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US Bank National Association-Exchange Agreement-09.02.2008
. a00Y EXCHANGE AGREEMENT This Exchange Agreement (the "Agreement") is made and entered into as of tofern(t e ( , 2008, by and between U.S. Bank National Association, a national • banking association (the "Bank") and the City of Waterloo, Iowa, a municipal corporation (the "City"). • RECITALS A. City considers development within the downtown and riverfront areas of the City to be a benefit to the community and has adopted the Downtown Waterloo Riverfront Urban Renewal and Redevelopment Plan (the "Plan"), and within the Plan has designated a geographic area of the City as the"Plan Area." B. Bank, as the successor by merger to Mercantile Bank of Northern Iowa, is the owner of certain real property located within the Plan Area, and the City has targeted said property for redevelopment in furtherance of the objectives of the Plan. C. Bank desires to cooperate with the City provided Bank is able to exchange the real property legally described on Exhibit "A" attached hereto and any improvements thereon (the "Bank Property") for the real estate located at the southwesterly corner of Commercial Street and West Mullan Avenue, as legally described on Exhibit "B" attached hereto (the "City Property"). To facilitate a transaction in accordance with §1031 of the Internal Revenue Code and to maximize the benefits thereof, the parties have agreed to conduct two separate closings, as set forth herein. D. The parties desire to confirm the terms of the (i) conveyance by the City of the City Property to the Bank, (ii) completion by the Bank of certain improvements on the City Property ("Improvements"), (iii) conveyance by the Bank of the Bank Property to the City, and (iv) the respective grants by each of the City and the Bank of certain permanent and temporary easements in connection with the construction and operation of the Improvements for Plan purposes(the"Project"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants exchanged between the parties and for other consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: Article 1 Exchange and Conveyances 1.1 Preliminary Closing: Conveyance of City Property. Subject to the conditions set forth in this Agreement, at the Preliminary Closing described in Section 4.1,City shall convey • to Bank fee simple title to the City Property in consideration of the promises made by Bank herein. On the Preliminary Closing Date, City shall deliver to Bank a special warranty deed for the City Property free and clear of all liens, claims, and encumbrances except: (a) easements, conditions, and restrictions of record which do not, in Bank's opinion, interfere with Bank's proposed use, but to which the Bank waives its objections; (b) general utility and right-of-way easements serving the City Property; and(c) restrictions imposed by local zoning ordinances and other applicable law. Notwithstanding the foregoing, the City Property shall be free and clear of (i) any judgment liens affecting the City Property; (ii) that certain Easement for driveway purposes as contained in the Driveway Grant, dated March 26, 1957 in Book 104 of Misc., page 61, and (iii) that certain Easement for telephone and telegraph line purposes in favor of Northwestern Bell Telephone Company, as contained in the Permanent Right-of-Way Permit, dated August 23, 1932, recorded on the same date in Miscellaneous Records Book 9, page 605, the latter two of which the City has scheduled to be vacated by City Council Resolution on City has delivered to Bank an abstract of title for the City Property prepared by Black Hawk County Abstract Company. The abstract shall show marketable title in City in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. City shall make every reasonable effort to promptly perfect title. The parties acknowledge that there are judgment liens against real estate owned by City, arising in connection with case nos. EQCV096221 and CVCV093859 (the "Existing Judgments"), that are not specific liens against the City Property. Between the date of execution of this Agreement and the Preliminary Closing Date, it is possible that other similar judgment liens (the "Possible Judgments") may arise that are not specific liens against the City Property. Each of the Existing Judgments has been appealed by City. City agrees to indemnify Bank and to hold it harmless from and against any and all claims, demands, judgments, costs, or expenses (including reasonable attomey's fees) (each of the foregoing being a"Claim") arising out of or in any way connected with the Existing Judgments and the Possible Judgments. Bank shall promptly notify the City Attorney's office upon receipt of any Claim. Bank hereby waives the Existing Judgments and Possible Judgments as objections to title. If title is unmarketable or if the City Property is not otherwise acceptable to the Bank based on any matters revealed by the title review or discovered during the inspections contemplated by Section 3.9 hereof, and if City does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from Bank (which notice • must be delivered no later than the Preliminary Closing Date), then Bank may terminate this Agreement or elect to waive such objections and accept delivery of the special warranty deed • conveying title to the City Property. The abstract shall become the property of Bank on date of the Preliminary Closing. City shall pay the costs of any additional abstracting and title work due to any act or omission of City or its predecessors in title. Bank, at its expense, may acquire title insurance through First American Title Insurance at 800 North Nicollet Mall in Minneapolis, Minnesota("Title Company"). • 1.2 Closing: Conveyance of Bank Property and Delivery of Funds. Subject to the conditions set forth in this Agreement,Bank shall convey to City the Bank Property. The City, at its expense, shall survey the Bank Property and provide to Bank the acquisition plat that complies with the Iowa Code. As partial consideration for City receiving title to the Bank 2 { Property and the easements to be granted by Bank pursuant to this Agreement, City shall pay to Bank the sum of the actual costs that Bank states it has expended in connection with Bank's relocation to, construction and opening of a new drive-through facility on the City Property (excluding those costs accounted for in Sections 3.7 and 3.11), which sum shall not exceed $841,398.00 unless due to actual costs of necessary rock excavation (the "Bank Property Purchase Price") in immediately available funds. In compliance with the requirements of I.R.C. §1031 tax-deferred exchanges and as set forth in Sections 4.1 and 6.14 of this Agreement, the parties have agreed that the Closing Date may not occur any later than the 180th day after the Preliminary Closing Date. If Bank has completed its improvements as of the Closing Date, City shall pay to Bank the Bank Property Purchase Price on the Closing Date. If Bank has not yet completed its improvements by the Closing Date, however, City shall pay the amount that Bank states in writing that it has expended as of the Closing Date. Upon Bank's completion of the construction of the new drive-through facility on the City Property following the Closing Date, then, Bank shall submit to City a final statement of its actual costs (which sum is the aforementioned Bank Property Purchase Price), and City shall pay to U.S. Bank National Association (and not any §1031 assignee of Bank's interest in this Agreement) the difference between the Bank Property Purchase Price and the amount paid to Bank (or its assignee) on the Closing Date. This obligation shall survive the Closing. Except as set forth in Sections 3.7 and 3.11 and except for costs related to necessary rock excavation on the City Property, City shall not be responsible to pay any additional sums to Bank for completion of the Improvements in the event that actual costs and expenses exceed$841,398.00. On the Closing Date (as such term is hereinafter defined), Bank shall deliver to the City a special warranty deed for the Bank Property, free and clear of all liens, claims, and encumbrances except: (a) easements, conditions, restrictions and encumbrances of record which do not, in City's opinion, interfere with the City's proposed use, but to which the City waives its objections; (b) general utility and right-of-way easements serving the Bank Property; (c) restrictions imposed by Iocal zoning ordinances and other applicable law; and (d) Bank's right to remove its personal property as set forth in Section 3.5. The Bank shall convey the Bank Property to City in an "AS-IS" condition other than as expressly set forth in this Agreement. Bank shall, at its own expense, deliver to City an abstract of title prepared by Black Hawk County Abstract Company. The abstract shall show marketable title in Bank in conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar Association. Bank shall make every reasonable effort to promptly perfect title. City must conduct all due diligence pertaining to its acquisition of the Bank Property prior to the Preliminary Closing; provided, however, that the abstract shall be updated again within thirty (30) days before the Closing Date to verify that no new matters constituting objections to title shall have arisen between the time of City's initial due diligence and the Closing. After initial due diligence,if title is unmarketable or if the Bank Property is not otherwise acceptable to the City based on any matters revealed by the title review or discovered during the inspections contemplated by Section 3.9 hereof, and if Bank does not remedy or remove such objectionable matters in timely fashion following written notice of such objections from City (which notice must be delivered no later than the Preliminary Closing Date), then City may terminate this Agreement in writing prior to the Preliminary 3 Closing Date, or City may elect to waive such objections and accept delivery of the special warranty deed conveying title to the Bank Property. The abstract shall become the property of City at the Closing. 1.3 Bank Property Representations and Warranties. To the knowledge of the Bank, which knowledge is limited to that of Paul R. Menner and Steve Brewer obtained after reviewing the Bank's files relating to the Bank Property, Bank hereby makes the following representations and warranties with respect to the Bank Property. Said representations and warranties are true and correct in all material respects on the date of the Agreement and shall be true and correct in all material respects on the Closing Date. A. There are no actions, lawsuits, judgments, liens, suits, claims, investigations or other proceedings pending or threatened against Bank or the Bank Property which relates to Bank's ownership, maintenance, or operation of the Bank Property and would materially adversely affect the Bank Property in light of the Plan. B. Except as set forth in Limited Site Investigation Report conducted for the Bank Property, dated September 28, 2005, there are no claims, disputes, actions, or proceedings existing against or affecting the Bank Property that relate to environmental laws or permits and there are no hazardous substances on the Bank Property. The Bank is not subject to and is not currently operating under any compliance or consent order, schedule,decree, or greement issued or entered into under any environment law. Bank has provided City with such limited site investigation report. C. The execution, delivery and performance of this Agreement and the closing will not conflict with any provision of law applicable to Bank nor result in any breach of any provision of or constitute a default under any agreement or instrument to which Bank is a Ply • 1.4 City Property Representations and Warranties. City hereby makes the following representations and warranties with respect to the City Property. Said representations and warranties are true and correct in all material respects on the date of the Agreement and shall be true and correct in all material respects on the Preliminary Closing Date. A. There are no actions, lawsuits, judgments, liens, suits, claims, investigations or other proceedings pending or threatened against City or the City Property which relates to City's ownership, maintenance, or operation of the City Property or might in any way affect the City Property or this transaction. B. Except as set forth in the(i) Phase I Environmental Site Assessment, dated September 28, 2005, (ii) Limited Site Investigation, dated October 28, 2005, and (iii) Phase II Environmental Site Assessment, dated March 2008, there are no claims, disputes, actions, or proceedings existing against or affecting the City Property that relate to environmental laws or 4 permits. City is not subject to and is not currently operating under any compliance or consent order, schedule, decree, or agreement issued or entered into under any environmental law. City has provided Bank with a copy of the aforementioned three environmental reports. C. There are no general property taxes or special assessments presently due or payable in respect of the City Property. D. City has the right, power and authority to enter into this Agreement and to perform the terms of this Agreement, including the authority to sell the City Property to the Bank for the consideration set forth herein. E. The execution, delivery and performance of this Agreement and the closing will not conflict with any provision of law applicable to City nor result in any breach of any provision of or constitute a default under the agreement or instrument to which City is a party and which would affect the marketable title or Bank's use of the City Property. F. Before Closing, the City shall have the Bank Property surveyed at its • expense and, if legally necessary to conform to applicable laws or regulations, shall also survey • at its expense the abutting bank-owned property to the southeast (on which is situated the.U.S. Bank branch), and shall ensure that following recordation of the deeds after Closing each of the properties will constitute a separate tax parcel. G. The zoning classification for the City Property permits the City Property to be used for a drive-through and teller facility and the current Bank plan, attached hereto as Exhibit"C",complies with all applicable parking requirements. H. No real estate taxes or assessments of any kind are currently levied against the City Property. 1.5 Termination. On or before the Preliminary Closing Date, either City or Bank may terminate this Agreement if any of the representations or warranties made in Sections 1.3 and 1.4,respectively,is inaccurate. 1.6 Indemnity. Bank and City each hereby agrees to indemnify and hold harmless each other from and against and any all claims, liabilities, losses, damages, costs and expenses, including but not limited to, reasonable attorney's fees, by reason of the breach of any representation or warranty set forth in either Article 1 or Article 6 or the "bring down" certificates contemplated by Article 4. 5 Article 2 City Plans;Master Easement Agreement _ City plans to construct, or cause to be constructed, a multi-story, mixed-use retail and residential building, as well as a pedestrian walkway and plaza on the Bank Property. On the Closing Date, City and the Bank shall enter into a Master Easement Agreement, a copy of which is attached hereto as Exhibit "E". The Master Easement Agreement shall set forth the various easement grants that the City will need to realize its development plans, as well as those that the Bank will require to be able to accommodate the City's development and continue its retail banking operations during the development. Article 3 Additional Covenants of the Parties 3.1 Real Estate Taxes. On the Closing Date,Bank shall pay all property taxes on the Bank Property that accrue on the day prior to the Closing Date. City shall pay and be responsible for all subsequent real estate taxes on the Bank Property. At Closing, Bank shall give City a credit for the taxes on the Bank Property from the first day of July prior to possession to the date of possession based upon the last known actual net real estate taxes payable according to public records. However, if such taxes are based upon a partial assessment of the present property improvements or a changed tax classification as of the date of possession, such proration shall be based on the current levy rate, assessed value, legislative tax rollbacks and real estate tax exemptions that will actually be applicable as shown by the assessor's records on the Closing Date. The parties acknowledge that the Bank Property is presently part of a larger parcel owned by Bank, and the land and improvements on said parcel are taxed as a single unit. The parties agree to cooperate with each other in good faith and to consult with the office of the Black Hawk County Assessor to determine an equitable allocation of assessed value to the Bank Property and thereafter an equitable allocation of real property tax for the Bank Property. The sum so determined by the parties is the"Tax Proration." 3.2 Special Assessments. Bank shall pay at the time of Closing all installments of special assessments against the Bank Property which are due and owing as of the day prior to the Closing Date, whether or not same are yet certified as liens. City shall pay all installments of special assessments in respect of the Bank Property which become payable as of and after the Closing Date. Bank shall be responsible to pay all other special assessments not payable by the City pursuant to this Section 3.2. 3.3 Transfer Tax. The parties agree that Bank shall pay the real estate transfer tax (the"Transfer Tax")payable in connection with the transfer of the Bank Property to the City. No real estate transfer tax is payable in connection with transfer of the City Property to Bank. 3.4 Risk of Loss and Insurance. Bank shall bear the risk of loss or damage to the Bank Property prior to Closing, and City shall bear the risk of loss or damage to the City Property 6 prior to Closing. Each party shall insure its respective property in the manner and to the extent it deems fit. 3.5 Existing Drive-Up Banking Facility. Bank shall have continued use of its existing drive-up banking facility on the Bank Property (the "Facility") until fourteen (14) days after Closing (the "Salvage Period"). If the new drive-through facility that Bank plans to build on the City Property has not been completed by the expiration of the aforementioned 14-day period,Bank may extend the Salvage Period for a period of up to fourteen(14) days by notifying the City in writing. During the Salvage Period, Bank may remove any and all equipment and fixtures it desires from the Facility. Any equipment, fixtures, or structure remaining on the Bank Property after the end of the Salvage Period shall become the sole property of City, to be used, discarded, or demolished as City sees fit in the exercise of its sole discretion. Bank shall indemnify and hold harmless the City in respect of any and all injury, expense, damage, demand, claim, cause of action, or liability whatsoever(each of the foregoing being a"Claim")asserted by any person, arising from or in connection with the Facility or the Bank's continued use and occupancy of the Facility or other Bank Property during the Salvage Period. The foregoing indemnity includes but is not limited to reimbursement of any and all cost and expense, including but not limited to court costs and reasonable attorneys' fees and expenses, incurred by City in connection with a Claim. 3.6 Site Preparation. No later than two weeks after the date of this Agreement, City shall proceed with diligence to demolish any structures located on the City Property and to ascertain the presence of any underground tanks, if any. At its sole cost, City shall remove any underground tanks located on the City Property and undertake any remediation activity required by applicable law and obtain a "no further action" letter from the Iowa Department of Natural Resources if the level of any contaminant exceeds State action levels. After the foregoing activities are completed, City, at its sole cost and expense, shall remove all debris from the site and place the City Property in the condition set forth on the attached Exhibit"F". 3.7 Commercial Street Modifications; Curb Cuts. On or before the Closing Date, City, at its sole cost and expense, shall make a suitable cut in the existing median strip on Commercial Street adjacent to the City Property as shown on Exhibit "C",to permit ingress and egress to Commercial Street for westbound traffic from an approved access for the improved City Property. If City fails to complete such work by January 1, 2009, Bank may elect to, but is not obligated to, conduct the work. If Bank conducts such work, (i) City shall reimburse the actual costs of such work up to Fifteen Thousand Dollars ($15,000.00), and (ii) City will cooperate in good faith to secure IDOT's approval,if necessary. If City reconstructs Commercial Street thereafter, City shall, at its option and expense, (i) remove the median ship and permit comparable ingress and egress to and from the City Property, or(ii)make a cut in any future median ship on Commercial Street comparable to the cut depicted in Exhibit"C". 7 Bank may also make two (2) new cuts in the existing curbs on Commercial Street and Mullan Avenue,as shown on Exhibit"C". Such work shall be performed by Bank and is subject to obtaining required municipal and state approvals or permits in advance. City shall use its best efforts to cooperate with Bank in procuring all such municipal and state approvals and permits, provided, however, that Bank retains sole responsibility to satisfy all necessary conditions and requirements. On the Preliminary Closing Date, City shall pay to Bank$40,000 in immediately available funds, which sum represents.Bank's estimate for the cost and expense of the curb-cut work described above. City shall not be responsible to pay any additional sums to Bank for completion of the work in the event that actual costs and expenses exceed$40,000. Upon Bank's completion of the curb-cut work, Bank shall reimburse to City any portion of the funds not expended to complete such work. City's obligations pertaining to the reconstruction of Commercial Street and all post-closing reimbursement obligations of City and Bank stated herein shall survive Closing indefinitely. 3.8 Survival of Agreement. All agreements, representations, and warranties made herein shall not be merged into the documents executed and delivered at Closing, but shall survive, and any claim based on any such agreement, representation or warranty shall also survive,for two (2)years after the Closing Date unless otherwise stated. 3.9 Right of Entry. Each party, its agents, employees,representatives and designees, • may, at such times as are mutually agreeable to the other party, enter upon the other party's property to conduct at the entering party's expense such surveys, studies, noninvasive environmental and other inspections and tests as it chooses. The entering party shall use its best efforts to minimize any interference with the owner's operations on its property. The property owner shall have the right to have a representative present during any such entry by the entering party. The entering party shall indemnify and hold the property owner harmless from and against any liability, damage or loss whatsoever resulting from entering upon the property or performing any such tests, analysis or inspections referred to in this Section 3.9 by the party, its agents, employees,representatives or designees. 3.10 Right of First Refusal for ATM Installation. At Closing, City shall grant to Bank an exclusive right of first refusal for the installation and operation on the Bank Property of any automated or remote teller machine ("ATM"). This right shall be memorialized in a Right of First Refusal Agreement, a copy of which is attached hereto as Exhibit"G". Bank shall file such agreement of record at its expense in the real property records for Black Hawk County. 3.11 Funds for Parking Lot on Bank Property. On the Preliminary Closing Date, City shall pay to Bank $61,000 in immediately available funds, which sum represents Bank's estimate for the cost and expense of the construction of a parking lot on the Bank Property as depicted on the attached Exhibit"D". City shall not be responsible to pay any additional sums to Bank for completion of the work in the event that actual costs and expenses exceed $61,000. Upon Bank's completion of such work,Bank shall reimburse to City any portion of the funds not expended to complete such work,which obligation shall survive Closing. 8 Article 4 Closing 4.1 Preliminary Closing; Closing. A. Preliminary Closing. The closing on the conveyance by City of the City Property to Bank(the "Preliminary Closing") shall occur within thirty(30) days after City notifies Bank in writing that it has completed the site preparation as set forth in Section 3.6 (the "Preliminary Closing Date"). Notwithstanding the foregoing sentence, (i) the Preliminary Closing Date shall not occur until Bank has all permits necessary to commence construction, and (ii) the Preliminary Closing Date shall not occur at any time between October 1 and April 1 of the following calendar year (or such sooner date on which weather conditions permit commencement of construction without extra cost). Bank covenants to use commercially reasonable efforts to procure all necessary governmental approvals prior to the date contemplated by the first sentence of this Section 4.1(A). B. Closing. The closing on the conveyance by the Bank of the Bank Property to the City(the"Closing") shall occur at the offices of City within 2 weeks after a Certificate of Occupancy has been issued for the drive-thru and teller facility t:o be constructed on the City Property, or at such other date and time as is mutually agreeable by the parties (the "Closing Date"). Notwithstanding anything in this Agreement to the contrary, the Closing Date shall not occur any later than the 180th day after the Preliminary Closing Date. Time is of the essence with respect to this latter deadline. City and Bank agree that Title Company may close the transaction and that each closing may take place remotely by mail delivery. Bank shall pay any fees imposed by the Title Company for closing the transaction. 4.2 Deliveries by City at Preliminary Closing. At the Preliminary Closing, City shall execute and deliver, or cause to be executed and delivered,to Bank the following: A. Special Warranty Deed for the City Property, and groundwater hazard statement; B. Abstract of title for the City Property; C. Such documents as are reasonably required by the Title Company, including but not limited to a seller's affidavit; 9 D. Such other documents as are reasonably required to perfect title in the City Property. E. A "bring-down" certificate confirming that the representations and warranties made by City in Section 1.4 relating to title to the City Property are true and correct as of the Closing Date. F. A transferor's certification stating that City is not a "foreign person," "foreign partnership," "foreign trust," or "foreign estate" or "disregarded entity" as those terms are defined in Section 1445 of the Internal Revenue Code. G. Any required Federal Income Tax reporting form. H. A settlement statement consistent with this Agreement. I. The sum of $101,000.00 .in immediately available funds, pursuant to Sections 3.7 and 3.11. 4.3 Deliveries by Bank at Closing. At the Closing, Bank shall execute and deliver, or cause to be executed and delivered,to City the following: A. Special Warranty Deed for the Bank Property, groundwater hazard statement, and declaration of value. B. Abstract of title for the Bank Property. C. Bank's counterpart to the Master Easement Agreement contemplated by Article 2 above. D. Such other documents as are reasonably required to perfect title in the Bank Property. E. Reserved. F. A transferor's certification stating that Bank is not a "foreign person," "foreign partnership," "foreign trust," or "foreign estate" or "disregarded entity" as those terms are defined in Section 1445 of the Internal Revenue Code. G. Any required Federal Income Tax reporting form. H. A settlement statement consistent with this Agreement. 10 I. Bank's counterpart to the Right of First Refusal Agreement contemplated by Section 3.10 above. 4.4 Deliveries by.City at Closing. At the Closing, City shall execute and deliver, or cause to be executed and delivered,to Bank the following: A. If Bank has completed construction of its drive-through facility on the City Property, the Bank Property Purchase Price plus the Transfer Tax and minus the sum of $50,000.00 previously delivered to the law offices of Moyer & Bergman, P.L.C. pursuant to the Reciprocal Easement Agreement between the parties dated September 19, 2005, and subsequently transferred to Title Company, subject to all other prorations set forth in this Agreement. In the alternative, if Bank has not completed construction of its drive-through facility on the City Property, City shall deliver to Bank the amount of actual costs expended by Bank in connection with its development, as set forth in Section 1.2 of this Agreement. B. A settlement statement consistent with this Agreement. C. City's counterpart to the Master Easement Agreement contemplated by Article 2 above. D. City's counterpart to the Right of First Refusal Agreement contemplated by Section 3.10 above. 4.5 Further Assurances. At any time or from time to time after the Closing, each party shall execute and deliver to the other party such other instruments and take such other action as the other party may reasonably request, to effect the transactions contemplated by this Agreement. Article 5 Default If either party shall default prior to the Preliminary Closing Date in any of its respective obligations under this Agreement,the other party,by notice to such defaulting party specifying the nature of the default and the date on which this Agreement shall terminate(which date shall be not less than thirty(30)days after the giving of such notice),may terminate this Agreement, and upon such date,unless the default so specified shall have been cured,this Agreement shall terminate. 11 Article 6 General Terms 6.1 Costs and Expenses. Unless specifically provided to the contrary in this Agreement, each party shall bear all cost and expense of any type or nature whatsoever resulting from or arising in connection with any action that is necessary or expedient for such party to perform its duties as provided in this Agreement, and neither party shall have any claim or right of reimbursement or setoff against the other for any such cost or expense. 6.2 Cooperation. Each party agrees to use its best efforts and to cooperate in good faith with the other party in connection with the performance of the other party's obligations hereunder or matters otherwise contemplated hereby. 6.3 Representations and Warranties of City. City hereby represents and warrants as follows: A. City is not prohibited from consummating the transaction contemplated in • this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of City. 6.4 Representations and Warranties of Bank. Bank hereby represents and warrants as follows: • A. Bank is not prohibited from consummating the transaction contemplated in • this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment. B. Bank is duly organized and validly existing as a national banking association under Title 12, Chapter 2 of the United States Code. C. Bank has full right, title, and authority to execute and perform this Agreement and to consummate all of the transactions contemplated herein, including but not limited to any and all approvals required from federal and state regulatory authorities, if any. D. Each person who executes and delivers this Agreement and all documents to be delivered hereunder is and shall be authorized to do so on behalf of Bank. - 6.5 No Joint Venture. Nothing in this Agreement shall, or shall be deemed or construed to, create or constitute any joint venture, partnership, agency, employment, or any 12 other relationship between the City and Bank nor to create any liability for one party with respect to the liabilities or obligations of the other party or any other person. 6.6 Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight delivery service, by United States registered or certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means),and addressed: (a) if to City, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571, Attention: Mayor, with copies to the City Attorney and City • Planner. (b) if to Bank, to U.S. Bank National Association, Corporate Real Estate, 4480 Emerald Avenue CN-OH-PROP, Cincinnati, Ohio 45242, Attn: Marsha Ward Lane, facsimile number (513) 794-8791; and to U.S. Bank National Association, Corporate Real Estate, 15839 Manchester Road, Ellisville, MO 63011; facsimile: 636- 527-8646, Attention: Paul R. Menner and to U.S. Bank National Association, BC-MN- H21R, U.S. Bancorp Center, 800 Nicollet Mall, Attn: Corporate Real Estate Counsel, Minneapolis,MN 55402,facsimile 612/303-7886. Delivery of notice shall be deemed to occur(i) on the date of delivery when delivered in person, (ii) one (1)business day following deposit for overnight delivery to an overnight delivery service which guarantees next day delivery, (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail,postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. 6.7 Amendment, Modification, and Waiver. No amendment, modification, or waiver of any condition, provision. or term of this Agreement shall be valid or of any effect unless made in writing, signed by the party or parties to be bound or by its duly authorized representative, and specifying with particularity the extent and nature of the amendment, modification, or waiver. Any waiver by any party of any default by another party shall not affect or impair any rights arising from any subsequent default. 6.8 Severability. Each provision, section, sentence, clause, phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid or unenforceable, whether in whole or in part, the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written,and shall be construed and enforced, as so limited. 13 i • 6.9 Captions. All captions, headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 6.10 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors, assigns, and legal representatives. 6.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument 6.12 Entire Agreement. This Agreement, together with the exhibits hereto, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements,whether oral or written, with respect to the subject matter hereof. 6.13 Time of Essence. Time is of the essence of this Agreement. 6.14 "Like-Kind" Exchange of Property. The exchange contemplated by this Agreement is a "like-kind" exchange pursuant to Section 1031 of the Internal Revenue Code. Each party shall cooperate by executing additional documents as reasonably required to consummate the exchange, provided: (a) there should be no delay in the Preliminary Closing or Closing Date; (b) the party requesting the like-kind exchange shall reimburse the other for any additional attorneys' fees and costs incurred as a result of the exchange; and (c) neither party shall incur any additional liabilities or obligations as a result of the exchange except as set forth in this Agreement. 6.15 Brokers. Each of the parties represents to the other that such party has not incurred any brokerage commission or finder's fee as a result of this transactions and each party agrees to hold the other harmless from all liabilities incurred by the other relating to such brokerage commission or finder's fee incurred as a result of the actions of such party. The provisions of this Section 6.15 shall survive termination of this Agreement. 6.16 Cooperation. City shall use its best efforts to cooperate with Bank in procuring all municipal and state approvals and permits required in connection with Bank's construction of the drive-through facility on the City Property prior to the Preliminary Closing Date, provided, however, that Bank retains sole responsibility to satisfy all necessary conditions and requirements. During the first five (5) years following the execution of this Agreement, Bank agrees to consider in good faith alternative arrangements for vehicular parking on adjacent property owned by Bank that the City develops (at its sole cost and expense) and proposes if, in the future, the City determines that additional parking is needed to serve riverfront amenities; provided,however,that in no event is Bank obligated to accept any parking plan or proposal. 14 • IN WITNESS WHEREOF, the parties have executed this Exchange Agreement as of the date written above. U.S.BANK NATIONAL ASSOCIATION CITY OF WATERLOO,IOWA By: c�✓( j� a-�ctic BY: Timothy J.H ,Mayor By: Attest: P4-eL �4 AM Nancy Ecke ity Clerk 15 _ • EXHIBIT"A" Legal Description of Bank Property • • • • US BANK EXCHANGE AGREEMENT ATTACHMENT A PREPARED BY:MICHAEL R.FAGLE, EARTH TECH, 501 SYCAMORE STREET, SUITE 222, WATERLOO,IOWA,50703, 319-232-6531 ACQUISITION PLAT CITY OF WATERLOO, IOWA FEE TITLE ACQUISITION DEED HOLDER: MERCANTILE BANK OF NORTHERN IOWA �o TAXES:FIRSTAR PROPERTY MANAGEMENT 10 ORIGINAL PLAT ON THE 1\ 6 WEST SIDE OF THE CEDAR RIVER °' IN THE CITY OF WATERLOO 9 FRL °° 6. BLK. 2 �<' N41°09'52"E 8 A 185.00' p,' — S� S48°57'19"E L� 60, � 7 242.40' ap 60�-' ` 5 66- • 6 ti6 /0. 60, 4 P.0.8. 3 60- N48°57'19"W \ 5 FRL a6 ` co- 242.79' 1 6 BLK. I 6o j 4 'O_ 7 . 1 \a° / 6-0- 3 L • O 541°02'41"W''•• 60 • 60- 8 4� \ 6 I85.00' 2 \ O� °' L 60- 9 60. Fo s. 1 CF 5 o4,P 60, 60 10\a6 ���k �p 4 60,_ Sj.. h FFT 60_ ��p pF�O``•,, 60 O C �. C4l ',, 3 <p `, O,t,�F�c�4( 60 \ad 6 ,L o CFo�F . 2 60 Sp�FFT 6°' 7 ST�FFT i O � 60_ 8 '.- THIS PLAT OR SUBDIVISION HAS BEEN REVIEWED BY TIE CITY OF Q WATERLOO, IOWA. 60 9 tiQ Signature of City Ordinance Administrator Date I hereby certify that this Land Surveying N * RELOCATED CEDAR STREET (60') document was prepared by me or under my direct personal supervision and •u1. 57°:.('„'� * wrier that l ate a the laws ofState of Surveyor FD REBAR/YELLOW PLASTIC 2 • <^s CAP N0.8505 YICNAII[. •.O i J; I5o5 r; MICHAEL R. EAGLE Tate 0 \ License number 8505 0 50 100 150 200 IOW , My license renewal date is December 31,2008 ""' .AmPages or sheets covered by this seal: ---- ClFFTS 1 AND 7 OF 2 SCALE IN FEET COUNTY PARCEL NO. 8913-26-229-001 EAR T H@ T E C H EARTH TECH PROJECT PARCEL 1-A SHEET 1 OF 2 EXCHANGE AGREEMENT ATTACHMENT A PREPARED BY:MICHAEL R.FAOLE, EARTH TECH. 501 SYCAMORE STREET. SUITE 222, WATERLOO.IOWA.50703. 319-232-6531 DESCRIPTION: FEE TITLE ACQUISITION A PARCEL OF LAND SITUATED IN PART OF LOTS I, 2 AND 3, IN BLOCK 2, AND PART OF VACATED CEDAR STREET LYING NORTHEAST OF LOTS I, 2 AND 3, IN BLOCK 2, AND PART OF VACATED WEST 3RD STREET LYING SOUTHEAST OF LOT I, IN BLOCK 2, ALL IN THE ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, COUNTY OF BLACK HAWK, STATE OF IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT WHICH IS 10.00 FEET NORMALLY DISTANT SOUTHEAST OF THE NORTHWEST LINE OF SAID LOT 3 AND 40.00 FEET NORMALLY DISTANT NORTHEAST OF THE SOUTHWEST LINE OF SAID LOT 3; THENCE NORTH 41° (DEGREES) 09' (MINUTES) 52" (SECONDS) EAST (ASSUMED BEARING FOR THE PURPOSE OF THIS DESCRIPTION) ON A LINE THAT IS 10.00 FEET SOUTHEAST OF AND PARALLEL WITH THE NORTHWEST LINE OF SAID LOT 3, A DISTANCE OF 185.00 FEET TO A LINE THAT IS 15.00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF FRACTIONAL BLOCK 2 OF SAID. ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO; THENCE SOUTH 48°57'19" EAST ON THE LINE THAT IS 15.00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF SAID FRACTIONAL BLOCK 2, A DISTANCE OF 242.40 FEET; THENCE SOUTH 41°02'41" WEST, 185.00 FEET TO A LINE THAT IS 40.00 FEET NORTHEAST OF AND PARALLEL WITH THE SOUTHWEST LINE OF SAID LOTS I, 2 AND 3 IN BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION SOUTHEASTERLY; THENCE NORTH 48°57'19" WEST ON THE LINE THAT IS 40.00 FEET NORTHEAST OF AND PARALLEL WITH THE SOUTHWEST LINE OF LOTS I, 2 AND 3 IN BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION SOUTHEASTERLY, 242.79 FEET TO THE POINT OF BEGINNING. CONTAINING 44,880 SQUARE FEET, OR 1.03 ACRES. E AR T H L1 T E C H EARTH TECH PROJECT PARCEL 1-A v SHEET 2 OF 2 EXHIBIT"B" Legal Description of City Property Lot No. Two(2),except the Southeasterly Nineteen and Fifty-two Hundredths(19.52)feet in even • width thereof in Block No.Three(3)in James Egger's Addition to the Village of Waterloo,Black Hawk County, Iowa. Also That part of the Northwest Quarter of the Northeast Quarter of Section No.Twenty-six(26), Township No.Eighty-nine(89)North,Range No.Thirteen(13)West of the Fifth Principal Meridian, in the City of Waterloo,Black Hawk County,Iowa,bounded as follows: Beginning at the point of intersection of the North line of said.Northwest Quarter of the Northeast Quarter and the Southwest line of Block No.Three(3)in James Egger's Addition to the Village of Waterloo,Black Hawk County,Iowa;thence East along said North line to a point that is Eighty(80) feet Northwesterly of the Northwesterly line of Mullan Avenue,as measured along a line that is parallel with the Northeasterly line of said Block No.Three(3);thence Southwesterly along a line that is parallel with the Northwesterly line of Mullan Avenue to its intersection with a line drawn through the point of beginning and parallel to the Northeasterly line of said Block No.Three(3);thence Northwesterly to the point of beginning. Also,Fractional Lot No.One(1)and the Southeasterly Nineteen and Fifty-two Hundredths(19.52) feet in even width of Fractional Lot Two(2) in Block No.Three(3)in James Egger's Addition to the Village(now City)of Waterloo,Black Hawk County,Iowa. Also all that part of the Northwest Quarter of the Northeast Quarter of Section No. Twenty-six(26), Township No.Eighty-nine(89)North,Range No.Thirteen(13)West of the Fifth(5th)Principal Meridian, in the City of Waterloo,Black Hawk County,Iowa,lying within the following boundaries: Commencing at the point of intersection of the Northwesterly line of Mullan Avenue with the North line of the Northwest Quarter of the Northeast Quarter of said Section No.Twenty-six(26);thence West along said North line to a point that is Eighty(80)feet Northwesterly from the Northwesterly line of Mullan Avenue,as measured along a line that is parallel with the Northeasterly line of Block No.Three(3) in said James Egger's Addition to the Village(now City)of Waterloo,Iowa;thence Southwesterly along a line that is parallel with the Northwesterly line of Mullan Avenue to the point on the Southwesterly line of Block No.Three(3)if extended Southeasterly;thence Southeasterly along a line which is parallel with the Northeasterly line of Block No.Three(3)a distance of Eighty (80)feet to the Northwesterly line of Mullan Avenue;thence Northeasterly along the Northwesterly line of Mullan Avenue to the point of beginning. Also,the Southeasterly Forty(40)feet in even width of Lot No.Three(3)of Block No.Three(3)in James Egger's Addition to the Village(now City)of Waterloo,Black Hawk County,Iowa. ti EXEBBiT"C" New Facility Plans and Specifications for City Property • • i li : ': . : V t _ • _ , :‘,-- .- -:!' i ig $0(1 / Vic; ; L g r I (25 ."4.'7 , *,,e, . `•::- :- - 1 :. '' ,.;: 7 .....f ; :W , � 11.3 �` 1 is to . b 1. Ns .�,.,`r" ` I r 'F lebo mom ammarr.r.oa.ink Fw � ....w. IS E. ZN u a = SD,,,,,...\\\ 3,' t • EXHIBIT"D" • Project Schematic Design Document (shows 12± spaces in front of Bank) • • • • • { 7. I } EXHIBIT"E" Master Easement Agreement 9 Waterloo,IA MASTER EASEMENT AGREEMENT THIS MASTER EASEMENT AGREEMENT (the "Agreement") is made as of March 3, 2009 (the"Effective Date") between U.S. BANK NATIONAL ASSOCIATION, a national banking association("Bank") and CITY OF WATERLOO, IOWA, a municipal corporation(the "City"). RECITALS A. City considers development within the downtown and riverfront areas of the City to be a benefit to the community and has adopted the Downtown Waterloo Riverfront Urban Renewal and Redevelopment Plan (the "Plan"), and within the Plan has designated a geographic area of the City as the"Plan Area." B. Bank, as the successor by merger to Mercantile Bank of Northern Iowa, is the owner of certain real property located within the Plan Area, and the City has targeted said property for redevelopment in furtherance of the objectives of the Plan. C. On this date, Bank and City closed on a transaction pursuant to a certain Exchange Agreement, dated September 2, 2008, by and between City and Bank, in which, among other things, the City and Bank exchanged certain real property in Waterloo, Iowa(the "Transaction"). D. Bank is the fee owner of that certain real property located at 425 Cedar Street, Waterloo, Iowa, as legally described and depicted on the attached Exhibit A ("Bank Property"). City is the fee owner of that certain real property legally described and depicted on the attached Exhibit B ("City Property"). The Bank Property and the City Property are depicted on the attached Exhibit C. E. City's development of the City Property and adjacent parcels (the "Project") includes the following components: (i) expected construction of a multi-story mixed-use retail and residential building ("Mixed-Use Building") on the City Property and adjacent property located north of the City Property, (ii) the construction of a pedestrian walkway, plaza, and surface parking lot on the City Property (collectively, the "Plaza"), and (iii) the construction and reconfiguration of various parking areas, including various surface lots for the Bank's use as described in greater detail in this Agreement. Preliminary drawings depicting certain elements of the Project are attached as Exhibit D hereto. F. To accommodate the City's construction and operation of the Project, Bank desires to grant to the City certain easements rights over portions of the Bank Property. To allow for seamless operation by Bank of the bank branch and office use on the Bank Property and in furtherance of the objectives set forth in the Exchange Agreement, City desires to grant to the Bank certain easement rights over portions of the City Property. 1 Waterloo,IA NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank and City agree as follows: 1. Bank Easement Grants to City. Bank hereby grants to City the following easements subject to the restrictions set forth in this Agreement. All easements identified in this Section 1 shall benefit and run with the City Property, and burden and run against the Bank Property. a. Temporary Construction Easement. Bank hereby grants to the City a temporary easement for the purposes of (i) site work, staging and constructing the Plaza over and upon the cross- hatched portion of the Bank Property labeled as "Staging Area" on the attached Exhibit E; (ii) pedestrian and vehicular ingress and egress servicing the Plaza construction site over and upon the cross-hatched portion of the Bank Property labeled as "Construction Access Area"on the attached Exhibit E; and (iii) reconfiguring, repaving, and re-striping the portion of the parking lot on the Bank Property, referred to herein as the "Reconfigured Parking Lot Area," in accordance with the site plan attached hereto as Exhibit F and specifications reasonably approved by Bank. Promptly after completion of the relevant work contemplated hereunder, City shall repave any part of the parking lot that is disturbed by construction activities and shall restripe the entire lot (including those portions situated on the remainder of the Bank Property) upon completion. Except where the Reconfigured Parking Lot Area overlaps with the Staging Area or Construction Access Area, City may not enter into the Reconfigured Parking Lot Area until the seventh(7th) day after City notifies Bank in writing of its intent to commence work thereon. To mitigate against the risk of injury or damage to persons or property, Bank agrees that City may erect temporary barriers to segregate the Staging Area and/or Construction Access Area from the remainder of the Bank Property to exclude persons who are not engaged in the purposes for which the easements herein are granted; provided, however, that at no time shall City obstruct or in any way obstruct any access point along Cedar Street to Bank's remaining property without Bank's prior consent. City's use of the Staging Area and the Construction Access Area shall be exclusive. The easement rights granted under this subsection(a) shall commence on the date of Bank's receipt of written notice from the City of City's intention to commence construction of the Plaza, but in no event earlier than the fifteenth (15`h) day after the Effective Date of this Agreement (the later of such dates being the "Trigger Date") and terminate once any part of the Plaza, including the underlying parking lot (the "Covered Parking Lot"), is open to the public. 2. City Easement Grants to Bank. City hereby grants to Bank the following easements subject to the restrictions set forth in this Agreement. All easements identified in this 2 Waterloo, IA Section shall benefit and run with the Bank Property, and burden and run against the City Property. a. Temporary Parking and Access Easement—Prior to Construction of Plaza. City hereby grants to the Bank a temporary easement for the exclusive use of the land legally described and depicted on the attached Exhibit G(the "Open Plaza Parking Area"). Bank may use the Open Plaza Parking Area in the same or similar manner as the Bank used such land prior to the Transaction. This easement shall commence on the Effective Date and terminate on the Trigger Date. Bank shall maintain the Open Plaza Parking Area during the term of this easement in a manner similar to that in which Bank maintained such land prior to the Transaction, except that Bank shall not be obligated to repave or re-stripe the Open Plaza Parking Area. So long as City does not interfere with Bank's use of the Open Plaza Parking Area during the term of this easement, City may enter onto the Open Plaza Parking Area to conduct any non-invasive tests or investigations related to planning for Plaza construction. b. Permanent Parking Easement for Remote Lot. City hereby grants to the Bank a permanent easement over and across that portion of the City Property depicted on the attached Exhibit H (the"Remote Lot") for the use of twenty-eight(28)parking spaces (which are numbered 1 through 28 on the exhibit) and non-exclusive use of the drive aisles and access points located thereon and related uses. Bank's use of the twenty- eight (28)parking spaces shall be exclusive during the customary hours of operation of the bank branch on the Bank Property, otherwise such use shall be non-exclusive. Such easement shall commence on the Trigger Date. City agrees to number the parking spaces and to install reasonable signage identifying such spaces as "leased"parking. City shall maintain and light at its cost and expense the Remote Lot in the same manner in which it maintains the remainder of the parking lot serving the Waterloo Center for the Arts (the "Center"), except that Bank shall reimburse to City Bank's pro rata share, based on the number of parking spaces, of reasonable costs for repaving, re-striping, or plowing the Center parking lot (including the Remote Lot). Bank may reasonably withhold approval of the plans and specifications for the Remote Lot if the Remote Lot does not contain twenty-eight (28)parking spaces and is not located in approximately the location set forth in Exhibit H. c. Temporary Parking Easement. City hereby grants to Bank a non- exclusive temporary easement for the purpose of ingress and egress,parking, and related uses over, upon, across and through the property depicted as "20 spaces" on the attached Exhibit I. Such easement shall commence on the Trigger Date and terminate upon the City's completion of the Remote Lot and the reconfiguration, repaving, and re-striping of the Reconfigured Parking Lot Area in accordance with the site plan attached hereto as Exhibit F and specifications reasonably approved by Bank. Bank's use of this easement area is limited to the customary hours of operation of the bank branch on the Bank Property. Bank shall take commercially reasonable efforts to inform its employees, guests and invitees to use this easement area only as necessary for the purpose of daily bank business and for no other purpose. Upon termination of this easement, Bank will 3 Waterloo,IA return the easement area to City in substantially the same condition as it existed upon the Effective Date. d. Covered Parking Lot Easement. City hereby grants to the Bank an easement for the non-exclusive use of the parking lot and ingresses and egresses on the City Property legally described and depicted on the attached Exhibit J. This easement is conditional and shall be in effect only if the Mixed-Use Building is not constructed, in which case this easement shall commence once the Covered Parking Lot is functional. If the Mixed-Use Building is built at a later time,then this easement shall terminate sixty (60) days after delivery of written notice from City to Bank. Bank's use of this easement area is limited to the customary hours of operation of the bank branch on the Bank Property. Bank shall take commercially reasonable efforts to inform its employees, guests and invitees to use this easement area only as necessary for the purpose of daily bank business and for no other purpose. e. Overflow Parking Easement. City hereby grants to Bank a non- exclusive permanent easement for the purpose of ingress and egress,parking, and related uses over, upon, across and through the property depicted as "overflow parking area" on the attached Exhibit I. Such easement shall commence on the Trigger Date. Bank's use of this easement area is limited to the customary hours of operation of the bank branch on the Bank Property. Bank shall take commercially reasonable efforts to inform its employees, guests and invitees to use this easement area only as necessary for the purpose of daily bank business and for no other purpose. With respect to all easements granted under this Section 2, City shall provide no additional security for the employees, agents, guests and invitees of the Bank and their respective vehicles and possessions. The Bank's employees, guests and invitees may use each of the easement areas set forth in this Section 2 subject to the limitations set forth herein. 3. Plaza Improvements. If City elects to construct the Plaza,then the City, at its expense, shall construct the ground surface parking lot on the City Property at an elevation approximately level with the existing site elevation, and such lot shall be paved with asphalt and integrated with the existing surface parking lot on the Bank Property so as to minimize,to the extent reasonably possible, any drop or raise in the grade between the surface parking lots on the City Property and the Bank Property. Following completion of the Covered Parking Lot and Plaza, City shall, at its own cost, be responsible for ongoing maintenance and repair of the Covered Parking Lot and Plaza walls, supporting pillars, roof or ceiling, and other structural elements and for any and all reasonable or necessary maintenance and repair of the driving and parking surfaces designed for vehicular traffic in the Covered Parking Lot. Bank shall pay a reasonable pro rata share, based on the number of spaces it uses on a daily basis, of the parking surface maintenance costs. The overhead pedestrian plaza and walkway shall be constructed so that a minimum clearance of seven (7) feet is provided from the ground surface of the Covered Parking area. 4 Waterloo,IA 4. General Terms Regarding Easement Grants. A. Maintenance. Except as otherwise provided in this Agreement, the grantee of each easement (the "Grantee") shall maintain and operate the easement area, and any permitted improvements at its sole cost and expense, in a safe and workman-like manner and shall keep and maintain the same in a professional and sightly condition at all times. B. Use. Grantee agrees that it shall comply with all rules, laws, ordinances and requirements regarding its use of the easement area and shall obtain any and all required permits and licenses at its sole cost and expense. Grantee shall use the easement area only as necessary for the purposes described in this Agreement and shall use its best efforts not to interfere with use and enjoyment by the grantor of the easement(the "Grantor") of Grantor's property. Grantee shall keep the easement area free and clear of debris at all times and shall not use the easement area for the storage of material. C. Indemnity. To the extent permitted by applicable law, Grantee hereby indemnifies and holds Grantor harmless from and against any injury, expense, damage, liability or claim imposed on Grantor by any person whomever, whether due to damage to the easement area, claims for injuries to the person or property of any person in, on, or about the easement area for any purpose whatsoever, or administrative or criminal action by a governmental authority, whether such injury, expense,damage, liability or claim results either directly or indirectly from the act, omission, negligence, misconduct or breach in the use of the easement area or the terms of this Agreement by Grantee, its agents, employees, servants, contractors, or any other person entering upon the easement area under express or implied invitation or consent of Grantee. Grantee further agrees to reimburse Grantor for any costs or expenses, including, but not limited to, court costs and reasonable attorney's fees, which Grantor may incur in investigating, handling or litigating any such claim or any action. D. Damage. Grantee agrees to promptly repair any and all damage caused to the easement area or the Grantor's property by Grantee, its employees, agents or contractors. E. Insurance. Grantee shall require its agents and contractors, if any, to carry worker's compensation insurance as required by applicable law and comprehensive liability coverage for injury to or death of a person or persons and for damage to property occasioned by or arising out of any use of the easement area. Grantee shall maintain such liability and property damage insurance coverage (and may self-insure) as it deems reasonable in its business judgment. F. Grantor Use of Easement Areas. With respect to any non-exclusive easement grated hereunder, Grantor reserves the right to use the easement area for any purpose not inconsistent with the rights granted to Grantee in this Agreement. Grantor may not use any easement area for which an exclusive easement was granted. 5 Waterloo,IA G. Mechanic's Liens. Grantee shall not create or permit to be created or to remain, and shall discharge, any lien, encumbrance or charge (levied on account of any mechanic's or materialman's lien) which might be or become a lien, encumbrance or charge upon Grantor's property or any part thereof. If any mechanic's or materialman's lien on account of work performed at the direction of Grantee shall at any time be filed against the Grantor's property or any part thereof, or prior to the commencement of any action to enforce such lien, whichever is earlier, Grantee, within ten(10) business days after notice of the filing thereof, shall cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Grantee shall fail to cause such lien to be discharged within such period, then, in addition to any other right or remedy, Grantor may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event Grantor shall be entitled, if Grantor so elects, to compel the prosecution of an action for the enforcement of such lien by the lienor and to pay the amount of the judgment in favor of the lienor with interest, costs and allowances. Grantee agrees to reimburse and to pay to the Grantor on demand any amount so paid by Grantor and all reasonable costs and expenses, including reasonable attorneys' fees, incurred by Grantor in connection therewith, together with interest thereon at the prime rate from the respective dates of Grantor's notice to Grantee of the making of the payment or the incurring of the cost and expense, including such reasonable attorneys fees. 5. Successors. The easements, rights and obligations, including, without limitation, the maintenance obligations provided under the terms of this Agreement shall be binding upon all entities having or acquiring any right, title or interest in the Bank Property or City Property, respectively. 6. Breach; Self-Help Rights. It is expressly agreed that no breach of this Agreement shall entitle any party to cancel,rescind or otherwise terminate this Agreement. However, such limitation shall not affect in any manner any other rights or remedies which a party may have under this Agreement or under any applicable law by reason of any such breach. If either party fails to perform its maintenance or repair obligations under this Agreement within a commercially reasonable time,the other party may, but is not obligated to, complete any or all of such obligations (i) upon fourteen(14) days' notice to the nonperforming party in the case of a non-emergency, or (ii) without notice to the nonperforming party in the case of an emergency. The nonperforming party shall reimburse the performing party for all reasonable costs and expenses incurred by the latter upon demand. 7. Amendment. This Agreement may not be amended or modified except by written agreement signed by both parties. In the event any provision of this Agreement shall be held invalid, the same shall not affect in any respect the validity of the remainder of this Agreement. 8. Notice. All notices, demands and requests (each a"notice") required or permitted to be given under this Agreement must be in writing and shall be deemed to have been properly given or served either on the date of hand delivery or the date such notice is deposited with the 6 Waterloo, IA United States Mail, addressed to City or Bank, as the case may be,prepaid and registered or certified mail or delivery charges prepaid, return receipt requested, at the following addresses: To City: City of Waterloo Attn: Mayor 715 Mulberry Street Waterloo, IA 50703 with a copy to: City of Waterloo Attn: City Planner 715 Mulberry Street Waterloo, IA 50703 To Bank: U.S. Bank National Association Corporate Real Estate Attn: Paul Menner 9321 Olive Blvd. St. Louis, MO 63132 Telephone: (314) 216-4484 with a copy to: U.S. Bank National Association Attn: Corporate Real Estate Counsel U.S. Bancorp Center BC-MN-H21R 800 Nicollet Mall Minneapolis, MN 55402 Rejection or refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice, demand or request. Either party shall have the right from time to time and at any time upon at least ten(10) days' written notice thereof, to change their respective addresses, and each shall have the right to specify as its address any other address within the United States of America. [Remainder of page intentionally left blank. Signature pages and exhibits follow] 7 Waterloo,IA WHEREFORE, Bank and City have executed this Master Easement Agreement by their duly authorized representatives as of the date first above written. BANK: U.S. BANK NATIONAL ASSOCIATION By: Its: By: Its: STATE OF ) ) ss. COUNTY OF ) On this day of , 2009, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and sworn, personally appeared and , to me known to be the persons of U.S. BANK NATIONAL ASSOCIATION, the national banking association that executed the within and foregoing instrument, and acknowledged said instrument to be a free and voluntary act and deed and the free and voluntary act and deed of U.S. BANK NATIONAL ASSOCIATION for the uses and purposes therein mentioned; and on oath stated that each was authorized to execute the said instrument on behalf of said U.S. BANK NATIONAL ASSOCIATION. IN WITNESS WHEREOF I have hereunto set my hand and official seal this day of , 2009. Notary Public 8 Waterloo,IA CITY: CITY OF WATERLOO By: Timothy J. Hur , ayor ATTEST: By: Nancy Eckert ity Clerk STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) On this ( f day of .f(, ,t,{AAlf , 2009, before me, a Notary Public in and for the State of Iowa personallyappeared Timd'th J.pp y Hurley and Nancy Eckert, to me personally known, and, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa; the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council as contained in Resolution No. 2008-768 adopted by the City Council on September 2, 2008, and that Timothy J. Hurley and Nancy Eckert acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. otar Public 40" • Waterloo,IA PARES SYy)4IC 'tEL R.MILE, =rii TH in, 523 SYCffi$Tpf' S.watt SLATE 222. th;37ERLte,tr.4 _0707. 513-222=9531. CITY OF WATERLOO, IOWA REMAINDER DESCRIPTION DEED HOLDER MERCANTft.E BANK OF NORTHERN tOWA • TAXES:fIRSiAR PROPERTY MANAGEMENT tl. ` / 10 / ORIGINAL FLAT ON THE N \, / TEST SIDE OF THE CEDAR RIVER r ti ° 9 FRL INTHE CITY OF WATERLOO f' ; r / /3 60, , / 0.- 7 / \ r />,,, \ -,()_\<'" / 6 • • rr / 4// \ c/jis\ -5..\ fl N4i° Z'41 f z �,,, / 7 / \\,..,LR-.\ /X% 1 .7/ V" - ,� 3i=?.83r '//\,\>„,:V // .- / ‘2\\s}Y\:>(/ P., 60:\ / / -,_,.,y • G. / 9 / s S `d. mac? rV d \ �P I 6 /10 \\\°-176. / c;* / \\*\\//x\1/4• / !,., \-..... • • • -‘,,!'a /4* s Ted~'N. 1' co, , 2 o 307.2, B .c T 1)0, N. 6 ,1,-.<s„ ..., / • s\E / 8 / t c41°I0`21" 1 Pt?T�SPODIVISIDD*1 DE.N PEY[£', 0 aY(tfc Cill Dr' \� ...: , �' / ,:G Yd?EEL319.tefat. 9 / I P.G.B. S gn:ara Pt C;ij 0r-lynarer Adzir,Istra..a- i a 'I J S.txreey caritrry that t4us lard Sarver/tagki zt RELOCATED CEDAR STREET 46 `� Jwuwat ras Prrgsardl Dy mu or ricdnr Illy 41,-rct Frreowi tm,Pretr tan mt twro®,_ Out I an a duiq Licensed LaNt itrver� • Fri REbAR!!E#L W PLASTIC �',5�� tirj wrw the Taws at to asapo or lava. C.-.P N+J,85G5 ' ;4i .YC4t4t I. O. • b ling F KIWI p.f'3 .0 �:xr - +... (Joins.mrrn::, e5av 0 50 100 3B0 200 tbWi 3t1'ltci�ssa rvnevat rite is 0.cesuer 3t,2[rJ3 P4'4t0 Q:ze CWdaLtt tY kb oe^SO!6 "IS IOC z 2F 2 SCALE IN FEET ( COL NIT PARCEL. NO.8913-26-229-001 EA RTH T G + EARTH TECH PROJECT PARCEL T-B SHEET 1 OP 2 • Waterloo,IA PmEPARED BY:MICknEL. VASLE, EARTH TECH, 53L SYCAMCP,C WPM, SLOE 222, atI1EPaDE 10.144 532133, 214,2M-031 DESCRIPTION; REMAINDER PROPERTY A PARCEL OF _AND SITUATED IN PART OF LOTS 2, 3, 4 AND 5, IN BOO( I, AND PART OF VACATED CEDAR STREET LYING NORTHEAST OF LOTS 1, 2, 3, 4 AND 5, IN BLOCK I, AND PART OF VACATED 3RD STREET LYING NORTHWEST CW LOT 5,, IN BLOCK I, ALL IN THE ORIGINAL PLAT ON THE WEST SCE OF THE CEDAR RIVER IN THE CITY OF WATER100, COUNTY OF BLACK HAWK, STATE OF IOWA. MORE PART!CULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHEAST LINE OF SAID LOT I, WHICH IS 40.00 FEET NORMALLY DISTANT NORTHEAST OF THE SOUTHWEST LINE OF SAID LOT I; THENCE NORTH 48° (DEGREES) 57' (MINUTES) 19" (SECONDS) WEST (ASSUMED BEARING FOR THE PURPOSE OF THIS DESCRIPTION) ON A LINE THAT IS 40,00 FEET NORTHEAST OF AND PARALLEL WITH THE SOUTHWEST LINE OF LOTS 1, 2, 3, 4 AND 5 IN BLOCK I OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION KRTHWESTERLY, 307.21 FEET; THENCE NORTH 41o24r EAST, 125-00 FEET TO A LINE THAT IS 15-00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF FRACTIONAL BLOCK I OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN TI-F C 1TY OF WATERLOO; THENCE SOUTH 42°571'9' EAST ON THE LINE THAT IS 15_00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF SAID FRACTIONAL et..,:_)cK 1, A DISTANCE OF 307-E3 FEET TO THE PRESENT NORTHWESTERLY RIGHT-OF-WAY LINE OF PARK AVENUE; TiC_NCE SOUTH 41°10'27' WEST ON THE PRESENT NORTHWESTERLY RICHT-OF-WAY LINE OF PARK AVENUE. ALSO BEING THE SOUTHEASTERLY LINE OF SAID LOT I AND ITS NORTHEASTERLY EXTENSION, 185.00 FEET TO THE POINT OF BEGINNING. CONTAINING 5E,873 SQUARE FEET, OR 1.31 ACRES. • Waterloo,IA EXHIBIT B � Legal Description of the City Property [See following 2 pages.] • • • { • .. Waterloo,IA FPX-MRE3 al:wocHAEL f;?,FACLE, EATthi TEDI. 5,M SYCAPIESE ST .'t T. TUCTE_?22,. WriTER_I3O,101iA,59723, 3P)-222.-65,3! ACQUISITION PLAT CITY OF WATERLOO,IOWA FEE TITLE ACQUISITION DEED HOLDER: MERCANTILE BANK OF NORTHERN IOWA TAXES: FIRSTAR PROPERTY MANAGEMENT •fis,- . \"<" 10 / ORIGINAL PLAT ON THE N WEST SIDE OF THE CEDAR RIVER „ / ,:., $4,,,. / IN THE CITY OF WATERLOO ? -.0 ,. -..., ' a FRL \BLIt. 2 „..„, '52E* NC DS --i / ,„r 185,00' V N\ • 4, // ''--, eo.:\ , ,6< 7 " Id-/ 66.-.,...y • \\/(r s. 4.' .. \ N , \ / :// A / .N.. NN- , / . c -,,,,.. /> 212.7.9, / sl (4,_ 5 / BL'KR:LI „2 / 65::\> I\ -.4ar* , • G co. 7 // / i / ',.. 4.,/ / \ \ : 7\BL / 2 / / e / \ \\\< / N\ / „ 43,•/' "5:9'. 44;,. N, .,:<e:\\a_ . / 9 4 , ..-- Co_ 42.0 \ / 1 . \\</ / Clc'1, N X 6, . / 4,iy '... -.... \0,..\/..\> „..<,t,./ <</ 4 ci L • ‘4)4 .-- • eb p \•, 7 -\•- \*. .4C'.+ . . . DM PUY GI WE3CrISION?OS BIE9 ammo 3Y 114 CRT 1W N'N/1 • WatItC0. gfolk, \12, / 5 \>ri5•1' • Swots...*et s:ty&delete*kftwastrirtar Wu, -,,t 7 I hereby carte,that thle Ulla Sap/vying . 2 RELOCATED CEDAR STREET i501 • dPC.44,11.Aa5 r'WIMP by me or sailer , . hrehrete perveaosi sestsersele see 04 4,0 • FD EL REBARIYLDW PLASTIC,u=trt"i 49119rLra Z•etadt:'11 tr.r. ' CAP t.10.8505 .lei%ICU Mt I 1 0 1' HitigEt.A.,.,tax "7./Au, 1 ,. 0 50 TOO 150 200 ... ,.... Llama.mob. isnt ,.....); ‘.„,.,.. Pei I warms raven!4ata Is Decry*,hit OS: MIMS MIME ' .. • P4ges ac yht-Al vy rux•resr he 15 pr..al' MN= 1111•111•11 WE5 tuse72 SCALE IN FEET COUNTY PARCEL NO.8913-26-229-001 • EA RTH@T t C ii EARTH TECH PROJECT PARCEL 1-A . SHEET 1 OP 2 • • Waterloo,IA MINPED:SY!>111.7iitAEL. P.mos, MTH ;ETA i.SYCAMD.RE STREET. RUE 2?Z. WIETRAC,10t4.50723. 315-2-32-01 DESCR IPTION: FEE TITLE ACQUISITION A PARCEL OF _AND SITUATED IN •PART OF LOTS 1,2 AND IN BLOCK 2.AND PART OF VACATED CEDAR STREET LYING NORTHEAST OF LOTS L 2 AND 3. IN BLOCK 2. AND PART OF VACATED WEST 3RD STREET LYING SOUTHEAST OF LOT I. IN BLOCK 2. ALL IN THE ORIGINAL PLAT ON THE WEST SCE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, COUNTY OF BLACK HAWK, STATE OF IOWA, ORE PARTICULARLY DESCRIBED AS FRIO WS: BEGINNING AT A POINT WHICH IS 10.00 FEET NORMALLY DISTANT SOUTHEAST OF THE NORTHWEST LINE OF SAID LOT 3 AND 40.00 FEET NORMALLY DISTANT NORTHEAST OF THE SOUTHWEST LINE OF SAID LOT 3; THENCE NORTH 41° (DEGREES) 09'(MIP,ILITES) 52" (si:cornros) EAS- (ASSUMED BEARING FOR THE PURPOSE OF THIS DESCRIPTION) ON A LINE THAT IS 10.00 FEET SOUTHEAST OF AND PARALLEL WITH THE NORTHWF_ST LINE OF SAID LOT S. A DISTANCE OF 185.00 FEET -0 A LINE THAT IS 15.00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST. LINE OF FRACTIONAL BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SCE OF THE CEDAR RIVER IN THE CITY OF WATERLOO; • il-ENCE SOUTH 48°57'19" EAST ON THE LINE THAT IS 15.00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF SAID FRACTIONAL BLOCK 2, A DISTANCE OF • 242.40 FEET; THENCE SOUTH 41°02'41" WES-, 185.00 FEET TO A LINE THAT IS 40.00 zEET NORTI-EAST OF AND PARALLEL WITH THE SOUTHWEST LINE OF SAID LOTS I, 2 AND 3 N BLOCK 2 OF SAID ORIGINAL PLAT OH THE WEST SIDE. OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION SOUTHEASTERLY; THENCE NORTH 48°5719 WEST • ON THE LINE THAT IS 40,00 FEET NORTHEAST OF AND PARALLEL WITH THE SOUTHWEST LINE OF LOTS I. 2 AND 3 IN BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION SOUTHEASTEPLY, 242.79 FEET TO THE POINT OF BEGINN CONTAINING •44.B80 SQUARE FEET, OR 1.03 ACRES. • • • 4 i Waterloo,IA T' } i EXHIBIT C Aerial Photo of the City Property and Bank Property 1 �� } z P 'f r� bt q ti. t _ .1..e� S: � r' it .R..u4M 1. .,,_RRr_... ` a , a a4dS+tee' a.i*M: .e.Mor #WU' ♦ 1. .y`�`t'„�`t' "-ate ; / r,F..� .y # +, x: ' "` its 'rim ..1. I ' f-'."' 11.S. -11' '''' i ' '... - $).,,,p-,..A.,,„5,4 !I-1P-, y, f +� s d ` - F . • R- _ IL" -.4 .t.' \ 'C ^ t j�-..x i .Z :4� � q� �� 1L� !.^O F 'i +'i -�`:ii F ,.?'` _ -1- x'`� • .--r... .,,,, ,i,:..,-,.;_rii,-ks,,.....,:‘,-..1.tev.,7.:.:.2.,..:_,..,;;;,.. .,... .,;:i_.,,,; _. ... _,... t g. t .,:.;j4k-,414-_1: . , ♦ z $ t i .-:-: r - ;:--z.i*-7.e.4=-4-&- ` t k ii L : �" , 3' � r c t j 1 1 A SC .tag _ 1 � .*i — •••--.7..__ - . - ei, i.,„_ :......= , ri' t p, ' ' #4 ':: : �_..--...-...B_ - '6,- ,r .rvie., Cyr' zi • M .. a7 � ,. z. ; -s = EP r i r I Waterloo,IA EXHIBIT D Prel'urinary Drawing of the Project yfi ,yzFt` < tr z car) rittio q is til q r' go/F2RA''..;Z-Irr'''-•:-•:, -74: : '' -.:-'-' '',47/.,' • '.''' -1'"'''''''. - ...' .. c . • a ! e(a . :.• T "r . . ., _74,.---:t:.=j- t'iqa&l:1:: .• -----r, Al ''- . ;:',:, ;.:Athi-,---,,..„-;.. '.' :-.;. .. ''i dos,„5 . ptp.",:,-0. • .,1-..:,:*1.11t, )- ,--:: ..-- . 0 _ rgrjt�£ c .,;y-'G.c,,`vim-•3 x .# r '-- 1'+�'_ `��.n:4 A 7 E :� yit).„4, I - ryir - dllf y _ ' _ Tyra" - 54 icn f \ - �x^*� �. 3 x • ixS< i ; �S E CI W a) ,4 td E U 14 t�! 1 i:" e 1. _c:;:- ',:i. :-ft-tl:r.••4:_.-tN';',,-4.104 ..7---7qrs; ...V i ';:- - - :74-•r.,' . p ! M fir• (�r'�; M.1 .t'a ! aittiY`' 147t- y ! VV .saa .. '*4. #..Y�4rt.-etc 5 ".n ' 4 . r i Waterloo,IA �; 4 { E EXHIBIT E Depiction of Temporary Construction Easement Area(Sec. l.a) :7"7 ,--eI L,'1.t1.d..,,s'„_.r.._.-.-.-.;•-._..,:=„—L-..,:..,'-„.v..k..•,e3•.:-•••-.--'•:-„•'.-_.,„-.-,,,7_-:',,;,',•_;.1:_;=,:„!,.7',.-t:..1;;K.r.-,t;-..4.-,*.:,f,:;4;.--3:..•,. x - 'ter 4 =_ ,r_.;.,1,•, .,.-'-,.,.-,47.P„':1 ..J,. .r_,-_—„...,1t.:4,,-- --:7.,,;,,.#-;,,",,,, ,,;,,,:',"t4'.- .:-;--,4.3;, - t.''..•t. 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',7-,*--•::--;,.', - , , ` - I 1 Waterloo,IA ' 1 f 1 EXHIBIT I • Depiction of Temporary Parking Easement Area(Sec. 2.c) i ! 3Ar'''' -g.--7..''''V.,. e .- i 1 '.. 7 ',t'}1C: t—"l 'Y . b sLi ' !.f+—'-.'ten'.-1 .o¢... _" ', ry-��' 'X— _ �"— -;.r- M: /e r - 1‘,-?'.,,-,..""' "•` _ :• t I"'yr x'� — ,`-'4 }} = i �.` _ 4 d cam.. ,....L__„,,_._,...„..._,.. . :a a fir,-._1____,—_—,_,.,__... , , ,,,...,,,:_. ,- — a i i r ,.� x R ti'. ! „... ,. . r -_ r �:., s f...I __ :, _, ..- 1-7 s c ,. -e ms,-- z -— ; .,, -%.-- . j „ i wilt .s c �1 ! • • it i I se '� .—"LL 9..T'S't h ����++ .µ,! L le, "- - �.�ic `-- _-,-e ' -,- �,;,, -fit } ++lR! �: ! a vi,..r, _ ,-___:::,..: -.4._ 7,,,_-__,-,74,,:i.elf i 1,L•2;_„.i.i i ,.x.s . _ 1 ::: •.,. , „3„..,:., ,.1. 4 "9 - a - i a C. • ,_, _ f,,,,,, .4.1-,_ ri : : __...-1,,,,,or' -.4.-;.„0.;.-x-AV, : ;1- .- y 44 apex r � � yv t 4ft " I � I 11 "�` = j i Waterloo,IA EXHIBIT J Depiction of Covered Parking Lot Easement Area(Sec. 2.d) r �' /4\ < ,,,,,/ r "' .+ • V . IN THE CITY OF Of TERLal / -. /BLS. ' N _ t �fj� /s' €' ,;"'j— (,k \ 4-\ ' ,r�'—s. "rIFE. �a.,okr 4 . ,, - . e To,. ii. e / ),,,,i 'N>t<'i ." %,, ."' -'s ..,\X an 4 / >,, �F b'a S e a / :s.y, ..„. r' A x AP /°'V P I>e%.46 r F ,A `` fi. et y: ,(' y `,..�. 1 a t r° -, 44 i_ ,r C F 4*4.4.-kraomratr Rra, r / ::xrLfN a..eC 52,a hart"qt.e xi �? an»w1 t}s>sm"r , Irt.:.0 kTE:.': u.%.E#bi Es t`. r_!.\-t tMieMx7S Nat (ieDi.at 1.a htrk t imeere Lrai nr_a ur Ai Ad ti•Ma s Rt9 t3 ES 1 t e��1 7 r €kF fi4_ i, "Al r_rai: sue: 9915 a 50 100 1,50 200 '4 Ixnme.renl al tlsxe ne left**+?L2 N ::avr�,"a.e.Ea�r .u.am _ f�S1+et kif IN FEET E x f B t c M �' FARCE.8912-26-2.29-0 1 EARTH TECH PRGGT PARCa 1-H SHEET 1 OF 2 • • Waterloo,IA • .Fpizwes 53144,04:SL £ T4 t51,714,(MrJTSUIE Z2Z., -141ak=EIAM.V703. 3.151-.Z.."72-Sea •• • DESCRIPT01; PE.P.MAN-2-NT AaIAL„,CONSTRLCTIM NC LIAINTENANZE EASEMENT AN OP LAL Fi4SEMENT FOA WILDOZ PUR•i"Ol'S'ES„.wit AN EA-SI:WWI FOR SLIP1 ANe INT94ANCEOiSULNG On,CND; MID it&WE THAT Pv7.(riON FVACATED AST !PO ST4EF.T Ll'•llsiG 'BEf WEENLCCc I APC a.:0.C1f, 2 MC 7141i POP'T FON OF VACAT'a cEpot STREET LYNG 43THEAST OF KOCK 1 AN6 SLCCIK 2,ALL OR EANAL PLAT ON T•14. WEST SEE 'Dr TEE CEOAP, -RIVER 1•14 THE CM( Of• WitTE.RLOO. utiTY OF D_ACX. HA:WK.„574 TE OF OWA,AMIE. PARTICULARLY CESCREED Aj -zoLLunt :ahruamws AT POINT INCH ;15: 10.00 FEET WARMALL' DIZ-TIVIT SOUTHEAST OF WRTHVEST LE OF LOT 3.BLOCK 2 OF SAID ORIDOtAL PLAT ON THE WEST sicE OF rritE CEO RWSi THE OITI OFWATERL.CO, ND 4.-aso FEET NORMALLY' CiSTANT Ni,ORTK-..A.ST CO" 'FOS SOUTg-40-:-ST LIY2E. OF LOT 3 KOCK. 2 OF SAID ORPZAAL MT Ot.4 • 2EST SME OF THE MAR RUE C1T'; OF WATER. . THEACE SC:LIN /le :DEOPEES) twitill--3)132 (''!.17;1W.)EAST IASSMCD KAP INC FOR TH2 F''LIPPOSiE OF THIS O-UCIPTIOK ON LJNF,, TtIAT 4040 FEET NOSTREAST 4:5 .040 PAR4cLEL W-1711 Tr E SOJST LIE OF LOTS t.2 ANC 3 P1 2 OF SA4..7 ,ORICAZAL. PLAT OM 74: REST SIDE. Of THE CEDAR PAVER ft THE CT' OF 'A'ATEP400.AIC ITS F-XTENStN liaLM-6451EfiLl.a479 FEET;TI-EkOE PaRTH 4ft2'Ar EZET, COtO, FEET TO TiE POKI BEOINNRC OF 'PIE PARCEL HETrEN LIES:::R!BED;THEIC.E. COlfri143.1NO tiORTH • 4F`02'41'EAST, 3647.0-C PT TO a LINE THAT 5 t5.013 EtSOLiTHIES' OP ANJ LLEL WfT11 ThF SOUTHWFST LE OFFRAC-70,1NX &._"OCK 4.4D FRACT 10.04L 3L 2 OF SAD SFACINA-L PLAT ON TIE !.EST SZE OF ME CEDAR RriER IN THE CrlY 3F It ATERAX4 THENCE SCUM 4.3..c5r1Se EAST OP IIHF UNE THAT tS IX FEET SOL:THIEST OF :IND PARALLEL WITH THE SOUTHWEST LIE OF FRACTPOtAl. aCC . Atta ;PACTIC44AL Bi.04:!K 2 Cf SAriZ; ORIC,04:4L PLAT ON ME of.7.-sT SICE. CEN,P 31ER IN THE CITY OF ATELCO..EE..00 FEET$THENCE SCIPTH 414)02.4r WEST,.tE.7,00 LET; NORTH 413''SirL9' +36-CO FEET TO THE POINT OF OWTAINIIC, :11,323S SOUARE ;FEET,.•:`,41 0.24 ACRE. • • • • • • • • . , • • • I i 1 Waterloo,IA EXHIBIT F i Depiction of Reconfigured Parking Lot Area(Secs. l.a.iii, 2.c) 1 i I: i x �, _ J . • � Y II ,� . .. ---_:—'- ri, „..,, , _„, ate : .:A '44Y ib..�-(� �y°u _ - • t$ is;a a • is k �� � ° � s "fix y ��,_� •�. 'P -ter '. .-4,. s a • i • Waterloo,IA I 1 EXHIBIT G 1 Depiction of the Open Playa Parking Area(Sec.2.a) _� � � , �J, 'rt' V. IIf -+ . ' - a ka a } •041A;.,% r-..';:',:...= ," ' i.::••;:-.1.4t- s x x �k� xi-�F ': —a i .r 2f "fi ,w 5 ® i 3 -45i--,iir.. -.'.. —-'-'--5,7. ': ;;,,,,A;.'=.P.'-••:" .i,'. .•',-.1r-W-:—E-•.,..f1T-',•::•- ', . . �� .: y' • _ .1 : ' i t t .":„.-_?-_-_t- .'.t ..,,,---,,,,,,,' . -v.,-'!?":,-4-70.0-A.;-!•;,--7::';',::::::7,-'':.--.'. 1:-*F.1......: 1-7, : t ''':::-77.,. .-,:',...17-''..- ... . ' s ate . 4, ' 177.— ... ¢.-: ,.,..w....,.,4,.?.',- .;";•.:4-7.'f';1.. ....- -;7.-.•-•,-if-,'IS r .. .::. g 4 ==k'a n_ -••-, - j -at.=a i St - ! • '3! tC �q � Y ir c x .- 9 T ¢ g C i-ten' �� m S a £[ v EXHIBIT"F" Delivery Condition of City Property i- } j � t 21 . 3 EXHIBIT"G" Declaration for ATM Right of First Refusal } 22 RIGHT OF FIRST REFUSAL AGREEMENT This Right of First Refusal Agreement (the "Agreement") is made and entered into as of March 3, 2009, by and between U.S. Bank National Association, a national banking association (the "Bank") and the City of Waterloo, Iowa, a municipal corporation (the "City"). Recitals A. On this date, Bank and City closed on a transaction pursuant to a certain Exchange Agreement, dated September 2, 2008, by and between City and Bank, in which, among other things, the City and Bank exchanged certain real property in Waterloo, Iowa (the "Transaction"). B. Bank is the fee owner of that certain real property located at 425 Cedar Street, Waterloo, Iowa. City is the fee owner of certain real property acquired in the Transaction as well as adjacent real property that comprises the Waterloo Center for the Arts and various parking lots (collectively, the "City Property"). The City Property is depicted more specifically in that certain Master Easement Agreement, by and between the Bank and the City, of even date herewith. C. As consideration for the Bank agreeing to the Transaction, the City agreed to grant to the Bank a right of first refusal to operate any automated teller machine or comparable apparatus (an "ATM") over any of the City Property. The terms thereof are set forth in this Agreement. Agreement 1. Grant of Right of First Refusal; Procedure. City grants to Bank a right of first offer to operate any ATM on the City Property. If, at any time following the execution of this Agreement, City shall intend to grant to any party the right to operate an ATM on the City Property, or if City shall receive an unsolicited offer with respect to the operation of an ATM on the City Property, the general business terms of which are acceptable to the City, then the City must first offer to Bank the right to operate an ATM on the City Property on such terms and conditions as City proposes to offer to such party (or on the terms of the unsolicited offer, if applicable). In such event, Bank shall notify City, in writing, within thirty (30) days after receipt of City's notice whether Bank wishes to operate an ATM on the City Property on the terms and conditions as are contained on City's notice and the following terms and conditions shall apply if Bank notifies City in writing within such thirty (30) day period that Bank does not wish to operate such ATM(s) on the City Property on the terms proposed by City, or if Bank does not accept City's offer to operate the ATM(s) on the City Property in writing within such thirty (30) day period, then in either of the above instances, for a six-month period, City shall thereafter be entitled to enter into an agreement to operate one or more ATMs on the City Property on the same terms which City offered the opportunity to Bank; provided, however, if City does not enter into an agreement with a third party with respect to the operation of automatic teller machines within such six-month period or if City changes the terms and conditions of its initial offer, the rights of Bank pursuant to this Agreement shall once again apply. If Bank notifies City in writing within the thirty(30) day notice period that Bank wishes to install one or more ATMs on the City Property on the terms and conditions set forth in City's notice, City and Bank shall, within sixty (60) days thereafter, execute a license agreement with respect to such ATMs. If, for any reason (excluding, however, bad faith by City), City and Bank do not execute such a license agreement within such sixty(60) day period, Bank's rights shall thereafter terminate with respect to that specific offer and for a six-month period, City shall be free to enter into an agreement with a third party with respect to the installation of one or more ATMs on the City Property on the same terms and conditions which City offered the opportunity to Bank; provided, however, if City does not enter into an agreement with a third party within such one (1) year period, the rights of Bank pursuant to this Agreement will again apply. 2. Successors. The rights and obligations provided under the terms of this Agreement shall be binding upon all entities having or acquiring any right, title or interest in the City Property. 3. Amendment. This Agreement may not be amended or modified except by written agreement signed by both parties. In the event any provision of this Agreement shall be held invalid, the same shall not affect in any respect the validity of the remainder of this Agreement. 4. Notice. All notices, demands and requests (each a "notice") required or permitted to be given under this Agreement must be in writing and shall be deemed to have been properly given or served either on the date of hand delivery or the date such notice is deposited with an overnight courier (e.g., UPS) or with the United States Mail, addressed to City or Bank, as the case may be, prepaid and registered or certified mail or delivery charges prepaid, return receipt requested, at the following addresses: To City: City of Waterloo Attn: Mayor 715 Mulberry Street Waterloo, IA 50703 with a copy to: City of Waterloo Attn: City Planner 715 Mulberry Street Waterloo, IA 50703 To Bank: U.S. Bank National Association Corporate Real Estate 4480 Emerald Avenue CN-OH-PROP Cincinnati, Ohio 45242 Attn: Marsha Ward Lane Telephone: (513) 794-8782 Facsimile: (513) 794-8791 with a copy to: U.S. Bank National Association Attn: Corporate Real Estate Counsel U.S. Bancorp Center BC-MN-H21R 800 Nicollet Mall Minneapolis, MN 55402 Rejection or refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice, demand or request. Either party shall have the right from time to time and at any time upon at least ten (10) days' written notice thereof, to change their respective addresses, and each shall have the right to specify as its address any other address within the United States of America. 5. Counterparts. This Agreement may be executed in any number of counterparts with the same force and effect as if all signatures were appended to one document, each of which shall be deemed an original. [Remainder of page intentionally left blank. Signature pages and exhibits follow.] WHEREFORE, Bank and City have executed this Agreement by their duly authorized representatives as of the date first above written. BANK: U.S. BANK NATIONAL ASSOCIATION By: Its: By: Its: STATE OF ) ) ss. COUNTY OF ) On this day of , 2009, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and sworn,personally appeared and ,to me known to be the persons of U.S. BANK NATIONAL ASSOCIATION, the national banking association that executed the within and foregoing instrument, and acknowledged said instrument to be a free and voluntary act and deed and the free and voluntary act and deed of U.S. BANK NATIONAL ASSOCIATION for the uses and purposes therein mentioned; and on oath stated that each was authorized to execute the said instrument on behalf of said U.S. BANK NATIONAL ASSOCIATION. IN WITNESS WHEREOF I have hereunto set my hand and official seal this day of , 2009. Notary Public CITY: CITY OF WATERLOO By: Timothy J. Hur ayor ATTEST: Nancy Eck , City Clerk STATE OF IOWA ) ) ss. COUNTY OF BLACK HAWK ) On this day of , 2009, before me, a Notary Public in and for the State of Iowa, personally appeared Timot J. Hurley and Nancy Eckert, to me personally known, and, who, being by me duly sworn, di say that they are the Mayor and City Clerk, respectively, of the City of Waterloo, Iowa; the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council as contained in Resolution No. 2008-768 adopted by the City Council on September 2, 2008, and that Timothy J. Hurley and Nancy Eckert acknowledged the execution of the instrument to be their voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. rI IAA otary ublic SPECIAL WARRANTY DEED For the consideration of One Dollar($1.00) and other valuable consideration, City of Waterloo, Iowa, does hereby convey to Mullan Commercial, LLC, a Minnesota limited liability company, the following described real estate in Black Hawk County, Iowa: See Exhibit "A" attached hereto and by this reference incorporated herein. Deed in which political subdivision is grantor. Exempt from declaration of value and real estate transfer tax. Grantor hereby covenants with grantees, and successors in interest, to warrant and defend the real estate against the lawful claims of all persons claiming by, through, or under it, except as may be stated above. Words and phrases herein, including acknowledgment hereof, shall be construed as in the singular or plural number, and as masculine orferninine gender, according to the context. Dated: September 3, 2008 STATE OF IOWA ) ss: BLACK HAWK COUNTY ) CITY OF WATERLOO, IOWA Acknowledged before me on September 3, 2008, by Timothy J. Hurley and Nancy Eckert as By: Mayor and City Clerk, respectively, of the City of Timothy J. Hurl , ayor Waterloo, Iowa. Attest: k\c c Nancy Eckert ty Clerk otary Public EXHIBIT "A" Lot No. Two (2), except the Southeasterly Nineteen and Fifty-two Hundredths (19.52) feet in even width thereof in Block No. Three (3) in James Egger's Addition to the Village of Waterloo, Black Hawk County, Iowa. Also That part of the Northwest Quarter of the Northeast Quarter of Section No. Twenty-six (26), Township No. Eighty-nine (89) North, Range No. Thirteen (13) West of the Fifth Principal Meridian, in the City of Waterloo, Black Hawk County, Iowa, bounded as follows: Beginning at the point of intersection of the North line of said Northwest Quarter of the Northeast Quarter and the Southwest line of Block No. Three (3) in James Egger's Addition to the Village of Waterloo, Black Hawk County, Iowa; thence East along said North line to a point that is Eighty (80) feet Northwesterly of the Northwesterly line of Mullan Avenue, as measured along a line that is parallel with the Northeasterly line of said Block No. Three (3); thence Southwesterly along a line that is parallel with the Northwesterly line of Mullan Avenue to its intersection with a line drawn through the point of beginning and parallel to the Northeasterly line of said Block No. Three (3); thence Northwesterly to the point of beginning. Also, Fractional Lot No. One (1) and 1:he Southeasterly Nineteen and Fifty-two Hundredths (19.52) feet in even width of Fractional Lot Two (2) in Block No. Three (3) in James Egger's Addition to the Village (now City) of Waterloo, Black Hawk County, Iowa. Also all that part of the Northwest Quarter of the Northeast Quarter of Section No. Twenty-six (26), Township No. Eighty-nine (89) North, Range No. Thirteen (13) West of the Fifth (5th) Principal Meridian, in the City of Waterloo, Black Hawk County, Iowa, lying within the following boundaries: Commencing at the point of intersection of the Northwesterly line of Mullan Avenue with the North line of the Northwest Quarter of the Northeast Quarter of said Section No. Twenty-six (26); thence West along said North line to a point that is Eighty (80) feet Northwesterly from the Northwesterly line of Mullan Avenue, as measured along a line that is parallel with the Northeasterly line of Block No. Three (3) in said James Egger's Addition to the Village (now City) of Waterloo, Iowa; thence Southwesterly along a line that is parallel with the Northwesterly line of Mullan Avenue to the point on the Southwesterly line of Block No. Three (3) if extended Southeasterly; thence Southeasterly along a line which is parallel with the Northeasterly line of Block No. Three (3) a distance of Eighty (80) feet to the Northwesterly line of Mullan Avenue; thence Northeasterly along the Northwesterly line of Mullan Avenue to the point of beginning. Also, the Southeasterly Forty (40) feet in even width of Lot No. Three (3) of Block No. Three (3) in James Egger's Addition to the Village (now City) of Waterloo, Black Hawk County, Iowa. 4 • • • a •t a. • •14., NOTICE OF ASSIGNMENT AND ACCEPTANCE OF RELINQUISHED PROPERTY AGREEMENT Exchange No. 391049 (Waterloo, Iowa) Notice is hereby given that as of February , 2009, all of the rights (but not the obligations) of U.S. Bank National Association, a national banking association ("U.S. Bank"), that certain purchase agreement or agreements dated September 2, 2009 between U.S. Bank, and City of Waterloo, Iowa, a municipal corporation ("Buyer") with respect to certain real property legally described on Exhibit A attached hereto (the "Relinquished Property") have been assigned to First American Exchange Company, LLC, a Delaware limited liability company ("Intermediary"), pursuant to the Assignment and Acceptance/Relinquished Property Agreement (the "Assignment and Acceptance") between U.S. Bank and Intermediary, attached hereto as Exhibit B, which was entered into under Exchange Agreement dated as of February , 2009. By this Notice, U.S. Bank hereby directs Buyer to transfer cash pursuant to wire instructions from U.S. Bank to accounts established by Intermediary for the benefit of U.S. Bank in the amount and in accordance with the Assignment and Acceptance. U.S. Bank National Association, a national banking association By: Name: Title: • • r. • Receipt acknowledged by Buyer: City of Waterloo, Iowa, a municipal corporation By: Name: Its: EXHIBIT A TO NOTICE OF ASSIGNMENT AND ACCEPTANCE OF RELINQUISHED PROPERTY AGREEMENT LEGAL DESCRIPTION OF RELINQUISHED PROPERTY A PARCEL OF LAND SITUATED IN PART OF LOTS I. 2 AND 3. IN BLOCK 2. AND PART OF VACATED CEDAR STREET LYING NORTHEAST OF LOTS I. 2 AND 3, IN BLOCK 2. AND PART OF VACATED WEST 3RD STREET LYING SOUTHEAST OF LOT I, IN BLOCK 2, ALL IN THE ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, COUNTY OF BLACK HAWK. STATE OF IOWA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT WHICH IS 10.00 FEET NORMALLY DISTANT SOUTHEAST OF THE NORTHWEST LINE OF SAID LOT 3 AND 40.00 FEET NORMALLY DISTANT NORTHEAST OF THE SOUTHWEST LINE OF SAID LOT 3; THENCE NORTH 41° (DEGREES) 09' (MINUTES) 52" (SECONDS) EAST (ASSUMED BEARING FOR THE PURPOSE OF THIS DESCRIPTION) ON A LINE THAT IS 10.00 FEET SOUTHEAST OF AND PARALLEL WITH THE NORTHWEST LINE OF SAID LOT 3, A DISTANCE OF 185.00 FEET TO A LINE THAT IS I5.00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF FRACTIONAL BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO; THENCE SOUTH 48°57'19" EAST ON THE LINE THAT IS 15.00 FEET SOUTHWEST OF AND PARALLEL WITH THE SOUTHWEST LINE OF SAID FRACTIONAL BLOCK 2, A DISTANCE OF 242.40 FEET; THENCE SOUTH 41°02'41' WEST, 185.00 FEET TO A LINE THAT IS 40.00 FEET NORTHEAST OF AND PARALLEL :VITH THE SOUTHWEST LINE OF SAID LOTS I, 2 AND 3 IN BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION SOUTHEASTERLY; THENCE NORTH 48°57'19" WEST ON THE LINE THAT IS 40.00 FEET NORTHEAST OF AND PARALLEL WITH THE SOUTHWEST LINE OF LOTS 1, 2 AND 3 IN BLOCK 2 OF SAID ORIGINAL PLAT ON THE WEST SIDE OF THE CEDAR RIVER IN THE CITY OF WATERLOO, AND ITS EXTENSION SOUTHEASTERLY, 242.79 FEET TO THE POINT OF BEGINNING. EXHIBIT B TO NOTICE OF ASSIGNMENT AND ACCEPTANCE OF RELINQUISHED PROPERTY AGREEMENT Assignment and Acceptance Relinquished Property Agreement (to be attached) /e Wallace W Butler, Retired Craig O.Clark 1923-2004 Fred G. Clark,Jr 1922-1984 f I Rebecca A. Feiereisen Timothy W. Hamann Clark. Butler. JaredR Knapp Christy R. Liss Walsh & Hamann James Walsh Jr Christopher her S.Wendland Attorneys At Law * 315 E. 5th Street■ PO. Box 596■Waterloo, Iowa 50704■ (319) 234-5701 Also admitted in Minnesota ** Also admitted in Illinois, FAX (319) 232-9579 • wloolaw©attglobal.net Minnesota and Wisconsin February 26, 2009 Nancy Eckert City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Re: US Bank transaction Dear Nancy: Last September the city council approved the transaction whereby the City sold certain land to US Bank and will buy certain other land from the bank. The City sale is already done, and next week we are closing on the purchase. Enclosed are two documents that need to be signed by the mayor and you. I have included multiple copies of the signature page. Each is marked. Both agreements were approved by Resolution No. 2008-768. The Master Easement Agreement is specifically mentioned in the resolution. The Right of First Refusal Agreement was an exhibit to the Exchange Agreement that the resolution also references. Therefore, both documents can be signed without further action of the council. Please let me know when these are ready to be picked up. I need to send them in an overnight package on next Monday, March 2. Thanks. Sincerely, CLARK, BUTLER, WALSH & HAMANN a(AA;4 tve.ecca tt,,f By: Chris Wendland enc. 41,11, "A..' • • L�1 W