary repairs using a trenchless method in prohibition streets to avoid excavating a newly resurfaced street whenever possible.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.040 - Permits.
(a) Any and all construction work within the public right-of-way shall require an encroachment permit. Anyone doing excavation work within the City of Richmond public right-of-way shall obtain a street cut permit for the purpose of excavation in addition to any other required permits. The contractor performing the work shall apply for the permit.
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(b)
(c)
The permit application may be obtained from the City of Richmond Engineering Services Department.
Prior to applying for a street cut permit, the excavator must register with the City of Richmond.
The contractor performing the work shall apply for the permit. The following must be provided to register for an excavation permit:
(1)
(2)
(3)
(4)
(5)
A cash deposit equal to five hundred dollars ($500) or 25% of the value of the work (whichever is greater) as a warranty bond. Companies working under a franchise agreement that includes a bond are not required to post the cash deposit unless/until they have been issued a notice or citation for a violation by the City of Richmond standards or permit requirements.
A current City of Richmond Business License.
Current evidence of insurance.
24-hour phone number for emergencies.
The name, telephone number, and mailing address (fax number, cell phone, and e-mail address if available) of the person who will receive all office correspondence from the City of Richmond.
(d) All applications shall include plans indicating the following:
(1)
(2)
(3)
(4)
(5)
Name of the street to be excavated and the nearest cross street.
Distance of proposed excavation from the face of curb.
Distance of proposed excavation from the intersection.
The size of the excavation (length and width).
The location of any above ground facilities to be installed, showing:
(A)
(B)
(C)
(D)
Distance from curb and any street facilities/furnishings.
Purpose of the facility.
Size of the facility.
Location of doors and door swings.
(6) The location of any existing underground facilities and the location of underground facilities to be installed showing:
(A)
(B)
(C)
(D)
Conduit vaults, maintenance holes, pipes, etc.
Structural detail and additional information for structures to be installed such as vaults and maintenance holes.
The construction method of the structure to be installed.
Construction detail, location, size, design criteria and the purpose of the facility to be
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installed.
(7) Cross section of a typical trench indicating:
(A)
(B)
(C)
(D)
The approximate depth of the facility to be installed.
Trench backfill depth, compaction and layer depths.
Pavement section detail (type and depths).
Plans, structural details, and trench cross section must be signed and stamped by a licensed civil engineer, when legally required.
(8)
(9)
The plan may show the approximate location of the excavation provided that on an "asbuilt" plan, the exact location of the excavation is shown. The "as-built" plan shall be submitted prior to the permit being finalized.
A traffic control plan.
(e) All excavation permit fees are due at the time the permit is issued. These fees represent the value of staff time in processing a permit application and are non-refundable. (1)
(2)
All past due fees, fines and penalties owed by the applicant must be paid before a permit will be issued.
If a permit violation occurs no other application will be processed until the fines and penalties have been paid and all permit conditions are met. (f)
(g)
(h)
If an account is past due or not in good standings, a permit cannot be issued until the account is brought into good standing. To bring the account to good standing, all fees and fines must be paid.
As a condition of the permit to excavate, the applicant shall provide evidence of an inquiry identification number issued by a regional notification center (Underground Service Alert, USA) pursuant to Section 4216, California Government Code.
Permittees and excavators shall pay close attention to the location and alignment of all USA markings while performing their work.
USA Codes are:
Electric Red
Gas-Oil Yellow
Communication-CATV Orange
Water Blue
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Sewer Green
Temporary Survey Markings Pink
Proposed Excavation White
(i)
(j)
(k)
(l)
If an excavator damages other facilities during their excavation work the excavator will need an additional street cut permit if additional excavation and trenches are needed to repair the damaged facility. The original permittee shall maintain the site and restore the pavement and any affected signage or striping.
Except in an emergency, street cut permits shall be taken out in advance of excavation work.
An emergency is considered to exist only when life or property is endangered or when an essential utility service is or may be interrupted during weekends, holidays, or between 5:00 p.m. and 8:00 a.m. of normal working days.
In the event of an emergency, the excavator shall notify the City of Richmond and apply for a street cut permit for "emergency work" within four (4) hours after the City of Richmond's office opens.
Pre-construction meeting:
(1)
(2)
(3)
(4)
A pre-construction meeting shall be held for all projects that are scheduled to take longer than 15 working days to complete.
The owner, contractor, any other agency that is involved and the City of Richmond shall attend this meeting.
For projects that are supposed to be completed within 15 days, and are not completed within the allowed time, the City may issue administrative citations if a pre-construction meeting was not held.
The traffic control plan shall be approved prior to the pre-construction meeting. (m) Permit duration shall be indicated on the permit:
(1)
(2)
(3)
All permits shall include estimated start and completion dates. A permit is valid from the construction start date specified on the approved permit until the specified completion date.
Excavation permits are not valid if other required permits are not obtained or required notifications are not given.
No disruption of traffic is allowed after 4:00 p.m. and before 8:00 a.m. unless specifically
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approved for these hours.
(4) Some permits may be valid on specific dates. They may be approved with special conditions specifying dates:
(A)
(B)
(C)
When work shall be done.
When work shall be completed.
Before which work shall not start.
(5) Permits expire and become void, unless otherwise amended:
(A)
(B)
(C)
Sixty (60) days after the start date, if no work has begun.
If the work is not diligently proceeding and there are delays of more than four (4) working days after the work has started, unless the delays are caused by weather or other circumstances beyond the permittee's control.
When the excavation, including the trench restoration, is completed or on the date specified on the permit as the expiration date.
(6) The work is determined to be proceeding diligently if:
(A)
(B)
After a project begins, work continues on a regular basis, except for weekends, holidays, inclement weather, labor disputes, or any emergency beyond the control of the permittee.
The permittee ensures that all necessary materials and supplies are on hand and ready for use so as not to delay the excavation and the prompt restoration of the public right-of-way.
(n)
(o)
A valid permit may be extended be requesting an extension prior to the expiration date by specifying the dates that need to be changed and explaining the reason for the extension. The engineer reserves the right to deny a request for extension.
If an application has been withdrawn or an approved permit is cancelled prior to the start of work the applicant or permittee may request a refund of the bond funds; all other permit fees are non-refundable.
(1)
(2)
To request a refund, submit a written request to the engineer.
The request shall include:
(A)
(B)
The reason for cancellation or withdrawal.
The permit number.
(p) By accepting a street cut and/or encroachment permit, the permittee and the owner of the facility(ies) for which the permit has been issued agree:
(1)
(2)
To follow all laws, rules, regulations, and permit conditions.
To assure that their employees, contractors, and subcontractors, comply with all laws,
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rules, regulations, and permit conditions.
(3) To indemnify the City of Richmond against all claims for personal injury or property damage that may arise in connection with the work.
(q)
(r)
The street cut and/or encroachment permit shall be available during work periods at the excavation site, until the project is completed and approved by the engineer. Permit(s) shall be shown to the City of Richmond employees upon request.
The excavator shall provide public notifications when excavating in the public right-of-way. (1) Minor projects lasting longer than 48 hours but less than 15 working days shall provide 11″ × 17″ posters with 1-inch minimum letters at the beginning and end of the project and every 300 feet between the beginning and the end of the project. Notes must contain:
(A)
(B)
The names, address, and telephone number of the owner and the permittee.
The start and completion dates of the project.
(2) Major projects lasting 15 working days or longer, the excavator shall:
(A) After the permit has been issued and at least five but no more than 30 calendar days before the anticipated start date of work, mail or deliver written notice to:
(i)
(ii)
(iii)
Residents and occupants along the affected street.
Schools, churches, and other assembly uses within 300 feet of the affected street.
The City of Richmond Engineering Services and Public Works Departments. (B) At least five calendar days but not more than 15 calendar days prior to starting work, post and maintain 11″ × 17″ notices in accordance with paragraph (r)(1) above. The notices must contain:
(i)
(ii)
(iii)
(iv)
The name, address, and telephone number of the owner and the permittee.
A description of the project.
The start and completion dates of the project.
The name, address and 24-hour telephone number of a contact person. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.050 - Excavation material.
(a)
(b)
(c)
Pavement shall be cut to a straight, neat, vertical line prior to excavation.
All excavated material shall be removed from the job site within twenty-four (24) hours.
Every trench must be backfilled or covered by trench plates the same day. The City may issue administrative citations or pursue any other legal remedy if the trenches are not properly covered or backfilled in a timely manner. Backfill must meet the requirements specified in
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Section 12.29.060 of this chapter.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.060 - Back�ll.
(a)
(b)
(c)
Trenches shall be backfilled with Class 2 Aggregate Base as specified in the Caltrans Standard Specifications Section 26, "Aggregate Base" or suitable material as required by the City of Richmond Standard Plans and Specifications. Compaction of backfill shall be in accordance with the City of Richmond Standards.
When undermining occurs, remove existing pavement as required to compact the backfill and restore the pavement.
Compaction tests shall be certified by an independent laboratory and submitted to the engineer, who may require the contractor to recompact and retest until the test results show that proper compaction is being achieved.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.070 - Paving.
(a) Trenches shall be paved in accordance with the City of Richmond Standard Plans and Specifications. After the trench has been backfilled, and immediately prior to placing asphalt concrete, the existing asphalt concrete shall be saw cut, or milled according to City of Richmond Standards, to a vertical face. The cut shall be a "T-Cut" according to City of Richmond Standards and the new asphalt concrete paving shall be butt joined to the existing asphalt concrete vertical face. No feathering of new paving to existing paving is allowed. The vertical faces shall be tack coated. In prohibition streets, placement of the final two (2) inches of asphalt concrete wearing surface shall be done by a paving machine or spreader box.
Asphalt concrete shall be delivered and compacted in accordance with the City of Richmond Standard Plans and Specifications.
To allow for proper placement of the new pavement section, damaged pavement outside of the original trench cut lines shall be removed by cutting in lines perpendicular to or parallel to the original trench lines. No diagonal cuts are to be made. Undamaged pavement of three (3) feet or less between two damaged areas shall also be removed.
(b)
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For trenches in recently paved prohibition streets, the entire lane shall be key-cut two (2) inches deep, and repaved with asphalt concrete unless the engineer gives written authorization to resurface with a polymer modified slurry seal instead. Authorization from the engineer to use slurry seal instead of asphalt concrete shall set forth the reasons for the authorization. (c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
For trenches in recently slurry sealed prohibition streets, the entire lane shall be resurfaced with polymer modified slurry seal.
Trenches in concrete streets shall be repaved with concrete. The thickness of the new pavement shall be equal to the thickness of the existing pavement with the minimum thickness to be six (6) inches in the roadway.
Trenches in arterial and collector streets shall be paved with not less than six (6) inches asphalt concrete or match the existing pavement thickness (whichever is greater).
Pavement shall be restored within fourteen (14) working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather. For minor excavations such as service installations, the pavement shall be restored with in thirty (30) working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather.
Asphalt pavement shall be compacted to obtain a minimum of ninety-five percent (95%) relative compaction. The asphalt concrete wearing surface shall have no irregularity greater than five-sixteenths of an inch ( 5/16 ″) in ten feet (10′) in any direction.
On all streets steel plates shall be used to facilitate traffic flow and to protect the excavation until finish pavement is restored. Steel plates used to bridge a street opening shall be ramped to the elevation on the adjacent pavement and secured against movement in any direction.
Temporary ramps shall be constructed of asphalt and shall have a gradual 30:1 slope or flatter using asphalt cutback.
All painted USA markings shall be removed by the permittee after the work has been completed.
All damaged pavement markings and striping shall be replaced and restored by the permittee. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.080 - Defects.
(a) Depressed trench pavement shall be repaired as follows:
(1)
(2)
Wearing surface defects—Remove and restore wearing surface.
Major defects—Excavate, remove and restore surface and base.
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The permit inspector will determine the severity of the defect. (b)
(c)
(d)
(e)
Work not in compliance with the above requirements shall be rejected, removed, and redone by the permittee to the satisfaction of the engineer.
The owner of the facility/utility company is responsible for any roadway defects in the area over and adjacent to the trench appearing after the permittee restores the trench. The owner is responsible for maintenance, repair or reconstruction of the excavation site's affected area until the City of Richmond reconstructs, repaves, or resurfaces the street.
If there is a trench-related failure after the City of Richmond reconstructs, repaves, or resurfaces the street, the owner of the facility/utility company is responsible for its repair if the failure occurs within 1 year of a trench repair.
When the City of Richmond determines that an excavation or a defect is hazardous or constitutes a public nuisance or other imminent threat to public health, safety, or welfare, the engineer may order the responsible party to remedy the condition immediately.
If the responsible party refuses or fails to make the needed repairs immediately, the City of Richmond will make the repairs and:
(1)
(2)
(3)
The responsible party will be charged all the actual costs including administration, construction, consultant fees, equipment, inspection, notification, and remediation made necessary by the action or inaction of the permittee.
The repair or restoration by the City of Richmond does not relieve the responsible party from liability for future pavement failures.
If the responsible party fails or refuses to pay the restoration cost, the City may use any legal means to recover the costs, including but not limited to property liens and/or court action.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.090 - Violations—Revocation and other penalties.
Any violation of this chapter may be enforced either as an infraction or as a misdemeanor, or by any remedy available to the City under this Code or under State law. Potential enforcement measures include but are not limited to the following:
(a) Fine. If a City inspector finds that a contractor has committed any of the following violations then the contractor may be required to pay a fine or penalty for his or her actions. The penalties for violations are listed in the City's Master Fee Schedule.
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VIOLATIONS PENALTIES
(Not to exceed amount shown)
1. Working without a permit. Administrative
citation, stop work, and apply and pay for
the required permit
2. Excavation without providing public
notice.
Administrative
citation and stop work
3. Beginning a
"Major Project" without having a preconstruction meeting.
Administrative
citation
4. Violation of
permit conditions.
Administrative
citation
5. Improper site
protection: improper plating, path of travel,
barricading, etc.
Administrative
citation
6. No permit on site. Administrative
citation
7. Improper trimming of trench. Administrative
citation
8. Any trench left open after the allowed
work hours that is
not back�lled and covered.
Administrative
citation
9. Improper public notice: no notice sign,
wrong information on sign/notice.
Administrative
citation
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10. Non-compliance with trench restoration
requirements.
Administrative
citation
11.Improper housekeeping: failure to
remove spoil, dirty site, no sweeping, etc.
Administrative
citation
12. Other excavation code violations. Administrative
citation
The above fines, when assessed, shall be deducted from the cash deposit required by 12.29.040(e)(1) of this section or will be paid by the applicant if there is not a cash deposit. (b) Suspension. Whenever the engineer finds that a suspension of an encroachment permit is necessary to protect the public health or safety from imminent danger, the engineer may immediately suspend any such permit pending a hearing for remedial action or revocation.
The engineer shall, within three (3) working days of the emergency suspension, give a written notice of such suspension to the permittee, by personal service or by first class mail, postage prepaid, to the last known address of the permittee. The permittee may, within fifteen (15) days after service of such a written notice of suspension, file with the City Manager a request for hearing regarding the suspension. The City Manager or his or her designee shall schedule a hearing on the suspension within five (5) working days of receipt of a request for hearing. If the City Manager or his or her designee, after the hearing, finds that the public health or safety requires correction or alteration of any condition caused by, or existing on the site of the encroachment, he or she shall issue one or more of the following:
(1)
(2)
(3)
(4)
An order to correct any particular noncompliance.
A revocation of the encroachment permit.
A continued suspension of the encroachment permit, until such time as the dangerous condition is corrected.
A modification or reinstatement of the encroachment permit, with conditions as necessary to prevent harm to the public.
The City Manager or his or her designee shall, within ten (10) days of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the City Manager or his or her designee shall be final, except a decision to revoke the permit which may be appealed to the City Council in accordance with Section 12.30.060.B of this Code.
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(c) Revocation. The engineer may recommend that the City Manager revoke a permit where he or she finds that:
(1)
(2)
(3)
(4)
(5)
The permittee has violated any provision of this Code or conditions of the permit; or The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; or
The encroachment for which the permit was granted adversely affects the safety, capacity, or integrity of the City's public right-of-way or increases the City's liability exposure; or The encroachment is causing the City to incur substantial additional maintenance costs; or Material misrepresentations, omissions, or inaccuracies were made in the application for the permit.
The engineer shall give the permittee at least ten (10) days' written notice of a hearing before the City Manager or his or her designee on the proposed revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. If, after reviewing all evidence presented before or at the public hearing, the City Manager or his or her designee makes any one of the five findings set forth above, he or she may revoke the permit. The City Manager or his or her designee shall, within ten (10) days after the close of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the City Manager or his or her designee may be appealed to the City Council in accordance with Section 12.30.060.B of this Code. (Ord. No. 39-09 N.S., § I, 12-1-2009)
Chapter 12.29 - STREET OPENING AND PAVEMENT RESTORATION REGULATIONS
12.29.010 - Purpose.
The public right-of-way is a unique public resource held in trust for the benefit of the public. This physically limited resource requires proper management to maximize its efficiency and minimize the costs to taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public right-of-way, and to minimize the inconvenience to and negative effects on the public from use of the public right-of-way by contractors and utility companies.
To achieve the purpose of this chapter, the City of Richmond shall endeavor to coordinate its Capital Improvement Programs with those of utility companies and franchisees with facilities in, on, under or above the public right-of-way. Information about any planned work in the right-of-way shall be shared at the earliest possible time. Utility owners and franchisees are encouraged to coordinate their street excavations so that all work is done simultaneously and the street is not excavated more than once within a twelve-month period.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.020 - De�nitions.
As used in this chapter:
"Agency" means the Richmond Community Redevelopment Agency, a public body corporate and politic.
"Arterial street" means any street with a traffic volume of 7,500 to 15,000 vehicles per day, including Barrett Avenue, Castro Ranch Road, Garrard Boulevard, Harbour Way, MacDonald Avenue, Pennsylvania Avenue, Potrero Avenue, Rheem Avenue, Seventh Street, Solano Avenue, and Thirty-Seventh Street. "Asphalt concrete" or "AC" means blend of aggregate and asphalt binder meeting the specifications set forth in the City of Richmond Standard Specifications Section 39, "Asphalt Concrete" and the Caltrans Standard Specifications Section 39, "Asphalt Concrete." "Chip seal" (see the definition of "Slurry seal").
"City" means the City of Richmond, a charter city and a municipal corporation duly organized and validly existing under the laws of the State of California, and all departments, divisions, and offices thereof.
"Encroach" means constructing or placing temporary or permanent structures, improvements, facilities or materials in, on, over, or under any public right-of-way or using any right-of-way so as to Richmond, CA Code of Ordinances about:blank
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(1)
(2)
(3)
(4)
(5)
(6)
prevent, obstruct, or interfere with the normal use of that way, including but not limited to the performance of any of the following acts:
Excavating or disturbing the public right-of-way;
Erecting or maintaining any post, sign, pole, fence, guard-rail, wall, pipe, conduit, cable, wire, communication service equipment, or other facility or structure on, over, or under a public right-of-way;
Planting any tree, shrub, grass, or other growing thing within the public right-of-way; Placing or leaving on the public right-of-way any rubbish, brush, earth, or material; Constructing, placing, or maintaining on, over, under, or within a public right-of-way any pathway, sidewalk, driveway, or other surfacing; any culvert or other surface drainage or subsurface drainage facility; or any pipe, conduit, wire, communication service equipment or facility, or cable;
Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the public right-of-way which causes or may cause an encroachment.
"Engineer" means the City Engineer, his or her designee. "Excavation" means any trench cuts within the street right-of-way to access or install a utility line or any related facility in excess of four (4) square feet or four (4) feet long, whichever is smaller. All such excavations shall require an encroachment permit.
"Excavator" means the applicant/permittee to whom an encroachment permit is issued for the purposes of excavation.
"Facility" means any fiberoptic, coaxial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain; manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including curbs around planter areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls; benches; stockpiles; building materials; and other appurtenances or tangible things located in, upon, above, beneath, or across any public right-of-way. "Major arterial street" means any street with a traffic volume of more than 15,000 vehicles per day, including Carlson Boulevard, Central Avenue, Cutting Boulevard, Hilltop Drive, May Road, Robert H. Miller Drive, San Pablo Avenue, San Pablo Dam Road, Thirteenth Street, Twenty-Second Street, and TwentyThird Street. "Major defects" means any defects greater than the deficiency tolerances specified in the City of Richmond, CA Code of Ordinances about:blank
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Richmond Standard Plans and Details; the Caltrans Standard Specifications and Details; or Individual Contract Plans and Specifications.
"Micro paving" (see the definition of "Slurry seal").
"Micro surfacing" (see the definition of "Slurry seal"). "Permittee" means any person, contractor, utility or special district that has been issued a permit pursuant to this chapter, including any lawful successor, transferee, or assignee of the original permittee.
All obligations, responsibilities, and other requirements of the permittee shall be binding on successors in interest of the original permittee.
"Person" means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer, or employee of any of them or any other entity which is recognized by law as the subject of rights or duties, not including the City of Richmond, the Richmond Community Redevelopment Agency, or the City's or Agency's officers, employees, or agents.
"Prohibition street" means streets that have been reconstructed or resurfaced within the past three to five years (see Section 12.29.030.A, below).
"Public right-of-way" means the area in, upon, above, beneath, or across any land or interest which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for or dedicated to the use of the general public for travel, and includes any public street, road, highway, freeway, bridge, lane, court, alley, boulevard, sidewalk, median, parkway, or emergency vehicle easement.
"Public street" means the full width of the surfaced or travel portion, including shoulders, of any road, street, path, lane, or alley dedicated to, reserved for, or used by or for the general public when those roads, streets, paths, lanes, and alleys have been accepted as and declared to be part of the City system of public streets, except highways forming a part of the State highway system. "Slurry seal" means a mixture of polymer modified asphalt emulsion, mineral aggregate, mineral filler, water, and other additives, properly proportioned, mixed, and spread in accordance with the City of Richmond Standard Plans and Details and the Caltrans Standard Specifications; usually less than ½ inches in thickness.
"Special district" means any agency of the State for the local performance of governmental or proprietary functions within limited boundaries, and includes a county service area, a maintenance district or area, an improvement district or improvement zone, or any other zone or area within which a property tax or assessment will be levied to pay for a service or improvement benefitting that area. "Street overlay" means one or more courses of asphalt construction on an existing pavement; usually Richmond, CA Code of Ordinances about:blank
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(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1)
(A)
(B)
greater than ½ inches in thickness; generally includes an asphalt leveling course to correct the contour of the old pavement.
"Structure" means any physical alteration or improvement, including but not limited to a building, post, cabinet, fence, vault, sign, pole, guard rail, wall, facility, pedestrian walking path, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe, embankment, or excavation. "Underground utility district" has the meaning set forth in Chapter 12.48 of the Richmond Municipal Code.
"Utility" means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to State law or local franchise is entitled to install its facilities in the public right-of-way.
"Wearing surface defects" mean the defects in the surface of a roadway that is in direct contact with traffic and that resists the resulting abrading, crushing, or other disintegrating action. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.030 - Prohibition period.
Newly constructed or resurfaced streets shall be termed "prohibition streets" within this section. Permission to excavate in prohibition streets will not be granted for five (5) years after the completion of street overlays. An overlay consists of at least a ½-inch thick layer of asphalt.
For those streets with chip seal, slurry seal coating, or micro paving with less than ½ inch of new pavement, the prohibition period shall be for three (3) years. Utilities shall plan well enough in advance to determine alternate methods of making necessary repairs to avoid excavating in newly resurfaced streets. Exceptions to the above policy are as follows:
Emergencies that endanger life or property.
Interruption of essential utility service.
Work that is mandated by City, State, or Federal law.
Service for buildings where no other reasonable means of providing service exists.
Situations in which no alternative course of action exists, as determined by the engineer in writing setting forth the facts giving rise to the conclusion that no alternative exists.
To excavate in a prohibition street a waiver must be obtained.
To request a waiver, the applicant must submit a written request to the engineer. The request must include:
The location of the excavation.
Description of the work to be performed.
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(C)
(D)
(E)
(F)
(2)
(A)
(B)
(C)
(D)
(i)
(ii)
(3)
(a)
The reason(s) the work was not performed before the street was paved.
The reason(s) the work cannot be deferred until after the prohibition period.
The reason(s) the work cannot be performed at another location.
The reason(s) it is justified to excavate the prohibition street.
Any excavation in prohibition streets will be repaired with full lane width paving on the street as follows (refer also to Section 12.29.070, Paving):
Overlaid or reconstructed streets: All lanes that are affected shall be ground down 2 inches and repaved with 2 inches of asphalt concrete, OR all lanes that are affected shall be resurfaced per Section 12.29.070, Paving.
Slurry sealed, chip sealed, or micro surfaced streets: All lanes that are affected shall be resurfaced per Section 12.29.070, Paving.
A minimum of one (1) feet on either side of the trench shall be resurfaced if the excavation is a lateral cut. For longitudinal trenches the entire length plus one (1) foot on either end shall be resurfaced.
Exception: Full lane width restoration shall not be required if either of the following conditions apply:
The work is not considered an excavation as defined in Section 12.29.020.
The work is being performed on behalf of a low-income household in order to bring an owner-occupied single-family residence into compliance with sanitary sewer regulations at any time other than as part of the sale of the residence. Lowincome is defined as 80% of area median family income. The purpose of this exception is to prevent hardship to property owners of limited means and it shall be interpreted and applied solely to achieve that purpose.
Before issuing a permit for work in a prohibition street, the engineer will verify that the applicant has analyzed all feasible alternatives to make the necessary repairs using a trenchless method in prohibition streets to avoid excavating a newly resurfaced street whenever possible.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.040 - Permits.
Any and all construction work within the public right-of-way shall require an encroachment permit. Anyone doing excavation work within the City of Richmond public right-of-way shall obtain a street cut permit for the purpose of excavation in addition to any other required permits. The contractor performing the work shall apply for the permit.
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The permit application may be obtained from the City of Richmond Engineering Services Department.
Prior to applying for a street cut permit, the excavator must register with the City of Richmond.
The contractor performing the work shall apply for the permit. The following must be provided to register for an excavation permit:
A cash deposit equal to five hundred dollars ($500) or 25% of the value of the work (whichever is greater) as a warranty bond. Companies working under a franchise agreement that includes a bond are not required to post the cash deposit unless/until they have been issued a notice or citation for a violation by the City of Richmond standards or permit requirements.
A current City of Richmond Business License.
Current evidence of insurance.
24-hour phone number for emergencies.
The name, telephone number, and mailing address (fax number, cell phone, and e-mail address if available) of the person who will receive all office correspondence from the City of Richmond.
All applications shall include plans indicating the following:
Name of the street to be excavated and the nearest cross street.
Distance of proposed excavation from the face of curb.
Distance of proposed excavation from the intersection.
The size of the excavation (length and width).
The location of any above ground facilities to be installed, showing:
Distance from curb and any street facilities/furnishings.
Purpose of the facility.
Size of the facility.
Location of doors and door swings.
The location of any existing underground facilities and the location of underground facilities to be installed showing:
Conduit vaults, maintenance holes, pipes, etc.
Structural detail and additional information for structures to be installed such as vaults and maintenance holes.
The construction method of the structure to be installed.
Construction detail, location, size, design criteria and the purpose of the facility to be Richmond, CA Code of Ordinances about:blank
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installed.
Cross section of a typical trench indicating:
The approximate depth of the facility to be installed.
Trench backfill depth, compaction and layer depths.
Pavement section detail (type and depths).
Plans, structural details, and trench cross section must be signed and stamped by a licensed civil engineer, when legally required.
The plan may show the approximate location of the excavation provided that on an "asbuilt" plan, the exact location of the excavation is shown. The "as-built" plan shall be submitted prior to the permit being finalized.
A traffic control plan.
All excavation permit fees are due at the time the permit is issued. These fees represent the value of staff time in processing a permit application and are non-refundable.
All past due fees, fines and penalties owed by the applicant must be paid before a permit will be issued.
If a permit violation occurs no other application will be processed until the fines and penalties have been paid and all permit conditions are met.
If an account is past due or not in good standings, a permit cannot be issued until the account is brought into good standing. To bring the account to good standing, all fees and fines must be paid.
As a condition of the permit to excavate, the applicant shall provide evidence of an inquiry identification number issued by a regional notification center (Underground Service Alert, USA) pursuant to Section 4216, California Government Code.
Permittees and excavators shall pay close attention to the location and alignment of all USA markings while performing their work.
USA Codes are:
Electric Red
Gas-Oil Yellow
Communication-CATV Orange
Water Blue
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Sewer Green
Temporary Survey Markings Pink
Proposed Excavation White
If an excavator damages other facilities during their excavation work the excavator will need an additional street cut permit if additional excavation and trenches are needed to repair the damaged facility. The original permittee shall maintain the site and restore the pavement and any affected signage or striping.
Except in an emergency, street cut permits shall be taken out in advance of excavation work.
An emergency is considered to exist only when life or property is endangered or when an essential utility service is or may be interrupted during weekends, holidays, or between 5:00 p.m. and 8:00 a.m. of normal working days.
In the event of an emergency, the excavator shall notify the City of Richmond and apply for a street cut permit for "emergency work" within four (4) hours after the City of Richmond's office opens.
Pre-construction meeting:
A pre-construction meeting shall be held for all projects that are scheduled to take longer than 15 working days to complete.
The owner, contractor, any other agency that is involved and the City of Richmond shall attend this meeting.
For projects that are supposed to be completed within 15 days, and are not completed within the allowed time, the City may issue administrative citations if a pre-construction meeting was not held.
The traffic control plan shall be approved prior to the pre-construction meeting.
Permit duration shall be indicated on the permit:
All permits shall include estimated start and completion dates. A permit is valid from the construction start date specified on the approved permit until the specified completion date.
Excavation permits are not valid if other required permits are not obtained or required notifications are not given.
No disruption of traffic is allowed after 4:00 p.m. and before 8:00 a.m. unless specifically Richmond, CA Code of Ordinances about:blank
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approved for these hours.
Some permits may be valid on specific dates. They may be approved with special conditions specifying dates:
When work shall be done.
When work shall be completed.
Before which work shall not start.
Permits expire and become void, unless otherwise amended:
Sixty (60) days after the start date, if no work has begun.
If the work is not diligently proceeding and there are delays of more than four (4) working days after the work has started, unless the delays are caused by weather or other circumstances beyond the permittee's control.
When the excavation, including the trench restoration, is completed or on the date specified on the permit as the expiration date.
The work is determined to be proceeding diligently if:
After a project begins, work continues on a regular basis, except for weekends, holidays, inclement weather, labor disputes, or any emergency beyond the control of the permittee.
The permittee ensures that all necessary materials and supplies are on hand and ready for use so as not to delay the excavation and the prompt restoration of the public right-of-way.
A valid permit may be extended be requesting an extension prior to the expiration date by specifying the dates that need to be changed and explaining the reason for the extension. The engineer reserves the right to deny a request for extension.
If an application has been withdrawn or an approved permit is cancelled prior to the start of work the applicant or permittee may request a refund of the bond funds; all other permit fees are non-refundable.
To request a refund, submit a written request to the engineer.
The request shall include:
The reason for cancellation or withdrawal.
The permit number.
By accepting a street cut and/or encroachment permit, the permittee and the owner of the facility(ies) for which the permit has been issued agree:
To follow all laws, rules, regulations, and permit conditions.
To assure that their employees, contractors, and subcontractors, comply with all laws, Richmond, CA Code of Ordinances about:blank
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rules, regulations, and permit conditions.
To indemnify the City of Richmond against all claims for personal injury or property damage that may arise in connection with the work.
The street cut and/or encroachment permit shall be available during work periods at the excavation site, until the project is completed and approved by the engineer. Permit(s) shall be shown to the City of Richmond employees upon request.
The excavator shall provide public notifications when excavating in the public right-of-way.
Minor projects lasting longer than 48 hours but less than 15 working days shall provide 11″ × 17″ posters with 1-inch minimum letters at the beginning and end of the project and every 300 feet between the beginning and the end of the project. Notes must contain:
The names, address, and telephone number of the owner and the permittee.
The start and completion dates of the project.
Major projects lasting 15 working days or longer, the excavator shall:
After the permit has been issued and at least five but no more than 30 calendar days before the anticipated start date of work, mail or deliver written notice to:
Residents and occupants along the affected street.
Schools, churches, and other assembly uses within 300 feet of the affected street.
The City of Richmond Engineering Services and Public Works Departments.
At least five calendar days but not more than 15 calendar days prior to starting work, post and maintain 11″ × 17″ notices in accordance with paragraph (r)(1) above. The notices must contain:
The name, address, and telephone number of the owner and the permittee.
A description of the project.
The start and completion dates of the project.
The name, address and 24-hour telephone number of a contact person. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.050 - Excavation material.
Pavement shall be cut to a straight, neat, vertical line prior to excavation.
All excavated material shall be removed from the job site within twenty-four (24) hours.
Every trench must be backfilled or covered by trench plates the same day. The City may issue administrative citations or pursue any other legal remedy if the trenches are not properly covered or backfilled in a timely manner. Backfill must meet the requirements specified in Richmond, CA Code of Ordinances about:blank
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Section 12.29.060 of this chapter.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.060 - Back�ll.
Trenches shall be backfilled with Class 2 Aggregate Base as specified in the Caltrans Standard Specifications Section 26, "Aggregate Base" or suitable material as required by the City of Richmond Standard Plans and Specifications. Compaction of backfill shall be in accordance with the City of Richmond Standards.
When undermining occurs, remove existing pavement as required to compact the backfill and restore the pavement.
Compaction tests shall be certified by an independent laboratory and submitted to the engineer, who may require the contractor to recompact and retest until the test results show that proper compaction is being achieved.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.070 - Paving.
Trenches shall be paved in accordance with the City of Richmond Standard Plans and Specifications. After the trench has been backfilled, and immediately prior to placing asphalt concrete, the existing asphalt concrete shall be saw cut, or milled according to City of Richmond Standards, to a vertical face. The cut shall be a "T-Cut" according to City of Richmond Standards and the new asphalt concrete paving shall be butt joined to the existing asphalt concrete vertical face. No feathering of new paving to existing paving is allowed. The vertical faces shall be tack coated. In prohibition streets, placement of the final two (2) inches of asphalt concrete wearing surface shall be done by a paving machine or spreader box.
Asphalt concrete shall be delivered and compacted in accordance with the City of Richmond Standard Plans and Specifications.
To allow for proper placement of the new pavement section, damaged pavement outside of the original trench cut lines shall be removed by cutting in lines perpendicular to or parallel to the original trench lines. No diagonal cuts are to be made. Undamaged pavement of three (3) feet or less between two damaged areas shall also be removed.
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For trenches in recently paved prohibition streets, the entire lane shall be key-cut two (2) inches deep, and repaved with asphalt concrete unless the engineer gives written authorization to resurface with a polymer modified slurry seal instead. Authorization from the engineer to use slurry seal instead of asphalt concrete shall set forth the reasons for the authorization.
For trenches in recently slurry sealed prohibition streets, the entire lane shall be resurfaced with polymer modified slurry seal.
Trenches in concrete streets shall be repaved with concrete. The thickness of the new pavement shall be equal to the thickness of the existing pavement with the minimum thickness to be six (6) inches in the roadway.
Trenches in arterial and collector streets shall be paved with not less than six (6) inches asphalt concrete or match the existing pavement thickness (whichever is greater).
Pavement shall be restored within fourteen (14) working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather. For minor excavations such as service installations, the pavement shall be restored with in thirty (30) working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather.
Asphalt pavement shall be compacted to obtain a minimum of ninety-five percent (95%) relative compaction. The asphalt concrete wearing surface shall have no irregularity greater than five-sixteenths of an inch ( 5/16 ″) in ten feet (10′) in any direction.
On all streets steel plates shall be used to facilitate traffic flow and to protect the excavation until finish pavement is restored. Steel plates used to bridge a street opening shall be ramped to the elevation on the adjacent pavement and secured against movement in any direction.
Temporary ramps shall be constructed of asphalt and shall have a gradual 30:1 slope or flatter using asphalt cutback.
All painted USA markings shall be removed by the permittee after the work has been completed.
All damaged pavement markings and striping shall be replaced and restored by the permittee. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.080 - Defects.
Depressed trench pavement shall be repaired as follows:
Wearing surface defects—Remove and restore wearing surface.
Major defects—Excavate, remove and restore surface and base.
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The permit inspector will determine the severity of the defect.
Work not in compliance with the above requirements shall be rejected, removed, and redone by the permittee to the satisfaction of the engineer.
The owner of the facility/utility company is responsible for any roadway defects in the area over and adjacent to the trench appearing after the permittee restores the trench. The owner is responsible for maintenance, repair or reconstruction of the excavation site's affected area until the City of Richmond reconstructs, repaves, or resurfaces the street.
If there is a trench-related failure after the City of Richmond reconstructs, repaves, or resurfaces the street, the owner of the facility/utility company is responsible for its repair if the failure occurs within 1 year of a trench repair.
When the City of Richmond determines that an excavation or a defect is hazardous or constitutes a public nuisance or other imminent threat to public health, safety, or welfare, the engineer may order the responsible party to remedy the condition immediately.
If the responsible party refuses or fails to make the needed repairs immediately, the City of Richmond will make the repairs and:
The responsible party will be charged all the actual costs including administration, construction, consultant fees, equipment, inspection, notification, and remediation made necessary by the action or inaction of the permittee.
The repair or restoration by the City of Richmond does not relieve the responsible party from liability for future pavement failures.
If the responsible party fails or refuses to pay the restoration cost, the City may use any legal means to recover the costs, including but not limited to property liens and/or court action.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.090 - Violations—Revocation and other penalties.
Any violation of this chapter may be enforced either as an infraction or as a misdemeanor, or by any remedy available to the City under this Code or under State law. Potential enforcement measures include but are not limited to the following:
Fine. If a City inspector finds that a contractor has committed any of the following violations then the contractor may be required to pay a fine or penalty for his or her actions. The penalties for violations are listed in the City's Master Fee Schedule.
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VIOLATIONS PENALTIES
(Not to exceed amount shown)
1. Working without a permit. Administrative
citation, stop work, and apply and pay for
the required permit
2. Excavation without providing public
notice.
Administrative
citation and stop work
3. Beginning a
"Major Project" without having a preconstruction meeting.
Administrative
citation
4. Violation of
permit conditions.
Administrative
citation
5. Improper site
protection: improper plating, path of travel,
barricading, etc.
Administrative
citation
6. No permit on site. Administrative
citation
7. Improper trimming of trench. Administrative
citation
8. Any trench left open after the allowed
work hours that is
not back�lled and covered.
Administrative
citation
9. Improper public notice: no notice sign,
wrong information on sign/notice.
Administrative
citation
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10. Non-compliance with trench restoration
requirements.
Administrative
citation
11.Improper housekeeping: failure to
remove spoil, dirty site, no sweeping, etc.
Administrative
citation
12. Other excavation code violations. Administrative
citation
The above fines, when assessed, shall be deducted from the cash deposit required by 12.29.040(e)(1) of this section or will be paid by the applicant if there is not a cash deposit.
Suspension. Whenever the engineer finds that a suspension of an encroachment permit is necessary to protect the public health or safety from imminent danger, the engineer may immediately suspend any such permit pending a hearing for remedial action or revocation.
The engineer shall, within three (3) working days of the emergency suspension, give a written notice of such suspension to the permittee, by personal service or by first class mail, postage prepaid, to the last known address of the permittee. The permittee may, within fifteen (15) days after service of such a written notice of suspension, file with the City Manager a request for hearing regarding the suspension. The City Manager or his or her designee shall schedule a hearing on the suspension within five (5) working days of receipt of a request for hearing. If the City Manager or his or her designee, after the hearing, finds that the public health or safety requires correction or alteration of any condition caused by, or existing on the site of the encroachment, he or she shall issue one or more of the following:
An order to correct any particular noncompliance.
A revocation of the encroachment permit.
A continued suspension of the encroachment permit, until such time as the dangerous condition is corrected.
A modification or reinstatement of the encroachment permit, with conditions as necessary to prevent harm to the public.
The City Manager or his or her designee shall, within ten (10) days of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the City Manager or his or her designee shall be final, except a decision to revoke the permit which may be appealed to the City Council in accordance with Section 12.30.060.B of this Code.
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Revocation. The engineer may recommend that the City Manager revoke a permit where he or she finds that:
The permittee has violated any provision of this Code or conditions of the permit; or The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; or
The encroachment for which the permit was granted adversely affects the safety, capacity, or integrity of the City's public right-of-way or increases the City's liability exposure; or The encroachment is causing the City to incur substantial additional maintenance costs; or Material misrepresentations, omissions, or inaccuracies were made in the application for the permit.
The engineer shall give the permittee at least ten (10) days' written notice of a hearing before the City Manager or his or her designee on the proposed revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. If, after reviewing all evidence presented before or at the public hearing, the City Manager or his or her designee makes any one of the five findings set forth above, he or she may revoke the permit. The City Manager or his or her designee shall, within ten (10) days after the close of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the City Manager or his or her designee may be appealed to the City Council in accordance with Section 12.30.060.B of this Code. (Ord. No. 39-09 N.S., § I, 12-1-2009)
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May 17, 2022
City Attorney's Office
DATE: May 17, 2022
TO: Mayor Butt and Members of the City Council
FROM: Dave Aleshire, Interim City Attorney
Subject: Point Molate DDA Closing Issues with Winehaven Legacy, LLC.
FINANCIAL IMPACT: The sale price is $45M with half going to the City and half to Upstream and Guidiville Rancheria of California
(Upstream/Tribe). The timely closing of Disposition and Development Agreement with Winehaven Legacy LLC
(“Developer”) will result with City receiving $22.5M and $2M+ for reimbursement from Developer of City costs.
Additionally, with the payment to Upstream/Tribe, various claims are resolved, and the lis pendens is released.
Failure to close will result in sale of development areas to Upstream/Tribe for $400.
PREVIOUS COUNCIL
ACTION:
Various.
STATEMENT OF THE
ISSUE:
To summarize status of outstanding items due from
Developer under the DDA prior to closing and seek City
Council guidance of items with respect to modification
and approval to occur post-closing. Critical items are
approval of (i) a financial plan; (ii) MSD Capital as
Guarantor of obligations; and (iii) an extension to close of 30 days with Upstream/Tribe requesting payment of
$110,000.
RECOMMENDED ACTION: REVIEW the latest submittals from SunCal and provide direction – City Attorney’s Office (Dave
Aleshire 510-620-6509).
AGENDA
REPORT
May 17, 2022
DISCUSSION:
This staff report provides a brief history of the acquisition of the Point Molate Property, (ii) the lawsuit and settlement with Upstream and Guidiville Tribe pursuant to the Amended Judgment; and (iii) status of closing of the sale to Winehaven Legacy LLC pursuant to the Disposition and Development Agreement.
PROPERTY HISTORY
In 2003, the US Navy transferred that certain real property consisting of 270 acres of upland and 134 acres of tidal and submerged real property (“Property”) to the City of Richmond (“City”).
In 2004, the City and Guidiville Rancheria of California and Upstream Point Molate LLC (jointly “Plaintiffs”) executed that certain Land Disposition Agreement which was subsequently amended (“LDA”). In 2012, the Plaintiffs filed a lawsuit in Federal court against the City alleging, among other things, that the City breached that LDA and the covenant of good faith and fairly dealing and for unjust enrichment. In November of 2019, after 7 long years of expensive litigation, the lawsuit was finally amicably resolved by the parties pursuant to that certain “Amended Judgment” issued by the Federal Court (“Judgment”). The Judgment was entered by the Court on November 21, 2019 (“Effective Date”) and is binding on the Property.
Judgment Requirements
The Judgment mandates that 270 acres of upland area, thirty percent (30%) was to be “development areas” and seventy percent (70%) was to be open space. The Judgment also defines four (4) areas within the Property as “Development Areas.” The City was provided the opportunity to market the Development Areas with an outside sale date being the earlier of (i) 30 months from the Effective Date; or (ii) 24 months after issuing the last discretionary approval (“Outside Sale Date”).
If the City successfully sells the Property, “net” revenues from the sale are to split equally between (i) the City, and (ii) the Plaintiffs. “Net” revenues are determined as the gross sales price less all costs incurred by the City with respect to the Sale.
If the City does not consummate the sale of the Development Areas by the Outside Sale Date, the Plaintiffs have the option to acquire (“Option”) all or any portion of the Development Areas (“Option Property”) from the City for $100 per Development Area (for a maximum amount of $400).
If the Option is exercised by the Plaintiffs, the Plaintiffs must thereafter market and sell the Option Property within 5 years. The Plaintiffs or their transferees can pursue alternate development of the Acquired Option Property (or portions thereof) although new approvals would be subject to the City’s discretion.
May 17, 2022
Upon Plaintiffs ultimately selling the Option Property, the Plaintiffs are obligated to transfer 50% of the Net Proceeds to the City.
The Judgment provides for various reporting obligations of the Parties as well as auditing rights with respect to the calculation of the “Net Revenues.”
WINEHAVEN DDA
The principal goal of the Judgment was to induce the sale of the Property, preferably to a capable developer, and use the proceeds to satisfy Upstream/Tribe claims. This occurred on September 30, 2020, when the City executed that certain Disposition and Development Agreement (“DDA”) with Winehaven Legacy, LLC (“Developer”) for the sale of all the Development Areas for $45M (“Sale Price”).
Concurrently with the DDA, the City and Developer also executed that certain Development Agreement dated October 20, 2020, which was recorded against the Property on October 23, 2020, as Instrument No. 2020-247749 in the Official Records of Contra Costa County. The proposed project anticipates 1,260 new residential units plus a mix of uses in rehabilitated historic buildings and 250,000 square feet of new construction in the Winehaven Historic District.
Pursuant to the Judgment, the Outside Sale Date for closing the sale to Developer is May 21, 2022.
Pursuant to the DDA, Developer is required to reimburse the City for all costs which it incurred including, but not limited to, attorney fees, reports, processing fees, etc.as set forth in the DDA (“Reimbursement Amounts”). Furthermore, the DDA requires Developer to pay all closing costs for the sale (title, escrow, documentary transfer taxes, etc.).
CFD AND GENERAL FUND IMPACT
The DDA included a tentative financing plan, which included the proposal for a Community Facilities District (CFD) to finance the extensive public facilities and services of police and fire needed for the development. The CFD was intended to prevent the Project from having an impact on the General Fund. Extensive finance projections and studies were prepared. The Developer made changes to try and eliminate financial impact on the General Fund. On March 18, 2022, the City Council concluded the impact could not be eliminated and disapproved the CFD. The Resolution is Attachment A.
STATUS OF DDA CLOSING REQUIREMENTS
On May 9, 2022, Interim City Attorney David Aleshire sent Developer a letter summarizing the pending issues required to be resolved prior to the Closing. See Attachment B. Most items have been resolved but those below remain. This will be updated at the meeting if status changes occur.
May 17, 2022
Closing Requirements Status as of Date of this Report
1. Parcel map filed Completed
2. Transfer of remediation
responsibility
Pending, but expected to be completed prior
to closing.
3. “Approved Guarantor” to be
reviewed and approved by
City.
Guaranty provides
completion security for the
Phase I Master
Improvements (rough
estimate of $130M)
Guarantor will be MSD Capital (a private
investment firm originally started by Michael Dell
of Dell Computer)
Requested audited financial statements to
determine if qualified. Pending receipt.
Financial information will be reviewed by Mark
Northcross for City. City acceptance of
Approved Guarantor pending.
4. Conceptual plans for Phase 1 Developer submitted in March. Staff has reviewed and made comments. Plans are not
finalized so guaranty will cover future approved
plans. City needs to move final approval to be
post-closing.
5. City approval of Master
Financing Plan
Developer must resubmit revised Financing Plan
to City. City approval pending receipt.
6. Evidence of availability of
funds.
MSD Capital (equity partner) to submit letter to
City confirming its commitment to invest equity
funds in Winehaven sufficient for Closing.
Pending receipt of letter.
7. Reimbursement obligations
(entitlement fund, litigation
fund, pre-development fund)
Developer is delinquent with respect to a number
of funding requirements. Staff is calculating
amounts due which will be paid through escrow
at closing. Pending determination of total
amounts due.
8. FF&E for fire station In process between City and Developer.
Pending but expected to be finalized before
closing.
May 17, 2022
EXTENSION REQUESTED FROM PLAINTIFFS
City has requested that Plaintiffs grant an extension of 30 days to the Outside Closing Date.
On May 11, 2022, Plaintiffs stated that they are willing to grant a 30-day extension for a payment of $110,000. Plaintiffs assert that any extension of the Outside Closing Date would require Court approval as a modification of the Judgment, but the City does not believe that the Court approval is required. Plaintiffs can contractually agree to not exercise the Option under the Judgment. Based on emails, the Plaintiffs agree if the parties agree on an extension, that will probably be a workable solution to accomplish the extension while remaining in compliance with the Judgment.
The City objected to the payment demand as unnecessary and unfair. However, the payment request has been communicated to Developer suggesting that they consider making the payment.
CONSEQUENCES OF ALTERNATIVES:
If the sale to Developer is not consummated, the Property with all current entitlements will be sold to Plaintiffs for $400. Plaintiffs will have the right to sell the Property within 5 years. The City would share in sale proceeds, and Property reverts to the City if not sold by Upstream/Tribe. Since the Property is entitled, its development cannot be prohibited. If Property Sold to Developer per DDA:
City will receive $22.5M in cash at the closing.
Plaintiffs will receive $22.5M in cash at the closing. At closing, City will also receive approximately $2M+ in cash for various Developer reimbursement obligations.
In adopting Resolution No. 33-22, the City Council has expressed doubts that the Project will be financeable or that General Fund impact will be avoided.
If Property NOT Sold to Developer per DDA:
Upstream/Tribe will have option to buy all Development Areas for $400. Upstream/Tribe will attempt to sell the Development Areas over a period of 5 years with City receiving fifty percent (50%) of the Net Proceeds at the closing of the sale(s). Upstream/Tribe or transferees can seek alternate development plan.
Recovering all reimbursement amounts from Developer may be difficult.
May 17, 2022
Developer will likely sue the City for breach of the DDA alleging their failure to close is the result of City’s breach.
Even though Upstream/Tribe would receive the Property, they may sue the City for failing to close the sale to Developer permitting them to receive $22.5M.
DOCUMENTS ATTACHED:
Attachment A – March 18 Resolution Disapproving CFD
Attachment B – Letter from Dave Aleshire to Developer
01337.0021/775248.1 NG-U9ZQVMF2/4889-7097-7799v6/200952-0001 A-1
EXHIBIT B
DESCRIPTION OF THE FACILITIES, SERVICES AND INCIDENTAL EXPENSES
TYPES OF FACILITIES
CFD No. 2022-1, on behalf of itself and each improvement area thereof, is hereby authorized to finance the costs of the purchase, construction, expansion, improvement, or rehabilitation of facilities permitted under the Mello-Roos Act from the proceeds of special taxes and bonds issued by CFD No. 2022-1, including, without limitation:
CITY FACILITIES
The types of City Facilities that are proposed to be financed by CFD No. 2022-1 with the proceeds of special taxes and bonds issued by CFD No. 2022-1 consist of backbone infrastructure needed for new and existing development (both within the project limits as well as offsite improvements), such as roadway, bridge, sewer, dry utilities, storm drain, sea wall, street and parkway landscaping, curb and gutter, medians, median landscaping, traffic signals, entry signage, parks, trails, police facilities, fire facilities, and appurtenances and appurtenant work.
The description of City Facilities is general in nature. The final nature and location of the City Facilities will be determined upon preparation of final plans and specifications. Addition, deletion or modification of descriptions of the City Facilities may be made consistent with the requirements of the City Council of the City, CFD No. 2022-1 and the Act.
EAST BAY MUNICIPAL UTILITIES DISTRICT (“EBMUD”) FACILITIES The proposed EBMUD Facilities include the construction, purchase, modification, expansion, improvement and/or rehabilitation of public facilities to be owned and operated by EBMUD including, without limitation, water system facilities and acquisition of water system capacity.
The EBMUD Facilities listed herein are representative of the types of facilities authorized to be financed by CFD No. 2022-1. Detailed scope and limits of specific projects will be determined as appropriate, consistent with the standards of the EBMUD. Addition, deletion or modification of descriptions of the EBMUD Facilities may be made consistent with the requirements of the governing board of the EBMUD, CFD No. 2022-1 and the Act. The Facilities are necessary for CFD No. 2022-1 (and each improvement area thereof) and are generally intended to comply with the requirements of the City.
The description of Facilities is general in nature. The final nature and location of the Facilities will be determined upon preparation of final plans and specifications.
Any Facility authorized to be financed by CFD No. 2022-1 may be financed through the construction and acquisition of the Facility or through the payment of fees for such Facility.
The Facilities constructed or acquired may be located within or outside CFD No. 2022-1.
The Facilities to be financed shall include all hard and soft costs associated with the Facilities, including the costs of the acquisition of land and rights-of-way, the costs of design, B
engineering and planning, the costs of any environmental or traffic studies, surveys or other reports, costs related to landscaping and irrigation, soils testing, permits, plan check, and inspection fees, insurance, legal and related overhead costs, coordination and supervision and any other costs or appurtenances related to any of the foregoing as may be further defined in one or more acquisition agreements with the developer of the property in CFD No. 2022-1.
TYPES OF SERVICES
The types of Services that are proposed to be provided by CFD No. 2022-1 and funded with the proceeds of special taxes levied by CFD No. 2022-1 consist of services permitted to be financed under the Mello-Roos Community Facilities Act of 1982 including, without limitation, police and fire protection, ambulance and paramedic services, street sweeping, traffic signal maintenance and the maintenance of City-owned parks, parkways and open spaces, lighting, flood and storm protection services and the operation of storm drainage systems. All of the services to be financed must be in addition to those provided within the boundaries of CFD No. 2022-1 before CFD No. 2022-1 is created, and shall not supplant services already available within that territory when CFD No. 2022-1 is created.
TYPES OF INCIDENTAL EXPENSES
The Incidental Expenses to be paid from bond proceeds and/or special taxes include:
All costs associated with the creation of CFD No. 2022-1, the issuance of the Obligations, the determination of the amount of special taxes to be levied, costs incurred in order to carry out the authorized purposes of CFD No. 2022-1, including legal fees, fees of consultants, engineering, planning, designing and the annual costs to administer CFD No. 2022-1 and any Obligations.
B-2 Page 1531 of 1760
SQ.FT. UNITS EPS DPFG TOTAL RATE UNITS PPH POPULATION SERVED Owner-OccupiedLDR 185 $1,400,000 $576,000 $106,560,000 5.0% 176 - 495 495 MDR 0 $0 $0 $0 5.0% 0 - 0 0
HDR/Townhomes 173 $1,175,000 $432,000 $74,736,000 5.0% 164 - 461 461 HDR/Condo 802 $1,250,000 $416,000 $333,632,000 5.0% 762 - 2,141 2,141Subtotal 1,160 $514,928,000 Renter-OccupiedHDR/Townhomes 68 $400,000 $128,000 $8,704,000 5.0% 65 - 183 183 HDR/Condo 157 $450,000 $144,000 $22,608,000 5.0% 149 - 419 419 Affordable 67 $0 $0 5.0% 64 - 180 180Subtotal 292 $31,312,000 Residential Subtotal 1,452 $546,240,000NonresidentialHistoric Retail 20,000 - $300 $300 $6,000,000 10.0% 18,000 250 72 36 Historic Office 352,580 - $350 $350 $123,403,000 10.0% 317,322 250 1,269 635New Retail 35,000 - $300 $300 $10,500,000 10.0% 31,500 250 126 63New Office 31,194 - $350 $350 $10,917,900 10.0% 28,075 400 70 35New Public 15,000 - $0 $0 $0 10.0% 13,500 0 0 0Subtotal 453,774 $150,820,900 1,537 769Subtotal Residential & Nonresidential 1,452 $697,060,900 5,416 4,648Other Land UsesP/QP - -PR - -OS - -NAPOTS - -Preserve/Avoidance - -ROW - -SubtotalTotal 1,452
VACANCY PEOPLE
TABLE 2
Point Molate Fiscal Impact Analysis
Land Use and Assumptions
ASSESSED VALUE
C-1
Exhibit C
Assumption1 Year 1 Year 2 Year 3 Year 4 Year 5 Buildout Units 100 350 438 850 1,100 1,452Persons Served 320 1,120 1,402 2,721 3,521 4,648Revenues $10,380 per unit $422,149 $1,477,521 $1,849,012 $3,588,265 $4,643,637 $6,129,601 Plus CFD ($2M each of first two years) $10,380 per unit plus $2M (Year 1 & 2) $2,422,149 $3,477,521 $1,849,012 $3,588,265 $4,643,637 $6,129,601 Expenses $4,252 per unit $425,150 $1,488,026 $1,862,158 $3,613,777 $4,676,653 $6,173,182 Full Police Year 1 (all other expenses per unit) $2,090,945 plus $2,811 per unit $2,372,091 $3,074,955 $3,322,364 $4,480,684 $5,183,549 $6,173,182Full Fire Year 1 (all other expenses per unit) $3,264,037 plus $2,004 per unit $3,464,391 $3,965,277 $4,141,589 $4,967,049 $5,467,935 $6,173,182 Surplus/Deficit w/Base Revenues
Expenses per Unit ($3,001) ($10,505) ($13,146) ($25,512) ($33,016) ($43,581)Full Police Year 1 (all other expenses per unit) ($1,949,942) ($1,597,434) ($1,473,352) ($892,419) ($539,911) ($43,581) Full Fire Year 1 (all other expenses per unit) ($3,042,242) ($2,487,756) ($2,292,577) ($1,378,784) ($824,297) ($43,581) Surplus/Deficit w/Base Revenues PLUS CFD
Expenses per Unit $1,996,999 $1,989,495 ($13,146) ($25,512) ($33,016) ($43,581) Full Police Year 1 (all other expenses per unit) $50,058 $402,566 ($1,473,352) ($892,419) ($539,911) ($43,581) Full Fire Year 1 (all other expenses per unit) ($1,042,242) ($487,756) ($2,292,577) ($1,378,784) ($824,297) ($43,581) Footnotes:
1See Table 9.
Table 10
Point Molate Fiscal Impact Analysis
Cash Flow
C-2
01337.0021/776965.1
Exhibit D
PARTIAL HISTORY OF FINANCIAL SUNCAL FINANCIAL INCIDENTS:
Financial Incidents. Links to some of the reported incidents are:
1. Albuquerque, Westland DevCo
https://www.reuters.com/article/westlanddevco/albuquerque-developer-files-forbankruptcy-idUSN0519094320100405
2. SunCal-Lehman Brothers 2008 crash
SunCal’s financial backing was inadequately diversified, so when Lehman collapsed, SunCal declared bankruptcy in 20-23 projects (tallies vary in news reports)
Specific examples:
a. Oak Knoll
https://www.oakknollcoalition.org/history
b. Marblehead
https://www.sanclementetimes.com/marblehead-bankruptcy-now-what/ c. Palmdale
ORDERED PUBLISHED - Ninth Circuit Court of Appeals
http://cdn.ca9.uscourts.gov › Palmdale-09-1100
d. 14 bankruptcies in Orange County
https://www.ocregister.com/2008/11/10/14-projects-by-oc-developer-filebankruptcy/ D
David J. Aleshire
[email protected]
(949) 250-5409
18881 Von Karman Avenue,
Suite 1700
Irvine, CA 92612
P (949) 223-1170
F (949) 223-1180
01337.0021/788675.2
May 9, 2022
VIA E-MAIL
Linda C. Klein
Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, CA 94111-4710
E-Mail: [email protected]
Re: Point Molate – Winehaven Closing
Dear Ms. Klein:
On Wednesday (May 3) I learned that Winehaven has proposed setting a date for closing of May 18, 2022. This is exciting news. I set an internal meeting of involved Directors and staff for the following day to learn if everything is in position to achieve this closing date and a number of issues were revealed that need to be resolved before we can close. These issues arise out of the Disposition and Development Agreement (dated September 30, 2020) and will require consultation with the City Council. Other issues are a part of the closing process, while some issues need to be on a list of follow up items after the closing. To this end, we have assembled a Summary, attached as Exhibit A, which identifies items which under the DDA will need to be addressed in order to close, and certain items that we may consider deferring to postclosing. Nothing herein is intended to modify any provision of the agreement, but to assure the parties that these issues remain important and will be addressed.
With regard to our consultation with the Council, the next Council meeting is on May 17 which is only the day before the developer’s proposed closing date. If the Council raises any issues, it may take several days to weeks to address them. In that regard, I have asked Upstream/Guidiville if we may have a short extension. They have previously told me that was possible if we need it. I do not have a response yet to my specific request. In raising these issues with you now I’m hoping you can address them satisfactorily by May 17 - in fact with the agenda deadlines it would be best if any input was provided to us by the end of day Friday, May 13.
Here are issues of concern:
A. Transfer of Remediation Responsibility.
On April 20, I participated in a zoom call with a number of individuals who have been involved with the San Francisco Regional Water Quality Control Board, the Department of Navy and other entities concerning the remediation and clean-up
Linda C. Klein
May 9, 2022
01337.0021/788675.2
obligations of the Property. We discussed that with the Property Transfer, those obligations under the remediation plan (“RAP”) and other regulatory agreements, would pass to Winehaven. There was agreement that the DDA provided for this, but that there were future steps which needed to occur for transfer of obligations.
Developer’s counsel, Robert Doty, by email on April 22 outlined some of these tasks. We need written assurance that as of the closing, the developer shall be the land owner and responsible party under applicable law.
B. Project Performance and Payment Security.
Section 4.6.1.12 states: “Guaranty or Initial Project Performance and Payment Security. Developer shall have delivered to the City either a Guaranty or Initial Project Performance and Payment Security for the First Site Improvement Phase.” It is my understanding that the final plans for First Site Improvement Phase have not been finalized. Accordingly the cost for the First Phase Master Infrastructure is not definable but I understand that the estimated cost of those improvements is on the order of $130M. Moreover, it is also not clear exactly when such improvements would be constructed. The DDA provides for the security in the form of bonds or a guarantee (Section 2.8.1.) Since the improvement plans do not have enough definition for a refined estimate of costs, nor could a bonding program be developed at this time, we think the Guaranty option provided in section 2.8 of the DDA is the route we will need to take. A form of Guaranty is provided in the DDA, and the qualifications for an “Approved Guarantor” (defined in Section 1.1 – page 2 & 3). In order for the City to have a reasonable time to evaluate the qualifications of the proposed Guarantor, please promptly provide the name of the proposed entity together with appropriate financial information which should include 3 years of audited financial statements.
As I write this letter I was advised by Mark Northcross that the proposed Guarantor is MSD Capital which is privately held. Please note that we can provide a method for their financial information to be kept confidential.
C. Financing Plan.
Section 2.5 of the DDA provides that the Developer must deliver to the City a Master Financing Plan for financing “all costs of acquisition of the Property and the construction of all of the Site Improvements, including the Offsite Improvements…”. City approval of the Final Financing Plan for the First Site Improvement Phase is a condition to closing under Section 2.5 of the DDA. As you are aware, the preliminary plan placed reliance on the formation of a Community Facilities District (“CFD”), but after months of study and discussion, and public hearings, on March 18 the City Council disapproved the use of the CFD mechanism
Linda C. Klein
May 9, 2022
01337.0021/788675.2
on the basis provided in Section 2.5.1 because it would “result in a negative fiscal impact on the City’s general fund” and other reasons; the City had the right “to reject the Proposed Master Financing Plan…in the City’s sole and absolute discretion.” After months of discussions and a public hearing on February 22, at a hearing on March 28, 2022, the City Council by Resolution disapproved utilizing the proposed CFD and the Financing Plan based thereon. You have resubmitted that same Financing Plan which utilizes the disapproved CFD. On March 24, 2022, the City’s Finance Team suggested to the Developer various other financing mechanisms which might not have an adverse impact on the general fund. On May 4, through the City’s Financial Advisor Mr. Mark Northcross, the issue was again raised that you should present an alternative Financial Plan to the City which was acceptable. We would advise you to submit a Plan which has not already been rejected and has no adverse general fund impact - and hope that you have an alternative and can submit it promptly.
D. Payment of Fees and Costs:
At the March 18 meeting outstanding fees and costs owed to the City were identified. These costs have still not been paid. The City is assembling a more current listing of outstanding costs. This will be provided to you by Friday, May
13. These will need to be paid prior to closing.
E. Remaining Closing Issues:
i. FF&E Specifications for Fire/Police Station. This needs to be completed. ii. Status of Proposed Final Plans for First Site Improvement Phase. iii. Evidence of Availability of Funds needs to be provided. iv. Any matters required to be completed prior to closing and must be shifted to post-closing will need to be approved by the City and confirmed in writing.
We would be happy to discuss other items on the list and any timing issues.
Linda C. Klein
May 9, 2022
01337.0021/788675.2
F. Cooperation Regarding Closing Date Extension
We hope that all the items herein can be wholly addressed by March 17, but on the chance they might not be, we hope that you join with us in requesting an extension from Upstream of the May 21 closing deadline.
We look forward to hearing your response to the issues raised herein.
Very truly yours,
ALESHIRE & WYNDER, LLP
David J. Aleshire, City Attorney
City of Richmond
DJA:krb
cc: Mayor Butt and Councilmembers
Shasa Curl
Joe Leach
Lina Velasco
Mark Northcross
Anne Lanphar
Jodi Fedor
EXHIBIT A
01337.0021/789160.1 1
DDA Pre-Closing, Closing and Initial Post-Closing Requirements COMPLETED PRE-CLOSING TASKS:
DDA § TASK: STATUS:
DDA §2.6.1 Developer Submittal of Proposed Final Plans for First Site Improvement Phase.
• DEVELOPER SUBMITTED 2/20/22
-
• Initial comments provided, on-going
discussions between parties
•
DDA §2.3.7 • Developer to obtain Final Large Lot Map or First Phase Final Map.
CITY APPROVED 5/3/22 -
City staff proceeding with execution
and recordation, must be completed
by Closing
DDA §2.3.8 Developer to submit Transit Plan for the Project. DEVELOPER SUBMITTED 4/21/22
DDA does not specify approval or
response time, only submittal
requirement
DDA §2.9 Submittal of Preliminary Master HOA Documents. • DEVELOPER SUBMITTED 4/22/22 •
DDA §2.10 Submittal of Certificate of Readiness. DEVELOPER SUBMITTED TO ESCROW 4/22/22
DDA §4.6.1.14 Submittal of Evidence of Insurance PROVIDED:
In connection with existing Permits
for Security and Historic
Preservation
DDA §4.4.1 Developer Delivery of Closing Documents to Escrow DEVELOPER SUBMITTED TO ESCROW 4/22/22
DDA §4.6.1 Developer Entity Formation/Authorization Documents Submitted to City
DEVELOPER SUBMITTED 4/21/22
REMAINING PRE-CLOSING TASKS:
DDA § TASK: STATUS:
DDA §1.1 Mutual Agreement of FF&E Specifications for Police & Fire Station.
On-going discussions between
parties; if not resolved by Closing
consider moving to post-closing
obligation
01337.0021/789160.1 2
09683\004\9227393.v2
DDA §2.5.2 Developer Submittal of Proposed Phase Financing Plan for the First Site Improvement.
• DEVELOPER SUBMITTED 3/22/22
-
Plan included CFD assumptions after
CFD was not approved by the City so
was not adequate or acceptable.
Developer to re-submit reflecting
alternative financing mechanisms.
Approval of Financing Plan is a
condition to City’s obligation to Close
DDA §2.5.3 Developer Submittal of Evidence of Availability of Funds for First Site Improvement Phase.
Consistent with Approved Financing
Plan; to be received and accepted as a
condition to City’s obligation to Close
DDA §2.2 &
2.3.2;
Development
Agreement,
other
Developer reimbursement of all City costs incurred,
including for costs intended to be covered by
unreplenished Pre-development and Entitlement Fees
Fund, litigation and CFD expenses
To be included on closing statement:
Developer to pay all amounts
outstanding through Escrow
DDA §4.4.1.1 Developer deposit of funds (including Purchase Price) required to Close to Escrow
To be submitted at least one business
day prior to Closing of Escrow
DDA §4.6.2.4 Developer’s Title Policy Condition benefiting Developer DDA §4.4.2 City Delivery of Closing Documents to Escrow, including City Grant Deed
Forms agreed
DDA §4.4.1.2
& 2.8.2
Current Architect/Engineer’s Consent to Assignment
of Development Documents provided by Developer to
City
Developer to provide in form attached
to the Assignment of Development
Documents
DDA §4.10.6.1 Developer Acknowledge of Assumption of
Environmental Remediation Obligations and third
party documentation as needed
In progress; specifics to be confirmed
and agreed
IMMEDIATE POST-CLOSING TASKS (IF NOT COMPLETED PRE-CLOSING):
DDA § TASK: STATUS:
DDA §2.6.1 City Approval of Developer Submittal of Proposed Final Plans (can be conceptual plans) for First Site
Improvement Phase.
Approval of Plans is not a closing
condition (submittal is a closing
condition benefiting City)
DDA §2.3.8 City to Provide Comments, Developer to submit revisions to Transit Plan for the Project to reflect
mitigation and other requirements, final Project, etc.
Not a Closing Condition
01337.0021/789160.1 3
09683\004\9227393.v2
DDA §4.6.2.7 Site Improvement Permit for First Site Improvement Phase issued or ready to be issued by City
Closing Condition benefiting
Developer, can be waived/deferred to
post-close
DDA §5.6.1 Initial Project Performance and Payment Security for First Site Improvement Phase (to replace Guaranty);
Infrastructure Improvement Agreement
Not a Closing Condition if Guaranty
is provided instead
DDA §5.5.8 Project O&M Plan submitted by Developer to City for approval
Not a Closing Condition, but a
condition to issuance of permits
DDA §1.1 Submerged Lands Lease and related Easement to
access pier
Not a Closing Condition; required
prior to commencement of work on
pier
May 17, 2022
Community Development
DATE: May 17, 2021
TO: Mayor Butt and Members of the City Council
FROM: Lina Velasco, Director of Community Development
Roberta Feliciano, Senior Planner
Subject: Quarry Residential Project Redesign
FINANCIAL IMPACT: There may be potential property tax revenue once the Project is developed.
PREVIOUS COUNCIL
ACTION:
February 20, 2018, and February 27, 2018
STATEMENT OF THE
ISSUE:
New West Company (Applicant) proposes revisions to its
Quarry Residential Project (Original Project) that the City Council approved in February 2018. The Original Project consists of the development of up to 200 condominium
units in 15 buildings and associated common areas and
amenities on approximately 18.4 acres on Sea Cliff Drive and Canal Boulevard. The proposed change to the
Original Project would instead develop 76 detached
single-family houses across the site (Modified Project).
RECOMMENDED ACTION: HOLD a public hearing; and ADOPT a Resolution certifying the Addendum to the Quarry Residential
Project Environmental Impact Report (EIR) and adopting
a Mitigation Monitoring and Reporting Program (MMRP)
and approving a Major Amendment to a previously
approved Planned Area Plan; a Density Bonus for the
purpose of requesting waivers of certain development
standards; a Vesting Tentative Map; and Design Review
for the Quarry Residential Project Redesign, subject to AGENDA
REPORT
May 17, 2022
conditions of approval – Community Development (Lina
Velasco/Roberta Feliciano 620-6662).
PROPOSAL:
New West Company (Applicant) proposes revisions to its Quarry Residential Project (Original Project) that the City Council approved in February 2018. The Original Project consisted of the development of up to 200 condominium units in 15 buildings and associated common areas and amenities on approximately 18.4 acres on Canal Boulevard. The proposed change to the Original Project would instead develop 76 detached single-family houses across the site (Modified Project) (See Attachment 1).
Applicant proposes to subdivide a portion (6.3 acres) of the Project site into 76 residential parcels ranging in size from 2,068 to 3,081 square feet. Seven (7) additional common-interest parcels are also proposed. The subdivision includes four (4) new privately maintained and owned streets and an emergency vehicle access road. All the proposed homes will be two-story homes ranging from 1,645 to 1,840 square feet and up to 28 feet in height. The Applicant proposes homes with lot coverages ranging from 37 to 56 percent (the above collectively known as the Revised Project).
As part of the project, the portion of the Bay Trail that extends along Seacliff Drive adjacent to the project site will be improved. These improvements will include widening the existing paved trail to 12 feet and providing 5-7 feet of landscaping (low ground cover) between the trail and Seacliff Drive, and adding a 3-foot shoulder, comprised of packed decomposed granite, between the trail and the landscaping leading up to the project buildings. Traffic safety improvements on Seacliff Drive are also proposed aimed at reducing speeds of vehicles. In addition, an enhanced staging area serving the existing East Bay Regional Park District (EBRPD) Crest Trail is proposed adjacent to the site on land owned by the City and EBRPD.
RECOMMENDED ACTIONS:
1. Hold a public hearing; and
2. Adopt Resolution No. ____ (see Attachment 1) certifying the Addendum to the Quarry Residential Project EIR and adopting a Mitigation Monitoring and Reporting Program (MMRP) and approving a Major Amendment to a previously approved Planned Area Plan; a Density Bonus for the purpose of requesting waivers of certain development standards; a Vesting Tentative Map; and Design Review for the Quarry Residential Project Redesign, subject to conditions of approval.
EXISTING CONDITIONS:
The Project site (Project site) consists of one parcel (APN 560-330-043) totaling approximately 18.4 acres in size located south of the intersection of Canal Boulevard
May 17, 2022
and Seacliff Drive, at 1135 Canal Boulevard. The Project site is located approximately
0.2-mile north of the San Francisco Bay within the Point Richmond area of the City. The picture below illustrates the Project site’s local context.
The Project site is bounded by Seacliff Drive (east), vacant property and Canal Boulevard (north), vacant property, then Seacliff Drive (south), and Miller/Knox Regional Shoreline Park (Miller/Knox Park), an EBRPD open space area (west and north).
The City of Richmond General Plan designates the project site as Open Space and Medium Density Residential. The Zoning map designates the Project site as OS, Open Space and PA, Planned Area District.
DISCUSSION:
New West Company (Applicant) proposes revisions to its Quarry Residential Project (Original Project) that the City Council approved in February 2018. The Original Project consisted of the development of up to 200 condominium units in 15 buildings and associated common areas and amenities on approximately 18.4 acres on Canal Boulevard. The proposed change to the Original Project would instead develop 76 detached single-family houses across the site (Modified Project) (See Attachment 1).
Planned Area (PA) Plan
Pursuant to RMC Section 15.04.810.070.B, the City Council considers Major Amendments to an approved Planned Area Plan at a duly noticed public hearing. An amendment shall be deemed major if it involves one or more of the following changes:
May 17, 2022
1. Change in Planned Area District’s boundary;
2. Increase or decrease in the number of dwelling units for the Planned Area District greater than the maximum, or less than the minimum, stated in the Planned Area Plan;
3. Increase or decrease in the floor area for any non-residential land use that results in the floor area exceeding the minimum or maximum stated in the Planned Area Plan by ten percent (10%) or more;
4. Change in land use or density that is likely to negatively impact or burden public facilities and utility infrastructure, as determined by the City Engineer;
5. Change in land use or density that is likely to negatively impact or burden circulation adjacent to the Planned Area District or to the overall major street system, as determined by the City Engineer; or
6. Other proposed change(s) to the Planned Area Plan or the conditions of approval, which substantively alter one (1) or more of its components, as determined by the Zoning Administrator.
The Revised Project proposes a Major Amendment to an approved Planned Area Plan pursuant to Article 15.04.810 of the Richmond Municipal Code (RMC) to decrease the number of dwelling units for the Planned Area District. The decision to amend the Planned Area Plan is subject to City Council approval.
The purpose of the Planned Area district is to facilitate orderly development of larger sites consistent with the General Plan, where a mix of uses or character is desired that can best be achieved through an integrated development plan. The subject site is 18.4 acres. The portion to be developed is approximately 6.3 acres. The proposed project density is 12.06 units/acre with 76 total residential units proposed.
Other standards such as minimum lot size, setbacks, building height limits, and other development standards and similar regulations of the base zoning districts may be modified as part of an approved PA district. As noted above, the Applicant seeks waivers to five (5) development standards, including lot size, setbacks, and lot width.
The development standards that would guide future development of the Planned Area District are included in the modified Planned Area Plan (see Exhibit C, PA Plan for a description of the development standards).
Applicant proposes a Major Amendment to an approved Planned Area Plan pursuant to Article 15.04.810 of the Richmond Municipal Code. The purpose of the Planned Area district is to facilitate orderly development of larger sites consistent with the General Plan, where a mix of uses or character is desired that can best be achieved through an integrated development plan. To be considered for a Planned Area District, the site shall be a minimum of five (5) acres. The subject site is 18.4 acres, and the portion to-bedeveloped is 6.3 acres.
As discussed below in the Density Bonus description, Applicant seeks waivers to five (5) development standards, including lot size, setbacks, and lot width.
May 17, 2022
Lot Size: The 76 lots range in size from 2,068 to 3,081 square feet; Applicant requests a modification of the minimum 5,000 square feet requirement.
Lot Width: The lots have a minimum width of 34 feet; Applicant requests a modification of the minimum, 50-foot requirement.
Setbacks: All lots have a minimum, five (5)-foot front setback. Applicant requests a modification of the minimum front yard setback prescribed in the RM-1 zoning (e.g., ten [10] feet). The rear setbacks will vary; however, they will be no fewer than eight (8) feet, which is a modification of the minimum 20-foot rear setback. Lots have a minimum, four (4)-foot side yard setback, which is fewer than the five (5)-foot requirement.
Density: The Medium Density Residential designation allows for a density of ten (10) to 27 du/ac. The Revised Project has a density of 12 du/ ac and thus meets this requirement.
Building Height: All the homes will be two (2)-story structures. The maximum building height of the proposed residences is 28 feet. The permitted height in the RM-1 zoning district is 35 feet. The Revised Project meets this requirement.
Maximum Lot Coverage: The maximum lot coverage allowed is 65 percent. The proposed lot coverages range from 37 to 56 percent. Therefore, the Revised Project meets this requirement.
Common and Private Open Space: The RM-1 zoning district requires a minimum 75 square feet of private and 100 square feet of common open space per unit. The Revised Project proposes to conform to this requirement. Private open space is provided in the rear of each parcel. The total common open space is 15,450 SF, which is 203 per unit, provided in three distinct locations throughout the subdivision. The project will also upgrade the existing Bay Trail located adjacent to the project frontage, create a new staging area for the EBRPD Crest Trail, and enhance the landscaping of City-owned property along Canal Blvd.
Off-Street Parking: Residential units will have two (2)-car garages, which meets the offstreet parking requirement. Because the proposed new streets would limit on-street parking, guest parking is being provided in various designated locations within the development at a ratio of one (1) stall per five (5) units.
One Percent (1%) Public Art: The Applicant proposes to pay its required one percent (1%) public art fee in lieu of providing public art on-site.
Inclusionary Zoning: The Revised Project will construct its inclusionary units on-site.
Therefore, ten percent (10%) of the project units will be for sale to households at the moderate-income level (up to 120% of Area Median Income). The City will require a regulatory agreement between it and Applicant to ensure these units remain affordable for up to 45 years.
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Natural Gas Ban: The Revised Project will be all-electric and will not bring natural gas services to the subdivision. In addition, the California Building Code requires mandatory solar for all new single-family units, making this project all-electric with solar off-set.
Vesting Tentative Map
The applicant is proposing to subdivide the existing site into approximately 76 residential parcels and seven common interest parcels. A homeowners’ association would be formed to maintain the subdivision improvements, including the common areas and the Bay Trail, adjacent to the project site.
Subdivision Improvements and Landscaping
The Revised Project includes the construction of several 34-foot-wide streets with five (5)-foot sidewalks abutted by a five (5)-foot front yard setback on both street sides. A 24-foot-wide travel lane is proposed, with no on-street parking. The Revised Project also includes a 24-foot emergency vehicle access (EVA) road that connects A Street with Seacliff Drive. The subdivision improvements include traffic calming improvements to the Seacliff Drive right-of-way, along the site frontage, including addition of landscaping, installation of enhanced lighting especially at the intersection of the Project driveway and Seacliff Drive, speed limit signage, striping, and improvements to the Bay Trail, including adding a three (3)-foot decomposed granite shoulder on one side and five (5) – seven (7) feet of landscaping on the other.
Conformance with Zoning Ordinance
The developed portion of the proposed subdivision would be located in a PA, Planning Area Zoning District, with the remainder being located in the OS, Open Space Zoning District. The OS district does not have a minimum lot size. The PA Plan would specify the minimum lot size, if any. In this case the applicant is proposing a minimum lot size as discussed above. Development of the subdivision would be consistent with the PA Plan. Therefore, the proposed subdivision is consistent with the Zoning Ordinance.
Conformance with the Subdivision Ordinance and Subdivision Map Act A Tentative Subdivision Map is required for subdivisions resulting in five or more parcels. The project’s Vesting Tentative Map is shown in Exhibit D. The Vesting Tentative Map has been reviewed for compliance with applicable provisions of the City’s Subdivision Ordinance (RMC 15.04.700, et seq.), and determined that it satisfies the requirements of the Richmond Subdivision Ordinance. A Vesting Tentative Map is processed in the same manner as a tentative map; however, if approved, it confers a vested right to proceed with development in substantial compliance with ordinances, policies, and standards described in Government Code Section 66474.2, that were in effect at the time the application was deemed complete.
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Density Bonus
To comply with the City’s inclusionary ordinance, the Applicant proposes that ten (10) percent of the units (e.g., 8 units) will be deed-restricted to be affordable to moderateincome households. Although a project with ten (10) percent moderate-income units is entitled to a five (5) percent (5%) density bonus, the Applicant has elected not to request any increase in allowed density. However, any project eligible for a density bonus is also eligible for “concessions” and “waivers.” “Concessions” provide cost reductions that provide for the affordable housing. “Waivers” refers to development standard modifications that, if applied, would physically preclude a project’s construction at density and with incentives otherwise permitted by law.
The Applicant requests five (5) waivers under state Density Bonus Law (Gov. Code, § 65915; see letter dated February 8, 2022, Attachment 2).
The Revised Project is eligible for a density bonus because it contains eight (8) moderate-income units, or ten percent (10%) of the total units. Although the Applicant has not requested a density increase, a density-bonus eligible project such as this one is also eligible for an unlimited number of “waivers” related to City development standards such as height, setbacks, open space requirements, etc. Under a recent court decision, the City must grant waivers to permit a project to be built as designed unless a waiver would violate state or federal law(s); have an adverse impact on a property listed on the California Historical Register; or have a specific, adverse health or safety impact that cannot be mitigated. Applicant does not seek to build any bonus units nor seek any incentives or concessions, but it has requested the following waivers: 1) Minimum lot size; 2) Minimum lot width; 3) Minimum front setback; 4) Minimum interior side setback; and 5) Minimum rear setback.
1. Minimum Lot Size
RM zones have a 5,000 square foot (sf) lot area minimum standard. Applicant proposes a 2,100 sf minimum. This smaller lot size is necessary to achieve the minimum density of 12 dwelling units per acre (du/ac).
2. Minimum Lot Width
RM zones have a 50-foot minimum lot width standard. Applicant proposes a 34-foot minimum width. This narrower width is necessary to achieve the minimum density of 12 du/acre.
3. Minimum Front Setback
RM zones have a 10-foot minimum front yard setback. Applicant proposes a 5-foot minimum setback. The project has smaller lot sizes (to achieve the needed density).
With this smaller lot size, it then becomes necessary to have smaller front setbacks to create a buildable area that accommodates required parking and creates adequate ground floor living space.
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4. Minimum Interior Side Setback
RM zones have a 5-foot minimum interior side yard setback. Applicant proposes a 4- foot minimum setback. The Revised Project has narrower lot widths (to achieve the needed density). With this smaller width, it then becomes necessary to have smaller side yard setbacks to create a buildable area that allows for adequate ground floor living space.
5. Minimum Rear Setback
RM zones have a 20-foot minimum rear yard setback. Applicant proposes an 8-foot minimum setback. The Revised Project has smaller lot sizes (to achieve the needed density). With this smaller lot size, it then becomes necessary to have smaller rear setbacks to create a buildable area, which accommodates required parking and creates adequate ground floor living space. Without the waiver, the Revised Project’s density would be significantly reduced.
The City must approve the above Applicant-requested waivers because the waivers do not violate state or federal law; would not have an adverse impact on a property listed on the California Register; nor would they impact health or safety.
Housing Accountability Act
Under the Housing Accountability Act, a housing project cannot be denied, or the density reduced, unless the project is either: (1) inconsistent with objective general plan, zoning, and subdivision standards and criteria; or (2) the City can make the following finding for denial:
“The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. 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 they existed on the date the application was deemed complete; and
“There is no feasible method to satisfactorily mitigate or avoid the adverse impact other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.” With the approval of the waivers, the project conforms with all objective standards.
There is no evidence that the project would have a significant impact on public health or safety. Therefore, under the Housing Accountability Act, the project cannot be denied, or the density reduced. However, the City Council may add conditions of approval so long as they do not have the effect of reducing the density of the project.
House Plans
Applicant proposes three (3) design styles, which are variations on coastal architecture:
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Southern, California, and Contemporary collage(s) with three (3) different floor plans for each of the Cottage styles. All floor plans include a bedroom versus a loft option. All three (3) design themes will be two (2)-story structures for a total of nine (9) distinct home styles (e.g., three (3) Cottage types, with each type then having three (3) specific style options).
The three styles are variations on coastal architecture:
• Southern Cottage (light stucco exteriors with dark wood accents, hurricane shutters, bay windows, divided light windows);
• California Cottage (shingled and stucco exteriors, corbels supporting overhangs, vertical proportions to windows); and,
• Contemporary Cottage (stucco with board and batten exteriors, wood brackets, some standing seam metal-roof accents).
The Applicant proposes three (3) color schemes for each of the design styles (elevations). Overall, the Revised Project embraces an urban context that harmoniously celebrates livability and contemporary principles.
DESIGN REVIEW BOARD RECOMMENDATION:
A public hearing to consider the project design, density bonus, and PA Plan was held on March 9 and March 23, 2022 (on March 9, 2022, the DRB voted to continue the item to the March 23, 2022, meeting to allow the Applicant time to address comments provided). In response to the comments provided by the DRB, the Applicant made several changes to the Revised Project Plans, as shown in Attachment 1, Exhibit D. At the conclusion of the March 23rd hearing, the DRB unanimously recommended approval of the proposed project with additional conditions (see Exhibit B, Conditions #42-62 in Attachment 1).
PLANNING COMISSION RECOMMENDATION:
A public hearing to consider the project design, density bonus, vesting tentative map, EIR Addendum and Modified PA Plan was held on April 21, 2022. During the meeting, the Planning Commission voted to recommend approval of the Project to the City Council.
PUBLIC NOTIFICATION:
Public notification consisted of publishing a legal notice in the local newspaper and notification by mail of owners within a 300-foot radius of the subject property.
NEIGHBORHOOD COUNCIL:
The project is located in the Point Richmond neighborhood. City staff received the attached letter from the Point Richmond Neighborhood Council (see Attachment 2). The
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Applicant modified its proposal to address comments received with the exception of density increases, which is the basis of their major amendment to the Planned Area Plan.
ENVIRONMENTAL REVIEW:
The City of Richmond (City), acting as Lead Agency, certified an Environmental Impact Report (EIR) (State Clearinghouse #2017062083), as part of the original approvals in 2018. The City has prepared an Addendum to the 2018 EIR to analyze the physical and environmental impacts associated with the proposed revisions to the original project, per the requirements of the California Environmental Quality Act (CEQA) statutes (Public Resources Code [PRC] Section 21000 et seq.) and the CEQA Guidelines (California Code of Regulations 15000 et seq.).
The 2018 EIR analyzed the impacts of development within the Project site. The Modified Project would not result in substantial changes or involve new information not already analyzed in the 2018 EIR because the level of development now proposed for the site is within the development assumptions analyzed in the 2018 EIR. The Modified Project would not cause new significant impacts not previously identified in the 2018 EIR, or result in a substantial increase in the severity of previously identified significant impacts. No new mitigation measures would be necessary to reduce significant impacts.
No changes have occurred with respect to circumstances surrounding the Project site that would cause new significant environmental impacts or a substantial increase in the severity of previously identified significant effects, and there is no substantial evidence in the record that shows that the Modified Project would cause any significant environmental impacts. Therefore, no supplemental environmental review is required or allowed in accordance with Public Resources Code Section 21166, and CEQA Guidelines Sections 15162 through 15164.
Based on the foregoing and the detailed analyses and conclusions set forth in this document; the analysis, findings, and conclusions of the 2018 EIR included the potential environmental effects associated with the Modified Project and none of the criteria calling for preparation of a subsequent EIR or negative declaration under Sections 15162 have occurred. The information and analysis presented in this environmental review document supports that the Modified Project meets all requirements under CEQA Guidelines Sections 15164 and determinations that the Modified Project qualifies for an Addendum to the 2018 EIR. Therefore, this CEQA analysis makes findings of consistency with Sections 15164. As a result, no supplemental environmental review is required in accordance with CEQA Guidelines Sections 15164.
PLANNED AREA PLAN FINDINGS, DENSITY BONUS, VESTING TENTATIVE MAP, AND DESIGN REVIEW PERMIT FINDINGS:
The City Council must adopt certain findings in recommending approval of the Major Amendment to an approved Planned Area Plan, Density Bonus for Waivers, Vesting Tentative Map, and Design Review. Statements of fact for supporting the required
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findings are contained in the draft Resolution in Attachment 1. The recommended conditions of approval, including those of the DRB (attached as Exhibit B) for the proposed project are also contained in the draft Resolution No.
CONCLUSION:
The Revised Project will establish a new community on an existing, underutilized site.
The proposed Revised Project’s density is within the range for the Medium Density Residential land use designation. The Revised Project’s density is typical of others in the area and will complement existing residential developments in the area. In addition, the proposed PA District would result in improvements to the Bay Trail, adjacent to the project site, and a design and urban form that are compatible with surrounding development. City staff recommends that, based on the evidence in the record, including but not limited to the Addendum to the Final EIR, the proposed Conditions of Approval, including the proposed Mitigation Monitoring and Reporting Program, and the application, plans, and materials submitted to the City, the City Council adopts the Addendum to the Final EIR, and approval of a Major Amendment to an Approved Planned Area Plan, Density Bonus for Waivers, Vesting Tentative Map, and Design Review for the Quarry Residential Project Redesign, subject to conditions of approval.
DOCUMENTS ATTACHED:
Attachment 1 – Resolution
Exhibit A: Addendum to EIR with Mitigation Monitoring and Reporting Program Exhibit B: Conditions of Approval
Exhibit C: PA Plan
Exhibit D: Project Plans with Vesting Tentative Map
Attachment 2 – Point Richmond Letter
Attachment 1
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RICHMOND CERTIFYING AN ADDENDUM TO THE QUARRY RESIDENTIAL PROJECT EIR (SCH# 2017062083) AND MITIGATION AND MONITORING REPORTING PROGRAM; AND APPROVING A MAJOR AMENDMENT TO A PLANNED AREA PLAN; DENSITY BONUS FOR WAIVERS; MAJOR DESIGN REVIEW; AND VESTING TENTATIVE MAP
FOR THE QUARRY RESIDENTIAL PROJECT REDESIGN
I. GENERAL FINDINGS
A. Introduction. New West Company (“Applicant”) is proposing to construct up to 76 single-family dwelling units of varying sizes from 1,645 to 1,840 square feet and associated common areas and amenities on approximately 6.5-acres of the 18.4-acre site in the City of Richmond, Contra Costa County, California. The houses are 2 stories in height and are on lots varying from 2,068 to 3,081 square feet (“Quarry Residential Project Redesign” and "Project”). Required Project approvals include: (1) a major amendment to an approved Planned Area plan; (2) a Density Bonus for waivers; (3) Major Design Review for house plans; and (4) a Vesting Tentative Map (collectively referred to as the “Project Approvals”).
B. Environmental Review Process. On February 20, 2018, the City Council of the City of Richmond adopted Resolution No. 08-18 certifying the Quarry Residential Project Environmental Impact Report (“EIR”) (SCH#2017062083) and Adopting a Mitigation Monitoring and Reporting Program (“MMRP”). Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15164, the City has prepared an Addendum affirming that the analysis contained in the Quarry Residential Project EIR adequately addresses the potential physical impacts associated with the proposed Quarry Residential Project Redesign. The Addendum to the Quarry Residential Project EIR, attached hereto as Exhibit A, was prepared in compliance with the requirements of the CEQA, the State CEQA Guidelines, the City of Richmond Guidelines and Procedures for the Implementation of the California Environmental Quality Act; and based upon the evidence submitted and as demonstrated by the analysis included in the Addendum, none of the conditions described in Sections 15162 and 15163 of the State CEQA Guidelines calling for the preparation of a subsequent or supplemental EIR or negative declaration have occurred; specifically:
a. There have not been any substantial changes in the project that require major revisions of the EIR because of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; b. There have not been any substantial changes with respect to the circumstances under which the project is undertaken that require major revisions of the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and c. There is no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the EIR was certified that shows any of the following: (a) the project will have one or more significant effects not discussed in the EIR; (b) significant effects previously examined will be substantially more severe than shown in the EIR; (c) mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (d) mitigation measures or alternatives which are considerably different from those analyzed in the EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative; and C. Administrative Record. The administrative record, upon which all Findings related to the approval of the Project are based, includes the following:
(1) The Quarry Residential Project Final EIR and all documents referenced in or relied upon by the Final EIR.
(2) The Addendum to the Quarry Residential Project EIR and all documents referenced in or relied upon by the EIR Addendum.Page 1553 of 1760
(3) All information (including written evidence and testimony) provided by City Staff to the Design Review Board, Planning Commission and the City Council relating to the EIR and Addendum, the approvals, and the Project.
(4) All information (including written evidence and testimony) presented at or in preparation of any City public hearing or City workshop related to the Project and the EIR. (5) For documentary and information purposes, all City-adopted land use plans and ordinances, including without limitation the general plan, specific plans and ordinances, together with environmental review documents, findings, mitigation monitoring programs and other documentation relevant to the Project site.
(6) The Mitigation Monitoring and Reporting Program (“MMRP”) for the Project. (7) All other documents composing the record pursuant to Public Resources Code section 21167.6(e).
The custodian of the documents and other materials that constitute the record of the proceedings upon which the City’s decisions are based is the Director of Community Development or their designee. Such documents and other materials are located at City Hall, Planning Division, 450 Civic Center Plaza, Richmond, California, 94804.
D. Findings. On March 9 and March 23, 2022, the Design Review Board reviewed the proposed project and recommended approval to the Planning Commission with additional conditions (see Exhibit B, Conditions #42-62 in Attachment 1). On April 21, 2022, the Planning Commission conducted a duly noticed public hearing on the Project and recommended approval to the City Council.
On May 17, 2022, the City Council conducted a duly noticed public hearing on the Project.
After considering public testimony and materials in the staff report, including the Final EIR (State Clearinghouse #2017062083), the Mitigation Monitoring and Reporting Program and findings in support of the Major Amendment to a PA Plan, Density Bonus, Vesting Tentative Map, and Design Review, the City Council approved the Project subject to conditions, in its independent and objective judgment, stating that the Addendum is adequate and sufficient in all respects and the findings set forth below are appropriate and adequate to support adoption of the Addendum to the Quarry Residential Project Final EIR and the Mitigation Monitoring and Reporting Program and adoption of the Project Approvals. These findings are made pursuant to CEQA and City of Richmond Municipal Code. These findings support the adoption of the Addendum and Mitigation Monitoring and Reporting Program and include the findings to support the approval of the Major Amendment to PA Plan, Density Bonus, Vesting Tentative Map, and Design Review.
II. CEQA FINDINGS.
The City of Richmond is the Lead Agency with respect to the Project pursuant to Section 15367 of the CEQA Guidelines. The following findings support the City Council’s decision to adopt the Addendum and MMRP:
A. The Addendum has been completed in compliance with the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and the City of Richmond's Guidelines and Procedures for Implementation of CEQA, Resolution No. 31-21 (adopted March 16, 2021), and reflects the independent judgment and analysis of the City.
B. The City hereby adopts and makes conditions of approval of the Quarry Residential Project Redesign all of the mitigation measures that are within the responsibility and jurisdiction of the City that are identified in the CEQA Findings for the Quarry Residential Project EIR.
C. The City finds based upon the evidence submitted and as demonstrated by the analysis included in the Addendum that none of the conditions described in Sections 15162 and 15163 of the State CEQA Guidelines calling for the preparation of a subsequent or supplemental EIR or negative declaration have occurred.
D. The City hereby adopts the Mitigation Monitoring and Reporting Program for the Quarry Residential Project Redesign, attached hereto as "Exhibit A."
III. PLANNED AREA PLAN FINDINGS
Pursuant to Section 15.04.810.040, in approving a major amendments to an approved Planned Area Plan (attached as Exhibit C), the City Council, makes the following findings supported by statements of fact.
A. The proposed development is consistent with the General Plan, including the height, density, and intensity limitations that apply unless these limitations are to be amended;
Staff Statement: Criterion Conditionally Satisfied. The Revised Project is consistent with the proposed Medium Density Residential land use density because it is within the specified range (10 to 40 du/ac). With approval of the Major Amendments to the Planned Area Plan, the various development standards for the RM-1 zoning district may be modified.
B. The subject site is physically suitable for the type and intensity of the proposed land use;
Staff Statement: Criterion Satisfied. The Project site is an infill site located in an urbanized area with existing drainage, sewer, water, and infrastructure improvements.
The Project site is suitable for residential development because it is located in close proximity to residential uses and has existing services and utilities available to serve the development.
C. Adequate transportation facilities and public services, as defined in the General Plan and in the design standards established in the Subdivision Regulations exist or will be provided in accordance with the conditions of Planned Area Plan approval to serve the proposed development; and the approval of the proposed development will not result in a reduction of transportation service for all modes of travel or public services so as to be a detriment to public health, safety, or welfare; Staff Statement: Criterion Conditionally Satisfied. The Revised Project will not include new public transit services, but that does not preclude the enhancement of transit services and connections. Additionally, the Revised Project will facilitate multimodal travel (i.e., pedestrian and bicycle infrastructure and facilities) through its Bay Trail improvements.
Per condition of approval No. 8, the Revised Project will prepare a transportation-demand management plan to reduce the miles travelled by single-use occupancy vehicles.
D. The proposed development will not have a substantial adverse effect on surrounding land uses and will be compatible with the existing and planned land use character of the surrounding area;
Staff Statement: Criterion Satisfied. Existing land uses surrounding the Project site comprise predominantly recreation/open space, industrial port-related uses, and residential uses. The Revised Project will establish a new residential community and include improvements to both Seacliff Drive and its bordering Bay Trail. Further, the Revised Project will improve vehicular, pedestrian, and bicycle infrastructure and connections near the site. The proposed detached single-family use is similar to existing uses in the surrounding area. Therefore, the Revised Project will not have a substantial adverse effect on the existing surrounding uses.
E. The development generally complies with applicable design guidelines; and Staff Statement: Criterion Satisfied. The modified Planned Area Plan specifies development standards for the Revised Project that the project design conforms to. The Revised Project will use high-quality design and materials and is substantially consistent with the Planned Area Plan, as modified, and the City’s design review criteria within Section 15.04.805.040.
F. The proposed development is demonstratively superior to the development that could occur under the standards applicable to the underlying base district, and will achieve superior community design, environmental preservation and/or substantial public benefit. In making this determination, the following factors will be considered:
1. Appropriateness of the use(s) at the proposed location.
Staff Statement: Criterion Satisfied. The Revised Project will provide medium density, market-rate housing, including ten percent (10%) affordable units at the Moderate-Income level, which the City needs to meet its Regional Housing Needs Allocation. Without the Planned Area Plan, this type of housing could not be provided under the base Zoning District’s regulations. Several of the surrounding residential developments in the area were also developed as Planned Area districts that included deviations from similar development standards such as setbacks and minimum lot size.
2. The mix of uses, housing types, and housing price levels.
Staff Statement: Criterion Satisfied. The Revised Project proposes 76 single-family detached units and lots of varying sizes. Amenities will be provided, including a play area with benches and picnic tables. Given the varying unit sizes and types, the single-family units will be made available to a range of home buyers, including ten (10%) affordable units at the Moderate-Income level.
3. Provision of units affordable to persons and families of low and moderate income or to lower income households.
Staff Statement: Criterion Conditionally Satisfied. The Revised Project will be required to comply with the City’s Inclusionary Housing Ordinance and build its inclusionary units on-site. The Revised Project proposes to build 10% of the total units as affordable units at the Moderate-income level. During the 5th Cycle Housing Element, the City was assigned 410 units at the moderate income level. As of December 31, 2021, no units had been built that were deed restricted at the moderate income level. The Revised Project will help the City provide this missing affordable unit type in its Regional Housing Needs Allocation.
4. Provision of infrastructure improvements.
Staff Statement: Criterion Satisfied. The Revised Project will provide for utilities and public services that will not exceed the capacity of existing and planned public services and infrastructure. The Revised Project includes the installation of new water, stormwater, and sanitary sewer infrastructure(s). In addition, the project will include improvements to both Seacliff Drive and the Bay Trail alongside Seacliff Drive, which will improve vehicular, pedestrian, and bicycle infrastructure and connections near the Project site.
5. Provision of open space.
Staff Statement: Criterion Satisfied. The Revised Project will include landscaped common areas that the Homeowners Association (“HOA”) will maintain. In addition to landscaping, the Revised Project will provide enhancements to the section of the Bay Trail on Seacliff Drive along the Project site. The trail will be rebuilt as a 12-foot-wide paved trail with five (5) to seven (7) feet of landscaping (low ground cover planting) between the trail and Seacliff Drive, and three (3) feet of decomposed granite between the trail and the landscape leading up to the project buildings. Pathways within the development will link open spaces and residences. Additionally, the Revised Project will build a new staging area for the Crest Trail.
6. Compatibility of uses within the development area.
Staff Statement: Criterion Satisfied. The Revised Project proposes residential uses (plus amenities) and open space, which are compatible uses.
7. Creativity in design and use of land.
Staff Statement: Criterion Satisfied. The Revised Project will develop a vacant, underutilized site with high-quality residential buildings. The buildings have been located on the Project site to minimize impacts to the slope on the western portion of the site and to allow for amenity spaces and connectivity throughout the developed portion of the site.
More than half of the site will be undeveloped open space, which includes Bay Trail enhancements and a new staging area for the EBRPD Crest Trail.
8. Quality of design, and adequacy of light and air to the interior spaces of the buildings.
Staff Statement: Criterion Satisfied. The Revised Project will provide architectural design that includes high-quality materials and finishes. Buildings have been located on the site with sufficient separation to allow adequate light and air into the interior spaces. Buildings have also been oriented to allow for maximum view orientation and natural light for safety and comfort.
9. Overall contribution to the enhancement of neighborhood character and the environment of Richmond in the long term.
Staff Statement: Criterion Satisfied. The Revised Project will improve the aesthetic and economic value of the site, adjacent properties, the neighborhood, and the entire City by revitalizing an unimproved infill site. It also will help fulfill the City’s need for additional housing.
IV. VESTING TENTATIVE MAP FINDINGS
Pursuant to Section 15.04.702.100 in approving the Vesting Tentative Map, attached as Exhibit D, the City Council makes the following findings and statements of facts for approval:
A. Consistency. The proposed subdivision, together with the provisions for its design and improvement, is consistent with the General Plan, any applicable specific plan, the Zoning Ordinance, and other applicable provisions of the City’s Municipal Code.
Statement of Fact: Criterion Conditionally Satisfied. The Revised Project is consistent with the Medium Density Residential land use designation under the General Plan, as well as with applicable General Plan goals and policies.
The following list highlights a selection of the General Plan goals and policies that project supports or accomplishes:
• The project would meet future housing needs within City limits through infill development in an area already served by community facilities, utilities, and transportation systems. (Goal LU-K)
• The project would provide a high standard of design and planning, and construction of new facilities, infrastructure, and services. By implementing several sustainability measures, the project will promote a planning approach that supports a sustainable and healthy community and reduces impacts on the environment. (Goal LU 6) • The project achieves a higher standard for housing design, current green building standards, seismic requirements, and pedestrian friendly design. (Goal LU 6.5) • The project has a planting and landscaping plan that is consistent with the San Francisco Bay Conservation and Development Commissions’ Landscape Guide for the San Francisco Bay. (Goal PR3)
B. Physically Suitable. The site is physically suitable for the type of development and the proposed density of the development.
Statement of Fact: Criterion Conditionally Satisfied. The 6.3 acres proposed for development are physically suitable for development of the proposed subdivision. The parcels meet the minimum area for a Planned Area District. The Project site is served by existing streets and existing services and utilities are available to serve the development.
The Medium Density Residential land use designation has a density range of 10 to 40 dwelling units per acre. The resulting subdivision would create an 83-parcel subdivision with some of those lots being common interest lots. The proposed density of development falls within the 10 to 40 dwelling units per acre at 12 du/acre.
C. No Environmental Damage. The proposed subdivision, together with the provisions for its design and improvement, are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, unless an Environmental Impact Report (EIR) was prep Page 1557 of 1760 ared and a finding was made that specific economic, social, or other considerations make the mitigation measures or Project alternatives infeasible, pursuant to Section 21081(a)(3) of the Public Resources Code.
Statement of Fact: Criterion Conditionally Satisfied. As specified in the Addendum to the Quarry Residential Project Final EIR, the Project could result in some significant impacts to the environment related to air quality, biological resources, cultural resources and noise; however, with implementation of the mitigation measures in the MMRP, all impacts would be reduced to less-than-significant levels. In addition, the proposed Project is on a previously disturbed site.
D. Public Health Problems. The proposed subdivision, together with the provisions for its design and improvement, is not likely to cause serious public health problems.
Statement of Fact: Criterion Conditionally Satisfied. The design of the subdivision is not likely to cause any serious public health problems because the Project consists of development of a typical residential housing development consisting of 76 single-family lots, and will be constructed to meet all applicable building and safety codes. The proposed subdivision would result in the redevelopment of the site from a former quarry to a medium density residential development, including improvements to Seacliff Drive and an improved Bay Trail along the Project frontage. In addition, the Project will implement mitigation measures designed to reduce potentially significant impacts to lessthan-significant levels.
The Addendum to the FEIR addresses the Project’s potential to affect the public health in a number of ways (e.g., generation of emissions, noise, etc.) and the FEIR determined that with mitigation, the Project would have no significant impacts.
E. No Conflict with Easements. The proposed subdivision, together with the provisions for its design and improvement, will not conflict with easements acquired by the public at large for access through or use of property within the proposed subdivision. The City may approve a map if it finds that alternate easements for access or for use will be provided and that these easements will be substantially equivalent to ones previously acquired by the public.
Statement of Fact: Criterion Satisfied. The design of the subdivision and future improvements for development of the property will not conflict with easements acquired for access through or use of the property within the proposed subdivision because no such easements exist.
F. Availability of Water. Water will be available and sufficient to serve a proposed subdivision with more than 500 dwelling units in accordance with Section 66473.7 of the Subdivision Map Act.
Statement of Fact: Criterion Not Applicable. The Project proposes up to 76 dwelling units, which is below the 500-dwelling unit threshold.
V. DESIGN REVIEW FINDINGS
Pursuant to Section 15.04.805.050, in approving the Design Review of the Project Plans attached as Exhibit D, the City Council makes the following findings and statements of facts for the proposed application as it is consistent with:
A. The General Plan and any applicable specific plans;
Staff Statement: Criterion Conditionally Satisfied. The Revised Project is consistent with the Medium Density Residential land use designation under the General Plan, as well as with applicable General Plan goals and policies.
The following list highlights a selection of the General Plan goals and policies that project supports or accomplishes:
The project would meet future housing needs within City limits through infill development in an area already served by community facilities, utilities, and transportation systems. (Goal LU-K)
The project would provide a high standard of design and planning, and construction of new facilities, infrastructure, and services. By implementing several sustainability measures, the project will promote a planning approach that supports a sustainable and Page 1558 of 1760 healthy community and reduces impacts on the environment. (Goal LU 6) The project achieves a higher standard for housing design, current green building standards, seismic requirements, and pedestrian friendly design. (Goal LU 6.5) The project has a planting and landscaping plan that is consistent with the San Francisco Bay Conservation and Development Commissions’ Landscape Guide for the San Francisco Bay. (Goal PR3)
B. Any applicable design guidelines;
Staff Statement: Criterion Satisfied. There are no applicable design guidelines that affect this property. As noted below in paragraph ‘D,’ the Revised Project is consistent with the City Design Review Criteria in Section 15.04.805.040 of the Zoning Ordinance.
C. Any approved tentative map, Use Permit, Variance, or other planning or zoning approval that the project required;
Staff Statement: Criterion Conditionally Satisfied. The project includes a request for a Major Amendment to an approved Planned Area Plan and Vesting Tentative Map which must be reviewed by the Planning Commission and approved by the City Council. The Revised Project is substantially consistent with the Vesting Tentative Map and the Planned Area Plan, as modified.
D. The design review criteria in Section 15.04.805.040.
The project must satisfy these criteria to the extent applicable. Criteria Met? A. The overall design of the project, including its scale, massing, site plan, exterior design, and landscaping, reflects design integrity and the relationship of form and function in a coherent manner.
Yes No
B. The project design evidences a sense of place and consideration of scale, mass, height, building siting, and privacy in a neighborhood and community context; does not overwhelm or adversely impact adjoining properties; and respects prevailing setbacks and the scale and heights of neighboring buildings and how they relate to the street.
Yes No
C. The project’s design elements, materials, signage, and landscaping are internally consistent, fully integrated with one another, and applied in a manner that is visually consistent with the proposed architectural design.
Yes No
D. Lighting and lighting fixtures are designed to complement buildings, be of appropriate scale, provide adequate light over walkways and parking areas to create a sense of pedestrian safety, and avoid creating glare.
Yes No
E. The proposed building design and landscaping supports public safety and security by allowing for surveillance of the street by people inside buildings and elsewhere on the site.
Yes No
F. Landscaping is designed to be compatible with and enhance the architectural character of the buildings on site. Proposed planting materials avoid conflicts with views, lighting, and signage.
Yes No
Staff Statement: The Revised Project will achieve a high-quality design. The design of the Revised Project will create a cohesive neighborhood context. The community park and open space areas will provide gathering spaces for the community. The three (3) design types and nine (9) color and material schemes will provide variation and visual interest.
The conditions of approval will ensure that lighting and lighting fixtures are designed to avoid creating a glare. The design of the buildings and site landscaping support public safety and security by allowing surveillance of the street and open space area by people inside buildings and elsewhere on the site. The Revised Project will include Building Energy Efficiency Standards, as required by Title 24, Part 6, intended to save energy, increase electricity supply reliability, and avoid the need to construct new power plants.
The Revised Project will also be subject to CALGreen, which requires energy efficient appliances for all homes that the project will develop. CALGreen also requires EV charging and spaces, water conservation measures, recycling by occupants and 65% construction waste diversion. The landscape irrigation design complies with the City’s and State of California’s Water Efficient Landscape Ordinance using low water delivery equipment, as well as adhering to all East Bay Municipal Utilities District (EBMUD) standards. The irrigation meter applications and system design will be submitted to and reviewed by EBMUD for compliance.
VI. DENSITY BONUS WAIVERS FINDINGS
The Revised Project is density-bonus eligible because it contains eight (8) Moderate-Income units, or ten percent (10%) of the base-proposed density. The Applicant has requested the following waivers under state Density Bonus Law, all as shown on the plans:
1. Minimum Lot Size: 2,068 to 3,081 square foot lot size, rather than 5,000 required.
2. Minimum Lot Width: 34-foot minimum width, where 50 feet are required.
3. Minimum Front Setback: Five (5)-foot minimum setback, where 10 feet are required.
4. Minimum Interior Side Setback: Four (4)-foot minimum interior side setback, where five (5) feet are required.
5. Minimum Rear Setback: Eight (8)-foot minimum rear setback, where 20 feet are required.
The City has granted the waivers to permit the Project to be built as designed. No substantial evidence in the record shows that the Revised Project would violate state or federal law(s); have an adverse impact on a property listed on the California Historical Register; or have a specific, adverse health or safety impact that cannot be otherwise mitigated.
VII. THOROUGH AND FULL REVIEW
In making the findings listed above and the approvals set forth below, the City Council has thoroughly reviewed the land use program, site plan, architectural plans, and landscape plans, as further described in the PA Plan, as well as the Density Bonus for Waivers, Design Review, and the Vesting Tentative Map, and has fully considered modifications to these elements of the Project to address issues raised and comments of the public, DRB, PC and public agencies on both the Addendum and the Project.
VIII. SEVERABILITY
Should any provision, section, paragraph, sentence, or word of this Resolution be rendered or declared invalid by any court of competent jurisdiction, or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences and words of this Resolution shall remain in full force and effect.
IX. APPROVALS
The City Council does hereby adopt the Addendum to the Quarry Residential Project Final EIR (State Clearinghouse #2017062083), with findings pursuant to Public Resources Code Section 21081, and other findings contained herein, adopts the Mitigation Monitoring and Reporting Program, and approves the Major Amendment to a Planned Area Plan, Density Bonus for Waiver, Vesting Tentative Map, and Design Review for the Quarry Residential Project Redesign.
Exhibit A: Addendum to Final EIR with Mitigation Monitoring and Reporting Program Exhibit B: Conditions of Approval
Exhibit C: PA Plan
Exhibit D: Project Plans with Vesting Tentative Map
*****************************
I certify that the foregoing resolution was passed and adopted by the City Council of the City of Richmond at a regular meeting held on May 17, 2022 by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
Clerk of the City of Richmond
Approved:
(SEAL)
Tom Butt, Mayor
Approved as to form:
Dave Aleshire, Interim City Attorney
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EIR Addendum March 2022
REVISED QUARRY RESIDENTIAL PROJECT
Addendum to the Quarry Residential Project
EIR
1. General Project Information
1.1 Project Title
Quarry Residential Project
1.2 Lead Agency Name and Address
City of Richmond
Planning and Building Services Department
450 Civic Center Plaza
PO Box 4046
Richmond, CA 94804-1630
1.3 Project Case File Number
City Project Case Number: PLN21-327; State Clearinghouse (SCH) Number: 2017062083 (Quarry Residential Project EIR certified 2/20/2018)
1.4 Contact Person and Phone Number
Lina Velasco, Director of Community Development
Community Development Department
[email protected]
(510) 620-6841
1.5 Project Location
1135 Canal Boulevard, Richmond, CA. Assessor’s Parcel No. 560-330-043
1.6 Project Applicant’s Name and Address
New West Company
1100 Grier Drive
Las Vegas, NV 89119
1. Project Information
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EIR Addendum March 2022
1.7 Existing General Plan Designations
Open Space and Medium Density Residential
1.8 Existing Zoning
OS, Open Space, and PA, Planned Area
1.9 Requested Permits
CEQA determination, Vesting Tentative Subdivision Map, Major Amendment to PA Plan, Density Bonus for waivers, Design Review, grading permits, encroachment permits, building permits, other City approvals as necessary to develop the project.
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EIR Addendum March 2022
TABLE OF CONTENTS
Addendum to the Quarry Residential Project
EIR
Page
1. General Project Information............................................................................................ i
1.1 Project Title ............................................................................................................... i
1.2 Lead Agency Name and Address ............................................................................. i
1.3 Project Case File Number......................................................................................... i
1.4 Contact Person and Phone Number......................................................................... i
1.5 Project Location ........................................................................................................ i
1.6 Project Applicant’s Name and Address .................................................................... i
1.7 Existing General Plan Designation ........................................................................... i
1.8 Existing Zoning..........................................................................................................ii
1.9 Requested Permits....................................................................................................ii
2. Purpose and Determination ........................................................................................... 1
2.1 Project Overview and Purposes............................................................................... 1
2.2 Applicable Provisions for CEQA Compliance .......................................................... 1
2.3 Determination........................................................................................................... 3
3. Project Description.......................................................................................................... 3
3.1 Project Site............................................................................................................... 3
3.2 Original Project......................................................................................................... 4
3.3 Modified Project........................................................................................................ 8
3.4 Modified Project Approvals .................................................................................... 10
3.5 References............................................................................................................. 12
4. CEQA Analysis .............................................................................................................. 13
4.1. Overview ................................................................................................................ 13
4.2 Aesthetics............................................................................................................... 14
4.3 Air Quality............................................................................................................... 16
4.4 Biological Resources.............................................................................................. 20
4.5 Cultural and Paleontological Resources................................................................ 23
4.6 Energy .................................................................................................................... 27
4.7 Geology, Soils and Mineral Resources.................................................................. 29
4.8 Climate Change and Greenhouse Gas Emissions................................................ 31
4.9 Hazards and Hazardous Materials......................................................................... 34
4.10 Hydrology and Water Quality................................................................................. 37
4.11 Land Use and Planning.......................................................................................... 39
4.12 Noise ...................................................................................................................... 41
4.13 Population, Housing, and Employment.................................................................. 44
4.14 Public Services....................................................................................................... 46
4.15 Transportation and Traffic...................................................................................... 48
4.16 Utilities and Service Systems................................................................................. 53
Table of Contents
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5. Conclusion ..................................................................................................................... 55
5.1 Proposed Changes to the Original Project ............................................................ 55
5.2 Implications of Proposed Project Changes to the Original Project........................ 55
5.3 Findings.................................................................................................................. 55 Attachment
A Revised Mitigation Monitoring and Reporting Program for the Modified Project..................................................................................................................A-1 List of Figures
3-1 Project Site and Surrounding Uses ........................................................................... 5 3-2 Original Project Site Plan........................................................................................... 6 3-3 Modified Project Site Plan ......................................................................................... 9 List of Tables
2-1 Land Use Program and Major Project Characteristics, Modified Project and Original Project.............................................................................................. 10 4-1 Unmitigated Average Operational Criteria Pollutant Emissions of the Original and Modified Project ..................................................................... 18 4-2 Estimated GHG Emissions Generated by the Modified Project.............................. 32 4-3 Automobile Trip Generation Estimates.................................................................... 49
2. Purpose and Determination
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2. Purpose and Determination
2.1 Project Overview and Purpose
New West Communities, LLC (Project Applicant) proposes revisions to the Quarry Residential Project (Original Project) that was analyzed under the certified 2018 Quarry Residential Project EIR (SCH No. 2017062083) (2018 EIR).1 The previously approved Original Project consists of the development of up to 200 condominium units in 15 buildings and associated common areas and amenities on approximately 18.4 acres at 1135 Canal Boulevard (Project Site). The proposed change to the Original Project would instead develop 76 detached single-family houses across the site (Modified Project).
The City of Richmond (City) has prepared this Addendum to the 2018 EIR to analyze the physical and environmental impacts associated with the proposed revisions to the Original Project, per the requirements of the California Environmental Quality Act (CEQA) statutes (Public Resources Code [PRC] Section 21000 et seq.) and the CEQA Guidelines (California Code of Regulations 15000 et seq.).
An evaluation of the Modified Project is provided in the CEQA analysis Section 4 that follows.
This environmental review document is intended to assist the City to determine the appropriate CEQA documentation for the Modified Project. Specifically, the analysis in this environmental review document is intended to assist City’s assessment of whether an addendum is suitable for the Modified Project.
2.2 Applicable Provisions for CEQA Compliance
CEQA Guidelines Section 15164 provides that the lead agency or a responsible agency shall prepare an Addendum to a previously certified Environmental Impact Report (EIR) or adopted Negative Declaration (ND) if some changes or additions are necessary but none of the conditions described in CEQA Guidelines Section 15162 calling for preparation of a subsequent EIR or ND have occurred (CEQA Guidelines, Section 15164).
An Addendum need not be circulated for public review but can be included in or attached to the Final EIR or ND (CEQA Guidelines Section 15164, subd. (c)). The decision-making body shall consider the Addendum to the Final EIR prior to making a decision on the Project (CEQA Guidelines Section 15164, subd. (d)). An agency must also include a brief explanation of the decision not to prepare a subsequent EIR or ND pursuant to Section 15162 (CEQA Guidelines Section 15164, subd. (e)).
Consequently, once an EIR or ND has been certified or adopted for a Project, no subsequent EIR or ND shall be prepared under CEQA unless, based on substantial evidence:
1 For the purpose of this Addendum analysis, the 2018 EIR is comprised of the following documents: Quarry Residential Project Draft EIR, October, 2017 (Draft EIR); and Quarry Residential Project Final EIR Response to Comments, January 2018.
2. Purpose and Determination
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1) Substantial changes are proposed in the project that will require major revisions of the previous EIR or ND . . . due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; 2) Substantial changes occur with respect to the circumstances under which the project is undertaken that will require major revisions of the previous EIR or ND . . . due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or 3) New information of substantial importance, that was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the ND was adopted. . . shows any of the following:
a) The project will have one or more significant effects not discussed in the previous EIR or ND or negative declaration;
b) Significant effects previously examined will be substantially more severe than shown in the previous EIR or ND;
c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or
d) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR or ND would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative (CEQA Guidelines, Section 15162, subd. (a); see also Pub. Resources Code, Section 21166).
This Addendum, checklist, and attached documents constitute substantial evidence supporting the conclusion that preparation of a supplemental or subsequent EIR is not required or allowed pursuant to CEQA.
In accordance with California Public Resources Code Section and 21166; and CEQA Guidelines Section 15162 through 15164, and as set forth in the analysis below, the Modified Project qualifies for an addendum because the following findings can be made:
Addendum. The 2018 EIR analyzed the impacts of development within the Project site. The Modified Project would not result in substantial changes or involve new information not already analyzed in the 2018 EIR because the level of development now proposed for the site is within the development assumptions analyzed in the 2018 EIR. The Modified Project would not cause new significant impacts not previously identified in the 2018 EIR, or result in a substantial increase in the severity of previously identified significant impacts. No new mitigation measures would be necessary to reduce significant impacts. No changes have occurred with respect to circumstances surrounding the Project site that would cause new significant environmental impacts or a substantial increase in the severity of previously
3. Project Description
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EIR Addendum March 2022
identified significant effects, and there is no substantial evidence in the record that shows that the Modified Project would cause any significant environmental impacts. Therefore, no supplemental environmental review is required or allowed in accordance with Public Resources Code Section 21166, and CEQA Guidelines Sections 15162 through 15164.
2.3 Determination
Based on the foregoing and the detailed analyses and conclusions set forth in this document; the analysis, findings, and conclusions of the 2018 EIR included the potential environmental effects associated with the Modified Project and none of the criteria calling for preparation of a subsequent EIR or negative declaration under Sections 15162 have occurred. The information and analysis presented in this environmental review document supports that the Modified Project meets all requirements under CEQA Guidelines Sections 15164 and determinations that the Modified Project qualifies for an Addendum to the 2018 EIR. Therefore, this CEQA analysis makes findings of consistency with Sections 15164. As a result, no supplemental environmental review is required in accordance with CEQA Guidelines Sections 15164.
Overall, based on an examination of the analysis, findings, and conclusions of the 2018 EIR, the potential environmental impacts associated with the Modified Project have been adequately analyzed and covered in the 2018 EIR. Therefore, no further review or analysis under CEQA is required. The Modified Project is also required to comply with the applicable mitigation measures identified in the 2018 EIR, except as updated in the modified Mitigation Monitoring and Reporting Program (MMRP), which is included as Attachment A to this Addendum.
3. Project Description
3.1 Project Site
The Modified Project site (Project site) is the same as the Project site for the Original Project which consists of one parcel (APN 560-330-043) totaling approximately 18.4 acres in size located at 1135 Canal Boulevard, south of the intersection of Canal Boulevard and Seacliff Drive. The Project site is located approximately 0.2-mile north of the San Francisco Bay within the Point Richmond area of the City. Figure 3-1 illustrates the Project site’s local context. The Project site is bounded by Seacliff Drive (east), vacant property and Canal Boulevard (north), vacant property then Seacliff Drive (south), and Miller/Knox Regional Shoreline park (Miller/Knox park), an East Bay Regional Park District (EBRPD) open space area (west and north).
The Project site is unchanged from conditions described in the 2018 EIR and is currently vacant and undeveloped after reclamation of the Canal Quarry (CA Mine ID #91-07-0007) was completed in 2012. The relief of the landscape is generally flat on approximately 6.3 acres, with a steep, east-facing slope rising to a bluff on the west side of the property where the grade rises sharply.
Vegetation on the site consists largely of grasses and scattered shrubs, with trees also located on the bluff above the site. Subdrain pipes extending out of the ground midway along the face of the slope drain groundwater from the slope and into a vegetated, constructed drainage. Water in this drainage flows along the toe of the slope from north to south and to a location in the southern part
2. Purpose and Determination
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EIR Addendum March 2022
of the site where it begins to flow east, flowing for a short distance within a culvert under an unpaved access road on the site, and ultimately into a catch basin approximately 20 feet from Seacliff Drive, which eventually discharges into the Bay.
The entire Project site has a General Plan land use designation of Open Space and Medium Density Residential and is zoned OS, Open Space, and PA, Planned Area. As discussed in the 2018 EIR, the Original Project included an application for a General Plan Land Use Map Amendment and zoning reclassification, from Parks and Recreation to Open Space (for 12.1 acres of the site) and Medium Density Residential to Planned Area District (PA) (for 6.3 acres of the Project site referred to in this Addendum as the “Project development area” of the site). The PA zoning designation facilitates the orderly development of larger sites in the City consistent with the General Plan, especially where a particular mix of uses or character is desired that can best be achieved through an integrated development plan.
3.2 Original Project
The Original Project would develop approximately 6.3 acres of the Project site and preserve the remainder of the site (12.1 acres) as open space (see Figure 3-2). The Original Project consisted of the following components:
DORNAN DR
MALLARD DR
PROJECT
SITE
Keller Beach
BRICKYARD COVE RD
SANDPIPER SPIT
Brickyard
Richmond Cove Marina
Yacht
Club
San Francisco Bay
Harbor
Channel
Santa Fe Channel
MILLER/KNOX
REGIONAL
SHORELINE
BRICKYARD
LANDING
SEA CLIFF
BOTTOMS
RESIDENTIAL
PROJECT
TERMINAL ONE
PROJECT
SANDPIPER SPIT
SANDERLING
ISLAND
BRICKYARD
COVE
RESIDENTIAL
PROJECT
COMMERCIAL AND
INDUSTRIAL USES
Cyprus Point
Ferry Point PELICAN WAY
Quarry Residential Addendum . 161035.01
Figure 3-1
Project Site and Surrounding Uses
SOURCE: ESA, 2017
0 1000
Feet
Residential
Private Recreational
Public Park Land
Commercial and Industrial
Planned/Proposed Residential
Vacant Land
Quarry Residential Addendum . 161035.01
Figure 3-2
Original Project Site Plan
SOURCE: KTGY
0 80
Feet
3. Project Description
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1. Up to 200 condominiums units of varying sizes in 15 buildings three-story buildings, some with four-story elements;
2. Maximum building height under 50 feet.
3. Approximately 289 parking spaces (252± garage and carport spaces for residents and approximately 37± spaces for guests, including 8 accessible spaces);
4. Amenities, including a clubhouse and swimming pool;
5. Landscaping, pathways, and small open space areas throughout the site;
6. Improvements to the Seacliff Drive right-of-way along the Project site frontage, including addition of landscaping, installation of enhanced lighting especially at the intersection of the Project driveway and Seacliff Drive, and improvements to the Bay Trail;
7. Rolled curbs at the Project access for emergency vehicles;
8. Installation of utilities and infrastructure improvements that would be required to serve the new homes; and
9. Contribution or creation of a staging area for the EBRPD Crest Trail at Canal Boulevard.
Given concerns raised regarding preexisting traffic safety conditions on Seacliff Drive, the Project Applicant agreed to pay for and/or install the following improvements to Seacliff Drive:
1. Speed feedback signs in both directions;
2. Striping on both sides of Seacliff Drive to provide 2-foot shoulders and 12-foot travel lanes in both directions; and
3. The following signage:
a. 25 miles per hour (mph) speed limit (Sign R2-1) on both directions of Seacliff Drive; b. Curve arrows (W1-8) on both directions of Seacliff Drive; and c. Stop Ahead (W3-1) on northbound Seacliff Drive on the approach to Canal Boulevard; and Intersection Ahead (W2-2) on both directions of Seacliff Drive approaching the Project driveway.
The Original Project was anticipated to be developed in one phase, with a construction period of 16 months. Project site preparation would include extensive site grading and fill within the Project development area. All construction staging would also be contained within the Project development area, and construction vehicles would primarily use a service road off Canal Boulevard to access the Project site and minimize construction traffic on Seacliff Drive where feasible.
The Original Project would use existing and available water and wastewater treatment and off-site transmission/conveyance capacity. The Project Applicant would assume responsibility for constructing all required additional on-site and offsite utilities and connections. Project site
2. Purpose and Determination
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stormwater associated with the Original Project would be treated on-site and include 8,550 square feet of on-site bioretention features that included a tiered landscaping system with two bioretention areas fronting the Project site.
3.3 Modified Project
The Project Applicant proposes revisions to the Original Project to develop 76 detached singlefamily houses rather than 15 condominium buildings across the Project development area of the site (Modified Project) (see Figure 3-3). The houses would be 3-and 4-bedroom homes with a maximum building height of 30 feet.
Two-car garages attached to each home would provide 152 garage spaces for residents, and approximately 34 surface parking spaces, including two accessible spaces, would be provided for guests for a total of up to 186 spaces on the Project site. The land use program and other major characteristics of the Modified Project compared to the Original Project are shown in Table 3-1.
The Modified Project would not include the recreation center or associated amenities, such as the clubhouse and swimming pool, which were part of the Original Project. The Modified Project’s Preliminary Utility Plan and Stormwater Control Plan would continue to include a tiered landscaping system, which would be expanded to approximately 9,520 square feet of bioretention areas compared to approximately 8,550 square feet proposed with the Original Project.
Nearly all other major components of the Original Project would remain unchanged with the Modified Project, including primary and emergency vehicle access, construction phasing, as well as offsite Bay Trail improvements, Crest Trail staging area, and roadway improvements. Also, the Modified Project is consistent with the existing Open Space and Medium Density Residential General Plan land use designations, and the OS and PA zoning, both designated with approval of the Original Project.
Date
Project#
Checked
Drawn
Scale
Sheet Description: Rev: 5870 Stoneridge Mall Rd, Suite 203 Pleasanton, California, 94588
http://www.cswst2.com
925.523.4001
C S W S T 2
AS SHOWN
CSE
RS
01/19/22
2130074
Seal & Signature:
Sheet Number:
RICHMOND CONTRA COSTA COUNTY CALIFORNIA
Date: Description:
C3.0 THE QUARRY RESIDENTIAL PROJECT VESTING TENTATIVE MAP Graphic Scale (in feet) 0
1 inch = 80 ft.
80 LEGEND:
BOUNDARY LINE
LOT LINE
EXISTING EASEMENT
PROPOSED EASEMENT
RIGHT OF WAY
Quarry Residential Addendum . 161035.01
Figure 3-3
Modified Project Site Plan
SOURCE: CSW | ST2, 2022
2. Purpose and Determination
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TABLE 2-1
LAND USE PROGRAM AND MAJOR PROJECT CHARACTERISTICS
MODIFIED PROJECT AND ORIGINAL PROJECT
Proposed Land Use 2018 EIR Original Project Modified Project Residential (units)
Detached Single-family 0 76
Condominiums (Multi-Family) 200 0
TOTAL 200 76
Residential Unit Characteristics
Average Unit Size 1,100 sf 2,183 sf
Total Gross Floor Area 220,000 gsf 165,968 gsf
Building Height1 3 - 4 stories/ 40 - 50 ft 2 stories / maximum 30 ft TOTAL SF 221,100 165,968
Amenities
Clubhouse/Recreation Center/Pool 3,000 sf 0
Parking (spaces)
Resident +/- 252
(garage/carport)
+/- 152
(attached 2-car garage per unit)
Guest +/- 37 +/- 34
Accessible +/- 8 +/- 2
TOTAL +/- 289 +/- 186
Open Space and Site Area
Common Open Space
(within Project Development Area) 40,450 sf 34,444 sf2
Remnant Open Space
(Non-Development Area) 530,000 sf (12.1 ac3) 637,315 sf (14.6 ac) Total Site Area 18.4 ac 18.4 ac
Stormwater Treatment and Earthwork
Stormwater Bioretention Area 8,550 sf 9,520 sf
Estimated Fill (cubic yards) 85,000 cy 52,400 cy
1 Height above finished floor elevation of ground level units measured to the highest point of roof. 2 Parcels A through F (see Figure 3-3).
3 Parcel G and Parcel 2 (see Figure 3-3). The 1.5-acre Parcel 2 Conservation Easement was inadvertently omitted from the 12.1- acre Original Project Remnant Open Space acreage.
3.4 Modified Project Approvals
Required Jurisdictional Approvals
City of Richmond
Implementation of the Modified Project would require a series of interrelated planning and regulatory
approvals by the City, as Lead Agency. Specifically, the City is considering taking the following approval actions, which are generally the same as those previously approved for the Original Project:
3. Project Description
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1. Certification of the Quarry Residential Project EIR Addendum pursuant to CEQA;
2. Approval of a Major Amendment to a Planned Area Plan to reduce density and modify unit types;
3. Approval of a Vesting Tentative Subdivision Map. The applicant will apply for a Vesting Tentative Subdivision Map to create legal parcels for the purpose of subdividing the property into 76 single-family lots and seven common-interest lots;
4. Approval of Design Review Permits for the design of the residential structures;
5. Approval of a Density Bonus for waivers of certain development standards; and
6. Other City approvals that may be required, such as:
Grading permits,
Encroachment permits, including as needed for Crest Trail staging area improvements,
Building permits, and
Other City approvals as necessary to develop the Project.
The Modified Project and associated approvals would require review and recommendation by DRB and Planning Commission to the City Council, followed by consideration and action by the City Council. This Addendum is intended to provide the CEQA-required environmental documentation for use in considering these and any other City approvals required to approve the Project.
Other Governmental Agency Approvals
As the Lead Agency and as appropriate under CEQA, the City also intends this Addendum to serve as the CEQA-required environmental documentation for consideration of the Modified Project by other Responsible Agencies and Trustee Agencies which may have limited discretionary authority over development proposals associated with the Modified Project. Under the CEQA Guidelines, the term “Responsible Agency” includes all public agencies, other than the Lead Agency, which have discretionary approval power over aspects of a project for which the Lead Agency has prepared an EIR (Section 15381); and the term “Trustee Agency” means a State agency having jurisdiction by law over natural resources affected by the project which are held in trust by the people of California (Section 15386).
Responsible Agencies and Trustee Agency approvals for the Modified Project may include, but are not limited to, the following:
Local Agencies
Richmond Municipal Sewer District approvals will be required for sewer hookups and any upgrades to the backbone sewer system.
Contra Costa Environmental Health Department review and permits may be required, if wells or soil borings are required (for geotechnical studies, for example.
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Regional and State Agencies
Encroachment Permit from East Bay Regional Park District (EBRPD) for the emergency vehicle access and, as needed, to accommodate construction of Crest Trail staging area improvements.
EBMUD approvals will be required for water hookups and water lines. East Bay Municipal Utilities District (EBMUD) review of the Project’s water needs assessment will also be required.
San Francisco Bay Regional Water Quality Control Board (SFRWQCB) required approvals will include:
– National Pollution Discharge Elimination System (NPDES) General Permit for storm water discharges associated with construction activity, – Notice of Intent for construction activities, and
– Storm Water Pollution Prevention Plan (SWPPP) for on-site storm water management and pollution prevention.
_________________________
3.5 References
City of Richmond, 2017. Quarry Residential Project Draft Environmental Impact Report (Draft EIR). October, 2017.
City of Richmond, 2018. Quarry Residential Project Response to Comments / Final Environmental Impact Report (Final EIR). January, 2018.
New West Communities, 2022. Quarry Housing Project Submittal. January 19, 2022, with amendments dated March 1, 2022.
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4. CEQA Analysis
4.1 Overview
This CEQA analysis summarizes the impacts and findings of the Original Project analysis from the Quarry Residential Project EIR (2018 EIR), followed by a discussion of any changes in circumstances, new information, or differences between the proposed Modified Project and the Original Project that could result in changes to the previous impacts and/or mitigation measures.
Specifically, the analysis discussion is framed to determine for each environmental topic if any of the CEQA provisions calling for the preparation of a subsequent EIR or negative declaration have occurred.2
This CEQA analysis hereby incorporates by reference the discussion and analysis of all potential environmental impact topics as presented in the certified 2018 EIR and explains the various mitigation measures that apply to the Modified Project by impact area. The analysis provides a determination of whether the Modified Project would result in:
Equal or Less Severity of Impact Previously Identified in 2018 EIR; Substantial Increase in Severity of Previously Identified Significant Impact in the 2018 EIR; and/or
New Significant Impact.
This CEQA analysis also identifies where the Modified Project would result in significant impacts that are:
Not identified in the 2018 EIR including offsite and cumulative; Due to substantial changes in the Project;
Due to substantial changes in circumstances under which the Project will be undertaken; and/or
Due to substantial new information not known at the time the 2018 EIR was.
However, none of the aforementioned conditions were found for the Modified Project, as demonstrated throughout the following CEQA analysis that specifically describes how the Modified Project meets the criteria and standards specified in the CEQA Guidelines Section 15164.
Since the City certified the 2018 EIR, there have been modifications to Appendix G to the CEQA Guidelines that affect the organization and/or text of certain environmental topics and significance criteria. Any notable differences are disclosed herein, and for ease of review, the analysis presentation in this CEQA analysis largely aligns with that presented in the 2018 EIR. 2 Public Resources Code Section 21166 and CEQA Guidelines Sections 15162 and 15164 (Subsequent EIRs, Supplements and Addenda to an EIR or Negative Declaration).
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4.2 Aesthetics
PREVIOUSLY-IDENTIFIED ORIGINAL PROJECT IMPACTS IN THE
2018 QUARRY RESIDENTIAL PROJECT EIR
Impact AES-1: The Project would not have a substantial adverse effect on a scenic vista nor substantially damage scenic resources. (Criteria a. and b.) (Less than Significant, No Mitigation Required) Impact AES-2: The Project would not substantially degrade the existing visual character or quality of the site and its surroundings. (Criterion c.) (Less than Significant, No Mitigation Required) Impact AES-3: The proposed Project would not create a new source of substantial light or glare which would adversely affect day or nighttime views in the area. (Criterion d.) (Less than Significant, No Mitigation Required)
Impact C-AES-1: The proposed Project would not result in a cumulative aesthetics impact when considering the combined effect of the Project, and past, present, approved, pending, and reasonably foreseeable future projects. (Less than Significant, No Mitigation Required) These impacts are addressed in detail on pages 4.1-14 through 4.1-28 of the Draft EIR and page 2-13 of the Response to Comments/Final EIR document.
Views
The 2018 EIR concluded that, although the Original Project would change views from public access areas such as trails in Miller/Knox Regional Shoreline, the change would not have a significant adverse effect.
Similar to the Original Project, the Modified Project would transform a portion of the Project site, but would keep intact and undeveloped the most visible portions of the hillside and designated open space. The Modified Project would develop housing within the same 6.3-acre Project development area, and within the same parameters set forth in the proposed PA zoning and Medium Density Residential land use designation including setbacks, housing types, and residential density. The Modified Project would develop buildings of up to 30-feet in height which would be considerably less visible compared with the Original Project buildings up to 50- feet in height. Overall, the Modified Project would result in the same or reduced impacts with respect to scenic views.
Visual Character / Visual Quality
The 2018 EIR concluded that, the Original Project would alter but not substantially degrade the existing visual character or quality of the Project site and its surroundings.
The Modified Project would develop housing within the same 6.3-acre Project development area and would include the same off-site improvements proposed under the Original Project. As noted above, the modified development proposal was designed within the same parameters set forth in the proposed PA zoning and Medium Density Residential land use designation although at a reduced height and density compared with the Original Project. The Modified Project would adhere to the same proposed development standards and design parameters, and would be developed using a color and materials palette purposefully selected to be compatible with the neutral light tones of the surrounding industrial uses located closest to the Project site.
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The new development design and associated landscape plan for the Project development area would be subject to the same design review process and applicable design review permit criteria. the DRB, the Planning Commission, and ultimately the City Council will assess all aspects of the Project’s design, including materials and lighting, and conditions may be added to the Project to further address glare and lighting, to ensure quality design. Overall, the Modified Project would result in the same or reduced impacts with respect to visual character and visual quality.
Lighting / Glare
The 2018 EIR concluded that the Original Project would not create a new source of substantial light or glare that would adversely affect day or nighttime views in the area.
The Modified Project would result in shorter buildings, fewer residents and visitors, and less vehicular activity compared with the Original Project. The Modified Project would include the similar color and materials pallet purposefully selected to minimize effects related to glare. Like the Original Project, the Modified Project would be subject to the City’s development standards set forth in Zoning Ordinance Section 15.04.604 (Lighting and Illumination), which establish standards for light and glare. As noted above, the Modified Project would also be subject to the same design review process and applicable design review permit criteria. Overall, the Modified Project would result in reduced impacts with respect to light and glare.
Cumulative
As discussed above in this section, the Modified Project would not result in new or substantially more severe impacts compared to those identified in the 2018 EIR, and its contribution to cumulative aesthetic effects would be the less than identified in the 2018 EIR.
Summary
Based on an examination of the analysis, findings, and conclusions of 2018 EIR, implementation of the Modified Project would not substantially increase the severity of significant impacts identified in the 2018 EIR, nor would it result in new significant impacts related to aesthetics that were not identified in the 2018 EIR. No revisions are required to the 2018 EIR analysis of the Original Project to address potential aesthetics impacts of the Modified Project.
Mitigation Measures
No mitigation measures were identified in the 2018 EIR to address aesthetics impacts.
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4.3 Air Quality
PREVIOUSLY-IDENTIFIED ORIGINAL PROJECT IMPACTS IN THE
2018 QUARRY RESIDENTIAL PROJECT EIR
Impact AIR-1: The Project could conflict with or obstruct implementation of the applicable air quality plan. (Criterion a.) (Less than Significant, No Mitigation Required) Impact AIR-2: Project construction would result in increased emissions of criteria air pollutants. (Criterion b.) (Less than Significant with Mitigation)
Impact AIR-3: Operation of the Project would result in increased emissions of criteria air pollutants. (Criterion b.) (Less than Significant, No Mitigation Required) Impact AIR-4: Construction of the Project could increase emissions of toxic air contaminants (TACs), and increase health risks for nearby residents. (Criterion d.) (Less than Significant, No Mitigation Required) Impact AIR-5: Project operations could expose sensitive receptors to substantial pollutant concentrations including toxic air contaminants and increase health risks for existing and proposed residents. (Criterion d.) (Less than Significant, No Mitigation Required)
Impact AIR-6: The Project could create objectionable odors affecting a substantial number of people. (Criterion e.) (Less than Significant, No Mitigation Required) Impact C-AIR-1: The Project, in combination with past, present, and reasonably foreseeable future development of cumulative projects would contribute to cumulative regional air quality impacts. (Criterion c.) (Less Than Significant, No Mitigation Required)
Impact C‐AIR-2: The Project, in combination with past, present, and reasonably foreseeable future development of cumulative projects would contribute to cumulative health risk impacts on sensitive receptors. (Criterion c.) (Less Than Significant, No Mitigation Required) These impacts are addressed in detail on pages 4.2-15 through 4.2-56 of the Draft EIR.
Evaluation of Construction-related Emissions and Health of the Modified Project
The analysis in the 2018 EIR (Impact AIR-2) found that construction of 200 multi-family units would result in estimated average daily construction-related exhaust emissions that would not exceed the thresholds for ROG, NOx, PM10 or PM2.5 and would result in a less-than-significant impact. Modified Project would only construct 76 single-family residences. Construction activities related emissions would be similar to the Original Project analyzed in the 2018 EIR.
The CalEEMod model (version 2020.4.0) was used to estimate project construction emissions conservatively assuming the 85,000 cubic yards of material import that was assumed for the Original Project. Similar to the Original Project, the model indicates that construction-related emissions of NOx ROG, PM10, and PM2.5 under the Modified Project would be well below the BAAQMD adopted significance thresholds for these pollutants. The reductions in particulate and ROG emissions are the result of improved on-road emission factors in the updated version of CalEEMod that are assumed for the fleet of haul trucks importing clean fill. Therefore, the Modified Project would result in the same less-than-significant impact with respect to construction-related exhaust emissions of criteria pollutant emissions of concern. Mitigation Measure AIR-1: Best Management Practices for Controlling Particulate Emissions would still apply to address fugitive dust emissions.
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For construction-related health risk impact, this same method can be used to estimate the reduction in diesel particulate matter (DPM) emissions associated with the Modified Project.
Impact AIR-4 of the 2018 EIR determined that project construction would result in increased emissions of DPM and that, unmitigated, these emissions would result in an increased cancer risk of 11.6 in one million thereby exceeding the BAAQMD 1 on 10 million increased cancer risk threshold. Implementation of Mitigation Measure AIR-2, BAAQMD’s Enhanced Exhaust Emission Reduction Measures would reduce the impact to less than significant. The CalEEMod model (version 2020.4.0) indicates that construction-related PM10, as a surrogate for DPM emissions, under the Modified Project would be 70 percent less than that of the Project analyzed in the 2018 EIR. These reductions in particulate and ROG emissions are the result of improved on-road emission factors in the updated version of CalEEMod that are assumed for the fleet of haul trucks importing clean fill. Therefore, the Modified Project would also have a less than significant impact with respect to construction-related health risk, as it is reasonable to correlate the percentage reduction of PM10 emissions (70 percent) with a similar reduction in overall increase in cancer risk from DPM exposure yielding an increased cancer risk under 4 in one million. Mitigation Measure AIR-2: Enhanced Exhaust Emissions Reduction Measures would not be required for the Modified Project.
Evaluation of Operational Criteria Air Pollutant Emissions of the Modified Project
The analysis in the 2018 EIR (Impact AIR-3) found that, under the Original Project, operation of 200 multi-family units would result in increased emissions of criteria air pollutants below the applicable BAAQMD thresholds of significance resulting in a less than significant impact. The Modified Project would only construct up to 76 single-family residences and vehicle trip generation and other area sources would be reduced compared to the Original Project analyzed in the 2018 EIR (see Section 5.15, Transportation and Traffic, below). The transportation analysis indicates that vehicle trip generation would be reduced by 41 percent, from 1,396 daily vehicle trips under the Original Project to 822 vehicle trips under the Modified Project.
Table 4-1 presents the estimated criteria pollutants of the Modified Project compared with the Original Project. The CalEEMod model (version 2020.4.0) indicates that operational NOx emissions under the Modified Project would be reduced from 10.36 pounds per day under the Original Project to 2.91 pounds per day under the Modified Project. Criteria air pollutant emissions under the Modified Project would be below the BAAQMD thresholds for reactive organic gases, NOx, and particulate matter. Therefore, the Modified Project would also have a less than significant impact with respect to operational criteria pollutant emissions of concern.
Evaluation of Operational Health Risk Impacts of the Modified Project The analysis in the 2018 EIR (Impact AIR-4) found that under the Original Project, operation of 200 multi-family units would not result in increased health risks associated with toxic air contaminants (TACs) and the impact would be less than significant. As the Modified Project would not result in any new, additional sources of TACs (e.g., backup diesel generators or
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industrial stationary sources), the Modified Project would also have a less-than-significant impact with respect to operational health risks.
There have been no updated air quality thresholds of significance or updates to the CEQA Air Quality Guidelines published by BAAQMD since publication of the 2018 Draft EIR.
TABLE 4-1
UNMITIGATED AVERAGE OPERATIONAL CRITERIA POLLUTANT EMISSIONS
OF THE ORIGINAL AND MODIFIED PROJECT
Air Pollutant
Estimated Emissions (lbs/day)
ROG NOX PM10 PM2.5
Mobile Sourcesa Original Project
Mobile Sourcesa Modified Project
2.19 1.89
9.81 2.09
6.52 3.83
1.81 1.04
Area SourcesaOriginal Project
Area Sourcesa Modified Project
5.42 3.61
0.11 0.04
0.05 0.02
0.05 0.02
Energy SourcesaOriginal Project
Energy Sourcesa Modified Project
0.05 0.09
0.44 0.78
0.05 0.06
0.05 0.06
Total Original Project
Total Modified Project
7.67 5.74
10.36 2.91
6.63 3.91
1.92 1.12
BAAQMD Threshold for
Significant Operations Impactsb 54 54 82 54
Significant Impact? No No No No
a Mobile sources are motor vehicles and trucks. Area sources include landscape maintenance (equipment used for these activities such as gasoline-powered lawnmowers and blowers), maintenance application of paints and other interior and exterior surface coatings, and use of consumer products that result in emissions of ROG. Energy sources include natural gas combustion for space and water heating. b Operational thresholds are from Table 2-1 of BAAQMD’s 2017 CEQA Air Quality Guidelines (BAAQMD, 2017a).
SOURCE: ESA .
Mitigation Measures
The following mitigation measure from the 2018 EIR will continue to apply to the Modified Project to address the significant air quality impact.
Mitigation Measure AIR-1: Best Management Practices for Controlling Particulate Emissions. The Project applicant shall implement the following BAAQMD Best Management Practices for particulate control. These measures will reduce particulate emissions primarily during soil movement, grading and demolition activities but also during vehicle and equipment movement on unpaved areas.
1. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day.
2. All haul trucks transporting soil, sand, or other loose material off-site shall be covered.
3. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.
4. All vehicle speeds on unpaved roads shall be limited to 15 mph.
5. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
6. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure Title 13, § 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points.
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7. All construction equipment shall be maintained and properly tuned in accordance with manufacturer’s specifications. All equipment shall be checked by a certified mechanic and determined to be running in accordance with manufacturer’s specifications prior to operation.
In addition, construction vehicle washing shall be prohibited on the Project site.
Mitigation Measure AIR-2: Enhanced Exhaust Emissions Reduction Measures. The applicant shall implement the following measures during construction to further reduce construction-related exhaust emissions:
All off-road equipment greater than 25 horsepower (hp) and operating for more than 20 total hours over the entire duration of construction activities shall meet the following requirements:
1. Where access to alternative sources of power are available, portable diesel engines shall be prohibited; and
2. All off-road equipment shall have:
a. Engines that meet or exceed either USEPA or CARB Tier 3 off-road emission standards, and b. Engines that are retrofitted with a CARB Level 3 Verified Diesel Emissions Control Strategy. Acceptable options for reducing emissions include the use of late model engines, low-emission diesel products, alternative fuels, engine retrofit technology, after-treatment products, add-on devices such as particulate filters, and/or other options as such are available.
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4.4 Biological Resources
PREVIOUSLY-IDENTIFIED ORIGINAL PROJECT IMPACTS IN THE
2018 QUARRY RESIDENTIAL PROJECT EIR
Impact BIO-1: Development of the Project could have a substantial adverse effect, either directly or through habitat modifications, on species identified as candidate, sensitive, or special-status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Wildlife or the United States Fish and Wildlife Service. (Criterion a.) (Less Than Significant with Mitigation) Impact BIO-2: Construction of the Project could have a substantial adverse effect on Waters of the U.S. and the state. (Criterion c.) (Less than Significant, No Mitigation Required) Impact BIO-3: The Project would not interfere substantially with the movement of native resident or migratory bird species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites. (Criterion d.) (Less Than Significant, No Mitigation Required) Impact BIO-4: Implementation of the Project would not conflict with any local policies or ordinances protecting biological resources, or adopted local, regional, or state habitat conservation plan. (Criteria e., f.). (Less than Significant with Mitigation)
Impact C-BIO-1: The proposed Project, in conjunction with other past, current, or foreseeable development in Richmond, could result in cumulative impacts on special-status species, habitats, wetlands and other waters of the U.S. (Less than Significant with Mitigation)
These impacts are addressed in detail on pages 4.3-19 through 4.3-30 of the Draft EIR.
Project Construction
The 2018 EIR concluded that construction of Original Project would result in less than significant impacts on waters of the U.S. and the state, and less than significant impacts to special-status and nesting birds with implementation of Mitigation Measures BIO-1: Nesting Bird Protection Measures and C-NOI-1: Construction Noise Control Measures and Noise Control Plan (see below).
No aspect of the Modified Project would change the conditions or environmental impacts regarding biological resources identified for the Original Project in the 2018 EIR. The Modified Project would be developed within the same 6.3-acre Project development area requiring the same or reduced level of construction-related activity. The Modified Project would not result in changes to project construction as analyzed in the 2018 EIR and, therefore, would not change the Original Project’s potential impacts from construction on biological resources including waters of the U.S. and state, special status species, and nesting birds. The Modified Project would implement Mitigation Measures BIO-1: Nesting Bird Protection Measures and C-NOI-1:
Construction Noise Control Measures and Noise Control Plan to reduce potential construction-related impacts on biological resources to a less-than-significant level.
Project Operation
The 2018 EIR concluded that compliance with existing regulations would ensure that new sources of nighttime light associated with the Original Project would not appreciably increase the overall amount of lighting in the surrounding vicinity such that a substantially adverse impact to birds would occur.
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The Modified Project would be developed within in the same Project development area as the Original Project although in a less dense configuration and with buildings up to 30-feet tall rather than up to 50-feet under the Original Project. Buildings under 45-feet are exempt from the City of Richmond’s Bird-Safe Buildings Municipal Ordinance. However, the most recent (2019 or 2022) California Green Building Standards Code of Regulation, Title 24, Part 11 (CALGreen) and Richmond’s Municipal Code section 15.04.604, Lighting and Illumination, would apply to the Modified Project and would help eliminate Project-related lighting impacts to areas beyond the project footprint. Given that the Modified Project would not introduce new sources of nighttime light taller than 28 feet, the Modified Project would result in reduced impacts to birds associated with nighttime lighting.
Cumulative
As discussed above in this section, the Modified Project would not result in new or substantially more severe impacts compared to those identified in the 2018 EIR, and its contribution to cumulative effects on biological resources would be the same or less than identified in the 2018 EIR.
Summary
Based on an examination of the analysis, findings, and conclusions of the 2018 EIR, implementation of the Modified Project would not substantially increase the severity of significant impacts identified in the 2018 EIR, nor would it result in new significant impacts related to biological resources that were not identified in the 2018 EIR. Mitigation Measures BIO-1, Nesting Bird Protection Measures and C-NOI-1, Construction Noise Control Measures and Noise Control Plan would be applicable to and would be implemented by the Modified Project and would ensure that impacts on biological resources would be less than significant. No revisions are required to the 2018 EIR analysis of the Original Project to address potential biological resources impacts of the Modified Project.
Mitigation Measures
The following mitigation measures from the 2018 EIR will continue to apply to the Modified Project to address significant biological resources impacts.
Mitigation Measure BIO-1: Nesting Bird Protection Measures. The Project applicant shall conduct preconstruction nesting bird surveys in areas containing, or likely to contain, habitat for nesting birds (i.e., areas with shrub vegetation) as a condition of approval for any development-related permit. Specific measures to avoid and minimize impacts on nesting birds include, but are not limited to, those described below. a) Construction activities including vegetation removal and construction shall be performed between September 1 and January 31 in order to avoid the avian nesting season. b) If construction activities cannot be completed between September 1 and January 31, a preconstruction survey for nesting birds shall be conducted by a qualified biologist. During the avian nesting season (February 1 through August 31), a qualified biologist shall survey construction areas within and in the vicinity of the Project site for nesting raptors and passerine birds not more than 30 days prior to any ground-disturbing activity or vegetation removal. All accessible potential nesting habitat, including bare ground, in the Project site and within a 500-foot buffer area (for raptors) and 250-foot buffer area (for all other species) around any construction activity will be
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surveyed.
c) If active nests are found either within the Project site or within the survey buffer, “no-work” buffer zones shall be established around the nests by a qualified biologist in coordination with CDFW as necessary depending on the specific species encountered. No vegetation removal or ground-disturbing activities shall occur within the no-work buffer zone until young have fledged or the nest is otherwise abandoned as determined by the qualified biologist. If work during the nesting season stops for 14 days or more and then resumes, then nesting bird surveys shall be repeated, to ensure that no new birds have begun nesting in the area.
Typically, the size of individual “no-work” buffers ranges from a minimum of 250 feet for raptors to a minimum of 50 feet for other birds but can be adjusted based on an evaluation of the site by a qualified biologist in cooperation with the USFWS and/or CDFW as necessary (i.e., in the case of protected species). Buffer distances may also be modified if obstacles such as buildings or trees obscure the construction area from active bird nests, or existing disturbances create an ambient background disturbance similar to the proposed disturbance. d) Birds that establish nests after construction starts are assumed to be habituated to and tolerant of the indirect impacts resulting from construction noise and human activity. However, direct take of nests, eggs, and nestlings is still prohibited and a buffer must be established to avoid nest destruction. e) Results of the surveys shall be forwarded to CDFW (if required by state law based on the species observed) and avoidance procedures shall be adopted, if necessary, on a case-by-case basis. These may include construction buffer areas (up to several hundred feet in the case of raptors) or seasonal avoidance.
Mitigation Measure C-NOI: Construction Noise Control Measures and Noise Control Plan. (See full text listed under Section 4.12, Noise.)
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4.5 Cultural and Paleontological Resources
PREVIOUSLY-IDENTIFIED ORIGINAL PROJECT IMPACTS IN THE
2018 QUARRY RESIDENTIAL PROJECT EIR
Impact CUL-1: Project implementation would not cause a substantial adverse change in the significance of a historical resource as defined in CEQA Guidelines, Section 15064.5. (Criterion a.) (Less than Significant, No Mitigation Required)
Impact CUL-2: Project construction could cause a substantial adverse change in the significance of an archaeological resource, including those determined to be a historical resource defined in Section 15064.5 or a unique archaeological resource defined in PRC 21083.2. (Criterion b.) (Less than Significant with Mitigation) Impact CUL-3: Project construction could disturb human remains, including those interred outside of formal cemeteries. (Criterion c.) (Less than Significant with Mitigation) Impact CUL-4: The Project could cause a substantial adverse change in the significance of a tribal cultural resource. (Criterion d.) (Less than Significant with Mitigation) Impact CUL-5: Project construction could directly or indirectly destroy a unique paleontological resource or site or unique geologic feature. (Criterion e.) (Less than Significant with Mitigation) Impact C-CUL-1: Construction activity and development of the Project, in combination with past, present, existing, approved, pending and reasonably foreseeable future projects within and in the vicinity of the Project site, would contribute to an adverse cumulative impact to cultural resources, but the contribution would not be considerable. (Less Than Significant with Mitigation)
These impacts are addressed in detail on pages 4.4-13 through 4.4-22 of the Draft EIR and page 2-16 of the Response to Comments/Final EIR document.
The 2018 EIR determined that no historic-era architectural or built environment resources are located within the Project development area and that the Original Project would result in less than significant impacts to historic era architectural resources. The 2018 EIR concluded that construction of the Original Project on the Project development area would have potentially significant impacts related to archaeological resources, human remains, and/or paleontological resources and that these impacts would be reduced to less-than-significant levels with implementation of Mitigation Measures CUL-1: Preconstruction Training, Cultural Resources Monitoring, and Inadvertent Discovery of Cultural Resources; CUL-2: Inadvertent Discovery of Human Remains; and CUL-3: Preconstruction Training, Paleontological Monitoring, and Accidental Discovery of Paleontological Resources (see below). Following formal consultation between the City of Richmond and the Native American Heritage Commission-identified Native American individuals/organizations according to the provision of Assembly Bill 52, the 2018 EIR determined impacts to Tribal Cultural Resources would also be reduced to less-than-significant levels with implementation of Mitigation Measures CUL-1:
Preconstruction Training, Cultural Resources Monitoring, and Inadvertent Discovery of Cultural Resources; and CUL-2: Inadvertent Discovery of Human Remains.
No aspect of the Modified Project would change the conditions or environmental impacts regarding cultural or paleontological resources identified for the Original Project in the 2018 EIR.
The Modified Project would be developed within the same Project development area where no historic-era architectural or built environment resources are located. The type of development and ground disturbance area would be the same as considered in the 2018 EIR. Further, the