16 KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, OWNER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 6.6:
Owner’s Initials, Suburban Land Reserve, Inc.
Owner’s Initials, Millrose Properties California, LLC
Owner’s Initials, 7th Standard Ranch Investors LLC
6.6.4 Owner shall defend with counsel reasonably acceptable to the City, indemnify and hold harmless City and its elected officials, officers, employees, agents and contractors from any and all liability, costs, claims, damages, fines, penalties and expense, including costs of litigation and attorneys’ fees, arising out of or in any way connected with Owner’s construction of the facilities and improvements described in this Agreement and Owner shall indemnify, defend with counsel reasonably acceptable to the City and hold harmless the City against any claims pursuant to California Labor Code Section 1781 arising from this Agreement or the construction or installation of any improvements on the Property or for the Development, in accordance with the terms of Section 6.6 of this Agreement.
6.7 Provision of Off-Site Real Property for Public Improvements. The City and Owner acknowledge that certain Public Improvements may be located on property which is neither owned nor controlled by the Owner or the City, which shall be considered an Offsite Improvement.
For purposes of this Section 6.7, any individual parcel of such property on which the Offsite Improvements will be located shall be hereinafter referred to singularly as a “Subject Property”, and collectively as “Subject Properties.”
6.7.1 No Commitment to Condemn. Owner hereby acknowledges and understands that this Agreement does not obligate the City in any way to use its power of eminent domain to acquire any Subject Property. The City’s use of the power of eminent domain is conditioned by law upon certain findings and determinations that the City Council in its sole discretion, must make in accordance with California Code of Civil Procedure Sections 1240.030, 1240.040, and 1245.230. These findings and determinations include, without limitation, all of the following:
(i) The public interest and necessity require the Offsite Improvement; (ii) The Offsite Improvement is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; (iii) The Subject Property is necessary for the Offsite Improvement; and
KNOWN BY HIM OR HER, WOULD HAVE MATEMALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
BY INITIALING BELOW, OWNER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 6. 6:
OwTner's Initials, Suburban Land Reserve, Inc.
Owner's Initials, Millrose Properties California, LLC
Owner's Initial , 7th Standard Ranch Investors LLC
6.6.4 Owner shall defend with counsel reasonably acceptable to the City, indemnify and hold harmless City and its elected officials, officers, employees, agents and contractors from any and all liability, costs, claims, damages, fines, penalties and expense, including costs of litigation and attorneys' fees, arising out of or in any way connected with Owner's construction of the facilities and improvements described in this Agreement and Owner shall indemnify, defend with counsel reasonably acceptable to the City and hold harmless the City against any claims pursuant to California Labor Code Section 1781 arising from this Agreement or the construction or installation of any improvements on the Property or for the Development, in accordance with the terms of Section 6. 6 of this Agreement.
6.7 Provision of Off-Site Real Property for Public Improvements. The City and Owner acknowledge that certain Public Improvements may be located on property which is neither owned nor controlled by the Owner or the City, which shall be considered an Offsite Improvement.
For purposes of this Section 6.7, any individual parcel of such property on which the Offsite Improvements will be located shall be hereinafter referred to singularly as a "Subject Property", and collectively as "Subject Properties."
6.7. 1 No Commitment to Condemn. Owner hereby acknowledges and understands that this Agreement does not obligate the City in any way to use its power of eminent domain to acquire any Subject Property. The City's use of the power of eminent domain is conditioned by law upon certain findings and determinations that the City Council in its sole discretion, must make in accordance with California Code of Civil Procedure Sections 1240. 030, 1240. 040, and 1245. 230. These findings and determinations include, without limitation, all of the following:
(i) The public interest and necessity require the Offsite Improvement; (ii) The Offsite Improvement is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; (iii) The Subject Property is necessar)7 for the Offsite Improvement; and 16
17 (iv) That either the offer (if any) required by Section 7267.2 of the California Government Code has been made to the owner or owners of record, or the offer has not been made because the owner or owners cannot be located with reasonable diligence.
Owner hereby acknowledges and understands that as of the date of this Agreement, the City has not considered the propriety of the use of its power of eminent domain to acquire any Subject Property. The City makes no representation or guarantee whatsoever concerning the eventual result or outcome of its discretionary consideration of the use of its power of eminent domain to acquire any Subject Property or of any actual eminent domain proceeding.
6.7.2 Indemnity. Owner hereby agrees to defend (with counsel reasonably acceptable to the City), indemnify and hold harmless the City, its officials, officers, employees, agents, attorney, and contractors from and against all third party liability, claims, lawsuits, judgments, fines, penalties, amounts paid in settlements, costs and expenses arising out of or in any way connected with the City’s actions under this Section 6.7 with respect to any Subject Property, except to the extent that such liability arising from the negligence or willful misconduct of the City, its official, officers, employees, agents, attorney or contractors. Owner’s obligations under this Section 6.7.2 shall survive the expiration or termination of this Agreement.
6.7.3 Cooperation. The parties hereby agree to take such other actions and execute such other reasonable documents as are consistent with this Section 6.7 and as are reasonably necessary to effectuate this Section 6.7; provided, however, that the foregoing shall not require the City to take any legislative act or exercise its discretion in any particular manner.
6.7.4 Effect of Termination, Expiration or Invalidity of this Agreement. If the City terminates this Agreement in accordance with the provisions for termination contained herein, or if this Agreement otherwise expires or is declared invalid, Owner agrees that such termination, expiration, or determination of invalidity shall survive and Owner shall remain liable to City for all costs reasonably incurred by City up to the date of such termination, expiration or determination of invalidity in connection with actions taken by the City pursuant to this Section 6.7, and shall remain liable to the City for all costs reasonably incurred by the City subsequent to such termination, expiration or determination of invalidity relative to the taking of such actions as are necessary, as determined by the City in its sole and absolute discretion, to terminate any acquisition activity undertaken prior to such termination pursuant to this Section 6.7, including, without limitation, amounts that the City may pay pursuant to California Code of Civil Procedure Section 1268.610 et. seq., as a result of the City’s election to abandon or settle any judicial proceedings which may have been filed.
6.8 Environmental Compliance. Owner and City acknowledge that City’s adoption of the Final Environmental Impact Report for the 2005 General Plan Update that included the Mission Lakes Specific Plan described in the recitals hereto reflect City’s determination that the Final Environmental Impact Report was adequate, that such adoption is the product of City’s independent review and judgment, that it satisfied the requirements of the California Environmental Quality Act, and that it fully and adequately analyzed the environmental impacts of the Project. No mitigation measures other than those expressly identified in the Final Environmental Impact Report, the Existing Development approvals, or this Agreement shall be imposed on the Property or as an obligation of Owner for the development of the Property in
18 accordance with the Development Approvals. However, City may impose additional environmental review and mitigation measures upon Subsequent Development Approvals where such additional environmental review and measures are required pursuant to Public Resources Code Section 21166, and California Code of Regulations Title 14 Section 15162, as those sections may be amended or substituted.
6.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies.
6.10 Tentative Map Extension. Pursuant to the provisions of Section 66452.6, any tentative subdivision map or tentative parcel map approved in connection with Development of the Property shall be extended for the Term of this Agreement;.
6.11 Initial Public Improvement Phasing Plan. Development of the Property and the Public Improvements shall be subject to all timing and phasing requirements established by this Agreement or the Development Plan. Owner has identified an initial phasing plan for the development of the Property including construction of anticipated Public Improvements, as described by and depicted on the Public Improvement Phasing Plan included as Exhibit E of this Agreement; however, Owner has also reserved the right to modify the phasing and timing of the development of the Property in its sole discretion. In the event Owner elects to amend the proposed phasing of the Project, Owner shall give the City written notice of the revised phasing plan and shall provide the City Manager with a proposed revision to the Public Improvement Phasing Plan.
The City Manager shall review and approve or approve with modifications the revised Public Improvement Phasing Plan within thirty (30) days of its submittal to the City Manager. In reviewing and approving the revised Public Improvement Phasing Plan, the discretion of the City Manager shall be limited to a determination as to whether the revised Public Improvement Phasing Plan will provide the necessary Public Improvements required to serve the associated phases of development set forth in the revised phasing plan. The determination of the City Manager with respect to the revised Infrastructure Phasing Plan may be appealed to the Planning Commission and any decision made by the Planning Commission may be appealed to the City Council pursuant to the then-existing appeal provisions of the City Code.
6.12 Application of Government Code Section 66462.5. The provisions of Government Code Section 66462.5 shall not apply to any of the Public Improvements and Owner hereby waives, to the maximum legal extent, any benefits accruing to Owner pursuant to Government Code Section 66462.5 and all other statutes and judicial decisions of similar effect; provided, however, that Government Code Section 66462.5 and all other statutes and judicial decisions of similar effect will continue to apply, to the extent applicable, to all other public improvements other than the Public Improvements.
OWNER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (“SECTION 1542”), WHICH IS SET FORTH BELOW:
19 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
BY INITIALING BELOW, OWNER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
Owner’s Initials, Suburban Land Reserve, Inc.
Owner’s Initials, Millrose Properties California, LLC
Owner’s Initials, 7th Standard Ranch Investors LLC
ARTICLE 7. PUBLIC BENEFITS.
7.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs which will not be fully met by the Mission Lakes Specific Plan and further acknowledge and agree that this Agreement confers substantial private benefits on Owner which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on Owner by providing more fully for the satisfaction of the public needs resulting from the Project.
7.2 City Impact Fees. Subject to any fee credits set forth in this Article 7 or identified pursuant to any tentative map or parcel map approval, Owner shall pay to City the following public facilities and services impact fees, which shall constitute for purposes of this Agreement all Cityimposed fees included in this Agreement’s definition of Development Exactions, at the times provided therefore by applicable City ordinance or resolution:
7.2.1 Traffic Impact Fee. Owner shall pay the traffic impact fee (“Traffic Impact Fee”) in effect at the time that the building permit is issued for each dwelling unit, provided that the Traffic Impact Fees paid by Owner shall not exceed $15,000.00 for each dwelling unit.
7.2.2 Park Impact Fee. Owner shall pay the park impact fee (“Park Impact Fee”) in effect at the time that the building permit is issued for each dwelling unit, provided that the Park Impact Fee paid by Owner shall not exceed $6,000.00 for each dwelling unit.
In lieu of paying a Park Impact Fee for each dwelling unit, the Owner may design and fully construct publicly accessible parks included in the Mission Lakes Specific Plan, which shall be completed within eight (8) months of commencing park construction as set forth in Exhibit F, Park Improvements, incorporated herein by reference. All hardware or equipment supplied in
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HA VE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
BY INITIALING BELOW, OWNER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
Owner's Initials, Suburban Land Reserve, Inc.
erties California, LLC
Owner's Initials, Standard Ranch Investors LLC
ARTICLE 7. PUBLIC BENEFITS.
7.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs which will not be fully met by the Mission Lakes Specific Plan and further acknowledge and agree that this Agreement confers substantial private benefits on Ov.ner which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on Owner by providing more fully for the satisfaction of the public needs resulting from the Project.
7.2 City Impact Fees. Subject to any fee credits set forth in this Article 7 or identified pursuant to any tentative map or parcel map approval, Owner shall pay to City the following public facilities and services impact fees, which shall constitute for purposes of this Agreement all Cityimposed fees included in this Agreement's definition of Development Exactions, at the times provided therefore by applicable City ordinance or resolution:
7.2.1 Traffic Impact Fee. Owner shall pay the traffic impact fee ("Traffic Impact Fee") in effect at the time that the building permit is issued for each dwelling unit, provided that the Traffic Impact Fees paid by Owner shall not exceed $15,000.00 for each dwelling unit.
7.2.2 Park Impact Fee. Ov,ner shall pay the park impact fee ("Park Impact Fee") in effect at the time that the building permit is issued for each dwelling unit, provided that the Park Impact Fee paid by Owner shall not exceed $6,000.00 for each dwelling unit.
In lieu of paying a Park Impact Fee for each dwelling unit, the Owner may design and fully construct publicly accessible parks included in the Mission Lakes Specific Plan, which shall be completed within eight (8) months of commencing park construction as set forth in Exhibit F, Park Improvements, incorporated herein by reference. All hardware or equipment supplied in 19
20 connection with the development of such parks shall be installed in accordance with City Standards or the manufacturer’s requirements, has been inspected for conformance with applicable codes and passed, and is ready for use by the City or the public in general.
7.2.3 Sewer Impact Fee. Owner shall pay the sewer impact fee (“Sewer Impact Fee”) in effect at the time that the building permit is issued for each dwelling unit, provided that the Sewer Impact Fee paid by Owner shall not exceed $10,000.00 for each dwelling unit.
7.2.4 Fire/Police Impact Fee. Owner shall pay the fire and police services impact fee (“Fire/Police Impact Fee”) in effect at the time that the building permit is issued for each dwelling unit, provided that the Fire/Police Impact Fee paid by Owner shall not exceed $5,000.00 for each dwelling unit.
7.2.5 Additional Impact Fees. Owner shall pay any additional impact fees, other than the City’s Traffic Impact Fee, Park Impact Fee, Sewer Impact Fee, and Fire/Police Impact Fee, which shall be defined as Additional Impact Fees, in effect at the time that the building permit is issued for each dwelling unit. These Additional Impact Fees may include but not be limited to the following fees, some of which may be adopted by City and become effective after the Effective Date, provided that the total of all Additional Impact Fees paid by Owner shall not exceed $20,000.00 for each dwelling unit:
i. Local Storm Drainage Collection Facilities;
ii. Water Storage and Distribution;
iii. Wastewater Collection Facilities;
iv. General Facilities (city hall, corporate yard, and municipal fleet); v. Aquatics Facilities;
vi. Public Use Facilities (community, senior, teen centers, et. al.); vii. Library Building and Collection;
viii. Park Land and Open Space Acquisition and Recreation Facilities; and ix. Development and any other infrastructure impact fees required by the City as allowed by Government Code §66000, et. seq. (often referred to as AB1600).
7.3 Non-City Impact Fees.
7.3.1 Public School Impact Fee. Owner shall pay all public school impact fees required by the Norris and/or Richland School District attributable to the Project as applicable.
7.4 Public Benefit Fee. Lennar Homes of California, LLC, as the developer affiliate of Millrose Properties California, LLC, shall pay to City a supplemental Public Benefit Fee of $1,000,000.00, to be payable in installments as follows: $100,000 payable to City within 90 days of the Effective Date of this Agreement, followed by four (4) subsequent annual payments of $225,000 to City, each made prior to each of the first four (4) anniversaries of the Effective Date.
7.5 Public Improvements.
7.5.1 Public Improvement Phasing Plan. Owner shall, at its sole cost, expense, and liability, construct and/or suitably guarantee the construction of those Public Improvements described by and depicted on the Public Improvement Phasing Plan included as Exhibit E to this
21 Agreement, in conjunction with each anticipated phase of Development of the Property, subject to all relevant provisions of this Agreement.
7.5.2 Landscaping Improvements. Owner shall, at its sole cost, expense and liability, construct those certain landscaping improvements required by the Mission Lakes Specific Plan found to be in substantial conformance by the City Engineer. Owner shall Dedicate any required improvements to the City at the time of recordation of the final map for which the improvements were a condition of approval. Owner will construct such landscaping improvements in accordance with City and other applicable governmental agency rules, codes, standards, ordinances and regulations in accordance with the Existing Land Use Regulations, subject to the Reservations of Authority.
7.5.3 Flood Control and Storm Drainage Improvements. Owner shall, at its sole cost, expense and liability, construct those certain flood control and storm drainage improvements required by the Mission Lakes Specific Plan found to be in substantial conformance by the City Engineer. Owner shall Dedicate any required improvements to the City at the time of recordation of the final map for which the improvements were required. Owner will construct such flood control and storm drainage improvements in accordance with City and other applicable governmental agency rules, codes, standards, ordinances and regulations in accordance with the Existing Land Use Regulations, subject to the Reservations of Authority.
7.5.4 Public Utilities Impact Measures. Contemporaneously with or prior to the approval of each final map applicable to the Project, Owner shall provide written evidence, acceptable to City, that Owner has fully satisfied all public utilities impact measures lawfully required by any public utility purveyor, including, without limitation, phone, water, electric, cable television and gas, which will service that portion of the Project. Failure to provide such evidence will result in disapproval of any final map.
7.6 Alternative Improvements Interests. City and Owner acknowledge and agree that the potential acquisition of real property and other interests necessary for the construction of the Public Improvements described in Section 7.5 of this Agreement is subject to the provisions of Section 6.7. If, due to any reason whatsoever, Owner is unable to construct those Public Improvements described in Section 7.5 of this Agreement and meeting the definition of an Offsite Improvement due to the inability of either Owner or City to acquire the necessary real property or other interests to allow such construction, then Owner shall construct alternative improvements of an equal or greater value than those improvements which would have been constructed had the necessary property and other interests been obtained or pay an in-lieu fee, if applicable. The value of such alternative improvements shall be as determined in the City’s reasonable discretion, consistent with the programs, studies and reports substantiating the amount of development impact fees adopted by the City. Construction of the alternative improvements shall be in accordance with plans and specifications approved by City in accordance with all codes, ordinances, regulations, standards and policies in effect at the time of the construction of the improvements.
7.7 Environmental Site Inspection. Owner hereby grants to the City, its agents, contractors, employees and other representatives the right to enter upon the Property during reasonable business hours for purposes including, without limitation, the surveying, inspecting, photographing, sampling, and other testing necessary, in the City’s absolute discretion, to the
22 determination of whether hazardous or toxic pollutants, contaminants or materials (collectively, “environmental contaminants”) are located upon any property which the City will be receiving through Dedication including, without limitation, parks, rights of way, and utility easements. Upon discovery of any environmental contamination, Owner shall immediately cease any work that may have begun upon the Project, will notify all appropriate governmental authorities and regulatory agencies, and will take all steps necessary to comply with any provisions of any federal or state environmental laws, including the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and all other federal or state statutes of similar import and effect.
7.8 Dedication. The term “Dedicate” as used in this Article 7 means to acquire and offer the subject land for dedication and to construct the improvements to be constructed by the Owner on such land pursuant to Section 7.5 of this Agreement and thereafter to convey such land and improvements to the City. Owner shall convey the land on which the Public Improvements are to be constructed in coordination with the anticipated phasing of Development of the Property as identified by the Public Improvement Phasing Plan included as Exhibit E of this Agreement, but in no event later than the recordation of the final tract map for which such Public Improvement(s) was/were a condition of approval. Owner shall Dedicate/convey easement interests in all property required to be Dedicated by this Agreement. The Owner shall Dedicate each Public Improvement upon completion of a segment component of such Public Improvement.
7.9 Minimum Dwelling Unit Size. Owner agrees that the minimum single-family dwelling unit size permitted in the Project’s subdivisions shall be no less than 850 square feet of living space. The minimum square foot requirement excludes garages, patios and/or porches whether enclosed or not.
7.10 Fiber Optic and Networking Installation for Dwelling Units. Owner agrees to install in each dwelling unit the following fiber optic and networking requirements:
7.10.1 Building Department Requirements
(a) Install a dedicated City Fiber Enclosure adjacent to the other utility enclosures or a Common Communication Enclosure (collectively “Utility Enclosure”) for the proposed communications utilities (phone, cable, fiber, etc.). The enclosure type shall be BennerNawman 14326W-UL or as approved by the City. The Utility Enclosure may face the garage exterior or interior and shall include one 120-volt, 15-amp convenience receptacle inside the enclosure mounted on either side of the wall. A surge-protected receptacle must be installed. (b) Install a wireless-transparent Structured Media Enclosure (“Media Enclosure”), such as models: Legrand 30” ENP3050, Legrand 42” ENP4250, Leviton 30” 49605- 30W, Primex Verge 30” P3000, 42” Primex Verge P4200, or as approved by the City. The Media Enclosure shall be installed in the wall of a master bedroom closet or a laundry room furthest from the water supply and maintain a minimum 48-inch horizontal clearance between and 24-inch clearance above any metallic appliances or accessories. The Media Enclosure shall include one 120-volt, 15-amp convenience receptacle located inside the enclosure.
23 (c) Install a conduit pathway from the Utility Enclosure to the Media Enclosure with a minimum of one (1) 1-inch diameter non-metallic, flexible conduit which shall maintain a minimum 36-inch bend radius and protrude a minimum of 6-inches into the enclosures. The conduit shall be marked with orange Tyvek or plastic tags, labeled “City Fiber Use Only”, 661- 746-5000”, tie wrapped to the conduit in plain view within the enclosures. (d) Install a continuous conduit without breaks or couplings from the existing City Fiber Distribution Enclosure located in the right-of-way (“Distribution Enclosure”) to the bottom side of the Utility Enclosure. The conduit shall be installed a minimum of 36-inches below grade, protrude a minimum of 12-inches into the Utility Enclosure, be orange in color, and be factory labeled “City of Shafter 661-746-5000”. If the conduit does not have an integrated tracer wire, a continuous external #12 AWG solid-conductor tracer wire with high-density polyethylene insulation rated for direct burial shall be installed along with the conduit leaving a minimum 15- feet of slack coiled in the Distribution Enclosure and 3-feet of slack coiled in the Utility Enclosure.
The conduit and tracer wire shall be inspected by a City of Shafter representative before shading and backfilling.
(e) After backfilling, polyester cable pulling tape (Muletape), or equivalent, shall be installed in all conduit paths between the Distribution Enclosure and the Utility Enclosure.
Mule tape shall be slack (no tension) and fastened to the plug or cap. (f) Couplings shall be used to repair damaged or short-length conduit only if approved by the City. Conduit couplings shall be an air-tight, water-tight, push-on compression fitting approved by the City. Tracer wire couplings shall be air-tight, water-tight, twist on or compression connector approved by the City. Coupling integrity shall be inspected by a City of Shafter representative.
(g) Category 6 Unshielded Twisted Pair (CAT 6 UTP) cable (or as approved by the City) shall be installed according to industry standards and the requirements below, and shall not be pinched, stapled, bent sharply, or crossing any sharp, unprotected edges:
(h) Install a minimum of two (2) cables from the Utility Enclosure to the Media Enclosure.
7.10.2 Engineering Department Requirements
(a) Owner shall design and install a system of conduits, terminal enclosures, distribution enclosures, splice enclosures, connection points, and hand holes for a fiber optic network to each buildable lot within the development. Design and material specifications are available from the City of Shafter. Plans shall be submitted to and approved by the City of Shafter, prior to recordation of the final map, showing the proposed utility trench and all appurtenant hardware. The design shall include the following minimum specifications:
(i) A combination of fiber optic conduits shall minimally include 4” SDR-11 HDPE, 2” SDR-11 HDPE, 1.25” SDR-11 HDPE, and 7-Way bundled HPDE innerduct with attached tracer wire. Fiber optic conduits may be joint-trenched with other utility company pipes and/or conduits.
24 (ii) All underground fiber optic conduits, innerduct bundles, etc. shall be factory-labeled “City of Shafter 661-746-5000”. Conduits shall be identified by a permanent marking, with the address number of the residence they serve, within the distribution enclosures. (iii) All underground fiber optic conduit paths shall have tracer wire. If the conduit does not have an integrated tracer wire, a continuous external #12 AWG solidconductor tracer wire with high-density polyethylene insulation rated for direct burial shall be installed along with the conduit leaving a minimum 15-feet of slack coiled in the endpoint enclosures.
(iv) The ends of all fiber optic conduits, innerducts, and microducts shall be plugged or capped to prevent dirt, debris, or foreign objects from entering. (v) After backfilling, all conduits shall be checked for obstructions, and re-excavated and repaired or replaced as required. All conduits ½-inch or larger shall require polyester cable pulling tape or equivalent installed. Mule tape shall be slack (no tension) and fastened to the plug or cap. Innerducts and microducts shall be mandrel tested while being witnessed by a City of Shafter Public Works Department representative. (vi) A combination of underground utility enclosures shall minimally include 36”W x 60”L x 36”D polymer concrete enclosures with dual torsion covers, 36”W x 36”L x 24-36”D and 24”W x 36”L x 24-36”D High Density Polyethylene (HDPE) enclosures. (vii) All underground utility enclosures shall be factory-stamped “City Fiber”.
ARTICLE 8. FINANCING OF PUBLIC IMPROVEMENTS AND
MAINTENANCE OBLIGATIONS
8.1 Maintenance Services Community Facilities District. The City and Owner agree to the formation of a new, or annexation to an existing, CFD pursuant to the terms of the MelloRoos Community Facilities Act of 1982, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the California Government Code commencing with section 53311, as amended (the “Act”). The territory of which shall include the Project, for the purposes of the payment of the ongoing maintenance and operation costs associated with certain public services authorized under the Act (“Services”) located within, or appurtenant to, the Project. Owner shall consent to the annexation or the formation of the CFD prior to recordation of the first final map for the Project or the first sale, transfer or conveyance of the Property or any portion thereof. Owner further expressly agrees that failure of Owner to consent to the annexation or formation of such CFD will result in disapproval of any future tentative or final maps for the Project and will be cause for the City to terminate this Agreement.
Owner also agrees that additional areas may be annexed into the CFD to be created pursuant to this Section 8.1; provided, however, that after giving effect to such annexation, Owner is subject only to its fair share of the obligations and costs of providing the ongoing maintenance of the Services incurred for the Project. Owner agrees to cooperate fully in any such annexation proceedings.
25 8.2 Public Safety Community Facilities District. The City and Owner agree to the formation of a new, or the annexation to an existing, CFD pursuant to the terms of the Act, the territory of which shall include the Project, for the purposes of the payment of the ongoing costs associated with providing police protection, fire protection and suppression services, and other public services as authorized by the Act (“Public Services”). Owner shall consent to the annexation or the formation of the CFD prior to recordation of the first final map for the Project or the first sale, transfer or conveyance of the Property or any portion thereof. Owner further expressly agrees that the failure of Owner to consent to the annexation or formation of such CFD will result in disapproval of any future tentative or final maps for the Project and will be cause for the City to terminate this Agreement.
Owner also agrees that additional areas may be annexed into the CFD to be created pursuant to this Section 8.2; provided, however, that after giving effect to such annexation, the Owner is subject only to its fair share of the obligations and costs incurred because of providing the Public Services. The Owner agrees to cooperate fully in any such annexation proceedings.
Owner agrees that the Public Safety Community Facilities District may be formed as part of or separate from the Maintenance Services Community Facilities District described in Section 8.1 of this Agreement, at the City’s discretion.
ARTICLE 9. REVIEW FOR COMPLIANCE.
9.1 Periodic Review. The City Manager, or his or her designee, shall review this Agreement annually on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Owner with the terms of the Agreement. Owner shall submit an Annual Monitoring Report, in a form acceptable to, and containing such information as may be requested by the City Manager, or his or her designee, within 30 days after written notice from the City Manager, or his or her designee. The Annual Monitoring Report shall be accompanied by an annual review and administration fee, in an amount consistent with then-existing City fee schedules and resolutions, sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council. Neither City nor Owner shall have a duty to notify the other of their respective obligations hereunder and the City’s failure to so conduct such annual reviews shall not affect the rights, protection, and benefits afforded Owner by the Development Agreement Law and this Agreement shall remain subject to the Development Agreement Law.
9.2 Special Review. The Planning Commission or City Council may order a special review of compliance with this Agreement at any time. The City Manager, or his or her designee, shall conduct such special reviews.
9.3 Procedure.
(a) During either a periodic review or a special review or at any time upon City’s determination that Owner is in default of this Agreement as described in Section 10.4,
26 Owner shall be required to demonstrate good faith compliance with the terms of the Agreement.
The burden of proof on this issue shall be on Owner.
(b) Upon completion of a periodic review or a special review, the City Manager, or his or her designee, shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by Owner with the terms of this Agreement and his/her recommended finding on that issue.
(c) If the Planning Commission finds on the basis of substantial evidence that Owner has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded.
(d) If the Planning Commission makes a preliminary finding that Owner has not complied in good faith with the terms and conditions of this Agreement, the Planning Commission may recommend to the City Council that the City Council commence proceedings to modify or terminate this Agreement and the City Council may proceed to modify or terminate this Agreement under Section 9.4 and Section 9.5. Notice of default and opportunity to cure as provided under Section 10.4 of this Agreement shall be given to Owner prior to or concurrent with proceedings under Section 9.4 and Section 9.5.
9.4 Proceedings Upon Modification or Termination. If, upon a recommendation of the Planning Commission under Section 9.3(d), the City Council determines to proceed with modification or termination of this Agreement, the City Council shall give written notice to Owner of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not the City Council proposes to terminate or to modify the Agreement; and the specifics of such modifications; (c) Such other information as is reasonably necessary to inform Owner of the nature of the proceeding.
9.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, Owner shall be given an opportunity to be heard. Owner shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on Owner. If the City Council finds, based upon substantial evidence, that Owner has not complied in good faith with the terms or conditions of the Agreement the City Council may terminate this Agreement notwithstanding any other provision of this Agreement to the contrary, or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
9.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, Owner is found to be in compliance with this Agreement, City shall, upon request by Owner, issue a Certificate of Agreement Compliance (“Certificate”) to Owner stating that after
27 the most recent Periodic or Special Review and based upon the information known or made known to the Planning Commission and City Council that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the certificate is issued after a Periodic or Special Review, and shall state the anticipated date of commencement of the next Periodic Review. Owner may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees of Owner, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the City Manager.
ARTICLE 10. DEFAULT AND REMEDIES.
10.1 Remedies in General. It is acknowledged by the parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City shall not be liable in damages, including, without limitation, attorneys’ fees and litigation costs, to Owner, or to any mortgagee or lender of Owner or to a successor in interest of Owner, or a mortgagee or lender of Owner, or to any other person, and Owner covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the impairment or restriction of any right or interest conveyed or provided under, with, or pursuant to this Agreement, including, without limitation, any impairment or restriction which Owner characterizes as a regulatory taking or inverse condemnation; or (c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
Further, nothing contained herein shall modify or abridge Owner’s rights or remedies (including its rights for damages, if any) resulting from the exercise by City of its power of eminent domain; provided, however, that such exercise results in a physical occupation of the Property or portion thereof. Except as set forth in the preceding sentence, Owner’s remedies shall be limited to those set forth in this Section 10.1 and Sections 9.5 and 10.2.
10.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate, and specific performance and other non- monetary relief, including temporary and permanent injunction relief, are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following reasons:
(a) Money damages are unavailable against the City.
28 (b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Owner may be foreclosed from other choices it may have had to utilize the Property or portions thereof. Owner has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Owner for such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an expedited, priority basis. (c) Owner shall not be required to post a bond to obtain injunctive relief.
10.3 Release. Except for nondamage remedies and except as otherwise provided in this Agreement, including the remedy of specific performance and judicial review as provided for in Section 9.5, Owner, for itself, its successors and assignees, hereby releases the City, its officers, agents and employees from any and all claims, demands, actions, or suits or any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law, ordinance, or judicial decision which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement.
Without limiting the generality of anything in the immediately preceding paragraph, Owner, for itself and its successors and assigns, hereby expressly waives the benefit of, and any protections provided by Civil Code Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
BY INITIALING BELOW, OWNER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 IN CONNECTION WITH THIS SECTION 10.3:
Owner’s Initials, Suburban Land Reserve, Inc.
Owner’s Initials, Millrose Properties California, LLC
Owner’s Initials, 7th Standard Ranch Investors LLC
(b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Owner may be foreclosed from other choices it may have had to utilize the Property or portions thereof. Owner has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to detennine the sum of money which would adequately compensate Owner for such efforts; the parties acknowledge and agree that any injunctive relief may be ordered on an expedited, priority basis. (c) Owner shall not be required to post a bond to obtain injunctive relief.
10.3 Release. Except for nondamage remedies and except as otherwise provided in this Agreement, including the remedy of specific performance and judicial review as provided for in Section 9. 5, 0-WTier, for itself, its successors and assignees, hereby releases the City, its officers, agents and employees from any and all claims, demands, actions, or suits or any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law, ordinance, or judicial decision which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement.
Without limiting the generality of anything in the immediately preceding paragraph, Owner, for itself and its successors and assigns, hereby expressly waives the benefit of, and any protections provided by Civil Code Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.
BY INITIALING BELOW, OWNER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 IN CONNECTION WITH THIS SECTION 10. 3:
Owner's Initials, Suburban Land Reserve, Inc.
Owner's Initials, Millro e Properties California, LLC
Owner's Initials, 7th andard Ranch Investors LLC
28
29 In addition to waiving the provisions of California Civil Code section 1542, the Owner hereby waives, releases and foregoes the provisions of any federal or state statute or judicial decision of similar effect.
10.4 Termination or Modification for Default of Owner. City may terminate or modify this Agreement for any failure of Owner to perform any material duty or obligation of Owner under this Agreement as provided in Article 6 hereof, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, City may terminate or modify this Agreement pursuant to this Section in accordance with Article 6 hereof only after providing written notice to Owner of default setting forth the nature of the default and the actions, if any, required by Owner to cure such default and, where the default can be cured, Owner has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default.
10.5 Termination of Agreement for Default of City. Owner may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, City has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default.
ARTICLE 11. THIRD PARTY LITIGATION.
11.1 General Plan Litigation. City has determined that this Agreement and the Mission Lakes Specific Plan are consistent with its General Plan, and that the General Plan meets all requirements of law. Owner has reviewed the General Plan and concurs with City’s determination.
City shall have no liability under this Agreement for any failure of City to perform under this Agreement or the inability of Owner to develop the Property as contemplated by the Mission Lakes Specific Plan, which failure to perform or inability to develop is as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law, or that this Agreement or any of City’s actions in adopting it were invalid, inadequate or not in compliance with law.
11.2 Third Party Litigation Concerning Agreement. Owner shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless City, its agents, officers and employees from any claim, action or proceeding against City, its agents, officers or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. City shall promptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defense. If City fails to promptly notify Owner of any such claim, action or proceeding, or if City fails to cooperate in the defense, Owner shall not
30 thereafter be responsible to defend, indemnify or hold harmless City. City may in its discretion participate in the defense of any such claim, action or proceeding.
11.3 Indemnity. In addition to and not as a limitation upon the provisions of Sections
11.1 and 11.2 above, Owner shall indemnify, defend and hold harmless City, its officers, agents, employees and independent contractors free and harmless from all liability whatsoever, based or asserted upon any act or omission of Owner, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury or death (Owner’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder including, but not limited to, the design, engineering, construction, completion, operation, maintenance, repair, failure, conveyance or physical condition of the Public Improvements.
The foregoing obligation shall not apply to any claims for damages which arise through the sole active negligence or sole willful misconduct of City. Owner shall defend, at its sole cost, expense and liability, including attorneys’ fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions of Owner.
City may, in its discretion, participate in the defense of any such legal claim, action or proceeding and shall be entitled to reimbursement from Owner for any and all costs associated with such defense including, without limitation, reasonable attorneys’ fees.
11.4 Environmental Contamination. Owner shall indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of Owner, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors, excepting any acts or omissions of City as successor to any portions of the Property Dedicated or transferred to City by Owner, for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend, at its expense, including attorneys, fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such claim, action or proceeding.
11.5 City to Approve Counsel. With respect to Sections 11.1, through 11.4, inclusive, herein, City reserves the right to either (1) approve the attorney(s) which Owner selects, hires or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that Owner shall reimburse City forthwith for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefor.
11.6 Survival. The provisions of Sections 11.1 through 11.6 inclusive, shall survive the expiration or early termination of this Agreement.
11.7 No Waiver of Common Law or Statutory Obligations. City and Owner acknowledge and agree that this Agreement shall not constitute a waiver or abridgement of any common law or statutory obligations which Owner may have with respect to indemnification, defense and contribution in the event that any action or proceeding is commenced against City
31 which is based upon this Agreement or which is in any way related to any actions taken by Owner pursuant to this Agreement.
ARTICLE 12. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement, provided, further, that any modifications of this Agreement are subject to the provisions of Section 5.5 of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Owner in the performance of Owner’s obligations under this Agreement. (c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed Owner under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Owner’s obligations or other affirmative covenants of Owner hereunder, or to guarantee such performance. However, to the extent that the performance of such covenant by Owner is a condition precedent to the performance of any act by the City, the City shall have no obligation to perform such act hereunder unless and until the Mortgagee performs the covenant of Owner which is the condition precedent to the City’s performance. Although a Mortgagee is not obligated to perform the obligations and covenants of Owner hereunder, if the Mortgagee elects to so perform, such performance shall be in full accordance with the terms of this Agreement. Any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 5.4 of this Agreement.
32 ARTICLE 13. MISCELLANEOUS PROVISIONS.
13.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Kern County Recorder by the City Clerk within the period following the Effective Date as required by Section 65868.5 of the Government Code.
13.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
13.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Article 7 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and City would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever. Notwithstanding the foregoing, the development rights set forth in Article 6 of this Agreement are essential elements of this Agreement and Owner would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
13.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
13.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
13.6 Singular and Plural. As used herein, the singular of any word includes the plural.
13.7 Joint and Several Obligations. If at any time during the term of this Agreement any part of the Property is jointly owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement as to that portion of the Property jointly owned shall be joint and several, and the default of any such owner shall be the default of all such owners, except to the extent such portion(s) of the Property and associated obligations have been transferred and assigned pursuant to Section 5.4.1 of this Agreement. Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a
33 member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided herein.
13.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
13.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
13.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
13.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, government regulations, or court actions (such as restraining orders or injunctions). If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years. The failure of either party to obtain or maintain financing necessary for the performance of its respective obligations and duties hereunder shall not be deemed a cause for an extension of the term of this Agreement or a cause for the extension of time for performance of any such obligation by any party hereunder unless mutually agreed to by the parties in writing.
13.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefitted thereby of the covenants to be performed hereunder by such benefitted party.
13.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during Ownership of the Property or any portion thereof.
13.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
13.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the
34 County of Kern, State of California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The City and the Owner each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the City and the Owner, due to the fact that the City is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Owner and the City specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394. The Owner acknowledges that the provisions of this Section 13.15 are material consideration to the City for its entry into this Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum.
13.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such property.
13.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The provisions of this Section
13.17 shall not require the taking of any actions which are prohibited by law or, except as expressly set forth in this Agreement, including, without limitation, Section 6.7, impair the lawful legislative discretion of the City as to those matters to which the law imparts legislative discretion to the City.
13.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain.
13.19 Agent for Service of Process. In the event Owner is not a resident of the State of California or is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or is a foreign corporation, then in any such event, Owner shall file with the City Manager or his or her designee, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon Owner. If for any reason service of such process upon such agent is not feasible, then in such event Owner may be personally served with such process out of this County and such service shall constitute valid service upon Owner. Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtained, and waives all objections and protests thereto.
35 13.20 Authority to Execute. The person or persons executing this Agreement on behalf of Owner warrants and represents that he/they have the authority to execute this Agreement on behalf of his/their corporation, partnership or business entity and warrants and represents that he/they has/have the authority to bind Owner to the performance of its obligations hereunder.
13.21 Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the statute governing development agreements (Sections 65864 through 65869.5 inclusive) in effect as of the Effective Date. Accordingly, subject to Section 6.5 above, to the extent the subsequent amendment to the Government Code would affect the provisions of this Agreement, such amendment shall not be applicable to the Agreement unless necessary for this Agreement to be enforceable.
13.22 No Personal Obligation/No Completion Obligation. This Agreement in and of itself does not represent a personal obligation of individual officers, directors, and shareholders of Owner, its successors or assigns. Nothing herein contained shall in and of itself be deemed to create an obligation of the Owner, its successors or assigns to complete the development of the entire Project as contemplated, or any particular portion thereof. No officer, official, employee, agent, contractor or attorney of the City shall have any personal liability or obligation for the performance of the City’s obligations hereunder.
36 SIGNATURE PAGE TO
MISSION LAKES SPECIFIC PLAN DEVELOPMENT AGREEMENT NO. 25-22 CITY:
CITY OF SHAFTER, a California municipal
corporation
By:
Mayor, City of Shafter
ATTEST:
City Clerk
City Manager
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP:
By:
City Attorney
SIGNATURE PAGE TO
MISSION LAKES SPECIFIC PLAN DEVELOPMENT AGREEMENT NO. 25-22 OWNER:
7th Standard Ranch Investors LLC
PO Box 82515
Bakersfield, CA 93380
By:
Its:
Dated.
/^.r^
-7Z.
t0/-7 -Z-$
41
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF <2. < )ss.
)
On Oc^to<-r- ~7 (3-0'9^, before me, \|~I&I<L ^>\(Lfp , a Notary Public, personally appeared ^.<- "QSzM.i^.So , who proved to me on the basis of satisfactory evidence to be the person^) whose name(^) is/ayfe subscribed to the within instrument and acknowledged to me that he/s^e/ttyfy executed the same in his/h^r/th^ir authorized capacity(ie;S), and that by his/he't'/thfeir signatures^) on the instmment the person(s), or the entity upon behalf of which the person^) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the forgoing parasrauh is true and correct.
VIOLA ROrtERO
Notary Public . Ciliforni*
Kwn County
Corn mission »24«1631
My Comm. Expires Aug W, 2027
1 WITNESS y hand and official seal.
Notar}' Public
42
43 EXHIBIT A
TO DEVELOPMENT AGREEMENT NO. 25-22
Legal Description of the Property
Prelim (CA/NV) Page 4 157201-001304
LEGAL DESCRIPTION
Real Property in the City of Shafter, County of Kern, State of California, described as follows:
TRACT 1:
PARCELS 1 THROUGH 22, INCLUSIVE, 25 THROUGH 28, INCLUSIVE, 29 THROUGH 31, INCLUSIVE AND "D" OF PARCEL MAP NO. 11314, IN THE CITY OF SHAFFER, COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP RECORDED JANUARY 31, 2006 IN BOOK 54, PAGES 149 TO 158 INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL INTERESTS CONVEYED TO TENNECO OIL COMPANY, A DELAWARE CORPORATION, IN ASSIGNMENT AND CONVEYANCE THEREOF RECORDED NOVEMBER 18, 1988, IN BOOK 6183, PAGE 1167 OF OFFICIAL RECORDS, WHICH INTERESTS CAN BE BRIEFLY SUMMARIZED AS
ALL OIL, GAS AND OTHER LIQUID AND GASEOUS HYDROCARBONS AND IN ADDITION THERETO
CARBON DIOXIDE, HYDROGEN, HELIUM, NITROGEN, METHANE, SULFUR (IN EACH CASE IN EITHER
LIQUID OR GASEOUS FORM) AND ANY OTHER LIQUID OR GASEOUS SUBSTANCES, INERT OR
OTHERWISE, OR ANY OF THEM, ANY MINERALS OR OTHER SUBSTANCES PRODUCED IN ASSOCIATION THEREWITH ("HYDROCARBONS") IN, ON OR UNDER THE PREMISES, TOGETHER WITH ALL RIGHTS, PRIVILEGES, DUTIES AND RESPONSIBILITIES IN ANY WAY RELATED THERETO. IT IS ACKNOWLEDGED
THAT THIS RESERVATION IS FULLY SET FORTH IN THE CONVEYANCE REFERRED TO ABOVE AND THAT
TITLE IS SUBJECT TO THAT CONVEYANCE AND NOT SUBJECT TO THIS SUMMARY WHICH IS FOR CONVENIENCE ONLY. SAID ASSIGNMENT AND CONVEYANCE WAS CLARIFIED BY FIRST AMENDMENT THEREOF RECORDED JANUARY 17, 1989, IN BOOK 6200, PAGE 1908 OF OFFICIAL RECORDS.
APN'S: 536-010-20 THROUGH 536-010-24, 536-010-26 THROUGH -536-010-29, 536-010-32, 536-010-34, 536-010-35 THROUGH 536-010-40, 536-010-42 THROUGH 45, 536-010-49 THROUGH 536-010-51, 536-010-63, 536-010-67 THROUGH 536-010-70, 536-010-72, 536-010-73, 536-010-81, 536-010-84, AND 536-010-86 THROUGH 536-010-91
TRACT 2:
PARCELS 23, 24 AND 29 OF PARCEL MAP 11314, IN THE CITY OF SHAFTER, COUNTY OF KERN, STATE OF CALIFORNIA, AS PER MAP RECORDED JANUARY 31, 2006 IN BOOK 54, PAGES 149 THROUGH 158, INCLUSIVE, OF PARCEL MAPS OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL INTERESTS CONVEYED TO TENNECO OIL COMPANY, A DELAWARE CORPORATION, IN ASSIGNMENT AND CONVEYANCE THEREOF RECORDED NOVEMBER 18, 1988, IN BOOK 6183, PAGE 1167, OF OFFICIAL RECORDS, WHICH INTERESTS CAN BE BRIEFLY SUMMARIZED AS
ALL OIL, GAS AND OTHER LIQUID AND GASEOUS HYDROCARBONS, AND IN ADDITION THERETO
CARBON DIOXIDE, HYDROGEN, HELIUM, NITROGEN, METHANE, SULFUR (IN EACH CASE IN EITHER
LIQUID OR GASEOUS FORM) AND ANY OTHER LIQUID OR GASEOUS SUBSTANCES, INERT OR
OTHERWISE, OR ANY OF THEM, AND ANY MINERALS OR OTHER SUBSTANCES PRODUCED IN ASSOCIATION THEREWITH ("HYDROCARBONS") IN, ON OR UNDER THE PREMISES, TOGETHER WITH
ALL RIGHTS, PRIVILEGES, DUTIES AND RESPONSIBILITIES IN ANY WAY RELATED THERETO, IT IS
ACKNOWLEDGED THAT THIS RESERVATION IS FULLY SET FORTH IN THE CONVEYANCE REFERRED TO
ABOVE AND THAT TITLE IS SUBJECT TO THAT CONVEYANCE AND NOT SUBJECT TO THIS SUMMARY WHICH IS FOR CONVENIENCE ONLY. SAID ASSIGNMENT AND CONVEYANCE WAS CLARIFIED BY FIRST AMENDMENT THEREOF RECORDED JANUARY 17, 1989, IN BOOK 6200, PAGE 1908, OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER RIGHTS OR WATER STOCK APPURTENANT TO
OR USED IN CONNECTION WITH THE LAND AND ALL MINERALS, COAL, CARBONS, HYDROCARBONS,
OIL, GAS, CHEMICAL ELEMENTS AND COMPOUNDS WHETHER IN SOLID, LIQUID OR GASEOUS FORM,
AND ALL STEAM AND OTHER FORMS OF THERMAL ENERGY ON, IN OR UNDER THE ABOVE DESCRIBED LAND, (THE "MINERAL ESTATE"), PROVIDED THAT GRANTOR DOES NOT RESERVE THE RIGHT TO ENTER UPON OR USE THE SURFACE OR ANY PART OF THE SUBJECT LANDS ABOVE A DEPTH OF 500
Prelim (CA/NV) Page 5 157201-001304
FEET BELOW THE SURFACE, AS RESERVED BY FARMLAND RESERVE, INC., A UTAH CORPORATION IN DEED RECORDED OCTOBER 7, 2004 AS DOCUMENT NO. 04-243888 OF OFFICIAL RECORDS.
APN'S: 536-010-33, 536-010-41, 536-010-71, 536-010-74 AND 536-010-85 TRACT 3:
PARCEL A (WELL 4E 36-1)
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 36; THENCE SOUTH 89°13'33" EAST ALONG THE SOUTH LINE OF SAID SECTION 36, A DISTANCE OF 14.45 FEET TO THE NORTH QUARTER CORNER OF SECTION 1, TOWNSHIP 29 SOUTH, RANGE 26 EAST, MOUNT DIABLO MERIDIAN; THENCE SOUTH 89°14'03" EAST ALONG THE NORTH LINE OF SAID SECTION 1, A DISTANCE OF 1028.00 FEET; THENCE NORTH 00°45'57" EAST, A DISTANCE OF 251.20 FEET TO THE TRUE POINT OF BEGINNING; THENCE 1) NORTH 44°44'39" WEST, A DISTANCE OF 110.00 FEET; THENCE 2) NORTH 45°15'21" EAST, A DISTANCE OF 70.94 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF THE CALLOWAY CANAL;
THENCE 3) SOUTH 44°44'39" EAST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 110.00 FEET; THENCE 4) SOUTH 45°15'21" WEST, A DISTANCE OF 70.94 FEET TO THE TRUE POINT OF BEGINNING.
APN: 536-010-13
PARCEL B (WELL 4E 36-2)
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 36; THENCE NORTH 02°10'43" EAST ALONG THE WEST LINE OF SAID SECTION 36, A DISTANCE OF 2135.15 FEET; THENCE SOUTH 87°49'17" EAST, A DISTANCE OF 840.17 FEET TO THE TRUE POINT OF BEGINNING; THENCE 1) NORTH 17°14'21" EAST, A DISTANCE OF 100.00 FEET; THENCE 2) SOUTH 72°45'39" EAST, A DISTANCE OF 85.51 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF THE CALLOWAY CANAL;
THENCE 3) SOUTH 47°31'21" WEST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 8.46 FEET; THENCE 3) SOUTH 17°14'21" WEST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 92.70 FEET; THENCE 4) NORTH 72°45'39" WEST, A DISTANCE OF 81.25 FEET TO THE TRUE POINT OF BEGINNING.
APN: 536-01-12
PARCEL C (WELL 4E 36-3)
COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 36; THENCE SOUTH 02°11'12" WEST ALONG THE WEST LINE OF SAID SECTION 36, A DISTANCE OF 1532.23 FEET; THENCE SOUTH 87°48'48" EAST, A DISTANCE OF 1838.10 FEET TO THE TRUE POINT OF BEGINNING; THENCE 1) SOUTH 80°52'39" EAST, A DISTANCE OF 61.20 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF THE CALLOWAY CANAL;
THENCE 2) SOUTH 09°07'21" WEST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 100.00 FEET; THENCE 3) NORTH 80°52'39" WEST, A DISTANCE OF 61.20 FEET; THENCE 4) NORTH 09°07'21" EAST, A DISTANCE OF 100.00 FEET TO THE TRUE POINT OF BEGINNING.
APN: 536-010-11
PARCEL D (WELL 4E 36-4)
COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 36; THENCE SOUTH 89°14'39" EAST ALONG THE NORTH LINE OF SAID SECTION 36, A DISTANCE OF 799.97 FEET; THENCE SOUTH 00°45'21" WEST, A DISTANCE OF 79.71 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF THE CALLOWAY CANAL AND THE TRUE POINT OF BEGINNING;
THENCE 1) SOUTH 35°48'39" EAST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 100.00 FEET; THENCE 2) SOUTH 54°11°21" WEST, A DISTANCE OF 62.26 FEET;
Prelim (CA/NV) Page 6 157201-001304
THENCE 3) NORTH 35°48'39" WEST, A DISTANCE OF 100.00 FEET, THENCE 4) NORTH 54°11'21" EAST, A DISTANCE OF 62.26 FEET TO THE TRUE POINT OF BEGINNING.
APN: 536-010-10
PARCEL E
COMMENCING AT THE NORTH QUARTER CORNER OF SAID SECTION 26; THENCE SOUTH 02°10’34"
WEST ALONG THE WEST LINE OF THE NORTHEAST QUARTER OF SAID SECTION, A DISTANCE OF 1700.67 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF THE CALLOWAY CANAL; THENCE SOUTH 66°52'59" EAST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 12.14 FEET TO THE TRUE POINT OF BEGINNING;
THENCE 1) SOUTH 66°52'59" EAST ALONG SAID RIGHT OF WAY LINE, A DISTANCE OF 100.00 FEET; THENCE 2) SOUTH 23°07’01” WEST, A DISTANCE OF 34.68 FEET; THENCE 3) NORTH 66°52'59" WEST, A DISTANCE OF 100.00 FEET; THENCE 4) NORTH 23°07'01" EAST, A DISTANCE OF 34.68 FEET TO THE TRUE POINT OF BEGINNING.
APN: 536-010-09
PARCEL F
ALL THAT PORTION OF THE SOUTHEAST ONE-QUARTER OF SECTION 34, TOWNSHIP 28 SOUTH, RANGE 26 EAST, M.D.M., COUNTY OF KERN, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 34 FROM WHICH THE NORTHWEST CORNER OF SAID SECTION BEARS NORTH 89°12'12" WEST; THENCE SOUTH 45°44'16" WEST A DISTANCE OF 3730.76 FEET TO THE TRUE POINT OF BEGINNING; THENCE (1) SOUTH 02°12'57" WEST, A DISTANCE OF 40.00 FEET; THENCE (2) NORTH 87°47'03" WEST, A DISTANCE OF 40.00 FEET; THENCE (3) NORTH 02°12'57" EAST, A DISTANCE OF 40.00 FEET; THENCE (4) SOUTH 87°47'03" EAST, A DISTANCE OF 40.00 FEET TO THE POINT OF BEGINNING.
APN: 536-010-80
EXHIBIT B
TO DEVELOPMENT AGREEMENT NO. 25-22
Map of Property and Ownership Information
Millrose Properties California, LLC
5 River Park Place East, Suite 210
Fresno, CA 93720
North Kern Water Storage District
33380 Cawelo Extended
Bakersfield, CA 93308
7th Standard Ranch Investors
P.O. Box 82515
Bakersfield, CA 93380
Suburban Land Reserve, Inc.
P.O. Box 511196
Salt Lake City, UT 84151
EXHIBIT C
TO DEVELOPMENT AGREEMENT NO. 25-22
Current Mission Lakes Specific Plan
Available at:
City of Shafter
336 Pacific Avenue
Shafter, CA 93263
OR
Online at:
www.shafterca.gov/DocumentCenter/View/6045/
Mission-Lakes-SP
EXHIBIT D
TO DEVELOPMENT AGREEMENT NO. 25-22
Form of Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
This Assignment and Assumption of Development Agreement (“Assignment”) is made this ____ day of __________, by __________, a __________ (“Assignor”) and ____________ (“Assignee”) with reference to the following facts:
A. Assignor is the owner of that certain real property, described in Exhibit “A”, attached hereto and incorporated herein (the “Property”). The Property is subject to the provisions of that certain Development Agreement No. 25-22 ("Development Agreement"), dated as of __________, with the City of Shafter, a California municipal corporation (“City”).
The Development Agreement was recorded on __________, as instrument no.__________, in the official records of the Kern County Recorder.
B. Assignor has proposed to sell and transfer the Property to Assignee. Pursuant to Section 5.4.1 of the Development Agreement, Assignor wishes to assign all rights, duties, and obligations pertaining to the Property under the Development Agreement to Assignee. Similarly, Assignee desires to assume all of Assignor’s rights, duties, and obligations pertaining to the Property under the Development Agreement.
C. Assignor’s proposed sale and transfer of the Property to Assignee has been reviewed and approved by the City pursuant to Section 5.4.1 of the Development Agreement, as evidenced by the City’s execution of this Assignment below.
NOW, THEREFORE, in consideration of the mutual covenants of the parties herein, and for good and valuable consideration, the receipt of sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement in their entirety by this reference.
2. Assignment and Assumption. Assignor hereby transfers and assigns to Assignee, and Assignee hereby expressly and unconditionally assumes all the rights, duties and obligations of Assignor under the Development Agreement to the extent those rights pertain to the Property, including, without limitation, all of the general rights, duties and obligations of Assignor under the Development Agreement for the development of the Property. Assignee agrees to observe and fully perform all of Assignor's obligations under the Development Agreement, and to be subject to all the terms and conditions thereof, it being the express intention of both Assignor and Assignee that, upon execution of this Assignment, Assignee shall become substituted for Assignor as the “Owner” under the Development Agreement with respect to the Property.
3. Secured Obligations. Pursuant to section 5.4.1(b) of the Development Agreement, Assignee has provided the City with security equivalent to any security previously provided by Assignor to secure performance of its obligations under the Development Agreement.
4. Release of Assignor. Pursuant to section 5.4.1(c) of the Development Agreement, Assignor shall be free from any and all liabilities pertaining to the Property accruing on or after the date hereof with respect to the Development Agreement. No breach or default under this Assignment or the Development Agreement by Assignee shall be attributed to Assignor.
5. Governing Law. This Assignment is made and entered into in the State of California and shall be interpreted, construed and enforced in accordance with the laws of the State of California. Venue shall be in Kern County.
6. Binding Effect. This Assignment shall apply to, bind, and inure to benefit of Assignor and Assignee, and their respective heirs, legal representatives, successors and assigns.
7. Counterparts. This Assignment may be executed in one or more counterparts, each of which shall be an original, but all of which shall together constitute one instrument. [Signatures on Following Pages]
IN WITNESS WHEREOF, this Assignment has been executed as of the date first above written.
“ASSIGNOR”
________________
a ________________
By: ______________________________
Name: __________________
Its: _________________________________
“ASSIGNEE”
________________
a ________________
By:__________________________________
Name: _______________________________
Its: __________________________________
[Intentionally Left Blank]
The City of Shafter hereby approves of this Assignment and acknowledges that Assignor, having satisfied the conditions to the release set forth in Section 5.4.1 of the Development Agreement, shall be released from its obligations under the Development Agreement with respect to the Property described in Exhibit A.
CITY OF SHAFTER, a California municipal law corporation By: ______________________________
Name:
Its:
ATTEST:
By: _______________________________
City Clerk
APPROVED AS TO LEGAL FORM
BEST BEST & KRIEGER LLP
By: _________________________
City Attorney
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF _____________ )ss.
)
On __________________, before me, _______________, a Notary Public, personally appeared _______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the forgoing paragraph is true and correct.
WITNESS my hand and official seal.
____________________________________
Notary Public
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF _____________ )ss.
)
On __________________, before me, _______________, a Notary Public, personally appeared _______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the forgoing paragraph is true and correct.
WITNESS my hand and official seal.
____________________________________
Notary Public
EXHIBIT A TO EXHIBIT “D”
LEGAL DESCRIPTION OF PROPERTY BEING ASSIGNED
EXHIBIT E
TO DEVELOPMENT AGREEMENT NO. 25-22
Public Improvement Phasing Plan
Phase 1 Tract 7461
Roads: North half improvements of Seventh Standard Road from the west side of Calloway Canal to the west boundary line of Phase 1, Full width improvements1 (not including sidewalk and landscaping on east side) of Lake Road, including sidewalk and landscaping along the west side of Lake Road for the tract frontage, Full width improvements (not including sidewalk and landscaping on north side) of Mission Lakes Boulevard South from Lake Road to the south end of Street A, including sidewalk and landscaping along the south side of Mission Lakes Boulevard, and fire access improvements consisting of base rock and two-lane asphalt pavement on Mission Lakes Boulevard South from the south end of Street A to Zerker Road.
Sewer: Sewer main from the point of connection on Seventh Standard Road at Zerker Road to Mission Lakes Boulevard South, east along Mission Lakes Boulevard South to Lake Road, south to point of connection on Seventh Standard Road.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company connection in Seventh Standard Road across Calloway Canal along Seventh Standard Road to Zerker Road. A tee main connection will be installed at Lake Road to continue to Mission Lakes Boulevard South, then continuing along Mission Lakes Boulevard South to Zerker Road, then south on Zerker Road to Seventh Standard Road.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 1.
Signal: Traffic Signal at intersection of Seventh Standard Road and Lake Road.
Phase 2 Tract 7462
Roads: Sidewalks and landscape for east side of Lake Road, Full width improvements (not including sidewalk and landscaping on west side) of Mission Lakes Boulevard East from Lake Road to Street D, including landscape and sidewalk along east side of Mission Lakes Blvd from Lake Road to D Street and Full width improvements (not including sidewalk and landscaping on west side) of Street D to the Phase 2 north boundary, including landscape and sidewalk on east side of D street from Mission Lakes Blvd to northerly boundary of Phase 2. 1 Full width improvement means curb-to-curb.
Sewer: Sewer main along Mission Lakes Boulevard East from Lake Road to Street D, along Street D to the Phase 2 north boundary.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company, along Mission Lakes Boulevard East from Lake Road to Street D, then along Street D to Mission Lakes boundary connecting to Gossamer Grove development.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 2.
Phase 3 Tract 7463
Roads: Full width improvements (not including sidewalk and landscaping on north side) of Mission Lakes Boulevard North along Phase 3 frontage, including landscape and sidewalk on south side of Mission Lakes Blvd North for Phase 3 frontage and Full width improvements (not including sidewalk and landscaping on west side) of Street A, including landscape and sidewalk along east side of A Street from Mission Lakes Blvd South to Mission Lakes Blvd North; sidewalk and landscaping on the north side of Mission Lakes Boulevard South from Street A to the eastern boundary of Phase 3.
Sewer: Sewer main along Street A from Mission Lakes Boulevard South to Mission Lakes Boulevard North, and along Mission Lakes Boulevard North from Street D to Lennar’s western property line/Suburban Land’s eastern property line.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company, along Street A from Mission Lakes Boulevard South to Mission Lakes Boulevard North, and along Mission Lakes Boulevard North from Street D to Lennar’s western property line/Suburban Land’s eastern property line.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 3.
Signals: Traffic Signals at intersections of Mission Lakes Boulevard South and Zerker Road, and Mission Lakes Boulevard North and Zerker Road (if warranted by a traffic impact study).
Phase 4 Tract 7464
Roads: Sidewalks and landscape for north side of Mission Lakes Boulevard North along Phase 4, full width improvements along Mission Lakes Blvd North from westerly boundary of Phase 4 to A Street and Full width improvements (not including sidewalk and landscaping on east side) of Street D from Phase 2 boundary to the north boundary of Phase 4, including landscape and sidewalk
improvements along west side of D Street from Mission Lakes Blvd to northerly boundary of Phase 4.
Sewer: Sewer main along Street D from Phase 2 boundary to the north boundary of Phase 4.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company installed with Phases 1-3.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 4.
Signals: Traffic Signals at intersections of Mission Lakes Boulevard South and Zerker Road, and Mission Lakes Boulevard North and Zerker Road (if warranted by a traffic impact study).
Phase 5
Roads: North half improvements of Seventh Standard Road from the west boundary line of Phase 5 to the west boundary of Phase 1, and Full width improvements (including sidewalks and landscape for south side) of Mission Lakes Boulevard South from Street A to the west boundary line of Phase 5, and Full width improvements along Zerker Road from Mission Lakes Boulevard South to Seventh Standard Road, including landscape and sidewalk on both side of Zerker Road from 7th Std Road to Mission Lakes Blvd South.
Sewer: Sewer main along Mission Lakes Boulevard South from Zerker Road to the west boundary of Phase 5.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company connection in Seventh Standard Road from Zerker Road to the west boundary of Phase 5, and along Mission Lakes Boulevard South from Zerker Road to the west boundary of Phase 5.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 5.
Signals: Modifications to existing traffic signal and loop detectors at the intersection of Zerker Road and 7th Std Road.
Traffic Signals at intersections of Mission Lakes Boulevard South and Zerker Road, and Mission Lakes Boulevard North and Zerker Road (if warranted by a traffic impact study).
Phase 6
Roads: Full width improvements including landscape and sidewalk on both sides of Mission Lakes Boulevard North from Zerker Road to west boundary of Phase 4, and Full width improvements including landscape and sidewalk on both sides of Zerker Road from Mission Lakes Boulevard South to north boundary of Phase 6; sidewalk and landscaping on the west side of A Street between Mission Lakes Boulevard South and Mission Lakes Boulevard North.
Sewer: Sewer main along Mission Lakes Boulevard North from Zerker Road to the west boundary of Phase 4, and along Zerker Road from Mission Lakes Boulevard South to north boundary of Phase 6.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company Mission Lakes Boulevard North from Zerker Road to the west boundary of Phase 4, and along Zerker Road from Mission Lakes Boulevard South to north boundary of Phase 6.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 6.
Signals: Traffic Signals at intersections of Mission Lakes Boulevard South and Zerker Road, and Mission Lakes Boulevard North and Zerker Road (if warranted by a traffic impact study).
Phase 7
Roads: Full width improvements of Street D from north Phase 4 boundary to northeast side of the Calloway Canal including roadway bridge over Calloway Canal and sidewalk and landscaping on both sides of D Street along Phase 7 frontage; sidewalk and landscaping on the west side of Mission Lakes Boulevard from the Phase 3 boundary to Street D. -
Sewer: Sewer main along Street D from north Phase 4 boundary to Street E.
Water: Domestic and Irrigation mains from Oildale Mutual Water Company installed with Phases 1-3.
Utilities: Power, Gas, Telephone, Fiber and Cable TV to serve Phase 7.
Signals: Traffic Signals at intersections of Mission Lakes Boulevard South and Zerker Road, and Mission Lakes Boulevard North and Zerker Road (if warranted by a traffic impact study).
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
SIDEWALK AND LANDSCAPE
ONLY, EAST SIDE OF
MISSION LAKES BLVD. Page 196 of 416
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
MISSION LAKES BLVD LAKE ROAD CALLOWAY CANAL STREET A STREET C STREET D MISSION LAKES BLVD ZERKER ROAD STREET E 7TH STANDARD ROAD Ó N
SIDEWALK AND
LANDSCAPE ONLY,
WEST SIDE OF
MISSION LAKES BLVD. Page 201 of 416
EXHIBIT F
TO DEVELOPMENT AGREEMENT NO. 25-22
Mission Lakes Specific Plan Park Improvements
EXHIBIT F
TO DEVELOPMENT AGREEMENT NO. 24-22
Mission Lakes Specific Plan Park Improvements
Per the Mission Lakes Specific Plan (“Plan”) approved July 16, 2024 (Ordinance No. 754), there are thirteen (13) parks found within the Plan area. A brief description of the parks can be found in the table below:
Planning Area (PA)* Acres per Park (minimum) Minimum Number of Parks in PA PA-1 1.0 1
PA-2a 2.0 1
PA-2b Not Applicable 0
PA-2c Not Applicable 0
PA-3 1.0 1
PA-4 1.0 1
PA-5 1.0 2
PA-6 Not Applicable 0
PA-7a 2.0 1
PA-7b Not Applicable 0
PA-8 1.0 1
PA-9 2.0 1
PA-10 44.1 1
PA-11 24.1 1
PA-12 Not Applicable 0
PA-13 Not Applicable 0
PA-14 1.0 1
PA-15 1.0 1
PA-16 Not Applicable 0
*Planning Areas and general park locations within the Planning Areas found in Figures 3-1 and 3-4, respectively, of the Mission Lakes Specific Plan approved July 16, 2024.
In lieu of paying a Park Impact Fee for each dwelling unit, the Owner may design and fully construct publicly accessible parks included in the Plan, which shall be completed within eight (8) months of commencing park construction.
Per the approved Plan, “[n]eighborhood parks shall be completed prior to the issuance of 60% of the certificates of occupancy for dwelling units in their respective planning area where they are located.” Additionally, the Plan requires that the 44.1-acre park in PA-10 “shall be completed prior to issuance of the certificates of occupancy for 1,500 dwelling units within the Specific Plan area.” Finally, the Plan requires that the construction of the 24.1-acre park in PA-11 begin “after the issuance of the certificates of occupancy for 2,500 dwelling units within the Specific Plan area and completed before 3,000 certificates of occupancy for dwelling units have been issued.” However,
the City of Shafter reserves the right to revise these requirements through unique conditions of approval for a future tract map, site plan, etc. applicable to a subject planning area.
Also, per the Plan, where possible, “detention basins should be integrated into [the Mission Lakes Specific Plan area] as landscaped open space areas for passive recreation and/or playfields.” Additionally, per the Plan, “[t]he neighborhood pocket parks will be landscaped with a small grove of trees, shrubs, and other plant material as described in the project’s plant palette which will be determined by the master developer. The public and neighborhood pocket parks will have unique identities and shall contain any combination of passive sitting areas, open space turf areas for various activities, tot lots, walkways, and decorative lighting, subject to approval of the Planning Director.”
The general landscaping standards for parks found in the Plan are as follows:
All areas required to be landscaped will be planted with turf, groundcover, shrubs, or trees selected from the plant palette contained in these guidelines. The private recreational facilities and neighborhood parks, neighborhood commercial center, and common landscaped areas are permitted to be planted with a hydroseed mix. Sod shall be used for required front yard landscaping. A combination of hydroseed mix and flatted groundcovers shall be used to cover areas between shrubs and trees to prevent erosion. Colorful perennials also will be a part of these plantings. Plants with similar watering requirements shall be planted together in order to simplify the irrigation systems and increase water use efficiency. Priority use of water shall be considered, meaning that visually sensitive areas are entitled to use more water than low visual impact areas. Visually sensitive areas include entries and highly traveled street frontages.
The Plan also provides guidance on drought tolerance as follows:
The landscape palette for the Mission Lakes Specific Plan shall promote selective drought tolerance through the use of native and naturalizing species. All common landscape areas shall be equipped with automatic irrigation systems. Drip or bubbler irrigation shall be provided where feasible. Automatic controllers shall be equipped with automatic rain-shutoff devices and provide for various type of water management options.
Finally, the Plan provides guidance on plant materials as follows:
Conceptual planting guidelines have been established through this Specific Plan. More detailed plant material guidelines and plant palette shall be established by the master developer…and will provide flexibility and diversity in plant material selection, while maintaining a limited palette in order to give greater unity and thematic identity to the
community. The plant material lists will be selected for their appropriateness to the project theme, climatic conditions, soil conditions, and concern for maintenance and shall be made available of the City of Shafter Planning department. Wherever possible, overall plant material groupings shall have compatible drought resistant characteristics. Irrigation programming can then be designed to minimize water application for the entire landscape setting. Consideration must be given when locating trees to avoid potential long-term problems with tree roots, but the City will have final approval for clearances when public facilities may be affected.
Per the approved Marcona Preserve Specific Plan, the following is applicable to the park(s) to be developed within the subject Planning Area:
PA-1
• One neighborhood park with a minimum size of 1.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-2a
• One neighborhood park with a minimum size of 2.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-3
• One neighborhood park with a minimum size of 1.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-4
• One neighborhood park with a minimum size of 1.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-5
• Two neighborhood parks with a minimum size of 1.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of parks shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-7a
• One neighborhood park with a minimum size of 2.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-8
• One neighborhood park with a minimum size of 1.0 acres. • Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-9
• One neighborhood with a minimum size of 2.0 acres.
• Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-10
• One park with a minimum size of 44.1 acres that includes a minimum of one lake and open space.
• Facilities can include community center, hard courts, pool/spa, parking areas, restroom facilities, basketball and tennis courts, tot lots, open space turf, and barbeque facilities. • Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-11
• One park with a minimum size of 24.1 acres.
• Facilities to be provided within this public park shall include, but are not limited to, a tot lot and children’s play area with adjacent seating and paths, multipurpose turf, ball fields, multiuse courts that may include tennis, basketball, volleyball or handball, bike racks, restroom facilities, trash receptacles and parking.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-14
• One pocket park with a minimum size of 1.0 acres.
• Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
PA-15
• One pocket park with a minimum size of 1.0 acres.
• Shall include special landscaping such as focal elements with specimen trees, flowering shrubbery, and turf. Additional elements such as tot lots, picnic tables, benches, low fences and gates, or archways should be provided to further tie these spaces into the neighborhood character.
• Lighting of park shall be designed to minimize light spillage onto adjacent and nearby properties.
Statistical Analysis
PA-1
157.6 AC***
PA-15
26.5 AC
PA-16
129.1 AC
PA-4
100.2 AC***
PA-2
179.5 AC
PA-3
87.1 AC
PA-11
24.1 AC
PA-6
24.6 AC PA-7
127.6 AC
PA-12
23.1 AC
PA-10
44.1 AC***
PA-9
49.8 AC
PA-14
24.1 AC
PA-13
12.0 AC
PA-5
78.8 AC
PA-8
114.2 AC
***Number includes school/lake acreage.
Land Use Plan Figure 3-1 0‘ 2000‘ 1000‘
Elementary
School
15.0 AC
Lake
33.1 AC
Middle
School
25.0 AC
LAND USE PA ACRES* DENSITY MAX
DUsRESIDENTIALLow Density Res. (LDR) PA-1 132.6 4-7.5 du/ac 745Low Density Res. (LDR) PA-2 179.5 4-7.5 du/ac 720Low Density Res. (LDR) PA-3 87.1 4-7.5 du/ac 307Low Density Res. (LDR) PA-4 85.2 4-7.5 du/ac 435Low Density Res. (LDR) PA-5 78.8 4-7.5 du/ac 375Low Density Res. (LDR) PA-6 24.6 4-7.5 du/ac 126Low Density Res. (LDR) PA-7 127.6 4-7.5 du/ac 486Low Density Res. (LDR) PA-8 114.2 4-7.5 du/ac 620Low Density Res. (LDR) PA-9 49.8 4-7.5 du/ac 275Medium Density Res. (MDR) PA-12 23.1 7.5-14 du/ac 236Medium Density Res. (MDR) PA-13 12.0 7.5-14 du/ac 123Medium-High Density Res. (MHDR) PA-14 24.1 18-24 du/ac 400Medium-High Density Res. (MHDR) PA-15 26.5 18-24 du/ac 486TOTAL 965.2 5,334NON-RESIDENTIALCommercial PA-16 129.1Middle School PA-1 25.0Elementary School PA-4 15.0TOTAL 169.1PARKS & RECREATIONPrivate Recreation (HOA)** PA-10 11.0Lake PA-10 33.1Public Park PA-11 24.1TOTAL 68.2Public Road 71.6Calloway Canal ROW 82.6TOTAL-GROSS ACREAGE 1,356.8 *Excludes ROW for roads defined on Circulation Plan
** Additional private pocket parks located throughout residential areas.Note: Lot sizes are averaged to achieve maximum dwelling unit count for each planning area.
73.2 AC 70.3 AC 124.9 AC 19.7 AC 168.5 AC 97.8 AC 67.3 AC 89.3 AC 101.2 AC 26.8 AC 74.4 AC Parcel 8 Parcels 9 & 10 Parcels 11 & portion of 12
Parcels 26 & 27 Parcel 28 Parcels 13 & 14 Parcel 15 Parcel 16 PA-7b Parcels 19 & 20 Parcel 18Parcel 31 11.7 acres Parcel 30 13.1 acres Parcels 23, 24 & 25
23.9 Parcel 5 Parcels 1, 2, 3 & 4Parcels 6 & 7 2 5 40.0 AC PA-7a 42.7 AC PA-2b PA-2a PA-2c Parcel 22 38.0 AC Parcels 17 & 21
69.4 AC Parcel D 29.6 acres 42.7
Parks and Recreation Plan Figure 3-4
Legend
Public Park
Private Recreation
Primary Paseo
Secondary Paseo
Natural Trail
Lake/Open Space
not to scale
HOA
HOA
HOA
HOA
HOA HOA
HOA
HOA
HOA
HOA
P
HOA
Public
R
R
R
R
R
R
R
R
R
R
R
R
Planning and Building: (661) 746-5002 / Fax (661) 746-9125 • www.shafter.com 336 Pacific Avenue • Shafter, California 93263
MEMORANDUM
Date: September 8, 2026
To: Planning Commission
From: Steve Esselman, Planning Director
Subject: Comment Letter on Development Agreement No. 25-22 (Mission Lakes Specific Plan)
Staff received the attached letter at 4:45 pm on September 8, 2026. The following is staff’s response to the letter.
The City disagrees that approval of Development Agreement No. 25-22 requires preparation of an initial study or subsequent Environmental Impact Report (EIR). The City is not relying on an exemption from CEQA. Rather, the City has determined that Development Agreement No. 25-22 is within the scope and development intensity previously analyzed in the certified Final Program Environmental Impact Report for the City of Shafter 2005 General Plan Update (SCH No. 2004101029) (Program EIR) and the Addendum prepared for Development Agreement No. 06-03 (Addendum). Development Agreement No. 06-03 was the prior development agreement governing the Mission Lakes Specific Plan area.
The Program EIR and Addendum evaluated development of the Mission Lakes Specific Plan area with up to 5,334 residential units, together with the associated commercial, park, school, roadway, and infrastructure use. Development Agreement No. 25-22 does not increase the maximum number of approved residential units or authorize development exceeding the scope or intensity evaluated in those environmental documents. Accordingly, its approval will not result in a significant new environmental effect or a substantial increase in the severity of a previously identified significant effect.
Under Public Resources Code Section 21166 and CEQA Guidelines section 15162, a subsequent EIR is required only when substantial changes to the project, substantial changes in the circumstances surrounding the project, or new information of substantial importance require major revisions to the prior EIR. The comment does not identify any specific change in Development Agreement No. 25-22, changed circumstances, or new information demonstrating that the Development Agreement would cause a new significant environmental effect or substantially increase the severity of a previously analyzed effect. A general assertion that circumstances have changed or new information exists, without identifying the asserted change, information, or resulting environmental effect, does not establish that subsequent environmental review is required.
Exhibit 3
Because Development Agreement No. 25-22 remains within the scope and intensity of the development previously evaluated in the Program EIR and Addendum, and none of the circumstances requiring additional environmental review under Public Resources Code Section 21166 or CEQA Guidelines Section 15162 has been shown to exist, the environmental effects associated with approval of the Development Agreement have already been adequately analyzed for purposes of CEQA. Preparation of an initial study or subsequent EIR is therefore not required, and the comment does not provide a basis to postpone or deny approval of Development Agreement No. 25-22.
Attachment(s): Comment Letter
September 8, 2026
VIA EMAIL
John Sanchez, Chairman
Peter Frantz, Vice-Chair
Lovedeep Joshan, Commissioner
David Piuser Commissioner
Planning Commission
City of Shafter
336 Pacific Avenue
Shafter CA 93263
[email protected]
Steve Esselman, Planning Director
Planning Department
City of Shafter
336 Pacific Avenue
Shafter CA 93263
[email protected]
Re: Comment on Development Agreement No. 25-22 (Mission Lakes Specific Plan) September 8, 2026 Planning Commission Agenda Item 1 Dear Chair Sanchez, Vice Chair Frantz, Honorable Commissioners and Planner Esselman This comment is submitted on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”), regarding the project known as Development Agreement No. 25-22 (Mission Lakes Specific Plan), which proposes the development of 5, 334 single-family and multi-family dwelling units, 68 acres of public parks, 129 acres of commercial development, two schools, and a 72 acre of road right of way located generally on the north side of 7th Standard Road west of the Calloway Canal. in the City of Shafter (“Project”), which is scheduled to be heard by the Planning Commission on September 8, 2026, as Agenda Item 1.
SAFER objects to the City’s decision to exempt the Project from environmental review under the California Environmental Quality Act (“CEQA”) based on consistency with the 2005 City of Shafter General Plan Update EIR and an Addendum to the Certified Final Program Environmental Impact Report for the City of Shafter 2005 General Plan Update Exempting the Project from CEQA based on the prior EIR and Addendum violates CEQA because the project will have new impacts based on changed circumstances and new information since the prior EIR and Addendum were approved necessitating preparation of a subsequent EIR. SAFER requests that an initial study be conducted and a CEQA document prepared to analyze and mitigate the Project’s environmental impacts. The Planning Commission should decline to approve the Project until proper CEQA review is completed.
September 8, 2026
Comment on Development Agreement No. 25-22 (Mission Lakes Specific Plan) Planning Commission Agenda Item 1
Sincerely,
Rebecca Davis
Lozeau Drury LLP
Planning and Building: (661) 746-5002 / Fax (661) 746-9125 • www.shafter.com 336 Pacific Avenue • Shafter, California 93263
MEMORANDUM
Date: October 6, 2026
To: City Council
From: Steve Esselman, Planning Director
Subject: Submission on Development Agreement No. 25-22 Received October 6, 2026 On October 6, 2026, shortly before the scheduled City Council hearing, the City received a 169- page comment submission from Supporters Alliance for Environmental Responsibility (“SAFER”), represented by Lozeau Drury LLP. The submission consists of an 11-page letter and supporting materials from three consultants and professional qualifications.
The letter asks the City to decline to rely on the certified 2005 General Plan Update Program Environmental Impact Report (“EIR”) and the 2006 Addendum to the EIR prepared for Development Agreement No. 06-03, the previous development agreement for the Mission Lakes Specific Plan area. SAFER contends that new information and changed circumstances require preparation of a subsequent EIR before the City may approve Development Agreement No. 25-
22. The submission has been included in the administrative record and made available to the City Council and the public.
The City is not treating Development Agreement No. 25-22 as exempt from CEQA. Staff previously determined that the agreement is within the scope and development intensity analyzed in the certified Program EIR for the 2005 General Plan Update and the Addendum prepared for the prior Mission Lakes development agreement. The prior documents evaluated a maximum of 5,334 residential units and associated commercial, park, school, roadway, and infrastructure uses.
Development Agreement No. 25-22 does not increase that residential maximum or associated uses.
Under Public Resources Code Section 21166 and CEQA Guidelines Section 15162, additional environmental review is required only when substantial project changes, changed circumstances, or new information of substantial importance would result in a new significant environmental effect, a substantial increase in the severity of a previously identified effect, or another condition specified in Section 15162. The existence of newer information, regulations, analytical tools, or mitigation practices does not, by itself, require a subsequent EIR. The new material must satisfy one of the specific statutory or regulatory conditions for subsequent review.
Exhibit 4
SAFER's submission does not identify a change to Development Agreement No. 25-22 that increases the amount or intensity of development evaluated in the Program EIR and Addendum.
The agreement retains the previously analyzed maximum of 5,334 residential units and does not authorize a greater amount of commercial, park, school, roadway, or infrastructure development than previously evaluated.
The biological-resource materials identify changes in species status, nearby occurrence records, updated survey protocols, and a mapped San Joaquin kit fox movement corridor. However, the submission does not present a current field survey demonstrating that the approval of this Development Agreement would cause a new significant biological effect or substantially increase the severity of a previously analyzed effect. Applicable biological-resource requirements, including required surveys, avoidance measures, and consultation or permitting obligations, remain applicable to future development activities.
The indoor-air-quality analysis concerns building materials that may be selected for future residences. It does not identify a provision of Development Agreement No. 25-22 requiring the use of a particular formaldehyde-emitting material or demonstrate that approval of the agreement itself would create an environmental effect beyond the development previously evaluated. Future construction must comply with then-applicable building, ventilation, and material-emission requirements.
The air-quality and greenhouse-gas materials identify updated modeling programs, guidance, regulatory targets, cleaner engines, low-VOC coatings, electric-vehicle infrastructure, and electric appliances. The availability of updated tools or potentially different mitigation does not independently trigger Section 15162. The submission must demonstrate that the previously analyzed project would cause a new significant effect, a substantially more severe effect, or that a considerably different feasible mitigation measure would substantially reduce a significant effect and has been declined. The submission does not establish those circumstances with respect to the approval presently before the Council. In addition, future construction and implementing approvals remain subject to applicable air-quality, building, energy, and greenhouse-gas requirements in effect at that time.
Based on the certified Program EIR, the Addendum, the terms of Development Agreement No. 25-22, SAFER's submission, and the record, staff answers each of the questions presented by CEQA Guidelines Section 15162 as follows:
Section 15162(a)(1) - Are substantial changes proposed in the project that would require major revisions to the prior EIR because of new significant effects or a substantial increase in the severity of previously identified effects?
No. The City finds that Development Agreement No. 25-22 does not increase the previously analyzed maximum of 5,334 residential units or authorize a greater amount or intensity of commercial, park, school, roadway, or infrastructure development. The terms of the agreement do not constitute a substantial project change requiring a major revision to the Program EIR or Addendum.
Section 15162(a)(2) - Have substantial changes occurred in the circumstances under which the project will be undertaken that would require major revisions to the prior EIR because of new significant effects or a substantial increase in the severity of previously identified effects?
No. The City has considered the changes in species status, survey protocols, regulatory standards, guidance, modeling tools, and mitigation practices reflected in the record. The City finds that these developments do not result in a substantial change in circumstances requiring major revisions to the prior environmental analysis. Future development remains subject to applicable biological resource, air quality, building, energy, and greenhouse gas requirements.
Section 15162(a)(3) - Is there new information of substantial importance that was not known and could not have been known with reasonable diligence when the prior EIR was certified? No. The City has considered the information developed after certification of the Program EIR and finds that it does not constitute new information of substantial importance requiring subsequent review. As explained below, the record does not satisfy any of the specific tests in subsections (A) through (D).
Section 15162(a)(3)(A) - Does the new information show that the project will have one or more significant effects not discussed in the prior EIR?
No. The City finds that the record does not show a significant new environmental effect caused by approval of Development Agreement No. 25-22. The biological information includes status changes, nearby occurrence records, survey recommendations, and a mapped movement corridor, but does not establish that approval of the agreement would cause a new significant biological effect. The formaldehyde analysis concerns building materials that may be selected for future residences, and the agreement does not require the use of a particular formaldehyde-emitting material. Updated air quality and greenhouse gas methods and regulatory programs likewise do not establish a significant new effect caused by the approval presently before the Council.
Section 15162(a)(3)(B) - Does the new information show that a significant effect previously examined will be substantially more severe than shown in the prior EIR? No. Based on the record, the City finds that no previously analyzed significant effect will become substantially more severe because of Development Agreement No. 25-22. The agreement does not increase the development cap or intensity evaluated in the prior environmental documents.
Section 15162(a)(3)(C) - Does the new information show that mitigation measures or alternatives previously found infeasible are now feasible, would substantially reduce a significant effect, and have been declined by the project proponents?
No. The City finds that no mitigation measure or alternative previously determined to be infeasible has been shown to be both feasible now and capable of substantially reducing an effect of the Development Agreement. The City further finds that the project proponents have not declined to adopt such a measure or alternative.
Section 15162(a)(3)(D) - Does the new information show that considerably different mitigation measures or alternatives would substantially reduce a significant effect, but the project proponents decline to adopt them?
No. The City has considered the information concerning cleaner construction equipment, newer diesel trucks, low-VOC coatings, electric vehicle infrastructure, and electric appliances. The City finds that the record does not establish that a considerably different measure or alternative would substantially reduce an effect of the Development Agreement and has been declined by the project
proponents. Future construction and implementing approvals also remain subject to the regulatory requirements in effect when those activities occur.
Accordingly, the submission does not demonstrate that approval of Development Agreement No. 25-22 would result in a new significant environmental effect, a substantial increase in the severity of a previously identified effect, or another condition requiring additional review under Public Resources Code Section 21166 or CEQA Guidelines Section 15162.
Therefore, it is staff’s recommendation that the City Council:
1. Receive the SAFER letter and all attachments into the administrative record.
2. Allow SAFER, the applicant, and other members of the public to provide testimony.
3. Determine that the submission does not establish a condition requiring additional environmental review under Public Resources Code Section 21166 or CEQA Guidelines Section 15162.
4. Proceed with consideration and introduction of the ordinance approving Development Agreement No. 25-22.
Attachment(s): SAFER Submission
October 6, 2026
VIA EMAIL
Chad Givens, Mayor
Gustavo Olvera Jr, Mayor Pro Tem
Gilbert T. Alvarado, Councilmember
Pete Espinoza, Councilmember
Cathy L. Prout, Councilmember
City Council
John Sanchez, Chairman
Peter Frantz, Vice-Chair
Lovedeep Joshan, Commissioner
David Piuser Commissioner
Planning Commission
City of Shafter
336 Pacific Avenue
Shafter CA 93263
[email protected]
Steve Esselman, Planning Director
Planning Department
City of Shafter
336 Pacific Avenue
Shafter CA 93263
[email protected]
Re: Comment on Development Agreement No. 25-22 (Mission Lakes Specific Plan) October 6, 2026 City Council Hearing Agenda Item 1 Dear Mayor Givens, Mayor Pro Tem Olvera, and Honorable Members of the City of Shafter City Council:
This comment is submitted on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”), regarding the project known as Development Agreement No. 25-22 (Mission Lakes Specific Plan) (“Project”), which is scheduled to be heard by the City Council on October 6, 2026, as Agenda Item 1.
SAFER objects to the City’s decision to exempt the Project from environmental review under the California Environmental Quality Act (“CEQA”) based on consistency with the 2005 City of Shafter General Plan Update EIR (“GP EIR”) and an Addendum to the Certified Final Program Environmental Impact Report for the City of Shafter 2005 General Plan Update (“Addendum”). Exempting the Project from CEQA based on the prior GP EIR and Addendum violates CEQA because the project will have new impacts stemming from changed circumstances and new information since the GP EIR and Addendum were approved, necessitating preparation of a subsequent EIR.
SAFER Comment on Development Agreement No. 25-22
Agenda Item 1
October 6, 2026
As discussed below, the Project will have significant adverse impacts related to indoor air quality, biological resources, air quality, and greenhouse gas impacts. Thus, SAFER respectfully requests that the City Council find that the City cannot rely on the GP EIR and Addendum and instead require the City to prepare a subsequent EIR.
SAFER’s review of the Project has been assisted by expert wildlife ecologist Shawn Smallwood, Ph.D., indoor air quality expert Francis Offerman, PE, CIH, and air quality expert Patrick Sutton, P.E., from Baseline Environmental Consulting. Dr. Smallwood, Mr. Offermann, and Mr. Sutton’s comments and CVs are attached as Exhibit A, B, and C, respectively, and are incorporated herein by reference.
PROJECT BACKGROUND
The Project proposes a development agreement (Development Agreement No. 06-03) for the 1,374.22-acres of property within the boundaries of the Mission Lakes Specific Plan site, north of 7th Standard Road, and west of Calloway Canal in the City of Shafter. The Project enables the development of 5,334 single-family and multi-family dwelling units, 68 acres of public parks, 129 acres of commercial development, two schools, and a 72 acre of road right of way. The site is subject to the City of Shafter general plan, Specific Plan land use designation, Specific Plan (SP) zone, and Mission Lakes Specific Plan adopted under the 2005 General Plan Update.
The City relies on the City of Shafter General Plan Update EIR and a 2006 Addendum to the GP EIR.
LEGAL STANDARD
CEQA contains a strong presumption in favor of requiring a lead agency to prepare an EIR, as reflected in the fair argument standard. The fair argument standard provides that a lead agency must prepare an EIR whenever there is substantial evidence in the whole record before the agency that supports a fair argument that a project may have a significant effect on the environment. (Pub. Res. Code (“PRC”) § 21082.2; Laurel Heights Improvement Ass’n v. Regents of the University of California (1993) [“Laurel Heights II”] 6 Cal.4th 1112, 1123; No Oil, Inc. v.
City of Los Angeles (1974), 13 Cal.3d 68, 75, 82; Quail Botanical Gardens v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602.)
Pursuant to CEQA Guidelines § 15162, a subsequent EIR is required where:
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration 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 which will require major revisions of the previous EIR or Negative
SAFER Comment on Development Agreement No. 25-22
Agenda Item 1
October 6, 2026
Declaration 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, which 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 Negative Declaration was adopted, shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe than shown in the previous 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 previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.
As discussed below, pursuant to CEQA Guidelines § 15162, the City must prepare a subsequent EIR because new information has become available since certification of the 2005 EIR and adoption of the 2006 Addendum, indicating changed circumstances, new significant impacts, and the availability of new mitigation measures related to the Project’s impacts on air quality, transportation, and public services based. Accordingly, the City must prepare a subsequent EIR.
DISCUSSION
I. New Information and Changed Circumstances Indicate New and More Severe Impacts on Biological Resources than Disclosed in the GP EIR and Addendum Necessitating a Subsequent EIR.
Expert wildlife ecologist, Shawn Smallwood, Ph.D., has reviewed the Development Agreement No. 06-03, the Addendum, and the GP EIR. Dr. Smallwood’s review highlights new biological resource information and changed circumstances not previously known at the time of the GP EIR and Addendum, including diversity of species on the project site, numerous specialstatus species that either gained special-status or elevated in status since the GP EIR and Addendum, and the designation of part of the project site as habitat for the federally endangered San Joaquin kit fox in 2010. (Ex. A at 1.)
SAFER Comment on Development Agreement No. 25-22
Agenda Item 1
October 6, 2026
A. The Addendum and the GP EIR did not account for the diversity of species now present on the Project site, including multiple special-status species, indicating substantially changed circumstances.
The development agreement’s reliance on the GP EIR and Addendum incorrectly ignores new biological resource information and changed circumstances relevant to species diversity and special-status that warrant a subsequent EIR.
The existence of special status species that have been elevated in their special status since the GP EIR warrants additional review. Dr. Smallwood explains that according to occurrence records, there are 108 special-status species in the project area, 42 (39%) of which have been elevated in their special status since 2005, been assigned special status, or been upgraded to a higher degree of conservation concern status. (Ex. A, p. 3.) These 42 special-status species that received elevated status since 2005 have been actively documented in the area. Dr. Smallwood found that 4 were documented within 1.5 miles of the Project site, 10 were documented between
1.5 and 4 miles of the site, and 26 were documented between 4 and 30 miles of the site. (Id.) Further, numerous special-status species, with a high plausibility of occurrence in the Project site, “have yet to undergo any sort of CEQA review related to the proposed project. (Ex.
A, p. 3.) Dr. Smallwood found “[o]f the 93 special-status species that the 2005 [GP EIR] did not assess for occurrence likelihoods, 39 (42%) have since been elevated in their special status.” (Id.) Moreover, 25 of the 93 special-status species “have been documented immediately adjacent or within 1.5 miles of the project site, 18 of which were “documented between 1.5 and 4 miles of the project site,” and 40 “documented between 4 and 30 miles of the project site.” (Id.) The presence of these special-status species that were either not present for consideration when the GP EIR was certified or have since received heightened status clearly constitute substantial new information and changed circumstances that could result in significant environmental effects.
Additionally, vast improvements in biologists’ ability to detect special-status species and the development of standardized survey guidelines since 2005 warrant additional study. The California Department of Fish and Wildlife developed rare plant survey guidelines (CDFW 2018), candidate bumble bee survey guidelines (CDFW 2023), and burrowing owl survey and mitigation guidelines (CDFW 2012), and guidelines for other special-status species. Notably, “[t]he 2005 DEIR determined the likelihood of occurrence of burrowing owl was high,” and because the burrowing owl is now a candidate for listing under the California Endangered Species Act,” Dr. Smallwood concluded that “a protocol-level breeding-season detection survey for burrowing owls is warranted.” (Id.) Dr. Smallwood also highlights that he “detected three special-status species of bats only one mile from the project site in 2025, so a bat survey is also warranted. (Id.) As indicated by Dr. Smallwood’s comparative desktop review of project site conditions today, such improved species detection methods and survey guidelines would likely reveal significant new biological resource impacts that were not known and could not have been known at the time of the previous GP EIR. As such, a subsequent EIR must be prepared for the Project.
SAFER Comment on Development Agreement No. 25-22
Agenda Item 1
October 6, 2026
B. Changed circumstances designating the Project site as endangered species habitat means the Project will have significant impacts on biological resources that were not previously identified.
The project may detrimentally interfere with the conservation and recovery of the San Joaquin kit fox, in violation of the federal Endangered Species Act. While the San Joaquin kit fox was known to the GP EIR’s planning area, “in 2020, the City of Bakersfield included part of the project site within a recognized movement corridor of the San Joaquin kit fox,” thereby making the project site San Joaquin kit fox habitat. (Ex. A, p. 4–5; Figure 1.) Habitat loss and fragmentation are recognized as primary causes for the decline of the San Joaquin kit fox in and around Bakersfield. (Id., p. 4.) The 2010 5-year review of the San Joaquin kit fox “(USFWS 2010: 12–14) includes mapped movement corridors that connect San Joaquin kit fox Recovery Units 10 and 11, either inclusive of or adjacent to the project site, to San Joaquin kit fox Core Areas located north and south of Bakersfield.” (Id.) Dr. Smallwood concluded that the project would not only “potentially destroy existing habitat and a significant portion of a mapped corridor,” but would also make the San Joaquin kit foxes that inhabit the area “vulnerable to collision mortality from project-generated traffic.” (Id.) Traffic is already responsible for “the mortality of up to 27% of the local San Joaquin kit fox populations in Bakersfield.” (Id.) Even though the project is “likely to exacerbate this problem . . . the Addendum provides no analysis of these potential impacts.” (Id.)
As Dr. Smallwood supports in his analysis, the population of San Joaquin kit fox in the project area is “crucial for the recovery of this endangered species.” (Id.) The population “is substantial and therefore could contribute significantly to conservation and recovery efforts” for the species. (Id. [quoting Cypher et al. 2022.].) Dr. Smallwood concluded that “[c]onsidering the status of the San Joaquin kit fox, the importance of the local kit foxes to the recovery of the species, and the close proximity of known occurrence records, the City needs to assume San Joaquin kit foxes are present, and it needs to initiate consultation with the USFWS to determine whether and how to obtain an [Incidental Take Permit].” (Id.) Therefore, the 2010 designation of the movement corridor on the project site constitutes both new information of substantial importance and changed circumstances, which will require major revisions due to the significant biological effects the Plan would have on the critical habitat of an endangered species. As such, a subsequent EIR must be prepared for the Project.
SAFER Comment on Development Agreement No. 25-22
Agenda Item 1
October 6, 2026
Figure 1. Excerpt from the Metropolitan
Bakersfield Habitat Conservation Plan Kit Fox
Known & Potential Dens Map 2020-02-06,
with canals indicated by solid blue lines, and
the San Joaquin kit movement corridor
represented by red crosshatch. (Ex. A, p. 5.)
Additionally, Dr. Smallwood notes new potential project impacts that have emerged since the 2005 EIR and therefore require environmental review. Such impacts include wildlife collision mortality from the 5,334 residential dwelling units proposed by the project, projectgenerated traffic, and predation mortality from free-ranging cats introduced by new residents. (Ex. A, p. 4.)
II. New Information of Substantial Importance Regarding Formaldehyde in Indoor Air from CARB-Compliant Composite Wood Demonstrates that the Project will have a Significant Health Risk Impact on Future Residents that was not Discussed in the GP EIR or Addendum.
Certified Industrial Hygienist, Francis Offermann, PE, CIH, has conducted a review of the Project and Development Agreement, attached as Exhibit B. Mr. Offerman is one of the world’s leading experts on indoor air quality, in particular emissions of formaldehyde, and has published extensively on the topic. As discussed below and set forth in Mr. Offermann’s comments, the Project’s emissions of the toxic air contaminant (“TAC”) formaldehyde will result in significant cancer risks for future residents as a result of the Project’s use of formaldehyde-emitting building materials. (Ex. B, p. 3.) Many composite wood products typically used in home and apartment building construction contain formaldehyde-based glues which off-gas formaldehyde.
He states, “The primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particle board. These materials are commonly used in residential, office, and retail building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.” (Ex. B, p. 2.)
Mr. Offermann found that future residents of the Project’s residential units will be East end of
project site at
Calloway Canal
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exposed to a cancer risk from formaldehyde of approximately 120 per million - even assuming that all materials are compliant with the California Air Resources Board’s formaldehyde airborne toxics control measure (“ATCM”). (Ex. B, p. 4.) This is more than 12 times the applicable significance threshold of 10 per million. (Id.) Mr. Offermann’s analysis and conclusions are based on new information that was not available in 2005 or 2006.
CARB adopted Air Toxic Control Measures for formaldehyde in 2009. The ATCM was meant to reduce health risks posed by indoor air emissions of formaldehyde from finishing materials in residential projects. However, even at that time, neither CARB nor the scientific community were aware that those measures would not reduce cancer risks from formaldehyde emissions to below a 10 in a million cancer risk. The formaldehyde ATCM applied numeric emission standards on five categories of composite wood products. The standards were divided into two phases. The first phase standards were required to be in place for four of the five composite wood categories by January 1, 2009. (17 Cal. Admin. Code § 93120.2, Table 1.) All hardwood plywood with a composite core had to meet the Phase 2 standard by not later than January 1, 2010. (Id.) Particle Board and Medium Density Fibreboard products had to meet their Phase 2 standards by no later than January 1, 2011. (Id.) Thin Medium Density Fibreboard had to achieve its Phase 2 standard by no later than January 1, 2012. And the final category – Hardwood Plywood with a veneer core – had to comply with its Phase 2 standard by no later than July 1, 2012. (Id.)
In 2020, Singer et al. published the results of the Healthy Efficient New Gas Home (“HENGH”) study, which is attached to these comments as Exhibit D. Singer monitored 70 homes built – one of which was built in 2011 and 69 of which were built from 2012 to 2017. (Id.) All of the “[h]omes studied in HENGH … were built with materials that complied with [CARB’s] air toxic control measure (ATCM) for composite wood products that was implemented to reduce formaldehyde emissions.” (Exhibit D, p. 5.) Although the measured levels of formaldehyde reported by Singer were reduced by about 33 percent by the implementation of the ATCM compared to new homes evaluated in a previous study, the reduced levels did not eliminate significant cancer risks to residents breathing in the off-gassing formaldehyde. (Id., p. 3.) The Singer study’s measurements disclosed for the first time data demonstrating that, even if buildings comply with CARB’s Formaldehyde ATCM, residences built with materials complying with the rule would still pose a lifetime cancer risk higher than 10 in a million. (Id., pp. 3-4.) Therefore, the Project’s significant impact on indoor air quality is new information of substantial importance, which was not known and could not have been known at the time the GP EIR and Addendum were adopted. (See Sec. Envt’l Sys., 229 Cal.App.3d at 124.) It wasn’t until the Singer Study was published that the scientific community became aware that even where new homes are built with ATCM-compliant materials, cancer risks remain well above the threshold of significance.
The Singer study, and Mr. Offermann’s evaluation of the data and calculation of the accompanying health risks, is new information of substantial importance regarding formaldehyde emissions showing that the Project will have significant health risks impacts on future residents which were not discussed in the GP EIR or Addendum. Accordingly, a subsequent EIR must be prepared for the Project.
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III. New Mitigation Measures Not Available when the GP EIR and Addendum were Adopted Would Substantially Reduce the Project’s Significant Air Quality Impacts, Requiring Subsequent CEQA Review.
Air quality expert Patrick Sutton, P.E., of Baseline Environmental Consulting, has reviewed the 2005 General Plan Update Program Environmental Impact Report that included adoption of the proposed Mission Lakes Specific Plan.
Section 15162 of the CEQA Guidelines requires the preparation of a supplemental EIR if “[n]ew information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified” shows that “[m]itigation measures . . . considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.” (14 CCR § 15162(a)(3).)
Here, multiple mitigation measures that were not evaluated or available when the GP EIR and Addendum were adopted can now be readily assessed and implemented to reduce the Project’s significant air quality impacts. In 2005 and 2006, when the GP EIR was certified and the Addendum adopted, Tier 2 engines were the cleanest diesel engines available for off-road construction equipment. (Ex. C, p. 4.) Now, Tier 3, Tier 4 Interim, and Tier 4 Final Interim engines are readily available. (Id.) Tier 4 Final engines, for off-road equipment with diesel engines greater than 75 horsepower, “reduce nitrogen oxide (NOx) and coarse particulate matter (PM10) emissions by over 90% compared to Tier 2 engines.” (Id.) Mr. Sutton concluded that mitigation measures requiring “Tier 4 final engines would significantly reduce the severity of criteria air pollutant and DPM emissions associated with development under the proposed Plan.” (Id.) The availability of Tier 4 standards as a mitigation measure for the Project’s air quality impacts qualifies as new information that could not have been known at the time the GP EIR and Addendum were adopted.
Additionally, compared to the heavy-duty diesel tractor trucks available for construction of the project in 2005 and 2006, heavy-duty diesel tractor truck engines manufactured since 2014 generate significantly less criteria air pollutant and DPM emissions. Mr. Sutton explains that in 2005, “the fleetwide average running exhaust emission factor for NOx from Class 8 on-road heavy-duty diesel tractor trucks in Kern County was approximately 9.15 grams per mile,” whereas, the California Air Resources Board’s EMFAC2025 database indicates that “the running exhaust emission factor for Nox from Class 8 diesel tractor trucks with model year 2014 or later engines is approximately 0.71 grams per mile, which is approximately 92% lower than the 2005 fleetwide average emission factor.” (Id.) Therefore, Mr. Sutton concluded that “new mitigation measures requiring the use of 2014 or later engines for heavy-duty diesel tractor trucks during construction (e.g., haul trucks) and operation (e.g., warehouse trucks) would significantly reduce the severity of criteria air pollutant and DPM emissions.” (Id.)
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Additionally, recent advancements in architectural coatings, a major source of reactive organic gas (ROG) emissions, and “a precursor for the formation of ground-level ozone,” have developed super-compliant volatile organic compound (“VOC”) paints to reduce ROG emissions. (Ex. C, p. 4–5.) When the EIR was prepared, paint coatings “were limited to a maximum [VOC] content of 250 grams per liter and 380 grams per liter, respectively, under the SJVAPCD’s original Rule 4601. (Id., p. 4.) While, SJVAPD has already updated this rule to limited VOC content to 50 grams per liter, the use of super-compliant VOC paints, which have a maximum VOC content of 10 grams per liter, has become widespread in California. (Id., p. 5.) Mr. Sutton concluded that new mitigation measures requiring the use of “[s]uper-compliant VOC paints would reduce ROG emissions by at least 96% compared to the 2005 VOC content in paints and by approximately 80% compared to current regulatory requirements. (Id.) IV. Substantial expert evidence shows that the Addendum and GP EIR relied on inadequate analyses of the Project’s impacts on Air Quality.
Mr. Sutton concluded that the Plan’s analysis of air quality impacts is inadequate and that the development agreement, as proposed, will likely have substantially more severe air quality impacts than previously addressed in the 2005 EIR and 2006 addendum. (Ex. C, p. 1.) First, the air quality impact analysis in the 2005 EIR relied on the San Joaquin Valley Air Pollution Control District’s (“SJVAPCD”) Guidance for Assessing and Mitigating Air Quality Impacts that was published in January 2002. (Ex. C, p. 1.) This outdated guidance was superseded by the SJVAPCD’s current guidance published in March 2015. (Id., p. 1–2.) According to Mr. Sutton, the current guidance incorporates new information of substantial importance that could not have been known with the exercise of reasonable diligence at the time the 2005 EIR was certified. (Id., p. 2.) This critical new information includes updated emission modeling software, modernized thresholds, and rules regarding GHG emissions and localized health risk assessments. (Id.)
As Mr. Sutton explains, under CEQA Guidelines Section 15162(a)(3), “SJVAPCD’s updates to modeling software, modernized thresholds, and rules regarding GHG emissions and localized health risk assessments are considered new information of substantial importance under CEQA Guidelines Sections 15162(a)(3)(A) and 15162(a)(3)(D).” (Ex. C, p. 2.) A. New Significant Criteria Air Pollutant Emissions
The 2005 EIR relies on the now obsolete 2002 URBEMIS model for estimating longterm criteria air pollutant emissions under the proposed plan. (Ex. C, p. 2.) The URBEMIS model, superseded by the 2022 California Emissions Estimator Model (CalEEMod), “only captured direct emissions (tailpipes, construction equipment, hearths), whereas CalEEMod also quantifies indirect emissions associated with consumer products, energy consumption, water delivery/treatment, and solid waste disposal while utilizing sub-regional default data customized by individual local Air Quality Management Districts.” (Id.) Moreover, the URBEMIS model lacked the ability to calculate GHG emissions, while CalEEMod quantifies both direct and indirect GHG emissions. (Id.)
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Additionally, the 2005 EIR failed to evaluate “short-term criteria air pollutant emissions from construction, indirect emissions from operation, [and] overlapping emissions from construction and operation that would be anticipated under the proposed Plan.” (Ex. C, p, 3.) As such, the 2005 EIR and specific plan grossly omit key components to what is now expected of a proper air quality analysis “[b]ased on the updated emissions modeling software an SJVAPCD’s current thresholds.” (Ex. C, p. 3.) As a result, the GP EIR and Addendum fail to adequately disclose significant and unavoidable air quality impacts related to criteria air pollutants. (Id.) Further, new readily available mitigation measures would substantially reduce the severity of such impacts.
B. New Significant Localized Health Risks
The GP EIR and Addendum failed to assess “local health risks to nearby sensitive receptors exposed to toxic air contaminants during construction and operation of the proposed Plan.” (Ex. C, p.3.) As Mr. Sutton explains, diesel particulate matter (DPM) emissions generated from the exhaust of off-road diesel equipment during construction could put nearby sensitive receptors at risk of health impacts. (Id.) The Office of Environmental health hazard Assessment (OEHHA) published guidance in 2015 for preparing health risk assessments including the health risks to adults and children exposed to carcinogens such as DPM from short-term construction activities lasting more than 2 months. (Id.) Similarly, the Plan could introduce additional health risks associated with operational sources of toxic air contaminants, such as DPM emissions from the diesel emergency generators or warehouse trucks, or volatile organic gases from new gas stations. (Id.) Based on the OEHHA guidance and modern research, the 2005 EIR and Addendum could not, and did not, adequately disclose potential significant and unavoidable air quality impacts related to toxic air contaminant emissions. (Id.) Further, new readily available mitigation measures would substantially reduce the severity of such impacts. (Id., p. 4.) V. New Information Shows the Project Will Have a Potentially Significant Greenhouse Gas Impact that was Not Discussed in the GP EIR or Addendum.
Neither the GP EIR nor the Addendum analyzed the Project’s GHG impacts. Mr. Sutton concluded that “[b]ased on current statewide GHG reduction goals, research, modeling software, and regulatory guidance, implementation of the Plan could have a significant and unavoidable impact related to GHG emissions.” (Ex. C, p. 4.)
Further, Mr. Sutton identified multiple long-term climate action goal strategies that California had not yet adopted when the EIR was prepared. (Ex. C, p. 5.) These goals include Assembly Bill (AB) 32, to “reduce GHG emissions to 1990 levels by 2020”; Senate Bill (SB) 32, “to reduce GHG emissions to 40 percent below 1990 levels by 2030”; and AB 1279, “to achieve carbon neutrality as soon as possible, but no later than 2045 and maintain net negative GHG emissions thereafter, and reduce GHG emissions to 85 percent below 1990 levels by 2045.” (Id.) Similarly, the EIR could not have contemplated compliance with the California Air Resources Board’s current 2022 Scoping Plan for Achieving Carbon Neutrality (2022 Scoping Plan), which
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provides guidance for residential and commercial projects to demonstrate alignment with California’s long-term climate goals. (Id.)
New readily available mitigation measures would substantially reduce the severity of such impacts. (Id.) Readily available mitigation measures, “such as providing electric vehicle (EV) charging infrastructure that, at a minimum, meets the most ambitious voluntary standard in the California Green Building Standards Code and requiring the use of all-electric appliances without any natural gas connections,” should be implemented to align the Plan with the 2022 Scoping Plan. (Id.)
CONCLUSION
For the foregoing reasons, the City cannot rely on the GP EIR and Addendum to approve the Project and instead must prepare a subsequent EIR.
LOZEAU DRURY LLP
____________________
Carly Steele
EXHIBIT A
1 Shawn Smallwood, PhD
3108 Finch Street
Davis, CA 95616
Attn: Wayne Clausen, Senior Planner
City of Shafter
336 Pacific Avenue
Shafter, CA 93263 28 September 2026
RE: Addendum to Shafter 2005 General Plan Update
Dear Mr. Clausen,
I write to comment on the Addendum to Shafter 2005 General Plan Update that was prepared for Development Agreement No. 06-03, which would add 5,334 residential dwelling units along with commercial development and a school on 1,374.22 acres along the north side of 7th Standard Road, west of Calloway Canal. I object to the City’s assertion that because the proposed project is within the scope of the analysis in the 2005 General Plan Update, no additional environmental document is required. In fact, since 2005 the status of many species of wildlife has changed, and new types of potential project impacts on wildlife have emerged along with the capacity to predict the impacts and to mitigate them. Circumstance have changed substantially since 2005.
My qualifications for preparing expert comments are the following. I hold a Ph.D. degree in Ecology from University of California at Davis, where I also worked as a postgraduate researcher in the Department of Agronomy and Range Sciences. My research has been on animal density and distribution, habitat selection, wildlife interactions with the anthrosphere, and conservation of rare and endangered species. I authored many papers on these and other topics. I served as Chair of the Conservation Affairs Committee for The Wildlife Society – Western Section. I am a member of The Wildlife Society, and I’ve lectured part-time at California State University, Sacramento. I was Associate Editor of wildlife biology’s premier scientific journal, The Journal of Wildlife Management, as well as of Biological Conservation, and I was on the Editorial Board of Environmental Management. I have performed wildlife surveys in California for thirtyseven years. My CV is attached.
THE WILDLIFE COMMUNITY AS A BIOLOGICAL RESOURCE
Before I comment specifically on the project, I reassess a key subject in CEQA review, because it too often gets divorced from its intended purpose. This subject is special status assigned to a biological species to signify the species’ natural rarity, special place in the food web, e.g., raptors, numerical decline or range contraction, or jeopardy of extirpation or extinction, i.e., endangerment.
Most environmental reviews pursuant to the California Environmental Quality Act (CEQA) focus on special-status species because CEQA’s Checklist Evaluation of Environmental Impacts Question IV(a) asks specifically whether the project would
2 adversely affect special-status species. This narrowly focused question is part of a larger policy goal of CEQA, which is “to prevent the elimination of fish or wildlife species due to man’s activities, insure that fish and wildlife populations do not drop below selfperpetuating levels, and preserve for future generations representations of all plant and animal communities and examples of the major periods of California history.” Pub. Res.
Code § 21001(c). This policy is not restricted to special-status species; it also applies to wildlife populations and plant and animal communities, as it must because specialstatus species are integral members of ecological communities. CEQA defines wildlife habitat as “the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection” (Pub. Res.
Code § 21155.1 (a)(2)(C) (ii)). This definition is consistent with the scientific definition of habitat, which is that portion of the environment that is used by members of a species for survival and reproduction (Hall et al. 1997). An essential portion of the environment used by any special-status species is composed of the collection of other species of plants and wildlife, because these species provide for special-status species their forage, refugia and nest substrates, and some serve as ecological mutualists; no special-status species can exist in a vacuum of other wildlife. The CEQA Checklist Evaluation assigns priority to special-status species to balance information and cost, but it does not exclude the need to evaluate environmental impacts to other species, which, after all, are members of the very communities within which special-status species inter-depend for survival and reproduction.
The species I consider to be special-status species are those listed in California’s Special Animals List inclusive of threatened and endangered species under the California and federal Endangered Species Acts, candidates for listing under CESA and FESA, California’s Fully Protected Species, California species of special concern, and California’s Taxa to Watch List (https://nrm.dfg.ca.gov/FileHandler.ashx? DocumentID=109406), and continental and region-specific US Fish and Wildlife Service Birds of Conservation Concern (https://www.fws.gov/sites/default/files/ documents/ birds-of-conservation-concern-2021.pdf). Additional species I consider to be special-tatus species are those recognized to be naturally rare such as raptors protected by California’s Birds of Prey laws, Fish and Game Code Sections 3503, 3503.5, 3505 and 3513 (see https://wildlife.ca.gov/Conservation/ Birds/Raptors). In the case of this project, I also consider special status to apply to species covered by the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP).
TODAY’S WILDLIFE COMMUNITY COMPARED TO THAT OF 2005
The findings of the Addendum are based on the assumption that environmental circumstances have not changed between 2005 and the present time. However, the Addendum fails to include any comparative analysis of the characterization of the wildlife communities between then and now. According to the Shafter 2005 General Plan Update DEIR (p. 4.4-1), “No fieldwork was conducted for this analysis.” Therefore, other than from a desktop review of the occurrence likelihoods of wildlife species that had been assigned special status in 2005, there exists no baseline characterization of the wildlife community against which to compare the wildlife community that exists today.
3 The only comparison that is possible would be based on desktop reviews between 2005 and now.
Considering the occurrence records of species of wildlife that I consider species of special concern, there exist 108 special-status species in the project area that warrant a closer look for their likelihood of occurrence on the project site (Table 1). Of these 108 special-status species, 42 (39%) have been elevated in their special status since 2005, having been assigned special status, or having been added to another agency list of special-status species, or having been upgraded in status indicative of a higher degree of conservation concern. Of these 42 special-status species with elevated status since 2005, 4 have been documented within 1.5 miles of the site, 10 have been documented between
1.5 and 4 miles of the site, and 26 have been documented between 4 and 30 miles of the site.
The 2005 DEIR assessed the likelihoods of occurrence of only 15 of the special-status species in Table 1. Of these species, the DEIR determined the Tipton kangaroo rat was present, but this determination resulted from the study area having been much larger than the current project site, and therefore inclusive of environmental conditions that are not present on the project site. The 2005 desktop review was conducted at a scale that does not fit the proposed development project.
Another of the 2005 DEIR’s determinations was that Swainson’s hawk was absent.
However, this determination has since been refuted by three occurrence records within
1.5 miles of the project site in 2013, 2021, and 2023 (see eBird: https://ebird.org/map/ swahaw?neg=true&env.minX=&env.minY=&env.maxX=&env.maxY=&zh=false&gp=fal se&ev=Z&excludeExX=false&excludeExAll=false&mr=1-12&bmo=1&emo=12&yr= all&byr=1900&eyr=2026).
Of the 93 special-status species that the 2005 DEIR did not assess for occurrence likelihoods, 39 (42%) have since been elevated in their special status. Of these 93 special-status species, 25 have been documented immediately adjacent or within 1.5 miles of the project site, 18 have been documented between 1.5 and 4 miles of the project site, and 40 have been documented between 4 and 30 miles of the project site. In other words, the plausibility of occurrence is relatively high for most of the specialstatus species in Table 2 that have yet to undergo any sort of CEQA review related to the proposed project.
The ability of biologists to detect special-status species on a project site has also vastly improved since 2005. The California Department of Fish and Wildlife prepared rare plant survey guidelines (CDFW 2018), candidate bumble bee survey guidelines (CDFW 2023), and burrowing owl survey and mitigation guidelines (CDFW 2012), and guidelines have been prepare for other special-status species, as well. The 2005 DEIR determined the likelihood of occurrence of burrowing owl was high. Considering this determination, and that the burrowing owl is now a candidate for listing under the California Endangered Species Act, a protocol-level breeding-season detection survey for burrowing owls is warranted. The available survey guidelines for multiple specialstatus species need to be implemented on the project site. Furthermore, because I
4 detected three special-status species of bats only one mile from the project site in 2025, a bat survey is warranted.
Another changed circumstance is what is known of the San Joaquin kit fox in the project area. Listed as endangered under the federal Endangered Species Act, the San Joaquin kit fox was known to the 2005 DEIR’s planning area. However, in 2020, the City of Bakersfield included part of the project site within a recognized movement corridor of the San Joaquin kit fox (Figure 1). Because part of the project site is situated within a San Joaquin kit fox movement corridor, the project site is San Joaquin kit fox habitat.
Habitat loss and habitat fragmentation have been identified as primary reasons for the decline of the San Joaquin kit fox in and around Bakersfield (Bjurlin and Cypher 2005; Cypher et al. 2013; Los Padres Forest Watch and Center for Biological Diversity 2010; Nogeire-McRae et al. 2019). Exacerbating this decline – much of it since 2005 – has been an epidemic of sarcoptic mange (Cypher et al. 2017), road mortality (Bjurlin and Cypher 2003, 2005), and non-target mortality and injury caused by use of rodenticides (Cypher et al. 2014, Nogeire-McRae et al. 2019).
Continued habitat connectivity is of central concern to the conservation and recovery of the San Joaquin kit fox (Bjurlin and Cypher 2005; Cypher et al. 2013; Los Padres Forest Watch and Center for Biological Diversity 2010, USFWS 2010; Nogeire-McRae et al. 2019; USFWS 2020a,b). The 2010 5-year review (USFWS 2010: 12–14) includes mapped movement corridors that connect San Joaquin kit fox Recovery Units 10 and 11, either inclusive of or adjacent to the project site, to San Joaquin kit fox Core Areas located north and south of Bakersfield.
Not only would the project potentially destroy existing habitat and a significant portion of a mapped corridor, but the San Joaquin kit foxes that inhabit the area would be vulnerable to collision mortality from project-generated traffic. Automobile traffic has caused the mortality of up to 27% of the local San Joaquin kit fox populations in Bakersfield (Bjurlin and Cypher 2003). More traffic from the project would likely exacerbate this problem, and yet the Addendum provides no analysis of these potential impacts.
The San Joaquin kit fox population of the project area is considered crucial for the recovery of this endangered species (Cypher et al. 2022). According to Cypher et al. (2021), “The urban SJKF population in Bakersfield is substantial and therefore could contribute significantly to conservation and recovery efforts for SJKF.” Considering the status of the San Joaquin kit fox, the importance of the local kit foxes to the recovery of the species, and the close proximity of known occurrence records, the City needs to assume San Joaquin kit foxes are present, and it needs to initiate consultation with the USFWS to determine whether and how to obtain an ITP.
Additional potential project impacts that have emerged since the 2005 DEIR, and which therefore represent changed circumstances in need of environmental review, include wildlife collision mortality that would be caused by the windows of the 5,334 residential dwelling units and by the project-generated traffic, and predation mortality that would be caused by free-ranging cats introduced by new residents.
5 Figure 1. Excerpt from the Metropolitan
Bakersfield Habitat Conservation Plan
Kit Fox Known & Potential Dens Map
2020-02-06, with canals indicated by
solid blue lines, and the San Joaquin kit
movement corridor represented by red
crosshatch.
Thank you for your consideration,
______________________
Shawn Smallwood, Ph.D.
LITERATURE CITED
Bjurlin, C. D., and B. L. Cypher. 2003. Effects of roads on San Joaquin kit foxes: a review and synthesis of existing data. . In Proceedings of the international conference on ecology and transportation, eds. C.L. Irwin, P. Garrett, K.P.
McDermott, pp. 397-406. Center for Transportation and the Environment, North Carolina State University, Raleigh.
Bjurlin, C. D., and B. L. Cypher. 2005. Urban roads and the Endangered San Joaquin Kit Fox. Report FHWA/CA/IR-2006/01 to California Department of Transportation, Sacramento.
CDFW (California Department of Fish and Wildlife). 2012. Staff Report on Burrowing Owl Mitigation. Sacramento, California.
CDFW (California Department of Fish and Wildlife). 2018. Protocols for surveying and evaluating impacts to special status native plant populations and sensitive natural communities. https://nrm.dfg.ca.go
CDFW (California Department of Fish and Wildlife). 2023. Survey Considerations for California Endangered Species Act (CESA) Candidate Bumble Bee Species.
East end of
project site at
Calloway Canal
6 Cypher, B.L., S.E. Phillips, and P.A. Kelly. 2013. Quantity and distribution of suitable habitat for endangered San Joaquin Kit Foxes: Conservation implications. Canid Biology & Conservation 16:25–31.
Cypher, B. L., McMillin, C. Stella, T. L. Westall, C. Van Horn Job, R. C. Hosea, B. J.
Finlayson, and E. C. Kelly. 2014. Rodenticide Exposure Among Endangered Kit Foxes Relative to Habitat Use in an Urban Landscape. Cities and the Environment (CATE) 7: Iss. 1, Article 8. Available at: https://digitalcommons.lmu.edu/cate/vol7/ iss1/8
Cypher, B. L., J. L. Rudd, T. L. Westall, L. W. Woods, N. Stephenson, J. E. Foley, D.
Richardson, and D. L. Clifford. 2017. Sarcoptic mange in endangered kit foxes (vulpes macrotis mutica): case histories, diagnoses, and implications for conservation. Journal of Wildlife Diseases 53: 46-53.
Cypher, B. L., N. A. Deatherage, T. L. Westall, E. C. Kelly, and S.E. Phillips. 2021.
Potential habitat and carrying capacity of Endangered San Joaquin Kit Foxes in an urban environment: implications for conservation and recovery. Research Square. https://doi.org/10.21203/rs.3.rs-833974/v1
Cypher, B.L.; N. A. Deatherage, T. L. Westall, E. C. Kelly. 2022. Intraguild Competition between Endangered Kit foxes and a novel predator in a novel environment.
Animals 2022, 12, 2727. https://doi.org/10.3390/ani12202727 Los Padres Forest Watch and Center for Biological Diversity. 2010. Before the Secretary of Interior Petition to Designate Critical Habitat for the Endangered San Joaquin Kit Fox (Vulpes Macrotis Mutica) under the Endangered Species Act. Santa Barbara.
Nogeire-McRae, T., J. J. Lawler, N. H. Schumaker, B. L. Cypher, and S. E. Phillips. 2019.
Land use change and rodenticide exposure trump climate change as the biggest stressors to San Joaquin kit fox. PLoS ONE 14(6): e0214297. https://doi.org/
10.1371/journal.pone.0214297
USFWS (U.S. Fish and Wildlife). 2010. San Joaquin Kit Fox (Vulpes macrotis mutica) 5-Year Review: Summary and Evaluation. Sacramento, California.
USFWS (U.S. Fish and Wildlife). 2020a. 5-Year Review San Joaquin kit fox (Vulpes macrotis mutica).
USFWS (U.S. Fish and Wildlife). 2020b. Species Status Assessment Report for the San Joaquin kit fox (Vulpes macrotis mutica). UI.S. Department of the Interior.
7 Table 1. Occurrence likelihoods of special-status species of wildlife at or near the proposed project site, according to eBird/iNaturalist records (https://eBird.org, https://www.inaturalist.org) and on-site survey findings, where ‘Very close’ indicates within 1.5 miles of the site, “Nearby” indicates within 1.5 and 4 miles, and “In region” indicates within 4 and 30 miles, and ‘In range’ means the species’ geographic range overlaps the site. Entries highlighted in orange indicate species that have had changes in status since 2005/2006, and entries in bold font indicate species I detected.
Common name Species name Status1
Status change
since 2005/
2006
2005 FEIR
occurrence
potential
Occurrence
record(s)
Vernal pool fairy shrimp Branchinecta lynchi FT Low In region Valley elderberry longhorn
beetle
Desmocerus californicus
dimorphus
FT Absent In range
Monarch Danaus plexippus FC FC 2019 In region/
Nearby
Crotch’s bumble bee Bombus crotchii CCE CCE 2019 Nearby Western spadefoot Spea hammondii FC, SSC FC 2023 Moderate In region Northwestern pond turtle Actinemys marmorata FC, SSC FC 2023 In region Blunt-nosed leopard lizard Gambelia sila FE, CE, CFP High In region Coast horned lizard Phrynosoma blainvillii SSC SSC 2011 Low In region Bakersfield legless lizard Anniella grinnelli SSC In region California glossy snake Arizona elegans occidentalis SSC In region San Joaquin coachwhip Masticophis flagellum ruddocki SSC Low In region Brant Branta bernicla SSC2 SSC 2008 In region
Cackling goose (Aleutian) Branta hutchinsii leucopareia WL In region Redhead Aythya americana SSC2 SSC 2008 In region
Western grebe Aechmophorus occidentalis BCC BCC 2021 Nearby Clark’s grebe Aechmophorus clarkii BCC BCC 2021 In region Western yellow-billed cuckoo Coccyzus americanus
occidentalis
FT, CE FT 2014 In region
Black swift Cypseloides niger SSC3, BCC SSC 2008 In region Vaux’s swift Chaetura vauxi SSC2 SSC 2008 Nearby
Calliope hummingbird Selasphorus calliope BCC BCC 2021 In region Rufous hummingbird Selasphorus rufus BCC BCC 2021 Nearby Mountain plover Charadrius montanus SSC2, BCC SSC 2008 High In region
8 Common name Species name Status1
Status change
since 2005/
2006
2005 FEIR
occurrence
potential
Occurrence
record(s)
Long-billed curlew Numenius americanus WL WL 2008 In region Whimbrel Numenius phaeopus BCC BCC 2021 In region/
Nearby
Marbled godwit Limosa fedoa BCC BCC 2008 In region
Pectoral sandpiper Calidris melanotos BCC BCC 2021 In region Short-billed dowitcher Limnodromus griseus BCC In region Lesser yellowlegs Tringa flavipes BCC BCC 2008 Very close Willet Tringa semipalmata BCC BCC 2021 In region
Franklin’s gull Leucophaeus pipixcan BCC BCC 2021 In region Western gull Larus occidentalis BCC BCC 2021 In region
California gull Larus californicus BCC, WL BCC 2021, WL 2008
Very close
Black tern Chlidonias niger SSC2, BCC BCC 2021 In region Common loon Gavia immer SSC In region
Double-crested cormorant Phalacrocorax auritus WL WL 2008 Very close American white pelican Pelacanus erythrorhynchos SSC1 Very close Least bittern Ixobrychus exilis SSC2 In region
White-faced ibis Plegadis chihi WL Very close
California condor Gymnogyps californianus FE, CE, CFP In region Turkey vulture Cathartes aura BOP Very close
Osprey Pandion haliaetus WL, BOP Very close
White-tailed kite Elanus luecurus CFP, BOP Nearby
Golden eagle Aquila chrysaetos BGEPA, CFP,
BOP, WL
Very close
Northern harrier Circus cyaneus BCC, SSC3, BOP Very close Sharp-shinned hawk Accipiter striatus WL, BOP Very close Cooper’s hawk Accipiter cooperii WL, BOP Very close
Bald eagle Haliaeetus leucocephalus CE, BGEPA, BOP Nearby Red-shouldered hawk Buteo lineatus BOP Very close
Swainson’s hawk Buteo swainsoni CT, BOP Absent Very close
9 Common name Species name Status1
Status change
since 2005/
2006
2005 FEIR
occurrence
potential
Occurrence
record(s)
Red-tailed hawk Buteo jamaicensis BOP Very close
Ferruginous hawk Buteo regalis WL, BOP Very close
Rough-legged hawk Buteo lagopus BOP In region
American barn owl Tyto furcata BOP Very close
Western screech-owl Megascops kennicotti BOP In region
Great horned owl Bubo virginianus BOP Nearby
Burrowing owl Athene cunicularia BCC, SSC2, BOP,
CCE
CCE 2024 High In region/In
region
Long-eared owl Asio otus BCC, SSC3, BOP BCC 2021 In region Short-eared owl Asia flammeus BCC, SSC3, BOP BCC 2021 In region Lewis’s woodpecker Melanerpes lewis BCC In region
Nuttall’s woodpecker Picoides nuttallii BCC BCC 2008 Nearby American kestrel Falco sparverius BOP Very close
Merlin Falco columbarius WL, BOP Very close
Peregrine falcon Falco peregrinus BOP Very close
Prairie falcon Falco mexicanus WL, BOP In region
Olive-sided flycatcher Contopus cooperi BCC, SSC2 BCC 2008, SSC 2011
In region
Willow flycatcher Empidonax trailii CE Nearby
Southwestern willow
flycatcher
Empidonax traillii extimus FE, CE CE 2005 In range
Vermilion flycatcher Pyrocephalus rubinus SSC2 Nearby
Least Bell’s vireo Vireo bellii pusillus FE, CE In region Loggerhead shrike Lanius ludovicianus SSC2 Nearby
California horned lark Eremophila alpestris actia TWL Adjacent Oak titmouse Baeolophus inornatus BCC BCC 2008 Nearby
Bank swallow Riparia riparia CT Very close
Purple martin Progne subis SSC2 In region
Wrentit Chamaea fasciata BCC BCC 2021 In region
California thrasher Toxostoma redivivum BCC BCC 2021 Nearby
10 Common name Species name Status1
Status change
since 2005/
2006
2005 FEIR
occurrence
potential
Occurrence
record(s)
Cassin’s finch Haemorhous cassinii BCC BCC 2021 Nearby
Lawrence’s goldfinch Spinus lawrencei BCC Nearby
Grasshopper sparrow Ammodramus savannarum SSC2 SSC 2008 In region Black-chinned sparrow Spizella atrogularis BCC In region Gray-headed junco Junco hyemalis caniceps WL Nearby
Bell’s sparrow Amphispiza b. belli WL In region
Oregon vesper sparrow Pooecetes gramineus affinis SSC2 SSC 2017 In range Yellow-breasted chat Icteria virens SSC3 In region
Yellow-headed blackbird Xanthocephalus xanthocephalus SSC3 SSC 2008 In region Bullock’s oriole Icterus bullockii BCC BCC 2021 Very close Tricolored blackbird Agelaius tricolor CT, BCC, SSC1 CT 2018 In region Lucy’s warbler Leiothlypis luciae SSC3 SSC 2008 In region Virginia’s warbler Leiothlypis virginiae WL, BCC BCC 2021 In region Northern yellow warbler Setophaga aestiva SSC2 Very close Summer tanager Piranga rubra SSC1 In region
Little brown bat Myotis lucifugus WBWG: M In range
Yuma myotis Myotis yumanensis WBWG: LM In region/
Very close
Long-eared myotis Myotis evotis WBWG: M In range
Small-footed myotis Myotis ciliolabrum WBWG: M In range Canyon bat Parastrellus hesperus WBWG: M In range
Silver-haired bat Lasionycteris noctivagans WBWG: M In range/ Very close
Hoary bat Lasiurus cinereus WBWG: M In range
Western red bat Lasiurus blossevillii SSC, WBWG: H In range/ Very close
Townsend’s big-eared bat Corynorhinus townsendii SSC, WBWG: H In range Pallid bat Antrozous pallidus SSC, WBWG: H In range
Western mastiff bat Eumops perotis SSC, WBWG: H In range Nelson’s antelope squirrel Ammospermophilus nelsoni CT Absent In region
11 Common name Species name Status1
Status change
since 2005/
2006
2005 FEIR
occurrence
potential
Occurrence
record(s)
Tipton kangaroo rat Dipodomys nitratoides
nitratoides
FE, CE Present In region
Giant kangaroo rat Dipodomys ingens FE, CE Absent In region Tulare grasshopper mouse Onychomys torridus tularensis SSC Absent In region American badger Taxidea taxus SSC Absent In region
San Joaquin kit fox Vulpes macrotis mutica FE, CT High Nearby/ Nearby
1 Listed on CDFW’s Special Animals List (https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109406) as FT or FE = federal threatened or endangered; FC = federal candidate for listing; CT or CE = California threatened or endangered; CCT or CCE = Candidate California threatened or endangered; CFP = California Fully Protected (California Fish and Game Code 3511); SSCi = California Species of Special Concern with i = priorities 1, 2 and 3; WL = CDFW’s Taxa to Watch List; BGEPA = Bald and Golden Eagle Protection Act; WBWG = Western Bat Working Group with priority rankings, of low (L), moderate (M), and high (H); BCC = U.S. Fish and Wildlife Service’s Bird of Conservation Concern (https://www.fws.gov/sites/default/files/documents/birds-of-conservation-concern-2021.pdf); and BOP = protected by Birds of Prey (California Fish and Game Code 3503.5, see https://wildlife.ca.gov/Conservation/Birds/Raptors).
1 Kenneth Shawn Smallwood
Curriculum Vitae
3108 Finch Street Born May 3, 1963 in
Davis, CA 95616 Sacramento, California.
Phone (530) 756-4598 Married, father of two.
Cell (530) 601-6857
[email protected]
Ecologist
Expertise
• Finding solutions to controversial problems related to wildlife interactions with human industry, infrastructure, and activities;
• Wildlife monitoring and field study using GPS, thermal imaging, behavior surveys; • Using systems analysis and experimental design principles to identify meaningful ecological patterns that inform management decisions.
Education
Ph.D. Ecology, University of California, Davis. September 1990.
M.S. Ecology, University of California, Davis. June 1987.
B.S. Anthropology, University of California, Davis. June 1985.
Corcoran High School, Corcoran, California. June 1981.
Experience
762 professional reports, including:
90 peer reviewed publications
24 in non-reviewed proceedings
646 reports, declarations, posters and book reviews
8 in mass media outlets
92 public presentations of research results
Editing for scientific journals: Guest Editor, Wildlife Society Bulletin, 2012-2013, of invited papers representing international views on the impacts of wind energy on wildlife and how to mitigate the impacts. Associate Editor, Journal of Wildlife Management, March 2004 to 30 June 2007.
Editorial Board Member, Environmental Management, 10/1999 to 8/2004. Associate Editor, Biological Conservation, 9/1994 to 9/1995.
Member, Alameda County Scientific Review Committee (SRC), August 2006 to April 2011. The five-member committee investigated causes of bird and bat collisions in the Altamont Pass Wind Resource Area, and recommended mitigation and monitoring measures. The SRC reviewed the science underlying the Alameda County Avian Protection Program, and advised
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the County on how to reduce wildlife fatalities.
Consulting Ecologist, 2004-2007, California Energy Commission (CEC). Provided consulting services as needed to the CEC on renewable energy impacts, monitoring and research, and produced several reports. Also collaborated with Lawrence-Livermore National Lab on research to understand and reduce wind turbine impacts on wildlife.
Consulting Ecologist, 1999-2013, U.S. Navy. Performed endangered species surveys, hazardous waste site monitoring, and habitat restoration for the endangered San Joaquin kangaroo rat, California tiger salamander, California red-legged frog, California clapper rail, western burrowing owl, salt marsh harvest mouse, and other species at Naval Air Station Lemoore; Naval Weapons Station, Seal Beach, Detachment Concord; Naval Security Group Activity, Skaggs Island; National Radio Transmitter Facility, Dixon; and, Naval Outlying Landing Field Imperial Beach.
Part-time Lecturer, 1998-2005, California State University, Sacramento. Instructed Mammalogy, Behavioral Ecology, and Ornithology Lab, Contemporary Environmental Issues, Natural Resources Conservation.
Senior Ecologist, 1999-2005, BioResource Consultants. Designed and implemented research and monitoring studies related to avian fatalities at wind turbines, avian electrocutions on electric distribution poles across California, and avian fatalities at transmission lines.
Chairman, Conservation Affairs Committee, The Wildlife Society--Western Section, 1999-2001.
Prepared position statements and led efforts directed toward conservation issues, including travel to Washington, D.C. to lobby Congress for more wildlife conservation funding.
Systems Ecologist, 1995-2000, Institute for Sustainable Development. Headed ISD’s program on integrated resources management. Developed indicators of ecological integrity for large areas, using remotely sensed data, local community involvement and GIS.
Associate, 1997-1998, Department of Agronomy and Range Science, University of California, Davis. Worked with Shu Geng and Mingua Zhang on several studies related to wildlife interactions with agriculture and patterns of fertilizer and pesticide residues in groundwater across a large landscape.
Lead Scientist, 1996-1999, National Endangered Species Network. Informed academic scientists and environmental activists about emerging issues regarding the Endangered Species Act and other environmental laws. Testified at public hearings on endangered species issues.
Ecologist, 1997-1998, Western Foundation of Vertebrate Zoology. Conducted field research to determine the impact of past mercury mining on the status of California red-legged frogs in Santa Clara County, California.
Senior Systems Ecologist, 1994-1995, EIP Associates, Sacramento, California. Provided consulting services in environmental planning, and quantitative assessment of land units for their conservation and restoration opportunities basedon ecological resource requirements of 29 special-status species. Developed ecological indicators for prioritizing areas within Yolo County
Smallwood CV 3
to receive mitigation funds for habitat easements and restoration.
Post-Graduate Researcher, 1990-1994, Department of Agronomy and Range Science, U.C. Davis.
Under Dr. Shu Geng’s mentorship, studied landscape and management effects on temporal and spatial patterns of abundance among pocket gophers and species of Falconiformes and Carnivora in the Sacramento Valley. Managed and analyzed a data base of energy use in California agriculture. Assisted with landscape (GIS) study of groundwater contamination across Tulare County, California.
Work experience in graduate school: Co-taught Conservation Biology with Dr. Christine Schonewald, 1991 & 1993, UC Davis Graduate Group in Ecology; Reader for Dr. Richard Coss’s course on Psychobiology in 1990, UC Davis Department of Psychology; Research Assistant to Dr. Walter E. Howard, 1988-1990, UC Davis Department of Wildlife and Fisheries Biology, testing durable baits for pocket gopher management in forest clearcuts; Research Assistant to Dr. Terrell P. Salmon, 1987-1988, UC Wildlife Extension, Department of Wildlife and Fisheries Biology, developing empirical models of mammal and bird invasions in North America, and a rating system for priority research and control of exotic species based on economic, environmental and human health hazards in California. Student Assistant to Dr. E.
Lee Fitzhugh, 1985-1987, UC Cooperative Extension, Department of Wildlife and Fisheries Biology, developing and implementing statewide mountain lion track count for long-term monitoring.
Fulbright Research Fellow, Indonesia, 1988. Tested use of new sampling methods for numerical monitoring of Sumatran tiger and six other species of endemic felids, and evaluated methods used by other researchers.
Projects
Repowering wind energy projects through careful siting of new wind turbines using map-based collision hazard models to minimize impacts to volant wildlife. Funded by wind companies (principally NextEra Renewable Energy, Inc.), California Energy Commission and East Bay Regional Park District, I have collaborated with a GIS analyst and managed a crew of five field biologists performing golden eagle behavior surveys and nocturnal surveys on bats and owls. The goal is to quantify flight patterns for development of predictive models to more carefully site new wind turbines in repowering projects. Focused behavior surveys began May 2012 and continue.
Collision hazard models have been prepared for seven wind projects, three of which were built.
Planning for additional repowering projects is underway.
Test avian safety of new mixer-ejector wind turbine (MEWT). Designed and implemented a beforeafter, control-impact experimental design to test the avian safety of a new, shrouded wind turbine developed by Ogin Inc. (formerly known as FloDesign Wind Turbine Corporation). Supported by a $718,000 grant from the California Energy Commission’s Public Interest Energy Research program and a 20% match share contribution from Ogin, I managed a crew of seven field biologists who performed periodic fatality searches and behavior surveys, carcass detection trials, nocturnal behavior surveys using a thermal camera, and spatial analyses with the collaboration of a GIS analyst. Field work began 1 April 2012 and ended 30 March 2015 without Ogin installing its MEWTs, but we still achieved multiple important scientific advances.
Smallwood CV 4
Reduce avian mortality due to wind turbines at Altamont Pass. Studied wildlife impacts caused by 5,400 wind turbines at the world’s most notorious wind resource area. Studied how impacts are perceived by monitoring and how they are affected by terrain, wind patterns, food resources, range management practices, wind turbine operations, seasonal patterns, population cycles, infrastructure management such as electric distribution, animal behavior and social interactions.
Reduce avian mortality on electric distribution poles. Directed research toward reducing bird electrocutions on electric distribution poles, 2000-2007. Oversaw 5 founds of fatality searches at 10,000 poles from Orange County to Glenn County, California, and produced two large reports.
Cook et al. v. Rockwell International et al., No. 90-K-181 (D. Colorado). Provided expert testimony on the role of burrowing animals in affecting the fate of buried and surface-deposited radioactive and hazardous chemical wastes at the Rocky Flats Plant, Colorado. Provided expert reports based on four site visits and an extensive document review of burrowing animals. Conducted transect surveys for evidence of burrowing animals and other wildlife on and around waste facilities.
Discovered substantial intrusion of waste structures by burrowing animals. I testified in federal court in November 2005, and my clients were subsequently awarded a $553,000,000 judgment by a jury. After appeals the award was increased to two billion dollars.
Hanford Nuclear Reservation Litigation. Provided expert testimony on the role of burrowing animals in affecting the fate of buried radioactive wastes at the Hanford Nuclear Reservation, Washington. Provided three expert reports based on three site visits and extensive document review.
Predicted and verified a certain population density of pocket gophers on buried waste structures, as well as incidence of radionuclide contamination in body tissue. Conducted transect surveys for evidence of burrowing animals and other wildlife on and around waste facilities. Discovered substantial intrusion of waste structures by burrowing animals.
Expert testimony and declarations on proposed residential and commercial developments, gas-fired power plants, wind, solar and geothermal projects, water transfers and water transfer delivery systems, endangered species recovery plans, Habitat Conservation Plans and Natural Communities Conservation Programs. Testified before multiple government agencies, Tribunals, Boards of Supervisors and City Councils, and participated with press conferences and depositions. Prepared expert witness reports and court declarations, which are summarized under Reports (below).
Protocol-level surveys for special-status species. Used California Department of Fish and Wildlife and US Fish and Wildlife Service protocols to search for California red-legged frog, California tiger salamander, arroyo southwestern toad, blunt-nosed leopard lizard, western pond turtle, giant kangaroo rat, San Joaquin kangaroo rat, San Joaquin kit fox, western burrowing owl, Swainson’s hawk, Valley elderberry longhorn beetle and other special-status species.
Conservation of San Joaquin kangaroo rat. Performed research to identify factors responsible for the decline of this endangered species at Lemoore Naval Air Station, 2000-2013, and implemented habitat enhancements designed to reverse the trend and expand the population.
Impact of West Nile Virus on yellow-billed magpies. Funded by Sacramento-Yolo Mosquito and Vector Control District, 2005-2008, compared survey results pre- and post-West Nile Virus epidemic for multiple bird species in the Sacramento Valley, particularly on yellow-billed magpie and American crow due to susceptibility to WNV.
Smallwood CV 5
Workshops on HCPs. Assisted Dr. Michael Morrison with organizing and conducting a 2-day workshop on Habitat Conservation Plans, sponsored by Southern California Edison, and another 1- day workshop sponsored by PG&E. These Workshops were attended by academics, attorneys, and consultants with HCP experience. We guest-edited a Proceedings published in Environmental Management.
Mapping of biological resources along Highways 101, 46 and 41. Used GPS and GIS to delineate vegetation complexes and locations of special-status species along 26 miles of highway in San Luis Obispo County, 14 miles of highway and roadway in Monterey County, and in a large area north of Fresno, including within reclaimed gravel mining pits.
GPS mapping and monitoring at restoration sites and at Caltrans mitigation sites. Monitored the success of elderberry shrubs at one location, the success of willows at another location, and the response of wildlife to the succession of vegetation at both sites. Also used GPS to monitor the response of fossorial animals to yellow star-thistle eradication and natural grassland restoration efforts at Bear Valley in Colusa County and at the decommissioned Mather Air Force Base in Sacramento County.
Mercury effects on Red-legged Frog. Assisted Dr. Michael Morrison and US Fish and Wildlife Service in assessing the possible impacts of historical mercury mining on the federally listed California red-legged frog in Santa Clara County. Also measured habitat variables in streams.
Opposition to proposed No Surprises rule. Wrote a white paper and summary letter explaining scientific grounds for opposing the incidental take permit (ITP) rules providing ITP applicants and holders with general assurances they will be free of compliance with the Endangered Species Act once they adhere to the terms of a “properly functioning HCP.” Submitted 188 signatures of scientists and environmental professionals concerned about No Surprises rule US Fish and Wildlife Service, National Marine Fisheries Service, all US Senators.
Natomas Basin Habitat Conservation Plan alternative. Designed narrow channel marsh to increase the likelihood of survival and recovery in the wild of giant garter snake, Swainson’s hawk and Valley Elderberry Longhorn Beetle. The design included replication and interspersion of treatments for experimental testing of critical habitat elements. I provided a report to Northern Territories, Inc.
Assessments of agricultural production system and environmental technology transfer to China.
Twice visited China and interviewed scientists, industrialists, agriculturalists, and the Directors of the Chinese Environmental Protection Agency and the Department of Agriculture to assess the need and possible pathways for environmental clean-up technologies and trade opportunities between the US and China.
Yolo County Habitat Conservation Plan. Conducted landscape ecology study of Yolo County to spatially prioritize allocation of mitigation efforts to improve ecosystem functionality within the County from the perspective of 29 special-status species of wildlife and plants. Used a hierarchically structured indicators approach to apply principles of landscape and ecosystem ecology, conservation biology, and local values in rating land units. Derived GIS maps to help guide the conservation area design, and then developed implementation strategies.
Smallwood CV 6
Mountain lion track count. Developed and conducted a carnivore monitoring program throughout California since 1985. Species counted include mountain lion, bobcat, black bear, coyote, red and gray fox, raccoon, striped skunk, badger, and black-tailed deer. Vegetation and land use are also monitored. Track survey transect was established on dusty, dirt roads within randomly selected quadrats.
Sumatran tiger and other felids. Upon award of Fulbright Research Fellowship, I designed and initiated track counts for seven species of wild cats in Sumatra, including Sumatran tiger, fishing cat, and golden cat. Spent four months on Sumatra and Java in 1988, and learned Bahasa Indonesia, the official Indonesian language.
Wildlife in agriculture. Beginning as post-graduate research, I studied pocket gophers and other wildlife in 40 alfalfa fields throughout the Sacramento Valley, and I surveyed for wildlife along a 200 mile road transect since 1989 with a hiatus of 1996-2004. The data are analyzed using GIS and methods from landscape ecology, and the results published and presented orally to farming groups in California and elsewhere. I also conducted the first study of wildlife in cover crops used on vineyards and orchards.
Agricultural energy use and Tulare County groundwater study. Developed and analyzed a data base of energy use in California agriculture, and collaborated on a landscape (GIS) study of groundwater contamination across Tulare County, California.
Pocket gopher damage in forest clear-cuts. Developed gopher sampling methods and tested various poison baits and baiting regimes in the largest-ever field study of pocket gopher management in forest plantations, involving 68 research plots in 55 clear-cuts among 6 National Forests in northern California.
Risk assessment of exotic species in North America. Developed empirical models of mammal and bird species invasions in North America, as well as a rating system for assigning priority research and control to exotic species in California, based on economic, environmental, and human health hazards.
Peer Reviewed Publications
Smallwood, K. S. 2022. Utility-scale solar impacts to volant wildlife. Journal of Wildlife Management: e22216. https://doi.org/10.1002/jwmg.22216
Smallwood, K. S., and N. L. Smallwood. 2021. Breeding Density and Collision Mortality of Loggerhead Shrike (Lanius ludovicianus) in the Altamont Pass Wind Resource Area. Diversity 13, 540. https://doi.org/10.3390/d13110540.
Smallwood, K. S. 2020. USA wind energy-caused bat fatalities increase with shorter fatality search intervals. Diversity 12(98); https://doi.org/10.3390/d12030098 Smallwood, K. S., D. A. Bell, and S. Standish. 2020. Dogs detect larger wind energy impacts on bats and birds. Journal of Wildlife Management 84:852-864. DOI: 10.1002/jwmg.21863.
Smallwood, K. S., and D. A. Bell. 2020. Relating bat passage rates to wind turbine fatalities.
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Diversity 12(84); doi:10.3390/d12020084.
Smallwood, K. S., and D. A. Bell. 2020. Effects of wind turbine curtailment on bird and bat fatalities. Journal of Wildlife Management 84:684-696. DOI: 10.1002/jwmg.21844 Kitano, M., M. Ino, K. S. Smallwood, and S. Shiraki. 2020. Seasonal difference in carcass persistence rates at wind farms with snow, Hokkaido, Japan. Ornithological Science 19: 63 –
71. Smallwood, K. S. and M. L. Morrison. 2018. Nest-site selection in a high-density colony of burrowing owls. Journal of Raptor Research 52:454-470.
Smallwood, K. S., D. A. Bell, E. L. Walther, E. Leyvas, S. Standish, J. Mount, B. Karas. 2018.
Estimating wind turbine fatalities using integrated detection trials. Journal of Wildlife Management 82:1169-1184.
Smallwood, K. S. 2017. Long search intervals under-estimate bird and bat fatalities caused by wind turbines. Wildlife Society Bulletin 41:224-230.
Smallwood, K. S. 2017. The challenges of addressing wildlife impacts when repowering wind energy projects. Pages 175-187 in Köppel, J., Editor, Wind Energy and Wildlife Impacts:
Proceedings from the CWW2015 Conference. Springer. Cham, Switzerland.
May, R., Gill, A. B., Köppel, J. Langston, R. H.W., Reichenbach, M., Scheidat, M., Smallwood, S., Voigt, C. C., Hüppop, O., and Portman, M. 2017. Future research directions to reconcile wind turbine–wildlife interactions. Pages 255-276 in Köppel, J., Editor, Wind Energy and Wildlife Impacts: Proceedings from the CWW2015 Conference. Springer. Cham, Switzerland.
Smallwood, K. S. 2017. Monitoring birds. M. Perrow, Ed., Wildlife and Wind Farms - Conflicts and Solutions, Volume 2. Pelagic Publishing, Exeter, United Kingdom. www.bit.ly/2v3cR9Q Smallwood, K. S., L. Neher, and D. A. Bell. 2017. Turbine siting for raptors: an example from Repowering of the Altamont Pass Wind Resource Area. M. Perrow, Ed., Wildlife and Wind Farms - Conflicts and Solutions, Volume 2. Pelagic Publishing, Exeter, United Kingdom. www.bit.ly/2v3cR9Q
Johnson, D. H., S. R. Loss, K. S. Smallwood, W. P. Erickson. 2016. Avian fatalities at wind energy facilities in North America: A comparison of recent approaches. Human–Wildlife Interactions 10(1):7-18.
Sadar, M. J., D. S.-M. Guzman, A. Mete, J. Foley, N. Stephenson, K. H. Rogers, C. Grosset, K. S.
Smallwood, J. Shipman, A. Wells, S. D. White, D. A. Bell, and M. G. Hawkins. 2015. Mange Caused by a novel Micnemidocoptes mite in a Golden Eagle (Aquila chrysaetos). Journal of Avian Medicine and Surgery 29(3):231-237.
Smallwood, K. S. 2015. Habitat fragmentation and corridors. Pages 84-101 in M. L. Morrison and H. A. Mathewson, Eds., Wildlife habitat conservation: concepts, challenges, and solutions.
John Hopkins University Press, Baltimore, Maryland, USA.
EXHIBIT B
INDOOR ENVIRONMENTAL ENGINEERING
1448 Pine Street, Suite 103 San Francisco, California 94109 Telephone: (415) 567-7700
E-mail: [email protected]
http://www.iee-sf.com
Date: September 15, 2026
To: Carly Steele
Lozeau | Drury LLP
1939 Harrison Street, Suite 150
Oakland, California 94612
From: Francis J. Offermann PE CIH
Subject: Indoor Air Quality: Mission Lakes Project, Shafter, CA. (IEE File Reference: P-4979)
Pages: 19
Indoor Air Quality Impacts
Indoor air quality (IAQ) directly impacts the comfort and health of building occupants, and the achievement of acceptable IAQ in newly constructed and renovated buildings is a wellrecognized design objective. For example, IAQ is addressed by major high-performance building rating systems and building codes (California Building Standards Commission, 2014; USGBC, 2014). Indoor air quality in homes is particularly important because occupants, on average, spend approximately ninety percent of their time indoors with the majority of this time spent at home (EPA, 2011). Some segments of the population that are most susceptible to the effects of poor IAQ, such as the very young and the elderly, occupy their homes almost continuously. Additionally, an increasing number of adults are working from home at least some of the time during the workweek. Indoor air quality also is a serious concern for workers in hotels, offices and other business establishments.
The concentrations of many air pollutants often are elevated in homes and other buildings relative to outdoor air because many of the materials and products used indoors contain and release a variety of pollutants to air (Hodgson et al., 2002; Offermann and Hodgson, 2011). With respect to indoor air contaminants for which inhalation is the primary route of
2 of 19
exposure, the critical design and construction parameters are the provision of adequate ventilation and the reduction of indoor sources of the contaminants.
Indoor Formaldehyde Concentrations Impact. In the California New Home Study (CNHS) of 108 new homes in California (Offermann, 2009), 25 air contaminants were measured, and formaldehyde was identified as the indoor air contaminant with the highest cancer risk as determined by the California Proposition 65 Safe Harbor Levels (OEHHA, 2017a), No Significant Risk Levels (NSRL) for carcinogens. The NSRL is the daily intake level calculated to result in one excess case of cancer in an exposed population of 100,000 (i.e., ten in one million cancer risk) and for formaldehyde is 40 µg/day. The NSRL concentration of formaldehyde that represents a daily dose of 40 µg is 2 µg/m3, assuming a continuous 24-hour exposure, a total daily inhaled air volume of 20 m3, and 100% absorption by the respiratory system. All of the CNHS homes exceeded this NSRL concentration of 2 µg/m3. The median indoor formaldehyde concentration was 36 µg/m3, and ranged from 4.8 to 136 µg/m3, which corresponds to a median exceedance of the 2 µg/m3 NSRL concentration of 18 and a range of 2.3 to 68.
Therefore, the cancer risk of a resident living in a California home with the median indoor formaldehyde concentration of 36 µg/m3, is 180 per million as a result of formaldehyde alone. The CEQA significance threshold for airborne cancer risk is 10 per million, as established by the San Diego County Air Pollution Control District (SDAPCD, 2021).
Besides being a human carcinogen, formaldehyde is also a potent eye and respiratory irritant. In the CNHS, many homes exceeded the non-cancer reference exposure levels (RELs) prescribed by California Office of Environmental Health Hazard Assessment (OEHHA, 2017b). The percentage of homes exceeding the RELs ranged from 98% for the Chronic REL of 9 µg/m3 to 28% for the Acute REL of 55 µg/m3.
The primary source of formaldehyde indoors is composite wood products manufactured with urea-formaldehyde resins, such as plywood, medium density fiberboard, and particleboard. These materials are commonly used in building construction for flooring, cabinetry, baseboards, window shades, interior doors, and window and door trims.
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In January 2009, the California Air Resources Board (CARB) adopted an airborne toxics control measure (ATCM) to reduce formaldehyde emissions from composite wood products, including hardwood plywood, particleboard, medium density fiberboard, and also furniture and other finished products made with these wood products (California Air Resources Board 2009). While this formaldehyde ATCM has resulted in reduced emissions from composite wood products sold in California, they do not preclude that homes built with composite wood products meeting the CARB ATCM will have indoor formaldehyde concentrations below cancer and non-cancer exposure guidelines.
A follow up study to the California New Home Study (CNHS) was conducted in 2016-2018 (Singer et. al., 2019) and found that the median indoor formaldehyde in new homes built after 2009 with CARB Phase 2 Formaldehyde ATCM materials had lower indoor formaldehyde concentrations, with a median indoor concentrations of 22.4 µg/m3 (18.2 ppb) as compared to a median of 36 µg/m3 found in the 2007 CNHS. Unlike in the CNHS study where formaldehyde concentrations were measured with pumped DNPH samplers, the formaldehyde concentrations in the HENGH study were measured with passive samplers, which were estimated to under-measure the true indoor formaldehyde concentrations by approximately 7.5%. Applying this correction to the HENGH indoor formaldehyde concentrations results in a median indoor concentration of 24.1 µg/m3, which is 33% lower than the 36 µg/m3 found in the 2007 CNHS.
Thus, while new homes built after the 2009 CARB formaldehyde ATCM have a 33% lower median indoor formaldehyde concentration and cancer risk, the median lifetime cancer risk is still 120 per million for homes built with CARB compliant composite wood products.
This median lifetime cancer risk is more than 12 times the OEHHA 10 in a million cancer risk threshold (OEHHA, 2017a).
With respect to the Mission Lakes Project, Shafter, CA the buildings consist of residential and commercial building spaces.
The residential occupants will potentially have continuous exposure (e.g. 24 hours per day, 52 weeks per year). These exposures are anticipated to result in significant cancer risks resulting from exposures to formaldehyde released by the building materials and furnishing
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commonly found in residential construction.
Because these residences will be constructed with CARB Phase 2 Formaldehyde ATCM materials and be ventilated with the minimum code required amount of outdoor air, the indoor residential formaldehyde concentrations are likely similar to those concentrations observed in residences built with CARB Phase 2 Formaldehyde ATCM materials, which is a median of 24.1 µg/m3 (Singer et. al., 2020)
Assuming that the residential occupants inhale 20 m3 of air per day, the average 70-year lifetime formaldehyde daily dose is 482 µg/day for continuous exposure in the residences.
This exposure represents a cancer risk of 120 per million, which is more than 12 times the CEQA cancer risk of 10 per million. For occupants that do not have continuous exposure, the cancer risk will be proportionally less but still substantially over the CEQA cancer risk of 10 per million (e.g. for 12/hour/day occupancy, more than 6 times the CEQA cancer risk of 10 per million).
The employees of the commercial spaces are expected to experience significant indoor exposures (e.g., 40 hours per week, 50 weeks per year). These exposures for employees are anticipated to result in significant cancer risks resulting from exposures to formaldehyde released by the building materials and furnishing commonly found in offices, warehouses, residences and hotels.
Because these commercial spaces will be constructed with CARB Phase 2 Formaldehyde ATCM materials and be ventilated with the minimum code required amount of outdoor air, the indoor formaldehyde concentrations are likely similar to those concentrations observed in residences built with CARB Phase 2 Formaldehyde ATCM materials, which is a median of 22.4 µg/m3 (Chan et. al., 2019)
Assuming that the commercial spaces employees work 8 hours per day and inhale 20 m3 of air per day, the formaldehyde dose per workday at the offices is 149 µg/day.
Assuming that these employees work 5 days per week and 50 weeks per year for 45 years (start at age 20 and retire at age 65) the average 70-year lifetime formaldehyde daily dose
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is 65.8 µg/day.
This is 1.64 times the NSRL (OEHHA, 2017a) of 40 µg/day and represents a cancer risk of 16.4 per million, which exceeds the CEQA cancer risk of 10 per million. This impact should be analyzed in an environmental impact report (“EIR”), and the agency should impose all feasible mitigation measures to reduce this impact. Several feasible mitigation measures are discussed below and these and other measures should be analyzed in an EIR.
In addition, we note that the average outdoor air concentration of formaldehyde in California is 3 ppb, or 3.7 µg/m3, (California Air Resources Board, 2004), and thus represents an average pre-existing background airborne cancer risk of 1.85 per million.
Thus, the indoor air formaldehyde exposures describe above exacerbate this pre-existing risk resulting from outdoor air formaldehyde exposures.
Appendix A, Indoor Formaldehyde Concentrations and the CARB Formaldehyde ATCM, provides analyses that show utilization of CARB Phase 2 Formaldehyde ATCM materials will not ensure acceptable cancer risks with respect to formaldehyde emissions from composite wood products.
Even composite wood products manufactured with CARB certified ultra-low emitting formaldehyde (ULEF) resins do not ensure that the indoor air will have concentrations of formaldehyde the meet the OEHHA cancer risks that substantially exceed 10 per million.
The permissible emission rates for ULEF composite wood products are only 11-15% lower than the CARB Phase 2 emission rates. Only use of composite wood products made with no-added formaldehyde resins (NAF), such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can ensure that the OEHHA cancer risk of 10 per million is met.
The following describes a method that should be used, prior to construction in the environmental review under CEQA, for determining whether the indoor concentrations resulting from the formaldehyde emissions of specific building materials/furnishings selected exceed cancer and non-cancer guidelines. Such a design analyses can be used to identify those materials/furnishings prior to the completion of the City’s CEQA review and project approval, that have formaldehyde emission rates that contribute to indoor
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concentrations that exceed cancer and non-cancer guidelines, so that alternative lower emitting materials/furnishings may be selected and/or higher minimum outdoor air ventilation rates can be increased to achieve acceptable indoor concentrations and incorporated as mitigation measures for this project.
Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment This formaldehyde emissions assessment should be used in the environmental review under CEQA to assess the indoor formaldehyde concentrations from the proposed loading of building materials/furnishings, the area-specific formaldehyde emission rate data for building materials/furnishings, and the design minimum outdoor air ventilation rates. This assessment allows the applicant (and the City) to determine, before the conclusion of the environmental review process and the building materials/furnishings are specified, purchased, and installed, if the total chemical emissions will exceed cancer and non-cancer guidelines, and if so, allow for changes in the selection of specific material/furnishings and/or the design minimum outdoor air ventilations rates such that cancer and non-cancer guidelines are not exceeded.
1.) Define Indoor Air Quality Zones. Divide the building into separate indoor air quality zones, (IAQ Zones). IAQ Zones are defined as areas of well-mixed air. Thus, each ventilation system with recirculating air is considered a single zone, and each room or group of rooms where air is not recirculated (e.g. 100% outdoor air) is considered a separate zone. For IAQ Zones with the same construction material/furnishings and design minimum outdoor air ventilation rates. (e.g. hotel rooms, apartments, condominiums, etc.) the formaldehyde emission rates need only be assessed for a single IAQ Zone of that type.
2.) Calculate Material/Furnishing Loading. For each IAQ Zone, determine the building material and furnishing loadings (e.g., m2 of material/m2 floor area, units of furnishings/m2 floor area) from an inventory of all potential indoor formaldehyde sources, including flooring, ceiling tiles, furnishings, finishes, insulation, sealants, adhesives, and any products constructed with composite wood products containing urea-formaldehyde resins (e.g., plywood, medium density fiberboard, particleboard).
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3.) Calculate the Formaldehyde Emission Rate. For each building material, calculate the formaldehyde emission rate (µg/h) from the product of the area-specific formaldehyde emission rate (µg/m2-h) and the area (m2) of material in the IAQ Zone, and from each furnishing (e.g. chairs, desks, etc.) from the unit-specific formaldehyde emission rate (µg/unit-h) and the number of units in the IAQ Zone.
NOTE: As a result of the high-performance building rating systems and building codes (California Building Standards Commission, 2014; USGBC, 2014), most manufacturers of building materials furnishings sold in the United States conduct chemical emission rate tests using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers,” (CDPH, 2017), or other equivalent chemical emission rate testing methods. Most manufacturers of building furnishings sold in the United States conduct chemical emission rate tests using ANSI/BIFMA M7.1 Standard Test Method for Determining VOC Emissions (BIFMA, 2018), or other equivalent chemical emission rate testing methods.
CDPH, BIFMA, and other chemical emission rate testing programs, typically certify that a material or furnishing does not create indoor chemical concentrations in excess of the maximum concentrations permitted by their certification. For instance, the CDPH emission rate testing requires that the measured emission rates when input into an office, school, or residential model do not exceed one-half of the OEHHA Chronic Exposure Guidelines (OEHHA, 2017b) for the 35 specific VOCs, including formaldehyde, listed in Table 4-1 of the CDPH test method (CDPH, 2017). These certifications themselves do not provide the actual area-specific formaldehyde emission rate (i.e., µg/m2-h) of the product, but rather provide data that the formaldehyde emission rates do not exceed the maximum rate allowed for the certification. Thus, for example, the data for a certification of a specific type of flooring may be used to calculate that the area-specific emission rate of formaldehyde is less than 31 µg/m2-h, but not the actual measured specific emission rate, which may be 3, 18, or 30 µg/m2-h. These area-specific emission rates determined from the product certifications of CDPH, BIFA, and other certification programs can be used as an initial estimate of the formaldehyde emission rate.
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If the actual area-specific emission rates of a building material or furnishing is needed (i.e. the initial emission rates estimates from the product certifications are higher than desired), then that data can be acquired by requesting from the manufacturer the complete chemical emission rate test report. For instance if the complete CDPH emission test report is requested for a CDHP certified product, that report will provide the actual area-specific emission rates for not only the 35 specific VOCs, including formaldehyde, listed in Table 4-1 of the CDPH test method (CDPH, 2017), but also all of the cancer and reproductive/developmental chemicals listed in the California Proposition 65 Safe Harbor Levels (OEHHA, 2017a), all of the toxic air contaminants (TACs) in the California Air Resources Board Toxic Air Contamination List (CARB, 2011), and the 10 chemicals with the greatest emission rates.
Alternatively, a sample of the building material or furnishing can be submitted to a chemical emission rate testing laboratory, such as Berkeley Analytical Laboratory (https://berkeleyanalytical.com), to measure the formaldehyde emission rate.
4.) Calculate the Total Formaldehyde Emission Rate. For each IAQ Zone, calculate the total formaldehyde emission rate (i.e. µg/h) from the individual formaldehyde emission rates from each of the building material/furnishings as determined in Step 3.
5.) Calculate the Indoor Formaldehyde Concentration. For each IAQ Zone, calculate the indoor formaldehyde concentration (µg/m3) from Equation 1 by dividing the total formaldehyde emission rates (i.e. µg/h) as determined in Step 4, by the design minimum outdoor air ventilation rate (m3/h) for the IAQ Zone.
𝐶!" = #!"!#$
$"#
(Equation 1)
where:
Cin = indoor formaldehyde concentration (µg/m3)
Etotal = total formaldehyde emission rate (µg/h) into the IAQ Zone.
Qoa = design minimum outdoor air ventilation rate to the IAQ Zone (m3/h) The above Equation 1 is based upon mass balance theory, and is referenced in Section
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3.10.2 “Calculation of Estimated Building Concentrations” of the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers”, (CDPH, 2017).
6.) Calculate the Indoor Exposure Cancer and Non-Cancer Health Risks. For each IAQ Zone, calculate the cancer and non-cancer health risks from the indoor formaldehyde concentrations determined in Step 5 and as described in the OEHHA Air Toxics Hot Spots Program Risk Assessment Guidelines; Guidance Manual for Preparation of Health Risk Assessments (OEHHA, 2015).
7.) Mitigate Indoor Formaldehyde Exposures of exceeding the CEQA Cancer and/or NonCancer Health Risks. In each IAQ Zone, provide mitigation for any formaldehyde exposure risk as determined in Step 6, that exceeds the CEQA cancer risk of 10 per million or the CEQA non-cancer Hazard Quotient of 1.0.
Provide the source and/or ventilation mitigation required in all IAQ Zones to reduce the health risks of the chemical exposures below the CEQA cancer and non-cancer health risks.
Source mitigation for formaldehyde may include:
1.) reducing the amount materials and/or furnishings that emit formaldehyde
2.) substituting a different material with a lower area-specific emission rate of formaldehyde
Ventilation mitigation for formaldehyde emitted from building materials and/or furnishings may include:
1.) increasing the design minimum outdoor air ventilation rate to the IAQ Zone.
NOTE: Mitigating the formaldehyde emissions through use of less material/furnishings, or use of lower emitting materials/furnishings, is the preferred mitigation option, as mitigation with increased outdoor air ventilation increases initial and operating costs associated with the heating/cooling systems.
Further, we are not asking that the builder “speculate” on what and how much composite
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materials be used, but rather at the design stage to select composite wood materials based on the formaldehyde emission rates that manufacturers routinely conduct using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers,” (CDPH, 2017), and use the procedure described earlier above (i.e. PreConstruction Building Material/Furnishing Formaldehyde Emissions Assessment) to insure that the materials selected achieve acceptable cancer risks from material off gassing of formaldehyde.
Outdoor Air Ventilation Impact. Another important finding of the CNHS, was that the outdoor air ventilation rates in the homes were very low. Outdoor air ventilation is a very important factor influencing the indoor concentrations of air contaminants, as it is the primary removal mechanism of all indoor air generated contaminants. Lower outdoor air exchange rates cause indoor generated air contaminants to accumulate to higher indoor air concentrations. Many homeowners rarely open their windows or doors for ventilation as a result of their concerns for security/safety, noise, dust, and odor concerns (Price, 2007). In the CNHS field study, 32% of the homes did not use their windows during the 24‐hour Test Day, and 15% of the homes did not use their windows during the entire preceding week.
Most of the homes with no window usage were homes in the winter field session. Thus, a substantial percentage of homeowners never open their windows, especially in the winter season. The median 24‐hour measurement was 0.26 air changes per hour (ach), with a range of 0.09 ach to 5.3 ach. A total of 67% of the homes had outdoor air exchange rates below the minimum California Building Code (2001) requirement of 0.35 ach. Thus, the relatively tight envelope construction, combined with the fact that many people never open their windows for ventilation, results in homes with low outdoor air exchange rates and higher indoor air contaminant concentrations.
The Mission Lakes Project, Shafter, CA is close to roads with moderate to high traffic (e.g., West Ledo Highway, Central Valley Highway, Elm Street, East Tulare Avenue, Burbank Avenue, Zachary Avenue, Doolittle Avenue, Vultec Avenue, etc.). Thus, the Project is located in a sound impacted area.
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The Mission Lakes Project, Shafter, CA (LSA, 2005) states in Table 4.11.G that the ambient noise levels range from 61.0 to 67.0 - 65 dBA Leq. However, these noise measurements consist of just 30 minute short-term noise measurements made at five locations on Wednesday, March 20, 2002.
In order to design the building for this Project such that interior noise levels are acceptable, an acoustic study with actual current on-site measurements of the existing ambient noise levels and modeled future ambient noise levels needs to be conducted. The acoustic study of the existing ambient noise levels should be conducted over a minimum of a one-week period and report the dBA CNEL or Ldn. This study will allow for the selection of a building envelope and windows with a sufficient STC such that the indoor noise levels are acceptable. A mechanical supply of outdoor air ventilation to allow for a habitable interior environment with closed windows and doors will also be required. Such a ventilation system would allow windows and doors to be kept closed at the occupant’s discretion to control exterior noise within building interiors.
PM2.5 Outdoor Concentrations Impact. An additional impact of the nearby motor vehicle traffic associated with this project, are the outdoor concentrations of PM2.5. According to the City of Shafter Final Environmental Impact Report – Mission Lakes Specific Plan the Project is located in the San Joaquin Valley Air Pollution Control District, which is a State and Federal non-attainment area for PM2.5.
An air quality analyses should be conducted to determine the concentrations of PM2.5 in the outdoor and indoor air that people inhale each day. This air quality analyses needs to consider the cumulative impacts of the project related emissions, existing and projected future emissions from local PM2.5 sources (e.g. stationary sources, motor vehicles, and airport traffic) upon the outdoor air concentrations at the Project site. If the outdoor concentrations are determined to exceed the California and National annual average PM2.5 exceedence concentration of 12 µg/m3, or the National 24-hour average exceedence concentration of 35 µg/m3, then the buildings need to have a mechanical supply of outdoor air that has air filtration with sufficient removal efficiency, such that the indoor concentrations of outdoor PM2.5 particles is less than the California and National PM2.5 annual and 24-hour standards.
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It is my experience that based on the projected high traffic noise levels, the annual average concentration of PM2.5 will exceed the California and National PM2.5 annual and 24-hour standards and warrant installation of high efficiency air filters (i.e. at least MERV 13, or possibly MERV 14 or 15 depending on the results of the Project ambient PM2.5 concentrations) in all mechanically supplied outdoor air ventilation systems.
Indoor Air Quality Impact Mitigation Measures
The following are recommended mitigation measures to minimize the impacts upon indoor quality:
Indoor Formaldehyde Concentrations Mitigation. Use only composite wood materials (e.g. hardwood plywood, medium density fiberboard, particleboard) for all interior finish systems that are made with CARB approved no-added formaldehyde (NAF) resins (CARB, 2009). CARB Phase 2 certified composite wood products, or ultra-low emitting formaldehyde (ULEF) resins, do not ensure indoor formaldehyde concentrations that are below the CEQA cancer risk of 10 per million. Only composite wood products manufactured with CARB approved no-added formaldehyde (NAF) resins, such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can ensure that the OEHHA cancer risk of 10 per million is met.
Alternatively, conduct the previously described Pre-Construction Building Material/Furnishing Chemical Emissions Assessment, to determine that the combination of formaldehyde emissions from building materials and furnishings do not create indoor formaldehyde concentrations that exceed the CEQA cancer and non-cancer health risks.
It is important to note that we are not asking that the builder “speculate” on what and how much composite materials be used, but rather at the design stage to select composite wood materials based on the formaldehyde emission rates that manufacturers routinely conduct using the California Department of Health “Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers”, (CDPH, 2017), and use the procedure described above (i.e.
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Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment) to insure that the materials selected achieve acceptable cancer risks from material off gassing of formaldehyde.
Outdoor Air Ventilation Mitigation. Provide each habitable room with a continuous mechanical supply of outdoor air that meets or exceeds the California 2016 Building Energy Efficiency Standards (California Energy Commission, 2015) requirements of the greater of 15 cfm/occupant or 0.15 cfm/ft2 of floor area. Following installation of the system conduct testing and balancing to insure that required amount of outdoor air is entering each habitable room and provide a written report documenting the outdoor airflow rates. Do not use exhaust only mechanical outdoor air systems, use only balanced outdoor air supply and exhaust systems or outdoor air supply only systems. Provide a manual for the occupants or maintenance personnel, that describes the purpose of the mechanical outdoor air system and the operation and maintenance requirements of the system.
PM2.5 Outdoor Air Concentration Mitigation. Install air filtration with sufficient PM2.5 removal efficiency (e.g. MERV 13 or higher) to filter the outdoor air entering the mechanical outdoor air supply systems, such that the indoor concentrations of outdoor PM2.5 particles are less than the California and National PM2.5 annual and 24-hour standards.
Install the air filters in the system such that they are accessible for replacement by the occupants or maintenance personnel. Include in the mechanical outdoor air ventilation system manual instructions on how to replace the air filters and the estimated frequency of replacement.
References
BIFA. 2018. BIFMA Product Safety and Performance Standards and Guidelines. www.bifma.org/page/standardsoverview
California Air Resources Board. 2004. Formaldehyde in the Home. https://ww3.arb.ca.gov › research › indoor › formaldgl08-04.pdf
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California Air Resources Board. 2009. Airborne Toxic Control Measure to Reduce Formaldehyde Emissions from Composite Wood Products. California Environmental Protection Agency, Sacramento, CA.
https://www.arb.ca.gov/regact/2007/compwood07/fro-final.pdf California Air Resources Board. 2011. Toxic Air Contaminant Identification List.
California Environmental Protection Agency, Sacramento, CA. https://www.arb.ca.gov/toxics/id/taclist.htm
California Building Code. 2001. California Code of Regulations, Title 24, Part 2 Volume 1, Appendix Chapter 12, Interior Environment, Division 1, Ventilation, Section 1207: 2001 California Building Code, California Building Standards Commission. Sacramento, CA.
California Building Standards Commission (2014). 2013 California Green Building Standards Code. California Code of Regulations, Title 24, Part 11. California Building Standards Commission, Sacramento, CA http://www.bsc.ca.gov/Home/CALGreen.aspx.
California Energy Commission, PIER Program. CEC-500-2007-033. Final Report, ARB Contract 03-326. Available at: www.arb.ca.gov/research/apr/past/03-326.pdf.
California Energy Commission, 2015. 2016 Building Energy Efficiency Standards for Residential and Nonresidential Buildings, California Code of Regulations, Title 24, Part 6. http://www.energy.ca.gov/2015publications/CEC-400-2015-037/CEC-400-2015-037- CMF.pdf
CDPH. 2017. Standard Method for the Testing and Evaluation of Volatile Organic Chemical Emissions for Indoor Sources Using Environmental Chambers, Version 1.1.
California Department of Public Health, Richmond, CA.
https://www.cdph.ca.gov/Programs/CCDPHP/ DEODC/EHLB/IAQ/Pages/VOC.aspx.
Environmental Impact Report. SCH No. 2018011001.
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EPA. 2011. Exposure Factors Handbook: 2011 Edition, Chapter 16 – Activity Factors.
Report EPA/600/R-09/052F, September 2011. U.S. Environmental Protection Agency, Washington, D.C.
LSA. 2005. Draft Program Environmental Impact Report - City of Shafter General Plan Update.
OEHHA (Office of Environmental Health Hazard Assessment). 2015. Air Toxics Hot Spots Program Risk Assessment Guidelines; Guidance Manual for Preparation of Health Risk Assessments.
OEHHA (Office of Environmental Health Hazard Assessment). 2017a. Proposition 65 Safe Harbor Levels. No Significant Risk Levels for Carcinogens and Maximum Allowable Dose Levels for Chemicals Causing Reproductive Toxicity. Available at:
http://www.oehha.ca.gov/prop65/pdf/safeharbor081513.pdf OEHHA - Office of Environmental Health Hazard Assessment. 2017b. All OEHHA Acute, 8-hour and Chronic Reference Exposure Levels. Available at:
http://oehha.ca.gov/air/allrels.html
Offermann, F. J. 2009. Ventilation and Indoor Air Quality in New Homes. California Air Resources Board and California Energy Commission, PIER Energy-Related Environmental Research Program. Collaborative Report. CEC-500-2009-085. https://www.arb.ca.gov/research/apr/past/04-310.pdf
Offermann, F. J. and A. T. Hodgson. 2011. Emission Rates of Volatile Organic Compounds in New Homes. Proceedings Indoor Air 2011 (12th International Conference on Indoor Air Quality and Climate 2011), June 5-10, 2011, Austin, TX.
Singer, B.C, Chan, W.R, Kim, Y., Offermann, F.J., and Walker I.S. 2020. Indoor Air Quality in California Homes with Code-Required Mechanical Ventilation. Indoor Air, Vol 30, Issue 5, 885-899.
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South Coast Air Quality Management District (SCAQMD). 2015. California Environmental Quality Act Air Quality Handbook. South Coast Air Quality Management District, Diamond Bar, CA, http://www.aqmd.gov/home/rules-compliance/ceqa/air-qualityanalysis-handbook USGBC. 2014. LEED BD+C Homes v4. U.S. Green Building Council, Washington, D.C. http://www.usgbc.org/credits/homes/v4
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APPENDIX A
INDOOR FORMALDEHYDE CONCENTRATIONS
AND THE
CARB FORMALDEHYDE ATCM
With respect to formaldehyde emissions from composite wood products, the CARB ATCM regulations of formaldehyde emissions from composite wood products, do not assure healthful indoor air quality. The following is the stated purpose of the CARB ATCM regulation - The purpose of this airborne toxic control measure is to “reduce formaldehyde emissions from composite wood products, and finished goods that contain composite wood products, that are sold, offered for sale, supplied, used, or manufactured for sale in California”. In other words, the CARB ATCM regulations do not “assure healthful indoor air quality”, but rather “reduce formaldehyde emissions from composite wood products”.
Just how much protection do the CARB ATCM regulations provide building occupants from the formaldehyde emissions generated by composite wood products? Definitely some, but certainly the regulations do not “assure healthful indoor air quality” when CARB Phase 2 products are utilized. As shown in the Singer et. al., 2020 study of new California homes, the median indoor formaldehyde concentration was of 22.3 µg/m3 (18.2 ppb), which corresponds to a cancer risk of 112 per million for occupants with continuous exposure, which is more than 11 times the CEQA cancer risk of 10 per million.
Another way of looking at how much protection the CARB ATCM regulations provide building occupants from the formaldehyde emissions generated by composite wood products is to calculate the maximum number of square feet of composite wood product that can be in a residence without exceeding the CEQA cancer risk of 10 per million for occupants with continuous occupancy.
For this calculation I utilized the floor area (2,272 ft2), the ceiling height (8.5 ft), and the number of bedrooms (4) as defined in Appendix B (New Single-Family Residence Scenario) of the StandardMethod fortheTestingandEvaluation of Volatile Organic Chemical Emissionsfor Indoor Sources UsingEnvironmental Chambers,Version1.1, 2017, California Department of Public Health,
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Richmond, CA. https://www.cdph.ca.gov/Programs/CCDPHP/
DEODC/EHLB/IAQ/Pages/VOC.aspx.
For the outdoor air ventilation rate I used the 2019 Title 24 code required mechanical ventilation rate (ASHRAE 62.2) of 106 cfm (180 m3/h) calculated for this model residence.
For the composite wood formaldehyde emission rates, I used the CARB ATCM Phase 2 rates.
The calculated maximum number of square feet of composite wood product that can be in a residence, without exceeding the CEQA cancer risk of 10 per million for occupants with continuous occupancy are as follows for the different types of regulated composite wood products.
Medium Density Fiberboard (MDF) – 15 ft2 (0.7% of the floor area), or Particle Board – 30 ft2 (1.3% of the floor area), or
Hardwood Plywood – 54 ft2 (2.4% of the floor area), or
Thin MDF – 46 ft2 (2.0 % of the floor area).
For offices and hotels the calculated maximum amount of composite wood product (% of floor area) that can be used without exceeding the CEQA cancer risk of 10 per million for occupants, assuming 8 hours/day occupancy, and the California Mechanical Code minimum outdoor air ventilation rates are as follows for the different types of regulated composite wood products.
Medium Density Fiberboard (MDF) – 3.6 % (offices) and 4.6% (hotel rooms), or Particle Board – 7.2 % (offices) and 9.4% (hotel rooms), or Hardwood Plywood – 13 % (offices) and 17% (hotel rooms), or Thin MDF – 11 % (offices) and 14 % (hotel rooms)
Clearly the CARB ATCM does not regulate the formaldehyde emissions from composite wood products such that the potentially large areas of these products, such as for flooring, baseboards, interior doors, window and door trims, and kitchen and bathroom cabinetry, could be used without causing indoor formaldehyde concentrations that result in CEQA
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cancer risks that substantially exceed 10 per million for occupants with continuous occupancy.
Even composite wood products manufactured with CARB certified ultra-low emitting formaldehyde (ULEF) resins do not ensure that the indoor air will have concentrations of formaldehyde the meet the OEHHA cancer risks that substantially exceed 10 per million.
The permissible emission rates for ULEF composite wood products are only 11-15% lower than the CARB Phase 2 emission rates. Only use of composite wood products made with no-added formaldehyde resins (NAF), such as resins made from soy, polyvinyl acetate, or methylene diisocyanate can ensure that the OEHHA cancer risk of 10 per million is met.
If CARB Phase 2 compliant or ULEF composite wood products are utilized in construction, then the resulting indoor formaldehyde concentrations should be determined in the design phase using the specific amounts of each type of composite wood product, the specific formaldehyde emission rates, and the volume and outdoor air ventilation rates of the indoor spaces, and all feasible mitigation measures employed to reduce this impact (e.g. use less formaldehyde containing composite wood products and/or incorporate mechanical systems capable of higher outdoor air ventilation rates). See the procedure described earlier (i.e.
Pre-Construction Building Material/Furnishing Formaldehyde Emissions Assessment) to ensure that the materials selected achieve acceptable cancer risks from material off gassing of formaldehyde.
Alternatively, and perhaps a simpler approach, is to use only composite wood products (e.g. hardwood plywood, medium density fiberboard, particleboard) for all interior finish systems that are made with CARB approved no-added formaldehyde (NAF) resins.
Francis J. Offermann III PE, CIH
Indoor Environmental Engineering
1448 Pine Street, Suite 103, San Francisco, CA 94109
Phone: 415-567-7700
Email: [email protected]
http://www.iee-sf.com
Education
M.S. Mechanical Engineering (1985)
Stanford University, Stanford, CA.
Graduate Studies in Air Pollution Monitoring and Control (1980) University of California, Berkeley, CA.
B.S. in Mechanical Engineering (1976)
Rensselaer Polytechnic Institute, Troy, N.Y.
Professional Experience
President: Indoor Environmental Engineering, San Francisco, CA. December, 1981 - present.
Direct team of environmental scientists, chemists, and mechanical engineers in conducting State and Federal research regarding indoor air quality instrumentation development, building air quality field studies, ventilation and air cleaning performance measurements, and chemical emission rate testing.
Provide design side input to architects regarding selection of building materials and ventilation system components to ensure a high quality indoor environment.
Direct Indoor Air Quality Consulting Team for the winning design proposal for the new State of Washington Ecology Department building.
Develop a full-scale ventilation test facility for measuring the performance of air diffusers; ASHRAE 129, Air Change Effectiveness, and ASHRAE 113, Air Diffusion Performance Index.
Develop a chemical emission rate testing laboratory for measuring the chemical emissions from building materials, furnishings, and equipment, including 3D-printers, fireproofed respirators, candles, self-cleaning ovens, spray polyurethane foam (SPF), laminate flooring, fireproofed building joists.
Principle Investigator of the California New Homes Study (2005-2007). Measured ventilation and indoor air quality in 108 new single family detached homes in northern and southern California.
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Develop and teach IAQ professional development workshops to building owners, managers, hygienists, and engineers.
Air Pollution Engineer: Earth Metrics Inc., Burlingame, CA, October, 1985 to March, 1987.
Responsible for development of an air pollution laboratory including installation a forced choice olfactometer, tracer gas electron capture chromatograph, and associated calibration facilities. Field team leader for studies of fugitive odor emissions from sewage treatment plants, entrainment of fume hood exhausts into computer chip fabrication rooms, and indoor air quality investigations.
Staff Scientist: Building Ventilation and Indoor Air Quality Program, Energy and Environment Division, Lawrence Berkeley Laboratory, Berkeley, CA. January, 1980 to August, 1984.
Deputy project leader for the Control Techniques group; responsible for laboratory and field studies aimed at evaluating the performance of indoor air pollutant control strategies (i.e. ventilation, filtration, precipitation, absorption, adsorption, and source control).
Coordinated field and laboratory studies of air-to-air heat exchangers including evaluation of thermal performance, ventilation efficiency, cross-stream contaminant transfer, and the effects of freezing/defrosting.
Developed an in situ test protocol for evaluating the performance of air cleaning systems and introduced the concept of effective cleaning rate (ECR) also known as the Clean Air Delivery Rate (CADR).
Coordinated laboratory studies of portable and ducted air cleaning systems and their effect on indoor concentrations of respirable particles and radon progeny.
Co-designed an automated instrument system for measuring residential ventilation rates and radon concentrations.
Designed hardware and software for a multi-channel automated data acquisition system used to evaluate the performance of air-to-air heat transfer equipment.
Assistant Chief Engineer: Alta Bates Hospital, Berkeley, CA, October, 1979 to January, 1980.
Responsible for energy management projects involving installation of power factor correction capacitors on large inductive electrical devices and installation of steam meters on physical plant steam lines. Member of Local 39, International Union of Operating Engineers.
Manufacturing Engineer: American Precision Industries, Buffalo, NY, October, 1977 to October, 1979.
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Responsible for reorganizing the manufacturing procedures regarding production of shell and tube heat exchangers. Designed customized automatic assembly, welding, and testing equipment. Designed a large paint spray booth. Prepared economic studies justifying new equipment purchases. Safety Director.
Project Engineer: Arcata Graphics, Buffalo, N.Y. June, 1976 to October, 1977.
Responsible for the design and installation of a bulk ink storage and distribution system and high speed automatic counting and marking equipment. Also coordinated material handling studies which led to the purchase and installation of new equipment.
PROFESSIONAL ORGANIZATION MEMBERSHIP
American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE) • Chairman of SPC-145P, Standards Project Committee - Test Method for Assessing the Performance of Gas Phase Air Cleaning Equipment (1991-1992) • Member SPC-129P, Standards Project Committee - Test Method for Ventilation Effectiveness (1986-97)
- Member of Drafting Committee
• Member Environmental Health Committee (1992-1994, 1997-2001, 2007-2010) - Chairman of EHC Research Subcommittee
- Member of Man Made Mineral Fiber Position Paper Subcommittee - Member of the IAQ Position Paper Committee
- Member of the Legionella Position Paper Committee
- Member of the Limiting Indoor Mold and Dampness in Buildings Position Paper Committee
• Member SSPC-62, Standing Standards Project Committee - Ventilation for .
Acceptable Indoor Air Quality (1992 to 2000)
- Chairman of Source Control and Air Cleaning Subcommittee • Member SSPC-55, Standing Standards Project Committee – Thermal Environmental Conditions for Human Occupancy (2017 to present) • Chairman of TC-4.10, Indoor Environmental Modeling (1988-92) - Member of Research Subcommittee
• Chairman of TC-2.3, Gaseous Air Contaminants and Control Equipment (1989-92) - Member of Research Subcommittee
• Member of TG2, Reactive Air and Surface Disinfection (2021-present) American Society for Testing and Materials (ASTM)
• D-22 Sampling and Analysis of Atmospheres (1992-present) - Member of Indoor Air Quality Subcommittee
• E-06 Performance of Building Constructions (1992-present) American Board of Industrial Hygiene (ABIH)
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American Conference of Governmental Industrial Hygienists (ACGIH) • Bioaerosols Committee (2007-present)
• Bioaerosols Assessment and Control Book
Revision Committee Member (2020-2024)
American Industrial Hygiene Association (AIHA)
Cal-OSHA Indoor Air Quality Advisory Committee
International Society of Indoor Air Quality and Climate (ISIAQ) • Co-Chairman of Task Force on HVAC Hygiene (1999-2002) U. S. Green Building Council (USGBC)
- Member of the IEQ Technical Advisory Group (2007-2009) - Member of the IAQ Performance Testing Work Group (2010-2012) Western Construction Consultants (WESTCON)
PROFESSIONAL CREDENTIALS
Licensed Professional Engineer - Mechanical Engineering Certified Industrial Hygienist - American Board of Industrial Hygienists
OTHER CERTIFICATIONS
Bronze Cross – Royal Life Saving Society of Canada
SCIENTIFIC MEETINGS AND SYMPOSIA
Biological Contamination, Diagnosis, and Mitigation, Indoor Air’90, Toronto, Canada, August, 1990.
Models for Predicting Air Quality, Indoor Air’90, Toronto, Canada, August, 1990.
Microbes in Building Materials and Systems, Indoor Air ’93, Helsinki, Finland, July, 1993.
Microorganisms in Indoor Air Assessment and Evaluation of Health Effects and Probable Causes, Walnut Creek, CA, February 27, 1997.
Controlling Microbial Moisture Problems in Buildings, Walnut Creek, CA, February 27, 1997.
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Scientific Advisory Committee, Roomvent 98, 6th International Conference on Air Distribution in Rooms, KTH, Stockholm, Sweden, June 14-17, 1998.
Moisture and Mould, Indoor Air ’99, Edinburgh, Scotland, August, 1999.
Ventilation Modeling and Simulation, Indoor Air ’99, Edinburgh, Scotland, August, 1999.
Microbial Growth in Materials, Healthy Buildings 2000, Espoo, Finland, August, 2000.
Co-Chair, Bioaerosols X- Exposures in Residences, Indoor Air 2002, Monterey, CA, July 2002.
Chair, Environmental Tobacco Smoke in Multi-Family Homes, Indoor Air 2008, Copenhagen, Denmark, July 2008.
Co-Chair, ISIAQ Task Force Workshop; HVAC Hygiene, Indoor Air 2002, Monterey, CA, July 2002.
Chair, ETS in Multi-Family Housing: Exposures, Controls, and Legalities Forum, Healthy Buildings 2009, Syracuse, CA, September 14, 2009.
Chair, Energy Conservation and IAQ in Residences Workshop, Indoor Air 2011, Austin, TX, June 6, 2011.
Chair, Electronic Cigarettes: Chemical Emissions and Exposures Colloquium, Indoor Air 2016, Ghent, Belgium, July 4, 2016.
Co-Chair, Thermal Comfort and Perception, Indoor Air 2024, Honolulu, HI, July 2, 2024.
SPECIAL CONSULTATION
Provide consultation to the American Home Appliance Manufacturers on the development of a standard for testing portable air cleaners, AHAM Standard AC-1.
Served as an expert witness and special consultant for the U.S. Federal Trade Commission regarding the performance claims found in advertisements of portable air cleaners and residential furnace filters.
Conducted a forensic investigation for a San Mateo, CA pro se defendant, regarding an alleged homicide where the victim was kidnapped in a steamer trunk. Determined the air exchange rate in the steamer trunk and how long the person could survive.
Conducted in situ measurement of human exposure to toluene fumes released during nailpolish application for a plaintiffs attorney pursuing a California Proposition 65 product labeling case. June, 1993.
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Conducted a forensic in situ investigation for the Butte County, CA Sheriff’s Department of the emissions of a portable heater used in the bedroom of two twin one year old girls who suffered simultaneous crib death.
Consult with OSHA on the 1995 proposed new regulation regarding indoor air quality and environmental tobacco smoke.
Consult with EPA on the proposed Building Alliance program and with OSHA on the proposed new OSHA IAQ regulation.
Johnson Controls Audit/Certification Expert Review; Milwaukee, WI. May 28-29, 1997.
Winner of the nationally published 1999 Request for Proposals by the State of Washington to conduct a comprehensive indoor air quality investigation of the Washington State Department of Ecology building in Lacey, WA.
Selected by the State of California Attorney General’s Office in August, 2000 to conduct a comprehensive indoor air quality investigation of the Tulare County Court House.
Lawrence Berkeley Laboratory IAQ Experts Workshop: “Cause and Prevention of Sick Building Problems in Offices: The Experience of Indoor Environmental Quality Investigators”, Berkeley, California, May 26-27, 2004.
Provide consultation and chemical emission rate testing to the State of California Attorney General’s Office in 2011regarding formaldehyde emissions from Brazilian Blowout hair straitening product.
Provide hazard assessment to the State of California Attorney General’s Office in 2013- 2015 regarding the chemical emissions from e-cigarettes.
Consult with the California Department of Public Health Indoor Air Section regarding ventilation and air filtration in schools during the COVID-19 pandemic, 2020-2022.
PEER-REVIEWED PUBLICATIONS :
F.J.Offermann, C.D.Hollowell, and G.D.Roseme, "Low-Infiltration Housing in Rochester, New York: A Study of Air Exchange Rates and Indoor Air Quality," Environment International, 8, pp. 435-445, 1982.
W.W.Nazaroff, F.J.Offermann, and A.W.Robb, "Automated System for Measuring Air Exchange Rate and Radon Concentration in Houses," Health Physics, 45, pp. 525-537, 1983.
F.J.Offermann, W.J.Fisk, D.T.Grimsrud, B.Pedersen, and K.L.Revzan, "Ventilation Efficiencies of Wall- or Window-Mounted Residential Air-to-Air Heat Exchangers," ASHRAE Annual Transactions, 89-2B, pp 507-527, 1983.
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W.J.Fisk, K.M.Archer, R.E Chant, D. Hekmat, F.J.Offermann, and B.Pedersen, "Onset of Freezing in Residential Air-to-Air Heat Exchangers," ASHRAE Annual Transactions, 91- 1B, 1984.
W.J.Fisk, K.M.Archer, R.E Chant, D. Hekmat, F.J.Offermann, and B.Pedersen, "Performance of Residential Air-to-Air Heat Exchangers During Operation with Freezing and Periodic Defrosts," ASHRAE Annual Transactions, 91-1B, 1984.
R.G.Sextro, F.J.Offermann, W.W.Nazaroff, and A.V.Nero, "Effects of Aerosol Concentrations on Radon Progeny," Aerosols, Science, & Technology, and Industrial Applications of Airborne Particles, editors B.Y.H.Liu, D.Y.H.Pui, and H.J.Fissan, p525, Elsevier, 1984.
K.Sexton, S.Hayward, F.Offermann, R.Sextro, and L.Weber, "Characterization of Particulate and Organic Emissions from Major Indoor Sources, Third International Conference on Indoor Air Quality and Climate, Stockholm, Sweden, August 20-24, 1984.
F.J.Offermann, R.G.Sextro, W.J.Fisk, D.T.Grimsrud, W.W.Nazaroff, A.V.Nero, and K.L.Revzan, "Control of Respirable Particles with Portable Air Cleaners," Atmospheric Environment, Vol. 19, pp.1761-1771, 1985.
R.G.Sextro, F.J.Offermann, W.W.Nazaroff, A.V.Nero, K.L.Revzan, and J.Yater, "Evaluation of Indoor Control Devices and Their Effects on Radon Progeny Concentrations," Atmospheric Environment, 12, pp. 429-438, 1986.
W.J. Fisk, R.K.Spencer, F.J.Offermann, R.K.Spencer, B.Pedersen, R.Sextro, "Indoor Air Quality Control Techniques," Noyes Data Corporation, Park Ridge, New Jersey, (1987).
F.J.Offermann, "Ventilation Effectiveness and ADPI Measurements of a Forced Air Heating System," ASHRAE Transactions , Volume 94, Part 1, pp 694-704, 1988.
F.J.Offermann and D. Int-Hout "Ventilation Effectiveness Measurements of Three Supply/Return Air Configurations," Environment International , Volume 15, pp 585-592 1989.
F.J. Offermann, S.A. Loiselle, M.C. Quinlan, and M.S. Rogers, "A Study of Diesel Fume Entrainment in an Office Building," IAQ '89, The Human Equation: Health and Comfort, pp 179-183, ASHRAE, Atlanta, GA, 1989.
R.G.Sextro and F.J.Offermann, "Reduction of Residential Indoor Particle and Radon Progeny Concentrations with Ducted Air Cleaning Systems," submitted to Indoor Air, 1990.
L.A. Gundel, J.M. Daisey, and F.J. Offermann, "A Sampling and Analytical Method for Gas Phase Polycyclic Aromatic Hydrocarbons", Proceedings of the 5th International Conference on Indoor Air Quality and Climate, Indoor Air '90, July 29-August 1990.
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A.T. Hodgson, J.M. Daisey, and F.J. Offermann "Development of an Indoor Sampling and Analytical Method for Particulate Polycyclic Aromatic Hydrocarbons", Proceedings of the 5th International Conference on Indoor Air Quality and Climate, Indoor Air '90, July 29- August, 1990.
S.A.Loiselle, A.T.Hodgson, and F.J.Offermann, "Development of An Indoor Air Sampler for Polycyclic Aromatic Compounds", Indoor Air , Vol 2, pp 191-210, 1991.
F.J.Offermann, S.A.Loiselle, A.T.Hodgson, L.A. Gundel, and J.M. Daisey, "A Pilot Study to Measure Indoor Concentrations and Emission Rates of Polycyclic Aromatic Compounds", Indoor Air , Vol 4, pp 497-512, 1991.
F.J. Offermann, S. A. Loiselle, R.G. Sextro, "Performance Comparisons of Six Different Air Cleaners Installed in a Residential Forced Air Ventilation System," IAQ'91, Healthy Buildings, pp 342-350, ASHRAE, Atlanta, GA (1991).
F.J. Offermann, J. Daisey, A. Hodgson, L. Gundell, and S. Loiselle, "A Pilot Study to Measure Indoor Concentrations and Emission Rates of Polycyclic Aromatic Compounds", Indoor Air, Vol 4, pp 497-512 (1991).
F.J. Offermann, S. A. Loiselle, R.G. Sextro, "Performance of Air Cleaners Installed in a Residential Forced Air System," ASHRAE Journal, pp 51-57, July, 1992.
F.J. Offermann and S. A. Loiselle, "Performance of an Air-Cleaning System in an Archival Book Storage Facility," IAQ'92, ASHRAE, Atlanta, GA, 1992.
S.B. Hayward, K.S. Liu, L.E. Alevantis, K. Shah, S. Loiselle, F.J. Offermann, Y.L. Chang, L. Webber, “Effectiveness of Ventilation and Other Controls in Reducing Exposure to ETS in Office Buildings,” Indoor Air ’93, Helsinki, Finland, July 4-8, 1993.
F.J. Offermann, S. A. Loiselle, G. Ander, H. Lau, "Indoor Contaminant Emission Rates Before and After a Building Bake-out," IAQ'93, Operating and Maintaining Buildings for Health, Comfort, and Productivity, pp 157-163, ASHRAE, Atlanta, GA, 1993.
L.E. Alevantis, Hayward, S.B., Shah, S.B., Loiselle, S., and Offermann, F.J. "Tracer Gas Techniques for Determination of the Effectiveness of Pollutant Removal From Local Sources," IAQ '93, Operating and Maintaining Buildings for Health, Comfort, and Productivity, pp 119-129, ASHRAE, Atlanta, GA, 1993.
L.E. Alevantis, Liu, L.E., Hayward, S.B., Offermann, F.J., Shah, S.B., Leiserson, K. Tsao, E., and Huang, Y., "Effectiveness of Ventilation in 23 Designated Smoking Areas in California Buildings," IAQ '94, Engineering Indoor Environments, pp 167-181, ASHRAE, Atlanta, GA, 1994.
L.E. Alevantis, Offermann, F.J., Loiselle, S., and Macher, J.M., “Pressure and Ventilation Requirements of Hospital Isolation Rooms for Tuberculosis (TB) Patients: Existing
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Guidelines in the United States and a Method for Measuring Room Leakage”, Ventilation and Indoor Air Quality in Hospitals, M. Maroni, editor, Kluwer Academic publishers, Netherlands, 1996.
F.J. Offermann, M. A. Waz, A.T. Hodgson, and H.M. Ammann, "Chemical Emissions from a Hospital Operating Room Air Filter," IAQ'96, Paths to Better Building Environments, pp 95-99, ASHRAE, Atlanta, GA, 1996.
F.J. Offermann, "Professional Malpractice and the Sick Building Investigator," IAQ'96, Paths to Better Building Environments, pp 132-136, ASHRAE, Atlanta, GA, 1996.
F.J. Offermann, “Standard Method of Measuring Air Change Effectiveness,” Indoor Air, Vol 1, pp.206-211, 1999.
F. J. Offermann, A. T. Hodgson, and J. P. Robertson, “Contaminant Emission Rates from PVC Backed Carpet Tiles on Damp Concrete”, Healthy Buildings 2000, Espoo, Finland, August 2000.
K.S. Liu, L.E. Alevantis, and F.J. Offermann, “A Survey of Environmental Tobacco Smoke Controls in California Office Buildings”, Indoor Air, Vol 11, pp. 26-34, 2001.
F.J. Offermann, R. Colfer, P. Radzinski, and J. Robertson, “Exposure to Environmental Tobacco Smoke in an Automobile”, Indoor Air 2002, Monterey, California, July 2002.
F. J. Offermann, J.P. Robertson, and T. Webster, “The Impact of Tracer Gas Mixing on Airflow Rate Measurements in Large Commercial Fan Systems”, Indoor Air 2002, Monterey, California, July 2002.
M. J. Mendell, T. Brennan, L. Hathon, J.D. Odom, F.J.Offermann, B.H. Turk, K.M.
Wallingford, R.C. Diamond, W.J. Fisk, “Causes and prevention of Symptom Complaints in Office Buildings: Distilling the Experience of Indoor Environmental Investigators”, Indoor Air 2005, Beijing, China, September 4-9, 2005.
F.J. Offermann, “Ventilation and IAQ in New Homes With and Without Mechanical Outdoor Air Systems”, Healthy Buildings 2009, Syracuse, CA, September 14, 2009.
F.J. Offermann and A.T. Hodgson, “Emission Rates of Volatile Organic Compounds in New Homes”, Indoor Air 2011, Austin, TX, June, 2011.
P. Jenkins, R. Johnson, T. Phillips, and F. Offermann, “Chemical Concentrations in New California Homes and Garages”, Indoor Air 2011, Austin, TX, June, 2011.
W. J. Mills, B. J. Grigg, F. J. Offermann, B. E. Gustin, and N. E. Spingarm, “Toluene and Methyl Ethyl Ketone Exposure from a Commercially Available Contact Adhesive”, Journal of Occupational and Environmental Hygiene, 9:D95-D102 May, 2012.
F. J. Offermann, R. Maddalena, J. C. Offermann, B. C. Singer, and H, Wilhelm, “The
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Impact of Ventilation on the Emission Rates of Volatile Organic Compounds in Residences”, HB 2012, Brisbane, AU, July, 2012.
F. J. Offermann, A. T. Hodgson, P. L. Jenkins, R. D. Johnson, and T. J. Phillips, “Attached Garages as a Source of Volatile Organic Compounds in New Homes”, HB 2012, Brisbane, CA, July, 2012.
R. Maddalena, N. Li, F. Offermann, and B. Singer, “Maximizing Information from Residential Measurements of Volatile Organic Compounds”, HB 2012, Brisbane, AU, July, 2012.
W. Chen, A. Persily, A. Hodgson, F. Offermann, D. Poppendieck, and K. Kumagai, “AreaSpecific Airflow Rates for Evaluating the Impacts of VOC emissions in U.S. Single-Family Homes”, Building and Environment, Vol. 71, 204-211, February, 2014.
F. J. Offermann, A. Eagan A. C. Offermann, and L. J. Radonovich, “Infectious Disease Aerosol Exposures With and Without Surge Control Ventilation System Modifications”, Indoor Air 2014, Hong Kong, July, 2014.
F. J. Offermann, A. Eagan A. C. Offermann, S. Subhash, S. Miller, and L. J. Radonovich, “Potential airborne pathogen transmission in a hospital with and without surge control ventilation system modifications. Building and Environment, Volume 106, Pages 175-180.
F. J. Offermann, “Chemical Emissions from E-Cigarettes: Direct and Indirect Passive Exposures”, Building and Environment, Vol. 93, Part 1, 101-105, November, 2015.
F. J. Offermann, “Formaldehyde Emission Rates From Lumber Liquidators Laminate Flooring Manufactured in China”, Indoor Air 2016, Belgium, Ghent, July, 2016.
F. J. Offermann, “Formaldehyde and Acetaldehyde Emission Rates for E-Cigarettes”, Indoor Air 2016, Belgium, Ghent, July, 2016.
F. J. Offermann, “Formaldehyde Emission Rates From Laminate Flooring”, ASHRAE Journal, Atlanta, GA, March, 2017.
F. J. Offermann and A.T. Hodgson, “Accuracy of Three Types of Formaldehyde Passive Samplers”, Indoor Air 2018, Philadelphia, PA, July, 2018.
F. J. Offermann and M. Nicas, “Use With Adequate Ventilation ?”, ASHRAE Journal, Atlanta, GA, May, 2018.
B. C. Singer, W.R. Chan, Y-S Kim, F.J. Offermann, I.A. Walker, “Indoor Air Quality in California Homes with Code-Required Mechanical Ventilation”. Indoor Air, 2020.
F J. Offermann. “Chemical Emissions from Spray Polyurethane Foam (SPF) Insulation in Residences”, Indoor Air 2022, Kuopio, Finland, June, 2022.
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F.J. Offermann, “Mitigation of Spray Polyurethane Foam with High Chemical Emission Rates”, Indoor Air 2024, Honolulu, HI, July, 2024.
OTHER REPORTS:
W.J.Fisk, P.G.Cleary, and F.J.Offermann, "Energy Saving Ventilation with Residential Heat Exchangers," a Lawrence Berkeley Laboratory brochure distributed by the Bonneville Power Administration, 1981.
F.J.Offermann, J.R.Girman, and C.D.Hollowell, "Midway House Tightening Project: A Study of Indoor Air Quality," Lawrence Berkeley Laboratory, Berkeley, CA, Report LBL12777, 1981.
F.J.Offermann, J.B.Dickinson, W.J.Fisk, D.T.Grimsrud, C.D.Hollowell, D.L.Krinkle, and G.D.Roseme, "Residential Air-Leakage and Indoor Air Quality in Rochester, New York," Lawrence Berkeley Laboratory, Berkeley, CA, Report LBL-13100, 1982.
F.J.Offermann, W.J.Fisk, B.Pedersen, and K.L.Revzan, Residential Air-to-Air Heat Exchangers: A Study of the Ventilation Efficiencies of Wall- or Window- Mounted Units," Lawrence Berkeley Laboratory, Berkeley, CA, Report LBL-14358, 1982.
F.J.Offermann, W.J.Fisk, W.W.Nazaroff, and R.G.Sextro, "A Review of Portable Air Cleaners for Controlling Indoor Concentrations of Particulates and Radon Progeny," An interim report for the Bonneville Power Administration, 1983.
W.J.Fisk, K.M.Archer, R.E.Chant, D.Hekmat, F.J.Offermann, and B.S. Pedersen, "Freezing in Residential Air-to-Air Heat Exchangers: An Experimental Study," Lawrence Berkeley Laboratory, Berkeley, CA, Report LBL-16783, 1983.
R.G.Sextro, W.W.Nazaroff, F.J.Offermann, and K.L.Revzan, "Measurements of Indoor Aerosol Properties and Their Effect on Radon Progeny," Proceedings of the American Association of Aerosol Research Annual Meeting, April, 1983.
F.J.Offermann, R.G.Sextro, W.J.Fisk, W.W. Nazaroff, A.V.Nero, K.L.Revzan, and J.Yater, "Control of Respirable Particles and Radon Progeny with Portable Air Cleaners," Lawrence Berkeley Laboratory, Berkeley, CA, Report LBL-16659, 1984.
W.J.Fisk, R.K.Spencer, D.T.Grimsrud, F.J.Offermann, B.Pedersen, and R.G.Sextro, "Indoor Air Quality Control Techniques: A Critical Review," Lawrence Berkeley Laboratory, Berkeley, CA, Report LBL-16493, 1984.
R.Otto, J.Girman, F.Offermann, and R.Sextro, "A New Method for the Collection and Comparison of Respirable Particles in the Indoor Environment," Lawrence Berkeley Laboratory, Berkeley, CA, Special Director Fund's Study, 1984.
A.T.Hodgson and F.J.Offermann, "Examination of a Sick Office Building," Lawrence Berkeley Laboratory, Berkeley, CA, an informal field study, 1984.
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F.J.Offermann, "Tracer Gas Measurements of Laboratory Fume Entrainment at a SemiConductor Manufacturing Plant," an Indoor Environmental Engineering R&D Report, 1986.
F.J.Offermann, "Tracer Gas Measurements of Ventilation Rates in a Large Office Building," an Indoor Environmental Engineering R&D Report, 1986.
F.J.Offermann, "Measurements of Volatile Organic Compounds in a New Large Office Building with Adhesive Fastened Carpeting," an Indoor Environmental Engineering R&D Report, 1986.
F.J.Offermann, "Designing and Operating Healthy Buildings", an Indoor Environmental Engineering R&D Report, 1986.
F.J.Offermann, "Measurements and Mitigation of Indoor Spray-Applicated Pesticides", an Indoor Environmental Engineering R&D Report, 1988.
F.J.Offermann and S. Loiselle, "Measurements and Mitigation of Indoor Mold Contamination in a Residence", an Indoor Environmental Engineering R&D Report, 1989.
F.J.Offermann and S. Loiselle, "Performance Measurements of an Air Cleaning System in a Large Archival Library Storage Facility", an Indoor Environmental Engineering R&D Report, 1989.
F.J. Offermann, J.M. Daisey, L.A. Gundel, and A.T. Hodgson, S. A. Loiselle, "Sampling, Analysis, and Data Validation of Indoor Concentrations of Polycyclic Aromatic Hydrocarbons", Final Report, Contract No. A732-106, California Air Resources Board, March, 1990.
F.J. Offermann, J.O. Sateri, “Tracer Gas Measurements in Large Multi-Room Buildings”, Indoor Air ’93, Helsinki, Finland, July 4-8, 1993.
F.J.Offermann, M. T. O’Flaherty, and M. A. Waz “Validation of ASHRAE 129 - Standard Method of Measuring Air Change Effectiveness”, Final Report of ASHRAE Research Project 891, December 8, 1997.
S.E. Guffey, F.J. Offermann et. al., “Proceedings of the Workshop on Ventilation Engineering Controls for Environmental Tobacco smoke in the Hospitality Industry”, U.S.
Department of Labor Occupational Safety and Health Administration and ACGIH, 1998.
F.J. Offermann, R.J. Fiskum, D. Kosar, and D. Mudaari, “A Practical Guide to Ventilation Practices & Systems for Existing Buildings”, Heating/Piping/Air Conditioning Engineering supplement to April/May 1999 issue.
F.J. Offermann, P. Pasanen, “Workshop 18: Criteria for Cleaning of Air Handling Systems”, Healthy Buildings 2000, Espoo, Finland, August 2000.
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F.J. Offermann, Session Summaries: Building Investigations, and Design & Construction, Healthy Buildings 2000, Espoo, Finland, August 2000.
F.J. Offermann, “Cleaning Up Fire Smoke and Soot Residues Fact Sheet”, October, 2007.
F.J. Offermann, “The IAQ Top 10”, Engineered Systems, November, 2008.
L. Kincaid and F.J. Offermann, “Unintended Consequences: Formaldehyde Exposures in Green Homes, AIHA Synergist, February, 2010.
F.J. Offermann, “ IAQ in Air Tight Homes”, ASHRAE Journal, November, 2010.
F.J. Offermann, “The Hazards of E-Cigarettes”, ASHRAE Journal, June, 2014.
F.J. Offermann, A.T. Hodgson, and R. Tannous, Commissioning Indoor Air in Office Buildings, August 5, 2017.
F.J. Offermann, Building Protection Factor Fact Sheet, November, 2017.
F.J. Offermann, “Chemical Emissions From Polyurethane Spray Foam”, Indoor Environmental Engineering R&D Report, 2020.
F.J. Offermann, “Building Protection Factors”, Indoor Environmental Engineering R&D Report, 2020.
F.J. Offermann in collaboration with California Department of Public Health, Indoor Air Quality Section “The Role of Building Ventilation and Filtration in Reducing Risk of Airborne Viral Transmission in Schools, Illustrated with SARS-COV-2”. September 1, 2020.
F.J. Offermann, “Beware The COVID-19 Snake Oil Salesmen Are Here”. November 5, 2020.
F.J. Offermann in collaboration with California Department of Public Health, Indoor Air Quality Section, “Ventilation and Filtration to Reduce Long-Range Airborne Transmission of COVID-19 and Other Respiratory Infections: Considerations for Reopened Schools”, July, 2021.
F.J. Offermann in collaboration with California Department of Public Health, Indoor Air Quality Section, “Information for School Districts on Purchase of Filtration and Air Cleaning Devices”, August 2021.
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PRESENTATIONS :
"Low-Infiltration Housing in Rochester, New York: A Study of Air Exchange Rates and Indoor Air Quality," Presented at the International Symposium on Indoor Air Pollution, Health and Energy Conservation, Amherst, MA, October 13-16,1981. "Ventilation Efficiencies of Wall- or Window-Mounted Residential Air-to-Air Heat Exchangers," Presented at the American Society of Heating, Refrigeration, and Air Conditioning Engineers Summer Meeting, Washington, DC, June, 1983. "Controlling Indoor Air Pollution from Tobacco Smoke: Models and Measurements," Presented at the Third International Conference on Indoor Air Quality and Climate, Stockholm, Sweden, August 20-24, 1984.
"Indoor Air Pollution: An Emerging Environmental Problem", Presented to the Association of Environmental Professionals, Bar Area/Coastal Region 1, Berkeley, CA, May 29, 1986. "Ventilation Measurement Techniques," Presented at the Workshop on Sampling and Analytical Techniques, Georgia Institute of Technology, Atlanta, Georgia, September 26, 1986 and September 25, 1987.
"Buildings That Make You Sick: Indoor Air Pollution", Presented to the Sacramento Association of Professional Energy Managers, Sacramento, CA, November 18, 1986. "Ventilation Effectiveness and Indoor Air Quality", Presented to the American Society of Heating, Refrigeration, and Air Conditioning Engineers Northern Nevada Chapter, Reno, NV, February 18, 1987, Golden Gate Chapter, San Francisco, CA, October 1, 1987, and the San Jose Chapter, San Jose, CA, June 9, 1987.
"Tracer Gas Techniques for Studying Ventilation," Presented at the Indoor Air Quality Symposium, Georgia Tech Research Institute, Atlanta, GA, September 22-24, 1987. "Indoor Air Quality Control: What Works, What Doesn't," Presented to the Sacramento Association of Professional Energy Managers, Sacramento, CA, November 17, 1987. "Ventilation Effectiveness and ADPI Measurements of a Forced Air Heating System," Presented at the American Society of Heating, Refrigeration, and Air Conditioning Engineers Winter Meeting, Dallas, Texas, January 31, 1988. "Indoor Air Quality, Ventilation, and Energy in Commercial Buildings", Presented at the Building Owners &Managers Association of Sacramento, Sacramento, CA, July 21, 1988. "Controlling Indoor Air Quality: The New ASHRAE Ventilation Standards and How to Evaluate Indoor Air Quality", Presented at a conference "Improving Energy Efficiency and Indoor Air Quality in Commercial Buildings," National Energy Management Institute, Reno, Nevada, November 4, 1988.
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"A Study of Diesel Fume Entrainment Into an Office Building," Presented at Indoor Air '89: The Human Equation: Health and Comfort, American Society of Heating, Refrigeration, and Air Conditioning Engineers, San Diego, CA, April 17-20, 1989. "Indoor Air Quality in Commercial Office Buildings," Presented at the Renewable Energy Technologies Symposium and International Exposition, Santa Clara, CA June 20, 1989. "Building Ventilation and Indoor Air Quality", Presented to the San Joaquin Chapter of the American Society of Heating, Refrigeration, and Air Conditioning Engineers, September 7, 1989.
"How to Meet New Ventilation Standards: Indoor Air Quality and Energy Efficiency," a workshop presented by the Association of Energy Engineers; Chicago, IL, March 20-21, 1989; Atlanta, GA, May 25-26, 1989; San Francisco, CA, October 19-20, 1989; Orlando, FL, December 11-12, 1989; Houston, TX, January 29-30, 1990; Washington D.C., February 26-27, 1990; Anchorage, Alaska, March 23, 1990; Las Vegas, NV, April 23-24, 1990; Atlantic City, NJ, September 27-28, 1991; Anaheim, CA, November 19-20, 1991; Orlando, FL, February 28 - March 1, 1991; Washington, DC, March 20-21, 1991; Chicago, IL, May 16-17, 1991; Lake Tahoe, NV, August 15-16, 1991; Atlantic City, NJ, November 18-19, 1991; San Jose, CA, March 23-24, 1992.
"Indoor Air Quality," a seminar presented by the Anchorage, Alaska Chapter of the American Society of Heating, Refrigeration, and Air Conditioning Engineers, March 23, 1990.
"Ventilation and Indoor Air Quality", Presented at the 1990 HVAC & Building Systems Congress, Santa, Clara, CA, March 29, 1990.
"Ventilation Standards for Office Buildings", Presented to the South Bay Property Managers Association, Santa Clara, May 9, 1990.
"Indoor Air Quality", Presented at the Responsive Energy Technologies Symposium & International Exposition (RETSIE), Santa Clara, CA, June 20, 1990. "Indoor Air Quality - Management and Control Strategies", Presented at the Association of Energy Engineers, San Francisco Bay Area Chapter Meeting, Berkeley, CA, September 25, 1990.
"Diagnosing Indoor Air Contaminant and Odor Problems", Presented at the ASHRAE Annual Meeting, New York City, NY, January 23, 1991.
"Diagnosing and Treating the Sick Building Syndrome", Presented at the Energy 2001, Oklahoma, OK, March 19, 1991.
"Diagnosing and Mitigating Indoor Air Quality Problems" a workshop presented by the Association of Energy Engineers, Chicago, IL, October 29-30, 1990; New York, NY, January 24-25, 1991; Anaheim, April 25-26, 1991; Boston, MA, June 10-11, 1991; Atlanta,
16-23
GA, October 24-25, 1991; Chicago, IL, October 3-4, 1991; Las Vegas, NV, December 16- 17, 1991; Anaheim, CA, January 30-31, 1992; Atlanta, GA, March 5-6, 1992; Washington, DC, May 7-8, 1992; Chicago, IL, August 19-20, 1992; Las Vegas, NV, October 1-2, 1992; New York City, NY, October 26-27, 1992, Las Vegas, NV, March 18-19, 1993; Lake Tahoe, CA, July 14-15, 1994; Las Vegas, NV, April 3-4, 1995; Lake Tahoe, CA, July 11- 12, 1996; Miami, FL, December 9-10, 1996.
"Sick Building Syndrome and the Ventilation Engineer", Presented to the San Jose Engineers Club, May 21, 1991.
"Duct Cleaning: Who Needs It ? How Is It Done ? What Are The Costs ?" What Are the Risks ?, Moderator of Forum at the ASHRAE Annual Meeting, Indianapolis ID, June 23, 1991.
"Operating Healthy Buildings", Association of Plant Engineers, Oakland, CA, November 14, 1991.
"Duct Cleaning Perspectives", Moderator of Seminar at the ASHRAE Semi-Annual Meeting, Indianapolis, IN, June 24, 1991.
"Duct Cleaning: The Role of the Environmental Hygienist," ASHRAE Annual Meeting, Anaheim, CA, January 29, 1992.
"Emerging IAQ Issues", Fifth National Conference on Indoor Air Pollution, University of Tulsa, Tulsa, OK, April 13-14, 1992.
"International Symposium on Room Air Convection and Ventilation Effectiveness", Member of Scientific Advisory Board, University of Tokyo, July 22-24, 1992. "Guidelines for Contaminant Control During Construction and Renovation Projects in Office Buildings," Seminar paper at the ASHRAE Annual Meeting, Chicago, IL, January 26, 1993.
"Outside Air Economizers: IAQ Friend or Foe", Moderator of Forum at the ASHRAE Annual Meeting, Chicago, IL, January 26, 1993.
"Orientation to Indoor Air Quality," an EPA two and one half day comprehensive indoor air quality introductory workshop for public officials and building property managers; Sacramento, September 28-30, 1992; San Francisco, February 23-24, 1993; Los Angeles, March 16-18, 1993; Burbank, June 23, 1993; Hawaii, August 24-25, 1993; Las Vegas, August 30, 1993; San Diego, September 13-14, 1993; Phoenix, October 18-19, 1993; Reno, November 14-16, 1995; Fullerton, December 3-4, 1996; Fresno, May 13-14, 1997. "Building Air Quality: A Guide for Building Owners and Facility Managers," an EPA one half day indoor air quality introductory workshop for building owners and facility managers. Presented throughout Region IX 1993-1995.
17-23
“Techniques for Airborne Disease Control”, EPRI Healthcare Initiative Symposium; San Francisco, CA; June 7, 1994.
“Diagnosing and Mitigating Indoor Air Quality Problems”, CIHC Conference; San Francisco, September 29, 1994.
”Indoor Air Quality: Tools for Schools,” an EPA one day air quality management workshop for school officials, teachers, and maintenance personnel; San Francisco, October 18-20, 1994; Cerritos, December 5, 1996; Fresno, February 26, 1997; San Jose, March 27, 1997; Riverside, March 5, 1997; San Diego, March 6, 1997; Fullerton, November 13, 1997; Santa Rosa, February 1998; Cerritos, February 26, 1998; Santa Rosa, March 2, 1998.
ASHRAE 62 Standard “Ventilation for Acceptable IAQ”, ASCR Convention; San Francisco, CA, March 16, 1995.
“New Developments in Indoor Air Quality: Protocol for Diagnosing IAQ Problems”, AIHA-NC; March 25, 1995.
"Experimental Validation of ASHRAE SPC 129, Standard Method of Measuring Air Change Effectiveness", 16th AIVC Conference, Palm Springs, USA, September 19-22, 1995.
“Diagnostic Protocols for Building IAQ Assessment”, American Society of Safety Engineers Seminar: ‘Indoor Air Quality – The Next Door’; San Jose Chapter, September 27, 1995; Oakland Chapter, 9, 1997.
“Diagnostic Protocols for Building IAQ Assessment”, Local 39; Oakland, CA, October 3, 1995.
“Diagnostic Protocols for Solving IAQ Problems”, CSU-PPD Conference; October 24, 1995.
“Demonstrating Compliance with ASHRAE 62-1989 Ventilation Requirements”, AIHA; October 25, 1995.
“IAQ Diagnostics: Hands on Assessment of Building Ventilation and Pollutant Transport”, EPA Region IX; Phoenix, AZ, March 12, 1996; San Francisco, CA, April 9, 1996; Burbank, CA, April 12, 1996.
“Experimental Validation of ASHRAE 129P: Standard Method of Measuring Air Change Effectiveness”, Room Vent ‘96 / International Symposium on Room Air Convection and Ventilation Effectiveness"; Yokohama, Japan, July 16-19, 1996. “IAQ Diagnostic Methodologies and RFP Development”, CCEHSA 1996 Annual Conference, Humboldt State University, Arcata, CA, August 2, 1996.
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“The Practical Side of Indoor Air Quality Assessments”, California Industrial Hygiene Conference ‘96, San Diego, CA, September 2, 1996.
“ASHRAE Standard 62: Improving Indoor Environments”, Pacific Gas and Electric Energy Center, San Francisco, CA, October 29, 1996.
“Operating and Maintaining Healthy Buildings”, April 3-4, 1996, San Jose, CA; July 30, 1997, Monterey, CA.
“IAQ Primer”, Local 39, April 16, 1997; Amdahl Corporation, June 9, 1997; State Compensation Insurance Fund’s Safety & Health Services Department, November 21, 1996.
“Tracer Gas Techniques for Measuring Building Air Flow Rates”, ASHRAE, Philadelphia, PA, January 26, 1997.
“How to Diagnose and Mitigate Indoor Air Quality Problems”; Women in Waste; March 19, 1997.
“Environmental Engineer: What Is It?”, Monte Vista High School Career Day; April 10, 1997.
“Indoor Environment Controls: What’s Hot and What’s Not”, Shaklee Corporation; San Francisco, CA, July 15, 1997.
“Measurement of Ventilation System Performance Parameters in the US EPA BASE Study”, Healthy Buildings/IAQ’97, Washington, DC, September 29, 1997. “Operations and Maintenance for Healthy and Comfortable Indoor Environments”, PASMA; October 7, 1997.
“Designing for Healthy and Comfortable Indoor Environments”, Construction Specification Institute, Santa Rosa, CA, November 6, 1997. “Ventilation System Design for Good IAQ”, University of Tulsa 10th Annual Conference, San Francisco, CA, February 25, 1998.
“The Building Shell”, Tools For Building Green Conference and Trade Show, Alameda County Waste Management Authority and Recycling Board, Oakland, CA, February 28, 1998.
“Identifying Fungal Contamination Problems In Buildings”, The City of Oakland Municipal Employees, Oakland, CA, March 26, 1998.
“Managing Indoor Air Quality in Schools: Staying Out of Trouble”, CASBO, Sacramento, CA, April 20, 1998.
19-23
“Indoor Air Quality”, CSOOC Spring Conference, Visalia, CA, April 30, 1998. “Particulate and Gas Phase Air Filtration”, ACGIH/OSHA, Ft. Mitchell, KY, June 1998. “Building Air Quality Facts and Myths”, The City of Oakland / Alameda County Safety Seminar, Oakland, CA, June 12, 1998.
“Building Engineering and Moisture”, Building Contamination Workshop, University of California Berkeley, Continuing Education in Engineering and Environmental Management, San Francisco, CA, October 21-22, 1999.
“Identifying and Mitigating Mold Contamination in Buildings”, Western Construction Consultants Association, Oakland, CA, March 15, 2000; AIG Construction Defect Seminar, Walnut Creek, CA, May 2, 2001; City of Oakland Public Works Agency, Oakland, CA, July 24, 2001; Executive Council of Homeowners, Alamo, CA, August 3, 2001.
“Using the EPA BASE Study for IAQ Investigation / Communication”, Joint Professional Symposium 2000, American Industrial Hygiene Association, Orange County & Southern California Sections, Long Beach, October 19, 2000.
“Ventilation,” Indoor Air Quality: Risk Reduction in the 21st Century Symposium, sponsored by the California Environmental Protection Agency/Air Resources Board, Sacramento, CA, May 3-4, 2000.
“Workshop 18: Criteria for Cleaning of Air Handling Systems”, Healthy Buildings 2000, Espoo, Finland, August, 2000.
“Closing Session Summary: ‘Building Investigations’ and ‘Building Design & Construction’, Healthy Buildings 2000, Espoo, Finland, August, 2000. “Managing Building Air Quality and Energy Efficiency, Meeting the Standard of Care”, BOMA, MidAtlantic Environmental Hygiene Resource Center, Seattle, WA, May 23rd, 2000; San Antonio, TX, September 26-27, 2000.
“Sensory Stimuli and Ventilation Control”. Emerging Issues, ASHRAE IAQ Applications/Summer, 2000.
“Diagnostics & Mitigation in Sick Buildings: When Good Buildings Go Bad,” University of California Berkeley, September 18, 2001.
“Mold Contamination: Recognition and What To Do and Not Do”, Redwood Empire Remodelers Association; Santa Rosa, CA, April 16, 2002. “Investigative Tools of the IAQ Trade”, Healthy Indoor Environments 2002; Austin, TX; April 22, 2002.