2 3
4 5
MEMORANDUM OF AGREEMENT
6 7
BETWEEN
8 9
THE UNITED STATES OF AMERICA
10 ACTING BY AND THROUGH
11 THE SECRETARY OF THE NAVY
12 UNITED STATES DEPARTMENT OF THE NAVY.
13 14
AND
15 16 THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
17 18
FOR THE CONVEYANCE OF
19 20
PORTIONS OF THE NAVAL AIR STATION ALAMEDA
21 22
121 11013
23 24
THE UNITED STATES OF AMERICA
25 26
TO
27 28 THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
29 30
Final Navy Execution Version I
EXHIBIT 2
Exhibit 1
I
2 3
4 5
6 7
S
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
AGREEMENT
FOR THE CONVEYANCE OF
PORTIONS OF THE NAVAL AIR STATION ALAMEDA
- FROM
THE UNITED STATES OF AMERICA
TO
THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
TABLE OF CONTENTS
Page
ARTICLE1. No Cost EDC ... ........... ................... . ..... ....... .... .............. ......... ........... . ................. 2 ARTICLE 2. Property Description . .................. .............. ............... ................... ................ .......... 3 ARTICLE 3. Transfer and Conveyance, ... ................... ... ........... ................ .............. ................. 3 ARTICLE 4. Closing and Settlement ....................... .................................................................. 4 ARTICLE 5. Environmental Reports ................................................................................. ....... 6 ARTICLE 6. Use of Proceeds From Sale or Lease .................................................................. 6 ARTICLE 7. Government's Representations . ........ .................................................... ............... 7 ARTICLE 8. Authority's Representations . ...................................................... .... ........ .............. 8 ARTICLE 9. Response Assurances and Covenant Deferral Request Under Section 120(h)(3)(C) of CERCLA To Facilitate Early Transfer ........................ ................ 8 ARTICLE 10. Environmental Services Cooperative Agreement(s). ........................................... .9 ARTICLE 11. Completion of Remediation and Deed Covenants . ............... ............ ................... 9 ARTICLE12. Escrow; Title, . ....... ... ................. ... ...................... .... ......... .............. .............. ..... 10 ARTICLE 13. Officials Not To Benefit . ................................. ....................... .......................... 10 ARTICLE 14. Covenant Against Contingent Fees . ...... .................... ........................................ 10 ARTICLE15. Notices, . ................. ..... ..... ....... . .... . .................... ... .............. ... ...... . ........ . ......... ... 10 ARTICLE 16. Effects of Deeds ................. .............................. ................................. .......... ..... 11 ARTICLE17. Prior Claims...... ....................................... ........................ ................... ............. 11 ARTICLE 18. Government's Covenants . ........ ......... . ....... ....................................................... 12 ARTICLE 19. No Right of Rescission. .... . ......................... ....... .......................... .............. ....... 12 ARTICLE 20. Master Lease Termination and Residual Obligations . ........................ ........... ..... 12 ARTICLE 21. Liability for Environmental Contamination ................ .. ..... .......................... ........ 13 ARTICLE 22. Sharing of Roads ........ ........... .................... .................................................. ..... 13 ARTICLE23. Right of Entry . ..................................... .......... .............................. ....... ............ . 13 EXHIBIT 2
1 ARTICLE 24. Modification; Waivers . ...... .................................... .. ......... .............................. ..14
2 ARTICLE 25. Further Assurances .................................. .......................... ................ ................. 15
3 ARTICLE 26, Dispute Resolution Procedures .. ....................... --- ......... ............... .... ................... 15
4 ARTICLE 27. Survival and Benefit . ........................ ............. ......................... .......... . ............... 16
5 ARTICLE 28. Interpretation . ............................. .... ............ ................. .............. ...................... 16
6 ARTICLE 29. Non-Discrimination . ........ ... ...... ............................. .................. ............ ....... ....... 17
7 ARTICLE 30, Further Assurances ..... ........................ .............. ........... ......... ............................ 17
8 ARTICLE31. Counterparts. .. ......................................................... ................................ ....... ..17 9 10
11 EXHIBITS
12 13 A. DESCRIPTION OF LAND AND BUILDINGS
14 B-I QUITCLAIM DEED FOR THE CONVEYANCE OF PARCEL EDC-4 (EAST
15 HOUSING)
16 17 B-2, FORM OF QUITCLAIM DEED FOR THE CONVEYANCE OF PROPERTY
18 FOLLOWING EXECUTION OF A FOSET
19 B-3. FORM OF QUITCLAIM DEED FOR THE CONVEYANCE OF PROPERTY
20 OTHER THAN EDC-4 (EAST HOUSING) FOLLOWING EXECUTION OF A
21 FOST
22 C COMPLETED POST FOR EDC-4
23 D RECORD OF DECISION
24 B. MEMORANDUM OF AGREEMENT REGARDING HISTORIC
25 PRESERVATION
26 F BILL OF SALE
27 G. 'GOVERNMENT'S REPRESENTATIONS
28 H. AUTHORITY'S REPRESENTATIONS
I LIST OF ENVIRONMENTAL REPORTS
ffif J LEASE IN FURTHERANCE OF CONVEYANCE
11 EXHIBIT 2
8 9
10 11
12 13,
14 15
16. 17
18 19
20 21
22 23
24 25
26 27
28 29
30 31
32 33
34 35
36 37
38 39
40 41
42 I
AGREEMENT
2 FOR THE CONVEYANCE OF
3 PORTIONS OF THE NAVAL AIR STATION ALAMEDA
4 FROM
5 THE UNITED STATES OF AMERICA
This Agreement for,the Conveyce of Real Property (hereinafter referred to as "Agreement") is entered into this "day of______ 2000 ("Effective Date"), between the UNITED STATES OF AMERICA, Actinleby and through the Department of the Navy ("Government"), and the ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY ("Authority"), recognized as the local redevelopment authority by the Office of Economic Adjustment on behalf of the Secretary of Defense. Government and Authority are each sometimes referred to herein individually as a "Party" and collectively as the 'Parties."
RECITALS
I II 1
1. In 1993, the Defense Base Closure and Realignment Commission (the "DBCR Commission") recommended the closure of the former Naval Air Station Alameda ("NAS Alameda"), which encompasses the Naval facilities and grounds comprising the western end of the City of Alameda and consists of approximately 2,693 acres of real property, together with the buildings, improvements and related and other tangible personal property located thereon and all rights, easements and appurtenances thereto.
- 2. In accordance with the Defense Base Closure and Realignment Act of 1990, as - amended, the authority of the Administrator of General Services under the Federal Property and Administrative Services Act of 1949, as amended, with respect to the disposal of surplus real property at installations closing thereunder has been delegated to the Secretary of Defense and further delegated to the Secretary of the Navy.
3. (a) Pursuant to the power and authority provided by Section 2905(b)4 of the Defense Base Closure and Realignment Act of 1990, as amended, and the implementing regulations of the Department of Defense (32 CFR Part 175), the Secretary of the Navy may convey surplus property at a closing installation to the local redevelopment authority at no cost for economic development purposes. By application dated October 1997 and amendments to that application dated December 1998, the Authority applied for a "No-Cost" Economic Development Conveyance ("EDC") for portions of NAS Alameda (the "EDC Application"), to be used and EXHIBIT 2
developed in accordance with the "NAS Alameda Community Reuse Plan" (the "Reuse Plan") 2 dated January 1996 as amended in September 1997 prepared by Authority and approved by the 3 Department of Housing and 'Urban Development on April 23, 1996 4 5 (b) The Government has approved the Authority's EDC application 6 covering those portions of NAS Alameda generally described and delineated as EDC Parcels on 7 the map contained in Exhibit "A' hereto. The Government intends to convey those parcels to the 8 Authority by quitclaim deeds substantially in the form of Exhibits "B-i," "B-2" and 13-3" hereto. 9 10 4 In accordance with the provisions of the Community Environmental 11 Response Facilitation Act, the Government has performed Environmental Baseline Surveys 12 ("EBS(s)") for the Property, copies of which have been provided to the Authority. The 13 Government has prepared or will prepare Findings of Suitability to Transfer ("FOSTs") and 14 Findings of Suitability for Early Transfer ("FOSETs) for the various parcels that comprise NAS 15 Alameda, as applicable. A copy of the completed FOST for parcel EDC 4 is attached hereto as 16 Exhibit "C" and made a part hereof as if set out at length. 17 18 5. In accordance with the provisions of the National Environmental Policy 19, Act ("NEPA"), the Government has prepared an Environmental Impact Statement ("EIS") for the 20 disposal of the Property. A Record of Decision ("NEPA ROD") regarding the disposal of the 21 Property, which is attached hereto as Exhibit "D" and made a part hereof as if set out at length, 22 was issued on February 29, 2000.
23 24 6. In accordance with the provisions of the National Historic Preservation 25 Act, the Government has determined that the disposal of the Property will have an effect upon 26 those portions of the Property that are eligible for listing in the National Register of Historic 27 Places. A Memorandum of Agreement ("MOA") among the Department of the Navy, the 28 California State Historic Preservation Officer ("SHPO") and the Advisory Council on Historic 29 Preservation, which is attached hereto as Exhibit "E" and made a part hereof as if set out at 30 length, was executed on October 5, 1999, and sets forth in full the Authority's obligations under 31 the National Historic Preservation Act and implementing regulations. 32 33 AGREEMENTS
34 35 NOW, THEREFORE, in consideration of the foregoing premises and the respective 36 representations, agreements, covenants and conditions herein contained, and other good and 37 valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the 38 Government and the Authority agree as follows:
39 40 ARTICLE 1. No Cost EDC. Pursuant to Section 2905(b)(4) of the Defense Base 41 Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101-510; 10 U.S. C. § 42 2687 note), as amended by Section 2821 of the National Defense Authorization Act for Fiscal 43 Year 2000 (Pub. L. No. 106-65), the Government agrees to transfer and convey to the Authority 44 as a "no cost EDC", all of the certain land and buildings comprising the former NAS Alameda, as PA
EXHIBIT 2
I specifically defined in Article 2, in consideration of the covenants, conditions and restrictions 2 contained herein and other good and valuable consideration, subject to the terms, conditions and
3 general provisions set forth In this Agreement.
4 5 ARTICLE 2. Property Description. The land and buildings at NAS Alameda to be 6 conveyed to the Authority are generally described and delineated as EDC Parcels on the map 7 contained in Exhibit "A" (collectively, the "Property"). Tangible personal property to be 8 transferred under this Agreement is listed in the Bill of Sale attached hereto and made a part 9 hereof as Exhibit "F" ("Personal Property"). Legal descriptions and plats of the individual 10 conveyance parcels will be prepared by the Parties prior to the delivery of the Quitclaim Deed(s)
11 ("Quitclaim Deeds"). The Parties shall cooperate in executing and delivering corrective deeds 12 necessary to convey omitted land intended to be included in the Property and to correct any
13 erroneous description of the Property.
14 15 ARTICLE 3. Transfer and Conveyance.
16 17 (a) The Government agrees to convey the Property to the Authority in 18 multiple parcels, by separate conveyance and closings. The initial parcel to be conveyed will be 19f the East Housing parcel (Parcel EDC-4) subject to the due execution of a FOST ("Initial 20 Closing"). The Government will convey the remainder of the Property subject to the due 21 execution of a FOST or a FOSET ("Subsequent Closings"). Should the Authority, after due 22 consideration, decide not to accept the conveyance of a parcel tendered following the execution 23 of a FOSET, such parcel will be conveyed, at a later date, following the due execution of a FOST.
24 In no event, may the Authority refuse to accept the conveyance of any parcel tendered by the 25 Government following the due execution of a FOST for such parcel if the Authority has accepted 26 title to any other parcel of the Property.
27 28 (b) The Property shall be conveyed in fee simple by one or more good 29 and sufficient Quitclaim Deeds.
30 31 (c) Attached hereto as Exhibit "B-i" is the Quitclaim Deed for the 32 conveyance of Parcel EDC-4 (the East Housing portion of the Property). Attached hereto as 33 Exhibit "13-2' is the form of Quitclaim Deed for a conveyance of any portion of the Property to be 34 conveyed following the due execution of a FOSET. Attached hereto as Exhibit "13-3" is the form 35 of Quitclaim Deed for a conveyance of any portions of the Property other than the EDC 4, the 36 East Housing portion, to be conveyed following the due execution of a FOST. 37 38 (d) The Authority shall have the right to specify that one or more of the 39 parcels shall be conveyed in a reasonable number of subparcels provided, however, the 40 parcelization shall not otherwise delay the conveyance of the larger parcel. Should the Authority
41 exercise such right to divide a parcel into two or more subparcels, all costs associated with the
42 parcelization shalt be borne by the Authority and all subparcels within such parcel shall be
43 conveyed simultaneously.
44 EXHIBIT 2
(e) The Parties acknowledge that it is in their mutual best interest to 2 coordinate and cooperate in the preparation of the Quitclaim Deeds. Accordingly, the Parties 3 shall, to the maximum extent practicable, exchange information, coordinate the drafting of the 4 Quitclaim Deeds, and conclude the review of documents as rapidly as possible. 5 6 (f) The Government's right, title and interest in the personal property 7 to be transferred hereunder shall be transferred to the Authority concurrently with the conveyance 8 of Parcel EDC-4 in accordance with the terms and conditions of the Bill of Sale attached hereto 9 as Exhibit "F."
10 11 ARTICLE 4. Closing and Settlement.
12 13 (a) If an escrow is established by the Parties, the Government and the 14 Authority shall deliver the following documents to the Escrow Agent (with copies to the other 15 Party) at least one business day before an agreed upon Closing Date. If no escrow is established, 16 the deliveries shall be made by each Party to the other at a mutually -agreed upon time and 17 location. The Parties will use their best efforts to consummate the Initial Closing and Subsequent 18 Closings no later than two (2) months after the later of the signing of this Agreement or the 19r completion of a POST or FOSET by the Government for such Parcels of the Property as the 20 Parties agree will be conveyed at that Closing, or such other mutually agreeable date. In the event 21 that the Authority fails to accept any available EDC Parcel subsequent to Government offer by 22 POST within 120 days of such notification, this will be considered a breach of this MOA. 23 24 (b) The Government shalt deliver to the Initial and Subsequent Closings 25 the following documents ("Government Closing Documents") reasonably satisfactory to the 26 Authority and in a form previously reviewed and approved by the Authority:
27 28 1. Executed Quitclaim Deeds conveying fee ownership to the 29 Authority to such Parcels of the Property as the Parties agree will be conveyed at that Closing for 30 which a FOSET or POST, as appropriate, has been executed, in the form set forth in Exhibit "E- 31 l' ,, "B-T', or Exhibit "B-3", as appropriate. - 32 33 2 A duly executed POST or FOSET, as appropriate, for each 34 Parcel.
35 36 3 An Executed Bill of Sate for the related Personal Property 37 Conveyed to the Authority at the initial closing of Parcel EDC-4 in substantially the form set forth 38 in Exhibit "F."
39 40 4. Any permits transferred or assigned relating to each Parcel 41 42 5 Such additional documents as may be required by California 43 law, the Title Insurer, or the Authority.
44 4
EXHIBIT 2
1 6. Certificate confirming that the representations and 2 warranties of the Government set forth in this Agreement are true and correct as of the date of the
3 Closing in substantially the form set forth in Exhibit "G. 4 5 (c) The Authority shall deliver to the Initial and Subsequent Closings 6 the following Closing Documents reasonably satisfactory to the Government and in a form 7 previously reviewed and approved by the Government:
8 9 1. Copies of official documents authorizing the Authority to 10 consummate the transaction.
11 12 2. Such additional documents as may be required by California
13 law, the Title Insurer, or the Government.
14 15 3. Certificate confirming that the representations and 16 warranties of the Authority set forth in this Agreement are true and correct as of the date of the
17 Closing in substantially the form set forth in Exhibit "H." 18 19 4. Environmental Restrictions relating to "Marsh Crust" and 20 groundwater recorded in Alameda County Recorder's office on or before closing. 21 22 (d) If the portion of the Property to be conveyed is to be conveyed as 23 an "early transfer with deferred covenants" pursuant to CERCLA Section 120(h)(3) following, the 24 due execution of a FOSET, the Government shall deliver to the Escrow Agent a copy of the 25 Covenant Deferral Request approval letter signed and/or endorsed by the Governor of the State 26 of California and the Administrator of the United States Environmental Protection Agency, as
27 appropriate.
28 29 (e) If the portion of the Property to be conveyed is to be conveyed as 30 an "early transfer with deferred covenants" pursuant to CERCLA Section 120(h)(3) following the
31 due execution of a FOSET, and the Authority agrees to take responsibility for the remediation of 32 the Property, the Government shall deliver to the Escrow Agent a copy of the Covenant Deferral
33 Request approval letter signed and/or endorsed by the Governor of the State of California and the 34 Administrator of the United States 'Environmental Protection Agency, as appropriate, and the 35 Parties shall deliver to the Escrow Agent an Environmental Services Cooperative Agreement 36 executed by the Parties and, if required by the appropriate environmental regulatory agencies, an 37 executed consent agreement between the Authority and appropriate environmental regulatory
38 agencies.
39 40 ARTICLE 5 . Environmental Reports. To the best of Government's knowledge and
41 belief, a complete list of all environmental reports prepared by or for Government with respect to
42 the Property, including the lead-based paint and asbestos surveys relating to the improvements on
43 the Property ("Environmental Reports") is attached hereto as Exhibit "1." To the best of 44 Government's knowledge and belief, the information contained in the documents listed on Exhibit EXHIBIT 2
"I" is accurate and complete. The Authority acknowledges that it has received copies of all 2 documents listed on Exhibit "I." The Government agrees to promptly provide the Authority with 3 copies of any and all documents or information with respect to the environmental condition of the 4 Property prepared by or for Government after the date of this Agreement. The Environmental 5 Reports reflect a systematic process in which available information in the possession or control of 6 the Government was analyzed and conclusions drawn about the environmental condition of the 7 property. Further, the Environmental Reports have been prepared, under the direction of the 8 Government, in accordance with all material requirements of all applicable directives, guidance 9 documents, and other policies, and are based on the administrative record created to provide for 10 the conveyance of the Property subject to a FOSETTEROA 11 12 ARTICLE 6 Use of Proceeds From Sale or Lease
13 14 (a) Any proceeds from a sale, lease, or equivalent use of the Property (i.e., any 15 mechanism that serves to accomplish the same purposes of a sale or lease such as licenses, 16 permits, concession agreements, etc.) received by the Authority for the Property or the personal 17 property transferred by the bill of sale, during the first seven years after the recordation of the first 18 Deed for a part of the Property, must be used to support long-term job creation and the economic 19' redevelopment of, or related to, the Property. For purposes of this paragraph, the definition of 20 "Property" shall include the personal property transferred pursuant to the bill of sale 21 22 (b) Allowable uses of proceeds pursuant to subparagraph (a) include payment 23 for or offsetting the costs of public investment, for the following purposes 24 25 * Road construction
26 * Transportation management facilities
27 * Storm and sanitary sewer construction
28 * Police and fire protection facilities and other public facilities 29 * Utility construction
30 * Building rehabilitation
31 * Historic property preservation
32 Pollution prevention equipment or facilities
33 * . Demolition
34 * ' Disposal of hazardous materials generated by demolition 35 Landscaping, grading, and other site or public improvements 36 * - -Planning for or the marketing of the redevelopment and reuse of the Property 37 38 Other activities on the Property that are related to those listed above (for example, 39 new construction related to job creation and economic redevelopment, capital improvements, and 40 operation and maintenance of the Property needed to market its redevelopment and reuse) would 41 also be considered an appropriate, allowable use of proceeds. In order for investments made off 42 of the Property to be considered allowable uses of proceeds, the Authority shall submit 43 appropriate documentation to the Government for its approval which demonstrates that such 44 investments are related to those listed above and directly benefit the Authority's economic EXHIBIT 2
1 redevelopment and long term job generation efforts on the Property. 2 3 (c) Consistent with standard accounting practices for tax purposes, Authority 4 shall maintain adequate records and books of account for income and expenses related to the
5 redevelopment of the Property detailing transactions described in subparagraphs (1) and (2). 6 Authority shall provide Government with access to such records and books of account and proper
7 facilities for inspection thereof at all reasonable times. 8 9 (d) Authority shall submit to the Government an annual financial statement
10 certified by an independent certified public accountant. The statement shall cover the Authority's
11 use of proceeds it receives from the sale, lease, or equivalent use of the Property. The first such 12 statement shall cover the 12 month period beginning on the date of recordation of the first Deed 13 and shall be delivered t6 Government within 60 days of the end of that period and annually 14 thereafter. The seven year period will commence with the recordation of each deed; however the
15 financial statements shall cover all parcels of property that have been conveyed during that period.
16 In the event Congress enacts legislation regarding the reporting period after the date of this 17 Agreement, the Government will in good faith exercise the authority granted to modify the terms 18 of this Agreement consistent with the legislation.
19 20 (e) Recoupment of Proceeds. Government may recoup all proceeds described
21 in paragraph 6 (a) which have not been reinvested in allowable uses described in paragraph 6 (b). 22 If recoupment is desired, Government shall notify Authority in writing that it intends to recoup 23 proceeds in a specific amount, describing why it believes that those proceeds have not been 24 reinvested as required by Article 6. Within 30 days of receipt of such notification, Authority shall 25 submit its response to Government. Within 30 days of receipt of Authority's response or within 26 30 days of the date Authority's response was due under this paragraph, Government shall issue its 27 decision on the matter which shall be final and binding on the Authority. The amount of the 28 recoupment described in the decision shall be paid by the Authority within 60 days of the decision. 29 30 ARTICLE 7. Government's Representations. The Government hereby represents to
31 the Authority on and as of the Effective Date of this Agreement and as of the Closing as follows:
32 33 (a) Execution of Agreement. The Government has full capacity, right, power 34 and authority to execute, deliver and perform this Agreement and all documents to be executed by 35 the Government pursuant hereto, and all required action and approvals therefor have been duly 36 taken and obtained. This Agreement and all documents to be executed pursuant hereto, by the 37 Government are and shall be binding upon and enforceable against the Government in accordance 38 with their respective terms.
39 40 (b) Complete Information. To the best of the Government's knowledge,
41 information and belief, the information included in this Agreement, and the Exhibits hereto and the 42 documents to be delivered to the Authority pursuant to this Agreement or previously delivered to
43 the Authority are true, correct and complete in all material respects, and the same do not omit any 44 material information required to make the submission thereof fair and complete. 7 EXHIBIT 2
2 (c) Possession. To the best of the Government's knowledge, information and 3 belief, the information included in this Agreement, and the Exhibits hereto and the documents to 4 be delivered to the Authority pursuant to this Agreement or previously delivered to the Authority 5 acknowledge any contracts, leases or licenses in existence or persons who have possessory rights 6 or any claims in respect to the Property that will survive Closing. 7 8 (d) Claims. To the best of the Government's knowledge, information and 9 belief, there are no claims, causes of action or other litigation or proceedings pending or 10 threatened with respect to the ownership or operation of the Property or any part thereof 11 (including disputes with mortgagees, governmental authorities, utilities, contractors or adjoining 12 land owners).
13 14 (e) Notice. To the best of the Government's knowledge, information and 15 belief, the Government has not received any notice of (and is not otherwise aware of) any .16 violations of any legal requirements with respect to the Property which has not been disclosed to 17 the Authority.
18 19 ° ARTICLE 8. Authority's Representations. The Authority hereby represents to the 20 Government on and as of the Effective Date and on and as of the Closing, the Authority has fi11 21 capacity, right, power and authority to execute, deliver and perform this Agreement . and all 22 documents to be executed by the Authority pursuant hereto, and all required action and approvals 23 therefor have been duly taken and obtained. The individuals signing this Agreement and all other 24 documents executed or to be executed pursuant hereto on behalf of the Authority shall be duly 25 authorized to sign the same on the Authority's behalf and to bind the Authority thereto. This 26 Agreement and all documents to be executed pursuant hereto by the Authority are and shall be 27 binding upon and enforceable against the Authority in accordance with their respective terms. 28 29 ARTICLE 9. Response Assurances and Covenant Deferral Request Under 30 CERCLA 42 U.S.C. Section 9620(h)(3)(C) To Facilitate Early Transfer, CERCLA requires a 31 covenant warranting that all remedial actions necessary to protect human health and the 32 environment have been taken prior to transfer of the Property to the Authority with respect to any 33 hazardous substances remaining on the Property. Some portions of the Property do not meet this 34 requirement; however, the covenant may be deferred and said Property may be conveyed prior to 35 completion of required remedial response actions if the requirements of CERCLA 42 U. S .C. § 36 9620(h)(3)(C), have been met. As required under CERCLA, a Covenant Deferral Request 37 package with all required documentation, including a draft FOSET, will be submitted by the 38 Government to the Administrator of the United States Environmental Protection Agency and the 39 Governor of the State of California for endorsement and final approval. Early conveyance of the 40 Property pursuant to a FOSET is conditioned upon the Administrator's and the Governor's 41 approval of the Covenant Deferral Request. A copy of the Covenant Deferral Request will be 42 provided to the Authority for their review and approval prior to its submission to the 43 Administrator and the Governor.
44 EXHIBIT 2
I ARTICLE 10. Environmental Services Cooperative Agreement(s). 2 3 (a) The Authority and the Government are considering whether to 4 enter into one or more Environmental Services Cooperative Agreement(s) whereby the Authority, 5 its contractors and successors and assigns, will assume responsibility for completing 6 environmental remediation actions on the Property on behalf of the Government. 7 8 (b) Authority Proposal(s). The Authority will submit to the 9 Government a proposal(s) (the "Proposal(s)") consisting of a draft Environmental Services 10 Cooperative Agreement whereby the Authority, its contractors and successors and assigns, will
11 agree to remediate certain selected environmental conditions on selected portions of the Property 12 ("Environmental Remediation Work"). If the Parties negotiate and enter into an Environmental
13 Services Cooperative Agreement, the Authority, its contractors and successors and assigns, will 14 perform the Environmental Remediation Work in consideration for the agreed upon sum in 15 accordance with the terms and conditions of the Environmental Services Cooperative Agreement.
16 If the Government rejects the Proposal after discussions, the Government will retain 17 responsibility for the environmental remediation of the Property at its own cost, expense and risk. is
I 9 ARTICLE 11. Completion of Remediation and Deed Covenants. For Property that 20 has transferred early, pursuant to the requirements of CERCLA 42 U.S.C. § 9620(h)(3)(C) for 21 which the remediation of the Property is completed, by either the Government or by the Authority 22 pursuant to an Environmental Services Cooperative Agreement, the Party responsible for 23 remedIating the Property shall provide documentation evidencing regulatory closure as required 24 by CERCLA 42U.S.C.9620(h)(3)(B) whereupon an appropriate instrument, in recordable form, 25 containing a warranty that all necessary remedial action has been taken as provided by CER.LCA 26 42 U.S.C. § 9620(h)(3)(B)(iii) shall be prepared by the Government and delivered to the 27 Authority. The Authority may then record the warranty as an addendum or amendment to the 28 Deed.
29 30 ARTICLE 12. Escrow; Title. If deemed necessary by the Authority, the Authority shall
31 establish an escrow at its own cost and expense with an accredited title insurance company (the 32 "Escrow Agent"). Any title insurance that may be desired by the Authority shall be procured at 33 its sole cost and expense. However, the Government shall cooperate with the Authority or its 34 authorized agent and shall permit examination and inspection of any documents relating to the 35 title of the Property as it may have available. It is understood that the Government shall not be 36 obligated to pay for any expense incurred in connection with title matters for the Property. The 37 Authority may, at its sole cost and expense, on or before the Closing Date, order such searches as 38 it deems appropriate confirming the absence of additional title exceptions that may arise after 39 execution of this Agreement.
40 41 ARTICLE 13. Officials Not To Benefit. No member of or delegate to Congress shall 42 be admitted to any share or part of the Agreement or to any benefit to arise therefrom, but this 43 provision shall not be construed to extend to this Agreement if made with a corporation for its
44 general benefit.
EXHIBIT 2
2 ARTICLE 14. Covenant Against Contingent Fees. Authority warrants that no person 3 or agency has been employed or retained to solicit or secure this Agreement upon an agreement 4 or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide 5 employees or bona fide established commercial agencies maintained by Authority for the purpose 6 of securing the successful purchase of the Property by the Authority. "Bona fide established 7 commercial agencies" has been construed to include licensed real estate brokers engaged in the 8 business generally. For breach or violation of the warranty, Government has the right to annul 9 this Agreement without liability or in its discretion to require Authority to pay, in addition to the 10 consideration, the full amount of such commission, percentage, brokerage, or contingent fee. 11 12 ARTICLE 15. Notices. Notices shall be deemed sufficient under this Agreement if made 13 in writing and submitted to the following addresses (or to any new or substitute address 14 hereinafter specified, in a writing theretofore delivered in accordance with the notice procedure 15 set forth herein by the intended recipient of such notice):
16 17 If to Authority: James M. Flint, Executive Director 18 Alameda Reuse and Redevelopment Authority
19 Alameda City Hall
20 2263 Santa Clara Avenue
21 Alameda, CA 94501-4456
22 (Facsimile: 510-748-4504)
23 24 with a copy to: Carol Korade, General Counsel 25 Alameda Reuse and Redevelopment Authority
26 Alameda City Hall; Room 280
27 2263 Santa Clara Avenue
28 Alameda, California 94501-4456
29 (Facsimile: 510-748-4691)
30 31 and to: George R. Schlossberg, Esq.
32 Kutak Rock
33 1101 Connecticut Avenue, NW.
34 10th Floor
35 Washington, D.C. 20036
36 (Facsimile: 202-828-2488)
37 38 If to Government: Commanding Officer
39 Southwest Division
40 Engineering Field Division
41 Naval Facilities Engineering Command
42 1220 Pacific Highway
43 San Diego, CA 92132-5189
44 (Facsimile: 619-532-3830)
10 EXHIBIT 2
2 ARTICLE 16. Effects of Deeds. The delivery of the executed Deeds pursuant to this 3 Agreement from the Government to the Authority shall be deemed full performance by the 4 Government of its obligations hereunder with regard to the portions of the Property conveyed by 5 each Deed other than any obligations of the Government which are required by this Agreement or 6 by law (including, inter alia, any obligations under CERCLA Section 120(h) and under Section 7 330 of the Department of Defense Authorization Act of 1993) to be performed after the delivery 8 of each such Deed. Except as otherwise provided for in this Agreement, the Government agrees 9 not to grant, after the effective date of this Agreement, any encumbrances, covenants, conditions, 10 restrictions, limitations on use or notices concerning the Property without first conferring with the 11 Authority. Except as provided herein and except for the Grantor's environmental remediation 12 responsibilities under CERCLA, all of the Property conveyed or leased hereunder will be in an 13 It
where-is" condition and without any representation or warranty whatsoever and without 14 any obligation on the part of the United States of America except as expressly provided for by law 15 or in this Agreement.
16 17 ARTICLE 17. Prior Claims. The Government shall remain responsible for all 18 liabilities, claims, demands, judgments, suits, litigation, amounts payable (collectively, "Pre- 19 Closing Obligations") against, the Government or the Property attributable to the period prior to 20 the conveyance or lease of the Property to the City as otherwise provided by the law. The City 21 shall notify the Government of the existence or occurrence of any such Pre-Closing Obligations of 22 which it has knowledge and shall cooperate with the Government in the disposition thereof. 23 24 ARTICLE 18. Government's Covenants. From the Effective Date of this Agreement 25 to the Closing, the Government shall not do, permit, or agree to do, any of the following:
26 27 (a) Sell, encumber or grant any interest in the Property or any part 28 thereof in any form or manner whatsoever or otherwise perform or permit any act which will 29 diminish or otherwise affect the Authority's interet under this Agreement or in or to the Property 30 or. which will prevent the Government's full performance of its obligations hereunder, without the 31 written consent of he Authority, except as may be required for environmental restrictive 32 covenants or use restrictions serving as a component of remediation of any parcel; or 33 34 (b) Remove or alter any fixtures or personal property from the 35 Property listed on Exhibit "F," without the written consent of the Authority,, except when such 36 removals or alterations are in association with the Government's continuing obligations under 37 CERCLA.
38 39 ARTICLE 19. No Right of Rescission. There shall be no right of rescission in the 40 Government as to the Property, or any portion thereof, once conveyed to the Authority. The 41 foregoing shall not be interpreted to limit any future exercise of the power of eminent domain by 42 the Government.
43 44
11 EXHIBIT 2
I ARTICLE 20. Master Lease Termination and Residual Obligations. 2 3 (a) It is acknowledged that the Authority currently leases the Property 4 from the Government under a 15-year lease agreement, as amended, designated Government 5 Contract N6247497RP00P68, originally commencing on March 24, 1996 (the "Master Lease"). 6 Simultaneous with the execution of this Agreement, (i) the Authority's leasehold interest in the 7 Property shall extinguish in accordance with the terms of said Master Lease and all obligations
8 and responsibilities of the parties to the Master Lease shall cease and (it) the parties agree to 9 execute a Lease in Furtherance of Conveyance for the Property ('LIFOC ) Attached as Exhibit 10 "J" is the form of LTFOC for the Property to be leased by the Government to the Authority. 11 12 (b) The Authority agrees to indemnify and hold harmless the
13 Government its employees and agents for activities conducted by the Authority, its tenants 14 agents, employees or contractors under the Master Lease or any rights-of-entry's authorized and 15 granted pursuant to this Agreement or any other pre-existing lease between the Authority and any 16 third party or any rights-of-entry authorized by the Government prior to this Agreement. The
17 Authority assumes no liability for damages for personal injury, illness, disability, death or property 18 damage arising from (i) any actions or activities prior to the time the Authority took possession of 19 the Property under the Master Lease, or any other pre-existing lease or right of way between the 20 Authority and the Government, (ii) any exposure or failure to comply with any legal requirements
21 applicable to lead based paint or asbestos on any portion of the Property arising prior to the 22 Government's conveyance of such portion of the Property, to the Authority pursuant to this 23 Agreement, or (iii) any lead based paint, asbestos or asbestos containing materials that were 24 located on the Property at any time prior to the date of the Government's transfer of the
25 applicable portion of the Property but are no longer located thereon at the time of such transfer, 26 or (iv) any disposal, prior to the Government's transfer of the applicable portion of the Property, 27 of any lead based paint, asbestos or asbestos containing materials. Nothing contained herein shall 28 affect any liability of the Authority for claims arising under the Master Lease or any sublease of
29 any portion of the Property by the Authority priorto Closing. - 30 31 ARTICLE 21. Liability for Environmental Contamination. Notwithstanding any 32 other provision of this Agreement, and except as set forth in the Deed described herein, the
33 Authority and its assigns do not hereby assume any liability or responsibility for environmental 34 impacts and damage caused by the Government's use of toxic or hazardous wastes, substances or
35 materials, or petroleum derivatives, on any portion of the Property. The Authority and its assigns 36 have no obligation under this Agreement to undertake the defense of any claim or action, whether 37 in existence now or brought in the future, or to conduct any cleanup or remediation action solely 38 arising out of the use or release of any toxic or hazardous wastes substances or materials or 39 petroleum or petroleum derivatives on or from any part of the Property due to activity on the 40 Property by the Government.
41 42 ARTICLE 22. Sharing of Roads. The Government and the Authority shall grant to the
43 other at no cost such easements or licenses as may be required for (a) the use of roads utilities 44 and other services necessary or desirable for the enjoyment and benefit of those portions of the 12 EXHIBIT 2
I Property as to which possession has been given, and (b) for ingress and egress as may be 2 necessary to perform services.
3 4 ARTICLE 23. Right of Entry. From the Effective Date of this Agreement to the Final 5 Closing, the Government agrees to issue a license, lease, or other appropriate document to the 6 Authority for its representatives, agents, employees, lenders, contractors, appraisers, architects 7 and engineers designated by the Authority access to and entry upon the Property and the 8 improvements thereon to examine, inspect, measure, conduct infrastructure improvements, 9 demolish infrastructure, improvements, hazardous and other material disposal and removal, 10 construction of infrastructure and test the Property. In exercising the right of entry granted by
11 this section, the Authority shall: I) provide reasonable notice to the Government of the date, time, 12 and purpose of the entry; 2) obtain the Government's prior written consent to any infrastructure 13 demolition, land-disturbing testing, including the taking of core samples, and hazardous and other 14 material disposal; 3) ensure that any activities on the Property do not interfere with Government 15 operations or activities; and 4) comply with terms and conditions specified by the Government 16 (including reasonable insurance requirements), which the Government agrees it shall not 17 unreasonably impose.
18 19 (a) Any work and improvements by the Authority shall be subject to terms, 20 conditions, and restrictions deemed necessary by the Government and set forth in the license, 21 lease or Rights of Entry as appropriate. The cost of said improvements shall be borne entirely by 22 the Authority, and shall remain the property of the Government if the transfers anticipated herein 23 do not occur. The Authority shall indémmfy and hold the Government harmless from all claims, 24 liability, loss, cost, environmental contamination, or damage that may occur as a result of the 25 undertaking by the Authority of said improvements or site preparation, except where such claims, 26 liability, loss, cost, environmental contamination, or damage is the result of the gross negligence 27 or willful misconduct of the Government or its employees, agents, or contractors. It shall be the 28 responsibility of the Authority at its expense to obtain all governmental permits and clearances 29 and complete any environmental analysis or documentation required for the undertaking of said 30 improvements or site preparation, including but not limited to:
31 1. permits and clearances from the Government, EPA, and the California
32 Department ofToxic Substance Control, related to the ongoing environmental
33 cleanup at FISC and as may be required by applicable law;
34 2. air quality analysis and documentation; and
35 3. any permits, analysis, and/or documentation required by the National
36 Environmental Policy Act of 1969 (NEPA), the National Historic Preservation Act
37 of 1966 (NHPA), the Endangered Species Act, and the Coastal Zone Management
38 Act,
39 (b) The Government shall cooperate with the Authority as necessary to obtain 40 said permits, provided that the Authority shall satisfy any expense or liability of the Government
41 in connection therewith.
'3
EXHIBIT 2
2 ARTICLE 24. Modification; Waivers. This Agreement contains the entire agreement 3 and understanding of the parties in respect to the purchase and sale of the Property, and may not 4 be amended, modified or discharged nor may any of its terms be waived except by an instrument 5 in writing signed by the parties; A waiver of a specific provision shall not be deemed a waiver of 6 any subsequent provision. The parties hereto shall not be bound by any terms, conditions, 7 statements, warranties or representations, oral or written, not contained herein. 8 9 ARTICLE 25. Further Assurances. The Parties acknowledge that it is their mutual 10 intent to effectuate an orderly, amicable, and expeditious transfer of the Property from ii Government to Authority and that, toward that end, (i) any or all ambiguities herein shall, to the 12 extent practicable, be construed in the way most liberally conducive to the aforesaid conveyance, 13 (ii) the Parties both agree to take such additional acts and/or to permit such additional actions 14 (including but not limited to any actions required in the event it shall become necessary, before or 15 after the conveyances contemplated herein, to effect a formal subdivision or subdivisions of the 16 Property) and (iii) the Parties agree to execute, deliver and perform under the terms of such other 17 documents as their respective legal counsel may deem necessary or appropriate to effect the 18 purposes of this Agreement.
19 20 ARTICLE 26. Dispute Resolution Procedures.
21 22 (a) If a dispute arises under this Agreement, these procedures shall apply. 23 Either Party may invoke this dispute resolution procedure. The Parties shall make reasonable 24 efforts to informally resolve disputes at the lowest level prior to the issuance of a formal written 25 statement of dispute under the procedures set forth below. 26 27 (b) Within thirty (30) days after any action which leads to or generates a 28 dispute or after efforts to informally resolve a dispute have failed, either Party may submit a 29 written statement of dispute to the other Party setting forth the nature of the dispute, the work 30 affected by the dispute, the disputing Party's technical and legal position regarding the dispute, 31 and the relief requested. The Commanding Officer, Southwest Division, Naval Facilities 32 Engineering Command and the City Manager, City of Alameda, shall serve as Dispute Resolution 33 Managers for their respective organizations. The written statement of dispute shall be mailed by 34 the Dispute Resolution Manager for the disputing Party to the Dispute Resolution Manager for 35 the other Party.
36 37 (c) The Dispute Resolution Managers shall have twenty-one working days to 38 resolve the dispute from the date of receipt of the written statement of dispute. The resolution of 39 the dispute shall be memorialized in writing. Both Parties shall abide by the terms and conditions 40 of any final resolution of the dispute.
41 42 (d) The Parties shall diligently perform under this Agreement pending the 43 completion of these dispute resolution procedures. 44 14
EXHIBIT 2
(e) If the Dispute Resolution Managers are unable to resolve the dispute within 2 twenty-one working days of receipt of the written statement of dispute, the Parties may pursue 3 whatever remedies they may have at law or equity.
4 5 (f) The timeframes set forth above for reporting and resolution of disputes 6 may be extended by mutual agreement of the Parties and such agreement shall be memorialized in 7 writing.
8 9 ARTICLE 27. Survival and Benefit. The Authority may not transfer or assign its rights 10 and interests under this Agreement, without the written consent of the Government. All 11 representations, warranties, agreements, obligations and indemnities of the parties shall, 12 notwithstanding any investigation made by any party hereto, survive Closing and the same shall 13 inure to the benefit of and be binding upon the respective successors and assigns of the parties. 14 Nothing in this Agreement otherwise shall be construed as creating any rights of enforcement by 15 any person or entity that is not a party hereto, nor any rights, interest, or third party beneficiary 16 status for any entity or person other than the parties hereto. 17 18 ARTICLE 28. Interpretation. The headings and captions herein are inserted for 19 convenient reference only and the same shall not limit or construe the paragraphs or sections to 20 which they apply or otherwise affect the interpretation hereof. 21 22 (a) The terms "hereby," "hereof," "hereto," "herein," "hereunder" and 23 any similar terms shall refer to this Agreement, and the term "hereafter" shall mean after, and the 24 term "heretofore" shall mean before, the date of this Agreement. 25 26 (b) Words of the masculine, feminine or neuter gender shall mean and 27 include the correlative words of other genders, and words importing the singular number shall 28 mean and include the plural number and vice versa.
29 30 (c) Words importing persons shall include firms, associations, 31 partnerships (including limited partnerships), trusts, corporations and other legal entities, 32 including public bodies, as well as natural persons. 33 34 (d) The terms "include," "including" and similar terms shall be 35 construed as if followed by the phrase "without being limited to." 36 37 (e) This Agreement shall be governed by and construed in accordance 38 with Federal law and the laws of the State of California, provided, that in the event of a conflict 39 between Federal law and the laws of the State of California, the Federal law shall govern. 40 41 (f) Whenever under the terms of this Agreement the time for 42 performance of a covenant or condition falls upon a Saturday, Sunday or holiday observed by the 43 performing party, such time for performance shall be extended to the next business day. 44 Otherwise all references herein to "days" shall mean calendar days. 15 EXHIBIT 2
2 (g) if any term or provision of this Agreement or the application 3 thereof to any person or circumstance shall to any extent be invalid or unenforceable the 4 remainder of this Agreement, or the application of such term or provision to persons or -5 circumstances other than those as to which it is held invalid or unenforceable, shall not be affected 6 thereby, and each such term and provision of this Agreement shall be valid and be enforced to the 7 fullest extent -permitted by law.
8 9 (h) Time is of the essence for this Agreement.
10 11 ARTICLE 29. Non-Discrimination. The Authority covenants for itself, its successors 12 and assigns and every successor in interest to the Property hereby conveyed, or any part thereof, 13 that the said Authority and such successors and assigns shall not discriminate upon the basis of 14 race, color, sex, religion, or national origin in the use, occupancy, sale or lease of the Property, or 15 in their employment practices conducted thereon. This covenant shall not apply, however, to the 16 lease or rental of a room or rooms within a family dwelling unit; nor shall it apply with respect to 17 premises used primarily for religious purposes. The United States of America shall be deemed a 18 beneficiary of this covenant without regard to whether it remains the owner of any land or interest 19 therein in the locality of the Property hereby conveyed and shall have the sole right to enforce this 20 covenant in any court of competent jurisdiction.
21 22 ARTICLE 30. Further Assurances. The Government shall, upon the reasonable 23 request of the Authority, execute, cause to be executed, acknowledged or delivered any and all 24 such further instruments and documents as may be necessary or proper, in order to carry out the 25 intent and purpose of this Agreement
26 27 ARTICLE 31. Counterparts. This Agreement may be executed in multiple counterparts 28 and/or with the signatures of the Parties set forth on different signature sheets and all such 29 counterparts, when taken together, shall be deemed one original. 30 31
32 33
34 35
36 37 (SIGNATURE PAGE FOLLOWS]
16 EXHIBIT 2
2 IN WITNESS -WHEREOF, the Parties, intending to be legally bound hereby, 3 have caused their duly appointed representatives to execute this Agreement as of the Effective 4 Date set forth above.
5- -V V
6 V
7 -
8 WITNESS/ATTEST .: THE UNITED STAT S OF AMERICA
9 By:
V
13 By:
14 Name: WIlL M IL CARS ILLO
15 Title: Real state Contracting Officer
16 17
FL
18 19
20 V
21 ATTEST: ALAMEDA REUSE AND
22 V
V
V REDEVELOP NT AUTHORITY
23 By L
28 Title -, Executive Director
rw-STGE-NE
:I
SEL
V: V
17 LI
EXHIBIT 2
CALIFORNIA ALL-PU
State of 0W)4
County of 4
On ju P-0 20CC) before me L"UJQ__ -f.- P49l:c
Date Name and _file of Ot5a (eg)
Ne
'Jar,eDoe.Notary Pllc)
personally appeared J (-Y°5 __V' F:j v..±
Name(s) of Signer(s)
kRersonally known to me OR 0 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 r_ _--_--______-- his/her/their signature(s) on the instrument the person(s) LARA WEISIGER or the entity upon behalf of which the person(s) acted Commission # 1 executed the instrument
'1
Notct'y Public Coulomb
MyComrnExpire5AlJg16,ZX1
I
WITNESS my hand and official seal.
Signature of Not to
OPTIONAL
Though the Information below Is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
Signer's Name:
El Individual
O Corporate Officer
Title(s):
o Partner 0 Limited 0 General
0 Attorney-in Fact
O Trustee
0 Guardian or Conservator
O Other: Top of thumb here
Signer Is Representing:
Signer's Name:
El Individual
o Corporate Officer
Title(s):
El Partner 0 Limited 0 General
El Attorney-in-Fact
o Trustee
o Guardian or Conservator I1t11l
El Other: Top of thumb here
Signer Is Representing:
© 188$ National Notary Association .8235 FlemmetAve., P.0. Box 7184- Canoga Park, CA 91308-7184 Prod. No. 2907 Reorder: Call Toll-Free 1-800-876-8827 EXHIBIT 2
State of
County of
On _ J'tv g aDoo before me, _Lo-r. (.Ae- Ahc,
Date' C and Title of OtJer (e.., 'Jane Doe, NoIg' Public') personally appeared UUr UAO,wm (Z.
Name(s) of Signer(s)
LI personally known to me - OR 0 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 signature(s) on the instrument the person(s), J Comm 5$tofl # or the entity upon behalf of which the person(s) acted, Notary Public -California executed the instrument. ,Jcmeda County MyCorrlmExpiireSAU9161
J", WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
RIGHT THUMBPRINT
OF SIGNER
Ifi1IIIT7
Signer's Name:
Individual
Corporate Officer
Title(s):
Partner 0 Limited LI General
Attorney-in-Fact
I
Trustee
Guardian or Conservator
Other:
Signer Is Representing
Signer's Name:
Individual
Corporate Officer
Title(s):
Partner - LI Limited 0 General
Attorney-in--Fact
Trustee
Guardian or Conservator
Other:
Signer Is Representing
I
RIGHT THUMBPRINT
OF SIGNER
511995 National Notary Association '8236 Rem,net Ave,, P.O. Box 7184' Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder Call Toll-Free 1.800-876-5827 EXHIBIT 2