Loading...
031 of 2003 - Closing, vacating & abandoning a pedestrian access & passage easement located on the former Main Str 869060; 0 03-1 P 03-13 SALT LAKE CITY ORDINANCE No. 31 of 2003 (Closing, vacating and abandoning a pedestrian access and passage easement located on the former Main Street right of way) AN ORDINANCE CLOSING, VACATING AND ABANDONING A PEDESTRIAN ACCESS AND PASSAGE EASEMENT LOCATED ON THE FORMER MAIN STREET RIGHT OF WAY BETWEEN NORTH AND SOUTH TEMPLE STREETS PURSUANT TO PETITION NO. 400-03-01. WHEREAS, in April 1999 the City Council of Salt Lake City, Utah adopted Salt Lake City Ordinance No. 28 of 1999 closing a portion of Main Street between North Temple and South Temple Streets (hereinafter the "Main Street Property") conditioned on sale for fair market value, which Ordinance was amended in May 2000 by Salt Lake City Ordinance No. 29 of 2000; WHEREAS, in accordance with Ordinance No. 28 of 1999, Salt Lake City Corporation (hereinafter the "City") and the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (hereinafter the "Corporation of the Presiding Bishop") executed an April 27, 1999 Special Warranty Deed (hereinafter the "Special Warranty Deed") in which inter alia (1) the City transferred its interest in the Main Street Property to the Corporation of the Presiding Bishop; (2) the City reserved an easement over and across the Main Street Property for pedestrian access and passage (hereinafter the "Pedestrian Easement"); (3) the City and the Corporation of the Presiding Bishop agreed that the reservation of the Pedestrian Easement did not create a public forum on the BK 8818 PG 2371 8690605 • • Main Street Property and was not intended to dictate whether the Corporation of the Presiding Bishop allowed or prohibited certain specified conduct enumerated in the Special Warranty Deed (hereinafter the "Restrictions"); and (4) the City also reserved easements for Emergency and Public Safety, Public and Private Utilities and the Preservation of a View Corridor(hereinafter collectively the "Other Easements"); WHEREAS, in November 1999, the First Unitarian Church and others filed suit against the City in the United States District Court for the District of Utah (hereinafter the "Federal Lawsuit") challenging, among other things, the Restrictions in the Special Warranty Deed and the Corporation of the Presiding Bishop subsequently intervened in the Federal Lawsuit; WHEREAS, in October 2002, the United States Court of Appeals for the Tenth Circuit (hereinafter the "Court of Appeals") held that the Pedestrian Easement created a public forum for purposes of the First Amendment to the United States Constitution and that the Restrictions in the Special Warranty Deed were unconstitutional; WHEREAS, the Court of Appeals concluded in its decision that the First Amendment prohibited the City and the Corporation of the Presiding Bishop from guaranteeing public access through the Pedestrian Easement while at the same time prohibiting expressive activity on the Pedestrian Easement; WHEREAS, in its decision the Court of Appeals further suggested that two of the City's permitted options were: (1) to retain the Pedestrian Easement and 2 BK 8818 PG 2372 8690605 • adopt reasonable time, place and manner restrictions on protected expressive activities; or(2) to relinquish the Pedestrian Easement so that the Main Street Property became entirely private; WHEREAS, the Court of Appeals noted in its opinion that the City and the Corporation of the Presiding Bishop disagreed over the impact of the Court's decision that the Restrictions in the Special Warranty Deed were unconstitutional, with the City contending that such a decision would eliminate the Restrictions, but not the Pedestrian Easement reserved by the City, and the Corporation of the Presiding Bishop contending that the City would lose the Pedestrian Easement; WHEREAS, following the decision of the Court of Appeals, the City and the Corporation of the Presiding Bishop continued to disagree on the impact of the Court's decision on the City's reservation of the Pedestrian Easement; WHEREAS, the Court of Appeals' decision resulted in much controversy and divisiveness in the,community; WHEREAS, in order to resolve the legal dispute over the Pedestrian Easement between the City and the Corporation of the Presiding Bishop and to bring an end to the divisiveness in the community, Mayor Ross C. "Rocky" Anderson proposed on December 16, 2002 that the City and the Corporation of the Presiding Bishop settle potential legal claims regarding the existence and the extent of the Pedestrian Easement on the following basis (hereinafter the "Settlement Proposal"): (1) the Pedestrian Easement would be extinguished; • 3 BK 8818 PG 2373 8690605 (2) the Special Warranty Deed would be amended to provide that the right of reverter in the Deed would be extinguished if a court deems restrictions on conduct or other expressive activity imposed by the Corporation of the Presiding Bishop unconstitutional by reason of the right of reverter; (3) the City and the Corporation of the Presiding Bishop will each pay one-half of all costs and attorneys fees assessed in favor of the plaintiffs against the City in the Federal Lawsuit; (4) there would be no agreement by the City and the Corporation of the Presiding Bishop regarding any restrictions on conduct or other expressive activities on the Main Street Property; (5) the Corporation of the Presiding Bishop would donate to the City a certain parcel of land consisting of approximately two acres near the Sorenson Center in Glendale (hereinafter the "Glendale Property") for the construction of one or more facilities by the City; (6) the Alliance for Unity would commit to raise at least$4 million, which, combined with $1 million pledged by James Sorenson, will be used for the completion of facilities by the end of 2005 on or near the Glendale Property; (7) The Corporation of the Presiding Bishop also would participate financially in the development of the facilities; and (8) The City potentially would partner with others to provide programs at the facilities; 4 BK 8818 PG 2374 8690605 • WHEREAS, on January 8. 2003, Mayor Anderson filed Petition 400-03-01 with the Salt Lake City Planning Division to close, vacate and abandon the Pedestrian Easement pursuant to the terms and conditions outlined in the Settlement Proposal; WHEREAS, presentations were made by the Mayor's Office to various community councils and community organizations and the following groups gave their advisory approval of the Settlement Proposal: Downtown Alliance Capitol Hill Community Council West Salt Lake Community Council Chamber of Commerce Greater Avenues Community Council Central City Community Council People's Freeway Community Council WHEREAS, the City created a website to provide information to the public about the Settlement Proposal, to provide transcripts of the "Question and Answer"segments of the community council meetings and to receive additional public comment; WHEREAS, on or about February 27, 2003, the Salt Lake City Transportation Division prepared a Pedestrian Impact Study of Part-Time or Full Time Closure of the Main Street Plaza to Through Pedestrians, (hereinafter the "Pedestrian Impact Study"); WHEREAS, on March 23, 2003, the Transportation Advisory Board voted to support the Settlement Proposal, concluding in part that the impact on pedestrian traffic would be minor based in part on the Pedestrian Impact Study; 5 BK 8818 PG 2375 8690605 • • WHEREAS, the City Council has considered and rejects the recommendation by the Transportation Advisory Board that the Corporation of the Presiding Bishop maintain public access for pedestrians and bicyclists across the Main Street Property and the City Council itself makes no such recommendation or finding; - WHEREAS, in April 2003 the City Planning Staff issued its Report on Petition 400-003-01, recommending that the Planning Commission recommend to the City Council inter alia that the Pedestrian Easement be extinguished and the donation of the Glendale Property be accepted by the City; WHEREAS, on April 9, 2003, following public comment, the Planning Commission voted 4 to 3 not to follow the Planning Staff recommendation; WHEREAS, in accordance with legal requirements, the City Attorney's Office commissioned independent appraisals of the market value of the Pedestrian Easement and of the Glendale Property by J. Phillip Cook & Associates and such appraisals dated May 2, 2003 and April 8, 2003 respectively have been delivered to the City; WHEREAS, by stipulation dated April 24, 2003, the City and the plaintiffs in the Federal Lawsuit stipulated as to the plaintiffs' attorneys fees and costs on the terms and conditions stated therein (hereinafter the "Stipulation"); WHEREAS, the City Council has held public work sessions concerning the Settlement Proposal on May 27, May 29, and June 3, 2003; has held a public hearing concerning the Settlement Proposal on June 3, 2003 which was continued 6 BK 8818 PG 2376 8690605 • to June 10, 2003; heard comments from numerous citizens during the "Public Comment" segment of many City Council Meetings; and received many other written and oral comments from citizens; WHEREAS, the City Council enacts this ordinance pursuant to and in compliance with the applicable provisions of the Utah Code, including §§ 10-8-8 et seq. and of the Salt Lake City Code, including Chapter 2.58; WHEREAS, the City Council acknowledges that the closure, vacation, and abandonment of the Pedestrian Easement means there would be no Iegally enforceable right of public pedestrian access or passage on the Main Street Property; that the Main Street Property would no longer be a part of the public pedestrian transportation grid; and that the Corporation of the Presiding Bishop as the private owner of the Main Street Property would have the right to deny access to the public if it so wished; WHEREAS, the Settlement Proposal is consistent with the City's primary objective in entering into the original transaction: the promotion of tourism and economic development; WHEREAS, appropriation of funds for the construction of new community facilities will be approved by the City Council pursuant to standard procedure through which the City Council considers inter alia broad benefit to the City and operations and maintenance costs; WHEREAS, based upon the information and evidence presented in the City Council public work sessions, public hearing, staff briefing, and"public 7 BK 8818 PG 2377 8690605 comments"; the Planning Commission hearing; and the Community Council meetings; the City Council finds as follows: (1) if, following completion of the transaction, the Corporation of the Presiding Bishop, as the private owner of the Main Street Property, decides to close the Main Street Property to pedestrian access and passage, the impact on pedestrian traffic would be minor; (2) the City never intended in the original transaction that expressive activities would be preserved on the Main Street Property; (3) the Court of Appeals decision-has left the City with an unintended responsibility to regulate protected expressive activities on the Main Street Plazas V with the attendant risk of litigation; (4) even after the closure, vacation and abandonment of the Pedestrian Easement and resulting closure of the public forum on the Main Street Property, there will be ample alternate public forum space available for protected expressive activities in the immediate vicinity of the Main Street Property along North and South Temple Streets as well as in other areas of the City; (5) during 1998, the year prior to the original transaction, no free speech permits were requested from the City for the Main Street sidewalks between North and South Temple Streets; (6) the continued existence of the Pedestrian Easement is not necessary for use by the public as a sidewalk or pedestrian thoroughfare and closure, 8 BK 8818 PG 2378 8690605 vacation and abandonment of the Pedestrian Easement will not be adverse to the general public's interest; (7) there is a good faith legal dispute between the City and the Corporation of the Presiding Bishop over the impact of the Court of Appeals' decision on their original agreement; (8) the controversy over the impact of the decision by the Court of Appeals on the original agreement between the City and the Corporation of the Presiding Bishop has had an extremely divisive and harmful effect on the Salt Lake City community; (9) the donation of the Glendale Property by the Corporation of the Presiding Bishop and the donations by the Alliance for Unity and James L. Sorenson will enable the City to construct new and expanded facilities that will provide significant benefits to the community; (10) the benefit of new community facilities in Glendale,promotion of tourism, resolution of divisiveness in the community, and voluntary settlement of the legal dispute between the City and the Corporation of the Presiding Bishop provide sufficient public policy reasons for the closure, vacation and abandonment of the Pedestrian Easement, and the closure of the Pedestrian Easement will enable the City to accomplish those public policy purposes; • (11) accomplishment of these public policy purposes through closure, vacation and abandonment of the Pedestrian Easement outweighs the benefits of any alternatives to the closure of the Pedestrian Easement; 9 BK 8818 PG 2379 8690605 (12) there is good cause for the closure, vacation and abandonment of the Pedestrian Easement and such action will not be detrimental to the public interest; (13) the closure, vacation and abandonment of the Pedestrian Easement according to the terms of(a) a Settlement Agreement to be executed by the City and the Corporation of the Presiding Bishop substantially in the form of Exhibit A (the "Settlement Agreement"), and (b) a Deed Conveying Easement Rights and Amendment to Special Warranty Deed substantially in the form of Exhibit B (the "Amended Special Warranty Deed") is in the best interests of the City as a whole, NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah, that: SECTION 1. The Pedestrian Easement located on the Main Street Property, which is more particularly described in Exhibit C attached hereto, be, and the same hereby is closed, vacated and abandoned and declared no longer needed or available for use by the public for any purpose whatsoever, including but not limited to use as a sidewalk or as a pedestrian thoroughfare upon fulfillment of the conditions provided in Section 3. SECTION 2. Reservations and Disclaimers. The above closure, vacation and abandonment expressly does not affect and in no way limits: (1) the obligation of the Corporation of the Presiding Bishop to use and maintain the Main Street Property as a landscaped space; (2) the Emergency and Public Safety Easement reserved by the City in Section 1.1 of the Amended Special Warranty Deed; (3) the Public and Private Utilities Easement reserved by the City in Section 10 BK 8818 PG 2380 8690605 1.2 of the Amended Special Warranty Deed; and(4) the Preservation of View Corridor Easement reserved by the City in Section 1.4 of the Amended Special Warranty Deed. SECTION 3. Conditions. This closure,vacation and abandonment are conditioned upon the closing of the transactions pursuant to the terms of a Settlement Agreement between the City and the Corporation of the Presiding Bishop substantially in the form of Exhibit A hereto and an Amended Special Warranty Deed substantially in the form of Exhibit B hereto. SECTION 4. Transfer of Title. Title to the Pedestrian Easement shall remain with the City until the closing pursuant to the terms of the Settlement Agreement. SECTION 5. Amendment of Prior Ordinances. To the extent necessary, Salt Lake City Ordinance No. 28 of 1999 and Ordinance No. 29 of 2000 shall be and hereby are amended consistent with the terms and conditions set forth herein. SECTION 6. Effective Date. This ordinance shall become effective on the date of its first publication and shall be recorded with the Salt Lake County Recorder. Passed by the City Council of Salt Lake City, Utah this 1 prh day of June , 2003. arL-- AIRPER N 11 BK 8818 PG 2381 8690605 , ATTEST AND COUNTERSIGN: ( aMLC-//4-f- CHIEF DEPUTY CITY RECORDER Transmitted to Mayor on June 10, 2003 . Mayor's Action: Approved. Vetoed. AYOR ATTEST AND COUNTERSIGN: HIEF DEPUTY ., Y EC RDE --• _._-__ S'S1r.. .-- I,ZY dko " :1 1i 21 ,.,:ix,r4t 4 1, (SEAL) t y�am.,' . . ? Bill No. 31 of 2003. . --' Published: June 18. 2003- O:1Ordinance o36Nain Street Plaza S-19A3-clean.doc • 12 BK 8818 PG 2382 8690605 EXHIBIT "A" DRAFT 6/03/03 SETTLEMENT AGREEMENT This Settlement Agreement is entered into as of the day of , 2003, between SALT LAKE CITY CORPORATION (hereinafter the "City") and the CORPORATION OF THE PRESIDLNNG BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAli iTS, a Utah corporation sole (hereinafter"COPB"). Collectively, the City and the COPB will constitute and be referred to as the"Parties." Recitals The Parties jointly represent and acknowledge: A. On or about April 27, 1999, the City executed a Special Warranty Deed (hereinafter the "Special Warranty Deed") to the COPB conveying surface rights in property described in Exhibit A to the Special Warranty Deed (hereinafter the"Main Street Plaza Property"). The Main Street Plaza Property formerly constituted a segment of Main Street in - • Salt Lake City, Utah,between South Temple Street and North Temple Street. In the Special" • Warranty Deed, the City reserved several easements on and under the surface of the-Maintreet • Plaza Property, including an easement for pedestrian access and passage only, subject to certain '• limitations designed to assure that the Main Street Plaza Property would not be dedicated to public ownership or constitute a First Amendment forum of any kind under the United States Constitution. (The pedestrian access and passage easement, as established and limited in the Special Warranty Deed, will hereafter be called the"Pedestrian Easement.") B. The Special Warranty Deed provided that nothing in the Pedestrian Easement was to be deemed to create or constitute a"public forum" on the Main Street Plaza Property. The Special Warranty Deed also provided that the City and the COPB could terminate the Pedestrian Easement without the joinder or consent of any other person. The parties to the Special Warranty Deed explicitly intended for the COPB to have the right to regulate or prohibit conduct and activity of persons visiting or passing over the Main Street Plaza Property. C. In June 2000, the First Unitarian Church of Salt Lake City, Utahns for Fairness, the Utah National Organization for Women, and Craig S. Axford filed suit in the United States District Court for the District of Utah against the City to challenge, among other things, the Special Warranty Deed's restrictions on the Pedestrian Easement. The suit, entitled First Unitarian Church of Salt Lake City, et al. vs. Salt Lake City Corporation,will hereinafter be referred to as the"Federal Litigation." The COPB intervened as a party defendant in the Federal Litigation. • D. On or about May 4, 2001, the United States District Court for the District of Utah S entered summary judgment for the City and the COPB in the Federal Litigation, holding that the restrictions on the Pedestrian Easement in the Special Warranty Deed did not violate the First Amendment to the United States Constitution. 235783 10 BK 8818 PG 2383 8690605 • • E. On or about October 9, 2002, the United States Court of Appeals for the Tenth Circuit issued an order reversing the district court's decision in the Federal Litigation and holding that the Pedestrian Easement created a public forum for First Amendment purposes and, as a result, that the City and the COPB may not prohibit protected speech on the Pedestrian Easement. The Tenth Circuit's decision suggested that the City's relinquishment of the Pedestrian Easement would eliminate the public forum and, therefore, the First Amendment issues associated with the Pedestrian Easement. The COPB has filed a petition for certiorari with the United States Supreme Court in which it seeks review of the Tenth Circuit's decision. F. Following issuance of the Tenth Circuit's decision in the Federal Litigation, the City and the COPB disagreed concerning the decision's impact on the Pedestrian Easement and the right of the COPB to regulate or prohibit conduct on the Main Street Plaza Property. The City took the position that the Pedestrian Easement remains in effect without any of the limitations set forth specifically in the Special Warranty Deed. The COPB took the position that, as the result of the Tenth Circuit's opinion in the Federal Litigation, the Pedestrian Easement is • void and, in any event, should be vacated so that the COPB may constitutionally regulate the use• • of the Main Street Plaza Property in accordance with the original intent of the parties to they, Special Warranty Deed. In the face of these differences, the City and the COPB sought a .: .. mutually acceptable compromise to avoid protracted and costly litigation between them concerning the future of the Main Street Plaza Property. G. On January 8, 2003, the Mayor of the City(the"Mayor") filed a petition with the - City's Acting Planning Director for approval of a proposal to resolve the disputes referenced in paragraph F of these recitals (all of which disputes are hereinafter referred to collectively as the "Disputes"). A copy of the Petition is annexed hereto as Exhibit 1. On , the City Council approved the Mayor's proposal by Ordinance, a copy of which is annexed hereto as Exhibit 2 (the"Ordinance"). The purpose of this Settlement Agreement, the terms of which have been approved by the City Council, is to avoid litigation and resolve all of the Disputes, including without limitation, all disputes between the City and the COPB relating in any way to pedestrian access, pedestrian passage, and the right to control conduct on the Main Street Plaza Property. It is the intent of the Parties for the City to close,vacate, abandon, and convey to the COPB the Pedestrian Easement in return for consideration including the promises, covenants and agreements set forth herein. H. In implementation of the proposal set forth in Exhibit 1, the Parties and other interested persons intend to undertake a series of transactions and donations that will enable the City to establish one or more community facilities(hereinafter collectively the"Community Facility") located in the Glendale neighborhood for Salt Lake City residents. The land to be conveyed to the City pursuant to paragraph 2 of this Settlement Agreement will provide a location for one such facility. The Alliance for Unity will provide to the City a total of at least Four Million Dollars ($4,000,000) for construction of the Community Facility and,in the City's discretion, furnishings, fixtures, equipment, and maintenance therefor. James L. Sorenson will donate to the City cash and/or land having a value of at least One Million Dollars ($1,000,000) for the same purposes. The Foundation of the Church of Jesus Christ of Latter-day Saints (the 235783.10 2 BK 8818 PG 2384 8690605 • "Foundation")has contributed Two Hundred and Fifty Thousand Dollars($250,000) to the Alliance for Unity toward its donation. I. By adopting the Ordinance, the Salt Lake City Council has considered this Settlement Agreement and all instruments and transactions referenced by this Settlement Agreement as well as the public comments regarding the Mayor's proposal. Agreement In consideration of the mutual promises and covenants set forth below, the Parties agree as follows: 1. Mutual Release of All Claims—Effective at"Closing," as defined in paragraph 8 below, and subject only to the obligations arising from this Settlement Agreement, the City and the COPB shall release, forgive, and forever discharge each other of and from any and all claims, demands, causes of action, liabilities, damages or losses of any kind whatsoever relating in any way to the Disputes, including, without limitation, those relating to the decision of the Unid - States Court of Appeals for the Tenth Circuit in the Federal Litigation, the Pedestrian Easement - and limitations thereon in the Special Warranty Deed, use of the Main Street Plaza Property as a . public forum, and the COPB's regulation or prohibition of conduct and activity on the-Main Street Plaza Property. 2. Consideration Provided by the COPB—At Closing, the COPB will convey 2.125 acres of property(hereinafter the "Glendale Property") located at 1385 South 900 West, Salt Lake City, Utah,by executing, delivering and recording a Special Warranty Deed in substantially the form annexed hereto as Exhibit 3 (the"Glendale Special Warranty Deed"). The Glendale Property has been appraised at a value of Two Hundred Seventy-Five Thousand Dollars ($275,000) by an independent appraiser retained by the City. The City acknowledges that the COPB is providing additional consideration equalling(a) Two Hundred Fifty Thousand Dollars ($250,000) through the Foundation's contribution to the Alliance for Unity, and(b) approximately One Hundred Four Thousand Five Hundred Eighty-Six Dollars($104,586) as provided in paragraph 7, below. The City also acknowledges that it will receive other monetary consideration from third parties and other intangible consideration from the COPB and third parties. 3. Vacation and Conveyance of Public Access Easement—At Closing, pursuant to the Ordinance, the City will close, vacate, abandon, and convey to the COPB the Pedestrian Easement by executing, delivering and recording a"Deed Conveying Easement Rights and Amendment to Special Warranty Deed"substantially in the form annexed hereto as Exhibit 4 • (the "Deed Conveying Easement Rights"). By virtue of the passage of the Ordinance and the execution, delivery and recording of the Deed Conveying Easement Rights, the Parties intend to effectuate the complete extinguishment of the Pedestrian Easement in return for all promises and covenants by the COPB in this Settlement Agreement and all donated funds and land received from the Alliance for Unity and James L. Sorenson. It is further the intent of the Parties that, 235783.10 3 BK 8818 PG 2385 8690605 • following implementation of this Settlement Agreement, the City will own no interest whatsoever in the Main Street Plaza Property except those interests arising from the COPB's obligation to use and maintain the Property as a landscaped space and the easements for emergency and public safety services and public and private utilities and the view corridor restrictions, as set forth specifically in Paragraphs 1.1, 1.2 and 1.4 of the Special Warranty Deed, as amended pursuant to this Settlement Agreement. 4. Other Consideration. The COPB acknowledges that the receipt by the City of the consideration to be provided by the Alliance for Unity and James L. Sorenson is material to the City's decision to enter into this transaction. 5. Amendment of Special Warranty Deed—At Closing, the City and the COPB will execute, deliver and record the Deed conveying Easement Rights,which will amend the Special Warranty Deed as follows: - (a) Paragraphs 1.3, .2 (including all subparagraphs thereof), and 6.3 of the • Special Warranty Deed will be deleted in their entirety and shall have no further force or effect whatsoever. (b) Paragraph 1.4 of the Special Warranty Deed will be amended to add the following: "To ensure the preservation of the view corridor established in this paragraph 1.4 and the aesthetics of the property and surrounding areas, Grantee may not erect fences, walls or gates on the Property without the written approval of Grantor, which approval shall not be unreasonably withheld. . Grantor's approval authority shall be exercised based on aesthetic, safety, and security considerations and the need to preserve the view corridor established in this paragraph, and not on concerns about public access. All fences, walls and gates currently in place on the Property have been approved by Grantor. If a court of competent jurisdiction holds (without regard to any right to appeal) that the provisions in this paragraph 1.4 relating to fences, walls and gates, alone or in combination with any other factor, create or establish the basis for a First Amendment forum of any kind, then and thereupon the requirement that Grantee must obtain approval from Grantor to erect fences, walls or gates shall automatically terminate and be of no further force or effect whatsoever." • (c) Paragraph 4 of the Special Warranty Deed will be amended in its entirety to read as follows: 4. Right of Reentry. In the event that Grantee fails to use and maintain the Property as a landscaped space or to permit Grantor access to the Property pursuant to the easements reserved in Paragraphs 1.1 and 1.2, or violates the view corridor and fencing restrictions in Paragraph 1.4, then the Property shall, at Grantor's option exercised in accordance with Paragraph 5, revert to . Grantor. Notwithstanding the foregoing, none of the provisions of this paragraph 235783.10 4 BK 8818 PG 2386 869060 • • 4, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. (d) Paragraph 6.1 of the Special Warranty Deed will be amended in its entirety to read as follows: 6.1 Integrated Agreement. This instrument is complete and integrated, and constitutes the entire understanding between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, understandings, promises,warranties, representations, inducements or conditions, oral or written, except as contained herein and in the Settlement Agreement between the Parties entered into on ,2003. The express terms hereof control and supersede any course of performance inconsistent with any terms hereof. Any revisions, amendments or modifications to this instrument must be in writing and signed by all parties. Any implied and/or oral revisions, amendments or modifications will not be binding on any of the parties. (e) Paragraph 6.2 of the Special Warranty Deed will be amended in its entirety to read as follows: 6.2 SeverabiIity. If any term,condition, or provision of this instrument is held by a court of competent.jurisdiction to be invalid, illegal or unenforceable for any reason, all other terms, conditions and provisions of this instrument shall nevertheless remain in full force and effect so long as the primary purposes of the instrument are not thereby affected in any manner materially adverse to any party. Upon such determination that any term, condition or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this instrument so as to effect as closely as possible the original intent of the Parties in a mutually acceptable manner to the fullest extent permitted by applicable law. (f) The Special Warranty Deed will be amended by adding the following paragraphs: 6.7 Intent of the Parties. Termination of Right of Reverter. The parties expressly intend and agree that the Property be private property and that Grantee shall have full, complete and absolute control over all activities on and uses of the Property, subject only to its obligation to use and maintain the Property as a landscaped space with the easements reserved in Paragraphs 1.1 and 1.2, the view corridor and fencing restrictions in Paragraph 1.4, and Grantor's • police powers applicable to private property in general. Nothing in this Special Warranty Deed, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. If a court of competent jurisdiction holds (without regard to any right to appeal) that the right of reverter in paragraph 4 alone or in combination with any other factor 235783.10 5 BK 8818 PG 2387 8690605 • creates or establishes the basis for a First Amendment forum of any kind, then and thereupon the right of reverter shall immediately and automatically terminate and be of no further force or effect whatsoever. If, however, the court's holding is reversed, the reverter clause shall immediately and automatically revive. Any termination of the reverter clause shall not impair the right of Grantor to obtain equitable or other relief should Grantee's obligation to use and maintain the Property as a landscaped space or the provisions of Paragraphs 1.1, 1.2, or 1.4 be violated,provided that no such right in favor of Grantor, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. 6.8 Notices. Notices will be in writing and will be given by personal delivery or by express delivery service(such as FedEx), freight prepaid. Notices will be delivered or addressed to Grantee and Grantor at the addresses set forth on the first page of this Amendment Deed or at such other address as a party may, designate in writing;provided, however, that if the notice is given by personal delivery, delivery, in the case of Grantee, must be to one of the following: and in the case of Grantor, must be to one of the following: . The date notice is deemed to have been given,received and become effective will be (a) the date on which the notice is delivered, if notice is given by personal delivery, (b)the date of actual receipt, if the notice is sent by express delivery service. 6. No Right of Public Access—It is the intent of the Parties to eliminate any right of public access or passage enforceable by the City or by members of the public in relation to the Main Street Plaza Property, and nothing in this Settlement Agreement should be construed otherwise. The Parties do not intend to create any obligation,promise, dedication, servitude, or easement of any kind that would require the COPB to permit public access or passage. 7. Division of Litigation Costs—All costs and attorneys' fees awarded at any time against the City in the Federal Litigation shall be paid one-half by the City and one-half by the COPB. The City hereby acknowledges that such payment of costs and attorneys' fees by COPB, equalling approximately One Hundred Four Thousand Five Hundred Eighty Six Dollars ($104,586), when and if made,represents additional consideration received by the City from the COPB in connection with the closing, vacating, abandoning and conveyance of the Pedestrian Easement. 8. Closing—The closing of all of the transactions and deliveries contemplated hereby(the"Closing")shall be held at the offices of Mayor Ross C. ("Rocky")Anderson, 451 South State Street,Room 306, Salt Lake City,Utah 84111, at 10:00 a.m., Salt Lake City time, on or before a date that is no earlier than thirty five(35) days, nor later than sixty(60)days, following(a) the date on which the Ordinance shall have been finally published, or(b) the date on which the Mayor and the COPB execute and deliver this Settlement Agreement, whichever is later, or at such other date and time upon which the parties mutually agree in writing. 235783.10 6 BK 8818 PG 2388 869060$ • 9. Conditions and Events of Closing (a) Conditions and Deliveries. For the Closing to occur, each of the following conditions must be met, and each shall be considered a condition precedent to the others: (i) The Ordinance shall have been enacted by the City Council and finally published. (ii) No law suit or administrative proceeding shall have been commenced against the City, the COPB,or the officers, agents or affiliates of either challenging the Ordinance, this Settlement Agreement, or any of the transactions or instruments contemplated in this Settlement Agreement, unless satisfaction of the foregoing condition shall have been waived by the Mayor on behalf of the City and by the COPB. (iii) First American Title Insurance Company("Escrow Holder") shalI be in receipt from the Salt Lake Alliance for Unity and James L. Sorenson ocash (in collected funds) and land with a total value(as determined by the City in$its - -sole discretion, based on an M.A.I. appraisal)of at least Five Million Dollars • ($5,000,000) (the"Cash and,Land") for construction and, in the City's discretion, furnishings, fixtures, equipment and maintenance therefor. (iv) The City and the COPB shall have executed and delivered to Escrow Holder the Deed Conveying Easement Rights. (v) The COPB shall have executed and delivered to Escrow Holder the Glendale Special Warranty Deed. (vi) Escrow Holder shall be irrevocably prepared to issue to the City an ALTA standard coverage owner's policy of title insurance, Form 10-17-92, in the amount of$ (the"Glendale Title Insurance Policy"),naming the City as the insured and insuring all of the City's right, title and interest to the property described in the Glendale Special Warranty Deed,subject to the normal printed terms and conditions of such policy. The COPB shall pay the premium for the issuance of the Glendale Title Insurance Policy. (b) Costs: Closing Events. All recording costs for the Deed Conveying Easement Rights and the Glendale Special Warranty Deed shall be paid by the COPB. Escrow Holder's escrow fee shall be divided equally between the City and the COPB. At the Closing, Escrow Holder shall simultaneously(i) record with the Salt Lake County Recorder the Deed Conveying Easement Rights an the Glendale Special Warranty Deed, and(ii)deliver to the City the Cash and Land(with the land portion to be conveyed by Special Warranty Deed in form acceptable to the City in its sole discretion)without condition. As soon as practicable following the Closing, Escrow Holder shall deliver to the City the original Glendale Title Insurance Policy. 235783.10 7 BK 8818 PG 2389 8690605 10. Miscellaneous (a) The Parties each represent and acknowledge that, in executing this Settlement Agreement, they do not rely and have not relied upon any representation or statement made by each other(except as expressly set forth in the recitals in this Settlement Agreement) or by any agents, representatives, or attorneys of the other with regard to the subject matter, basis,or fact of this Settlement Agreement, or otherwise. (b) Each of the Parties represent and warrant that the persons signing this Settlement Agreement in their representative capacities have been duly authorized to do so by the party for whom he or she has signed. (c) This Settlement Agreement is complete and integrated, and constitutes the entire understanding between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, understandings, promises,warranties, representations;inducements or conditions, oral or written;except - as contained herein. The express terms hereof control and supersede any course of performance inconsistent with any terms hereof. Any revisions, amendments or' . modifications to this Settlement Agreement must be in writing and signed by all Parties hereto. Any implied and/or oral revisions, amendments or modifications will not be" • binding on any of the Parties. (d) The Parties each acknowledge that they are entering into this Settlement Agreement having fully reviewed the terms hereof, and they are signing this Settlement in consultation with their respective legal counsel. By signing below, the Parties' respective legal counsel each acknowledge that they have reviewed and approved the form and content of this Settlement Agreement in consultation with their respective clients. (e) The Parties each acknowledge and understand that this is a legally binding contract and further acknowledge that prior to signing below they have each fully read and understood all of the terms of this Settlement Agreement. (f) The Parties also acknowledge that they have signed this Settlement Agreement freely and voluntarily, and that they have not been threatened or coerced into making this agreement or releasing any rights hereunder. (g) This Settlement Agreement shall be binding upon and inure to the benefit of all of the Parties hereto and their respective successors and assigns. No party to the Settlement Agreement may assign its rights or obligations hereunder without the prior written consent of the other party hereto. (h) No forbearance of any party to enforce any provision hereof or any rights existing hereunder shall constitute a waiver of such provisions or rights or be deemed to effect an amendment or modification of this Settlement Agreement. 235733.10 8 BK 8818 PG 2390 8690605 • (i) This Settlement Agreement shall be governed by and construed in accordance with the laws of the state of Utah without regard to the principles choice of law of Utah or any other state. (j) In the event any suit is brought to enforce any of the provisions of this Settlement Agreement, in addition to any damages that may be claimed, the prevailing party shall be entitled to an award of costs and reasonable attorney fees incurred in connection with the prosecution of such action. (k) If any term, condition, or provision of this Settlement Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, all other terms, conditions and provisions of this Settlement Agreement shall nevertheless remain in full force and effect so long as the primary purposes of the Settlement Agreement are not affected in any manner materially adverse to any party. Upon such determination that any term, condition or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Settlement Agreement so as to effect as closely as possible the original intent of the Parties in ak mutually acceptable manner to the fullest extent permitted by applicable law. , .:. (I) Unless mutually agreed otherwise, the Parties agree to cooperate in the defense of or prosecution of claims, thorough all levels of appeal, brought by or against the Parties, or either of them, regarding the enforceability of this Settlement Agreement and all covenants and promises made hereunder. Each Party consents to share with the other Party such common communications and other litigation material related to such an = action as each Party deems appropriate. The sharing of common communications is not intended to,and shall not be deemed to, constitute a waiver of any privilege or other protection that may pertain to such common communications and other litigation material. (m) This Settlement Agreement may be executed in counterparts. IN WITNESS WHEREOF, the Parties have each executed this Settlement Agreement as of the date written below. SALT LAKE CITY CORPORATION By: Ross C. "Rocky"Anderson Mayor ATTEST AND COUNTERSIGN 235783.10 9 BK 8818 PG 2391 8690605 CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER- DAY SAINTS, a Utah corporation sole By Kendrick Cowley Salt Lake City Recorder By: H. David Burton Presiding Bishop 233783.10 10 BK 8818 PG 2392 8690605 List of Exhibits I Mayor's Petition 2 City Council Ordinance 3 GIendaIe Special Warranty Deed 4 Deed Conveying Easement Rights 235783.10 11 BK 8818 PG 2393 8690605 , EXHIBIT `B" • DRAFT 6/3/03 WHEN RECORDED, RETURN TO: [Tax Parcel No. SNELL &WILMER Gateway Tower West 15 West South Temple, Suite 1200 Salt Lake City, Utah 84101 Attention: Alan L. Sullivan DEED CONVEYING EASEMENT RIGHTS AND AMENDMENT TO SPECIAL WARRANTY DEED (Main Street Plaza) • This DEED CONVEYING EASEMENT RIGHTS AND AMENDMENT TO SPECIAL WARRANTY DEED (the "Amendment Deed") is made and entered into as of , 2003, by and between the CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-AY SAINTS, a Utah corporation sole, whose address is 50 East North Temple,Suite 1800, • Salt Lake City, Utah 84111 (the "Grantee") and SALT LAKE CITY CORPORATION, whose address is 451 South State Street, Salt Lake City,Utah 84111 (the"Grantor") RECITALS: A. By Special Warranty Deed, recorded on April 27, 1999, as Entry No. 7335190, in Book , at page records of Salt Lake County, Utah (the "Original Deed"), Grantor conveyed to Grantee the real property more particularly described on Exhibit A to this Amendment Deed (the "Property"). B. Paragraph 1.3 of the Original Deed reserved a pedestrian access and passage easement over the Property in favor of Grantor. The easement rights reserved by Paragraph 1.3 of the Original Deed are referred to in this Amendment Deed as the "Pedestrian Easement." C. The Pedestrian Easement was limited by the terms of Paragraph 2 of the Original Deed. The conditions, limitations and restrictions contained in Paragraph 2 of the Original Deed are referred to in this Amendment as the "Pedestrian Easement Restrictions." D. Questions have arisen as to the enforceability of the Pedestrian Easement Restrictions, with the United States Court of Appeals for the Tenth Circuit holding the Pedestrian Easement Restrictions unconstitutional in First Unitarian Church of Salt Lake City, et al. v. Salt Lake City Corporation, 308 F.3d 1114 (10th Cir. 2002). _25296.10 BK 8818 PG 2394 8690605 E. To settle disputes between them with respect to the Pedestrian Easement and the Pedestrian Easement Restrictions, Grantor and Grantee have entered into a Settlement Agreement, dated as of , 2003 (the "Settlement Agreement"). This Amendment Deed is being executed and delivered pursuant to the terms and conditions of the Settlement Agreement and pursuant to the actions of the Mayor and City Council of Salt Lake City, as described in the Settlement Agreement. F. Pursuant to Salt Lake City Ordinance No. , adopted by the City Council of Salt Lake City on , 2003 and signed by the Mayor of Salt Lake City, Grantor has closed, vacated, and abandoned the Pedestrian Easement, subject to the terms and conditions set forth in such ordinance. Now, therefore, for valuable consideration, as more particularly set forth in the Settlement Agreement, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Conveyance of Pedestrian Easement; Intent; Grantor's Interest. (a) Grantor hereby grants and conveys the Pedestrian Easement and all • of its right, title and interest in and to the Pedestrian Easement to Grantee. Grantor hereby warrants the title so granted and conveyed as to all claims or • defects arising by, through,-or under Grantor , but not otherwise. This grant and conveyance shall be subject to the terms of the Original Deed as amended herein. (b) The parties intend, by this conveyance, that Grantee own the Property in fee simple defeasible title (with a right of reentry), subject only to Grantee's obligation to use and maintain the Property as a landscaped space, the easements reserved in Paragraphs 1.1 and 1.2 of the Original Deed (collectively, the "Utility and Service Easements"), and the view corridor and fencing restrictions in paragraph 1.4 of the Original Deed, as amended herein (the "View Restriction"). From and after recordation of this Amendment Deed and except for its rights pursuant to the Utility and Service Easements, the View Restriction, and Grantor's obligation to use and maintain the property as a landscaped space, Grantor relinquishes, releases, and disclaims any and all ownership interest in or rights of any kind with respect to the Property. Grantor also disclaims any right or authority to regulate any expression or conduct on the Property other than pursuant to Grantor's police powers applicable to private property in general. 2. Amendment of Original Deed. The Original Deed is amended as follows: (a) Paragraphs 1.3, 2 (including all subparagraphs thereof), and 6.3 of the Original Deed are deleted in their entirety and shall have no further force or effect whatsoever. (b) Paragraph 1.4 of the Original Deed is hereby amended to add the following: "To ensure the preservation of the view corridor established in this paragraph 1.4 and the aesthetics of the Property and surrounding areas, Grantee 235296.10 2 BK 8818 PG 2395 8690605 may not erect fences, walls, or gates on the Property without the written approval of Grantor, which approval shall not be unreasonably withheld. Grantor's approval authority shall be exercised based on aesthetic, safety, and security considerations and the need to preserve the view corridor established in this paragraph, and not on concerns about public access. All fences, walls, and gates, currently in place on the Property have been approved by Grantor. If a court of competent jurisdiction holds (without regard to any right to appeal) that the provisions in this paragraph 1.4 relating to fences, walls, and gates, alone or in combination with any other factor, create or establish the basis for a First Amendment forum of any kind, then and thereupon the requirement that Grantee must obtain approval from Grantor to erect fences, walls, and gates shall automatically terminate and be of no further force or effect whatsoever." (c) Paragraph 4 of the Original Deed is amended in its entirety to read as follows: 4. Right of Reentry. In the event that Grantee fails to use and maintain the Property as a landscaped space or to permit Grantor access to the Property pursuant to the easements reserved in Paragraphs 1.1 and 1.2, or violates the view corridor and fencing restrictions in Paragraph 1.4, then the Property shall, at Grantor's option exercised in accordance with -" Paragraph 5, revert to Grantor. Notwithstanding the foregoing, none of the provisions of this paragraph 4, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. (d) Paragraph 6.1 of the Original Deed is amended in its entirety to read as follows: 6.1 Integrated Agreement. This instrument is complete and integrated, and constitutes the entire understanding between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, understandings, promises, warranties, representations, inducements or conditions,oral or written, except as contained herein and in the Settlement Agreement between the Parties entered into on ,2003. The express terms hereof control and supersede any course of performance inconsistent with any terms hereof. Any revisions, amendments or modifications to this instrument must be in writing and signed by all parties. Any implied and/or oral revisions, amendments or modifications will not be binding on any of the parties. (e) Paragraph 6.2 of the Original Deed is amended in its entirety to read as follows: 6.2 Severability. If any term,condition, or provision of this instrument is held by a court of competent jurisdiction to be invalid, illegal 235296.10 3 BK 8818 PG 2396 8690605 or unenforceable for any reason, all other terms, conditions and provisions of this instrument shall nevertheless remain in full force and effect so long as the primary purposes of the instrument are not thereby affected in any manner materially adverse to any party. Upon such determination that any term, condition or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this instrument so as to effect as closely as possible the original intent of the Parties in a mutually acceptable manner to the fullest extent permitted by applicable law. (f) The Original Deed shall be amended by adding the following Paragraphs: 6.7 Intent of the Parties. Termination of Right of Reverter. The parties expressly intend and agree that the Property be private property and that Grantee shall have full, complete and absolute control over all activities on and uses of the Property, subject only to its obligation to use and maintain the Property as a landscaped space with the easements. reserved in Paragraphs 1.1 and 1.2, the view corridor and fencing restrictions in Paragraph 1.4, and the City's police powers applicable to private property in general. Nothing in this Special Warranty Deed, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. If a court of competent jurisdiction holds (without regard to any right to appeal) that the right of reverter in paragraph 4 alone or in combination with any other factor creates or establishes the basis for a First Amendment forum of any ` kind, then and thereupon the right of reverter shall immediately and automatically terminate and be of no further force or effect whatsoever. If, however, the court's holding is reversed, the reverter clause shall immediately and automatically revive. Any termination of the reverter • clause shall not impair the right of Grantor to obtain equitable or other relief should Grantee's obligation to use and maintain the Property as a Iandscaped space or the provisions of Paragraphs 1.1, 1.2, or 1.4 be violated, provided that no such right in favor of Grantor, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. 6.8 Notices. Notices will be in writing and will be given by personal delivery or by express delivery service (such as FedEx), freight prepaid. Notices will be delivered or addressed to the COPB and the City at the addresses set forth on the first page of the Amendment Deed or at such other address as a party may designate in writing;provided, however, that if the notice is given by personal delivery, delivery, in the case of the COPB, must be to one of the following: and in the case of the City, must be to one of the following: . The date notice is deemed to have been given, received and become effective will be (a) the date on which 235296.10 4 BK 8818 PG 2397 86906Q5 the notice is delivered, if notice is given by personal delivery, (b) the date of actual receipt, if the notice is sent by express delivery service. 3. Ratification. As modified and supplemented by this Amendment Deed, the Original Deed is ratified and confirmed and shall continue in full force and effect. DATED this day of , 2003. THE CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole By: H.David Burton Presiding Bishop SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah By: Ross C. "Rocky"Anderson Mayor, ATTEST AND COUNTERSIGN: By Kendrick Cowley Salt Lake City Recorder 235296.10 5 BK 8818 PG 2398 8690605 • • STATE OF UTAH ) : ss COUNTY OF SALT LAKE ) The foregoing instrument was acknowledged before me this day of , 2003 by , of the CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, on behalf of the corporation. My Commission Expires: NOTARY PUBLIC Residing at • STATE OF UTAH ) : ss COUNTY OF SALT LAKE ) The foregoing instrument was acknowledged before me this day of , 2003 by , the , and , the of SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah, on behalf of the corporation. My Commission Expires: NOTARY PUBLIC Residing at 235296.10 6 BK 8818 PG 2399 8690605 • • DRAFT 6/3/03 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 235296.10 BK 8818 PG 2400 •8690605 EXHIBIT"C" MAIN STREET PROPERTY DESCRIPTION Beginning at the Southeast corner of Block 87,Plat A,Salt Lake City Survey,located in • the Southwest quarter of section 31,Township 1 North, Range 1 East, Salt Lake ease Meridian,and running thence North 00°01'42"west 660 feet along the east line of said block 87 to the Northeast corner of said block 87.Thence North 81°22'22"East 134.07 • . feet to the South right of way line of North Temple Street,a point that is North 00°02'13" West 18 feet from the Northwest Comer.of Block 88,Plat A, thence South 00°02'13" East 678 feet along the west line of block 88 to the.Southwest corner of block 88:thence' South 89°05'14"West 132.68 feet to the point of beginning. • alyozz - • • • • • • • BK 8818 PG 2401 869060,5 , STATE OF UTAH, City and County of Salt Lake, I, Beverly Jones, Deputy City Recorder of Salt Lake City, Utah, do hereby certify that this document is a full, true and correct copy of Ordinance 31 of 2003 closing, vacating and abandoning a pedestrian access and passage easement located on the former - Main Street right-of-way between North and South Temple Streets pursuant to Petition No. 400-03-01. Passed by Salt Lake City, Utah Council action on June 10, 2003. Published on June 18, 2003. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of said City, this 13th day of June, 2003. A' �'ww�„�..� Deputy City co er, Salt Lake City, Utah 'T crj. i I 41 j* 5 m \ , 8 9O sO5 ''t,c64 P"s t16l1$/2Dl}3 88:24.Ali`NC) _FEE �'+�,�KAT-f.;;"' Book - 8818 Ps -'237172402 `'•.Av. + GARY W,. OTT RECORDER/ SALT LAKE COUNTY, UTAH St CITY RECORDER BY: ZJtt, DEPUTY - ►iI 32 P. • BK 8818 PG 2402 ^ d STATE OF UTAH, City and County of Salt Lake, I, Beverly Jones, Deputy City Recorder of Salt Lake City, Utah, do hereby certify that this document is a full, true and correct copy of Ordinance 31 of 2003 closing, vacating and abandoning a pedestrian access and passage easement located on the former Main Street right-of-way between North and South Temple Streets pursuant to Petition No. 400-03-01. Passed by Salt Lake City, Utah Council action on June 10, 2003. Published on June 18, 2003. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of said City, this 13th day of June, 2003. • 0 l Deputy City coy.er, Salt Lake City, Utah • Aw s/v.t'SiH 4ix * qt 8690605 tk414.� �, . � 06/1612 r03 08n24 Ali O FEE ' Bock - 88I8 #'9 - 2371- !02 GARY W. OTT RECORDER., SALT LAKE COUNTY, UTAH St CITY RECORDER BY: DM, DEPUTY - I 32 P. 0 03-1 P 03-13 SALT LAKE CITY ORDINANCE No. 31 of 2003 (Closing, vacating and abandoning a pedestrian access and passage easement located on the former Main Street right of way) AN ORDINANCE CLOSING, VACATING AND ABANDONING A PEDESTRIAN ACCESS AND PASSAGE EASEMENT LOCATED ON THE FORMER MAIN STREET RIGHT OF WAY BETWEEN NORTH AND SOUTH TEMPLE STREETS PURSUANT TO PETITION NO. 400-03-01. WHEREAS, in April 1999 the City Council of Salt Lake City, Utah adopted Salt Lake City Ordinance No. 28 of 1999 closing a portion of Main Street between North Temple and South Temple Streets (hereinafter the "Main Street Property") conditioned on sale for fair market value, which Ordinance was amended in May 2000 by Salt Lake City Ordinance No. 29 of 2000; WHEREAS, in accordance with Ordinance No. 28 of 1999, Salt Lake City Corporation (hereinafter the "City") and the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (hereinafter the "Corporation of the Presiding Bishop") executed an April 27, 1999 Special Warranty Deed (hereinafter the "Special Warranty Deed") in which inter alia (1) the City transferred its interest in the Main Street Property to the Corporation of the Presiding Bishop; (2) the City reserved an easement over and across the Main Street Property for pedestrian access and passage (hereinafter the "Pedestrian Easement"); (3) the City and the Corporation of the Presiding Bishop agreed that the reservation of the Pedestrian Easement did not create a public forum on the Main Street Property and was not intended to dictate whether the Corporation of the Presiding Bishop allowed or prohibited certain specified conduct enumerated in the Special Warranty Deed (hereinafter the "Restrictions"); and (4) the City also reserved easements for Emergency and Public Safety, Public and Private Utilities and the Preservation of a View Corridor(hereinafter collectively the "Other Easements"); WHEREAS, in November 1999, the First Unitarian Church and others filed suit against the City in the United States District Court for the District of Utah (hereinafter the "Federal Lawsuit") challenging, among other things, the Restrictions in the Special Warranty Deed and the Corporation of the Presiding Bishop subsequently intervened in the Federal Lawsuit; WHEREAS, in October 2002, the United States Court of Appeals for the Tenth Circuit (hereinafter the "Court of Appeals") held that the Pedestrian Easement created a public forum for purposes of the First Amendment to the United States Constitution and that the Restrictions in the Special Warranty Deed were unconstitutional; WHEREAS, the Court of Appeals concluded in its decision that the First Amendment prohibited the City and the Corporation of the Presiding Bishop from guaranteeing public access through the Pedestrian Easement while at the same time prohibiting expressive activity on the Pedestrian Easement; WHEREAS, in its decision the Court of Appeals further suggested that two of the City's permitted options were: (1) to retain the Pedestrian Easement and 2 • adopt reasonable time, place and manner restrictions on protected expressive activities; or (2) to relinquish the Pedestrian Easement so that the Main Street Property became entirely private; WHEREAS, the Court of Appeals noted in its opinion that the City and the Corporation of the Presiding Bishop disagreed over the impact of the Court's decision that the Restrictions in the Special Warranty Deed were unconstitutional, with the City contending that such a decision would eliminate the Restrictions, but not the Pedestrian Easement reserved by the City, and the Corporation of the Presiding Bishop contending that the City would lose the Pedestrian Easement; WHEREAS, following the decision of the Court of Appeals, the City and the Corporation of the Presiding Bishop continued to disagree on the impact of the Court's decision on the City's reservation of the Pedestrian Easement; WHEREAS, the Court of Appeals' decision resulted in much controversy and divisiveness in the community; WHEREAS, in order to resolve the legal dispute over the Pedestrian Easement between the City and the Corporation of the Presiding Bishop and to bring an end to the divisiveness in the community, Mayor Ross C. "Rocky" Anderson proposed on December 16, 2002 that the City and the Corporation of the Presiding Bishop settle potential legal claims regarding the existence and the extent of the Pedestrian Easement on the following basis (hereinafter the "Settlement Proposal"): (1) the Pedestrian Easement would be extinguished; 3 (2) the Special Warranty Deed would be amended to provide that the right of reverter in the Deed would be extinguished if a court deems restrictions on conduct or other expressive activity imposed by the Corporation of the Presiding Bishop unconstitutional by reason of the right of reverter; (3) the City and the Corporation of the Presiding Bishop will each pay one-half of all costs and attorneys fees assessed in favor of the plaintiffs against the City in the Federal Lawsuit; (4) there would be no agreement by the City and the Corporation of the Presiding Bishop regarding any restrictions on conduct or other expressive activities on the Main Street Property; (5) the Corporation of the Presiding Bishop would donate to the City a certain parcel of land consisting of approximately two acres near the Sorenson Center in Glendale (hereinafter the "Glendale Property") for the construction of one or more facilities by the City; (6) the Alliance for Unity would commit to raise at least $4 million, which, combined with $1 million pledged by James Sorenson, will be used for the completion of facilities by the end of 2005 on or near the Glendale Property; (7) The Corporation of the Presiding Bishop also would participate financially in the development of the facilities; and (8) The City potentially would partner with others to provide programs at the facilities; 4 WHEREAS, on January 8, 2003, Mayor Anderson filed Petition 400-03-01 with the Salt Lake City Planning Division to close, vacate and abandon the Pedestrian Easement pursuant to the terms and conditions outlined in the Settlement Proposal; WHEREAS, presentations were made by the Mayor's Office to various community councils and community organizations and the following groups gave their advisory approval of the Settlement Proposal: Downtown Alliance Capitol Hill Community Council West Salt Lake Community Council Chamber of Commerce Greater Avenues Community Council Central City Community Council People's Freeway Community Council WHEREAS, the City created a website to provide information to the public about the Settlement Proposal, to provide transcripts of the "Question and Answer" segments of the community council meetings and to receive additional public comment; WHEREAS, on or about February 27, 2003, the Salt Lake City Transportation Division prepared a Pedestrian Impact Study of Part-Time or Full Time Closure of the Main Street Plaza to Through Pedestrians, (hereinafter the "Pedestrian Impact Study"); WHEREAS, on March 23, 2003, the Transportation Advisory Board voted to support the Settlement Proposal, concluding in part that the impact on pedestrian traffic would be minor based in part on the Pedestrian Impact Study; 5 • WHEREAS, the City Council has considered and rejects the recommendation by the Transportation Advisory Board that the Corporation of the Presiding Bishop maintain public access for pedestrians and bicyclists across the Main Street Property and the City Council itself makes no such recommendation or finding; WHEREAS, in April 2003 the City Planning Staff issued its Report on Petition 400-003-01, recommending that the Planning Commission recommend to the City Council inter alia that the Pedestrian Easement be extinguished and the donation of the Glendale Property be accepted by the City; WHEREAS, on April 9, 2003, following public comment, the Planning Commission voted 4 to 3 not to follow the Planning Staff recommendation; WHEREAS, in accordance with legal requirements, the City Attorney's Office commissioned independent appraisals of the market value of the Pedestrian Easement and of the Glendale Property by J. Phillip Cook & Associates and such appraisals dated May 2, 2003 and April 8, 2003 respectively have been delivered to the City; WHEREAS, by stipulation dated April 24, 2003, the City and the plaintiffs in the Federal Lawsuit stipulated as to the plaintiffs' attorneys fees and costs on the terms and conditions stated therein (hereinafter the "Stipulation"); WHEREAS, the City Council has held public work sessions concerning the Settlement Proposal on May 27, May 29, and June 3, 2003; has held a public hearing concerning the Settlement Proposal on June 3, 2003 which was continued 6 to June 10, 2003; heard comments from numerous citizens during the "Public Comment" segment of many City Council Meetings; and received many other written and oral comments from citizens; WHEREAS, the City Council enacts this ordinance pursuant to and in compliance with the applicable provisions of the Utah Code, including §§ 10-8-8 et seq. and of the Salt Lake City Code, including Chapter 2.58; WHEREAS, the City Council acknowledges that the closure, vacation, and abandonment of the Pedestrian Easement means there would be no legally enforceable right of public pedestrian access or passage on the Main Street Property; that the Main Street Property would no longer be a part of the public pedestrian transportation grid; and that the Corporation of the Presiding Bishop as the private owner of the Main Street Property would have the right to deny access to the public if it so wished; WHEREAS, the Settlement Proposal is consistent with the City's primary objective in entering into the original transaction: the promotion of tourism and economic development; WHEREAS, appropriation of funds for the construction of new community facilities will be approved by the City Council pursuant to standard procedure through which the City Council considers inter alia broad benefit to the City and operations and maintenance costs; WHEREAS, based upon the information and evidence presented in the City Council public work sessions, public hearing, staff briefing, and "public 7 comments"; the Planning Commission hearing; and the Community Council meetings; the City Council finds as follows: (1) if, following completion of the transaction, the Corporation of the Presiding Bishop, as the private owner of the Main Street Property, decides to close the Main Street Property to pedestrian access and passage, the impact on pedestrian traffic would be minor; (2) the City never intended in the original transaction that expressive activities would be preserved on the Main Street Property; (3) the Court of Appeals decision has left the City with an unintended responsibility to regulate protected expressive activities on the Main Street Plaza, with the attendant risk of litigation; (4) even after the closure, vacation and abandonment of the Pedestrian Easement and resulting closure of the public forum on the Main Street Property, there will be ample alternate public forum space available for protected expressive activities in the immediate vicinity of the Main Street Property along North and South Temple Streets as well as in other areas of the City; (5) during 1998, the year prior to the original transaction, no free speech permits were requested from the City for the Main Street sidewalks between North and South Temple Streets; (6) the continued existence of the Pedestrian Easement is not necessary for use by the public as a sidewalk or pedestrian thoroughfare and closure, 8 • vacation and abandonment of the Pedestrian Easement will not be adverse to the general public's interest; (7) there is a good faith legal dispute between the City and the Corporation of the Presiding Bishop over the impact of the Court of Appeals' decision on their original agreement; (8) the controversy over the impact of the decision by the Court of Appeals on the original agreement between the City and the Corporation of the Presiding Bishop has had an extremely divisive and harmful effect on the Salt Lake City community; (9) the donation of the Glendale Property by the Corporation of the Presiding Bishop and the donations by the Alliance for Unity and James L. Sorenson will enable the City to construct new and expanded facilities that will provide significant benefits to the community; (10) the benefit of new community facilities in Glendale, promotion of tourism, resolution of divisiveness in the community, and voluntary settlement of the legal dispute between the City and the Corporation of the Presiding Bishop provide sufficient public policy reasons for the closure, vacation and abandonment of the Pedestrian Easement, and the closure of the Pedestrian Easement will enable the City to accomplish those public policy purposes; (11) accomplishment of these public policy purposes through closure, vacation and abandonment of the Pedestrian Easement outweighs the benefits of any alternatives to the closure of the Pedestrian Easement; 9 (12) there is good cause for the closure, vacation and abandonment of the Pedestrian Easement and such action will not be detrimental to the public interest; (13) the closure, vacation and abandonment of the Pedestrian Easement according to the terms of(a) a Settlement Agreement to be executed by the City and the Corporation of the Presiding Bishop substantially in the form of Exhibit A (the "Settlement Agreement"), and (b) a Deed Conveying Easement Rights and Amendment to Special Warranty Deed substantially in the form of Exhibit B (the "Amended Special Warranty Deed") is in the best interests of the City as a whole, NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah, that: SECTION 1. The Pedestrian Easement located on the Main Street Property, which is more particularly described in Exhibit C attached hereto, be, and the same hereby is closed, vacated and abandoned and declared no longer needed or available for use by the public for any purpose whatsoever, including but not limited to use as a sidewalk or as a pedestrian thoroughfare upon fulfillment of the conditions provided in Section 3. SECTION 2. Reservations and Disclaimers. The above closure, vacation and abandonment expressly does not affect and in no way limits: (1) the obligation of the Corporation of the Presiding Bishop to use and maintain the Main Street Property as a landscaped space; (2) the Emergency and Public Safety Easement reserved by the City in Section 1.1 of the Amended Special Warranty Deed; (3) the Public and Private Utilities Easement reserved by the City in Section 10 1.2 of the Amended Special Warranty Deed; and (4) the Preservation of View Corridor Easement reserved by the City in Section 1.4 of the Amended Special Warranty Deed. SECTION 3. Conditions. This closure, vacation and abandonment are conditioned upon the closing of the transactions pursuant to the terms of a Settlement Agreement between the City and the Corporation of the Presiding Bishop substantially in the form of Exhibit A hereto and an Amended Special Warranty Deed substantially in the form of Exhibit B hereto. SECTION 4. Transfer of Title. Title to the Pedestrian Easement shall remain with the City until the closing pursuant to the terms of the Settlement Agreement. SECTION 5. Amendment of Prior Ordinances. To the extent necessary, Salt Lake City Ordinance No. 28 of 1999 and Ordinance No. 29 of 2000 shall be and hereby are amended consistent with the terms and conditions set forth herein. SECTION 6. Effective Date. This ordinance shall become effective on the date of its first publication and shall be recorded with the Salt Lake County Recorder. Passed by the City Council of Salt Lake City, Utah this 10th day of June , 2003. AIRPER N 11 ' ATTEST AND COUNTERSIGN: 3Adez....ip (Mee ja.„2„ CHIEF DEPUTY CITY RECORDER Transmitted to Mayor on June 10. 2003 . Mayor's Action: Approved. Vetoed. AYOR / ATTEST AND COUNTERSIGN: HIEF DEPUTY Y C ORDE ,.,'�'�� �'l 7" t 4, 4". (SEAL) `r4\-0 . <,"< ... rr;`` E.,riA;,, Bill No. 31 of 2003. • . . , Published: June 18. 2001 G.\Ordinance 03\Main Street Plaza 5-19-03-clean doe 12 ;amp No. 08-1-03-0084 RECORDED JUN 19 2003 CITY RECORDER SETTLEMENT AGREEMENT This Settlement Agreement is entered into as of the 19th day of June, 2003,between SALT LAKE CITY CORPORATION(hereinafter the"City") and the CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole (hereinafter"COPB"). Collectively, the City and the COPB will constitute and be referred to as the "Parties." Recitals The Parties jointly represent and acknowledge: A. On or about April 27, 1999, the City executed a Special Warranty Deed (hereinafter the"Special Warranty Deed") to the COPB conveying surface rights in property described in Exhibit A to the Special Warranty Deed(hereinafter the "Main Street Plaza Property"). The Main Street Plaza Property formerly constituted a segment of Main Street in Salt Lake City, Utah,between South Temple Street and North Temple Street. In the Special Warranty Deed,the City reserved several easements on and under the surface of the Main Street Plaza Property, including an easement for pedestrian access and passage only, subject to certain limitations designed to assure that the Main Street Plaza Property would not be dedicated to public ownership or constitute a First Amendment forum of any kind under the United States Constitution. (The pedestrian access and passage easement, as established and limited in the Special Warranty Deed,will hereafter be called the"Pedestrian Easement.") B. The Special Warranty Deed provided that nothing in the Pedestrian Easement was to be deemed to create or constitute a"public forum" on the Main Street Plaza Property. The Special Warranty Deed also provided that the City and the COPB could terminate the Pedestrian Easement without the joinder or consent of any other person. The parties to the Special Warranty Deed explicitly intended for the COPB to have the right to regulate or prohibit conduct and activity of persons visiting or passing over the Main Street Plaza Property. C. In June 2000, the First Unitarian Church of Salt Lake City, Utahns for Fairness, the Utah National Organization for Women, and Craig S. Axford filed suit in the United States District Court for the District of Utah against the City to challenge, among other things, the Special Warranty Deed's restrictions on the Pedestrian Easement. The suit, entitled First Unitarian Church of Salt Lake City, et al. vs. Salt Lake City Corporation,will hereinafter be referred to as the "Federal Litigation." The COPB intervened as a party defendant in the Federal Litigation. D. On or about May 4, 2001, the United States District Court for the District of Utah entered summary judgment for the City and the COPB in the Federal Litigation, holding that the restrictions on the Pedestrian Easement in the Special Warranty Deed did not violate the First Amendment to the United States Constitution. 235783.11 E. On or about October 9, 2002, the United States Court of Appeals for the Tenth Circuit issued an order reversing the district court's decision in the Federal Litigation and holding that the Pedestrian Easement created a public forum for First Amendment purposes and, as a result, that the City and the COPB may not prohibit protected speech on the Pedestrian Easement. The Tenth Circuit's decision suggested that the City's relinquishment of the Pedestrian Easement would eliminate the public forum and, therefore, the First Amendment issues associated with the Pedestrian Easement. The COPB has filed a petition for certiorari with the United States Supreme Court in which it seeks review of the Tenth Circuit's decision. F. Following issuance of the Tenth Circuit's decision in the Federal Litigation, the City and the COPB disagreed concerning the decision's impact on the Pedestrian Easement and the right of the COPB to regulate or prohibit conduct on the Main Street Plaza Property. The City took the position that the Pedestrian Easement remains in effect without any of the limitations set forth specifically in the Special Warranty Deed. The COPB took the position that, as the result of the Tenth Circuit's opinion in the Federal Litigation, the Pedestrian Easement is void and, in any event, should be vacated so that the COPB may constitutionally regulate the use of the Main Street Plaza Property in accordance with the original intent of the parties to the Special Warranty Deed. In the face of these differences, the City and the COPB sought a mutually acceptable compromise to avoid protracted and costly litigation between them concerning the future of the Main Street Plaza Property. G. On January 8, 2003, the Mayor of the City(the"Mayor") filed a petition with the City's Acting Planning Director for approval of a proposal to resolve the disputes referenced in paragraph F of these recitals (all of which disputes are hereinafter referred to collectively as the "Disputes"). A copy of the Petition is annexed hereto as Exhibit 1. On June 10, 2003, the City Council approved the Mayor's proposal by Ordinance, a copy of which is annexed hereto as Exhibit 2 (the"Ordinance"). The purpose of this Settlement Agreement, the terms of which have been approved by the City Council, is to avoid litigation and resolve all of the Disputes, including without limitation, all disputes between the City and the COPB relating in any way to pedestrian access,pedestrian passage, and the right to control conduct on the Main Street Plaza Property. It is the intent of the Parties for the City to close, vacate, abandon, and convey to the COPB the Pedestrian Easement in return for consideration including the promises, covenants and agreements set forth herein. H. In implementation of the proposal set forth in Exhibit 1,the Parties and other interested persons intend to undertake a series of transactions and donations that will enable the City to establish one or more community facilities (hereinafter collectively the"Community Facility") located in the Glendale neighborhood for Salt Lake City residents. The land to be conveyed to the City pursuant to paragraph 2 of this Settlement Agreement will provide a location for one such facility. The Alliance for Unity will provide to the City a total of at least Four Million Dollars ($4,000,000) for construction of the Community Facility and, in the City's discretion, furnishings, fixtures, equipment, and maintenance therefor. James L. Sorenson will donate to the City cash and/or land having a value of at least One Million Dollars ($1,000,000) for the same purposes. The Foundation of the Church of Jesus Christ of Latter-day Saints (the 235783.11 2 "Foundation")has contributed Two Hundred and Fifty Thousand Dollars ($250,000) to the Alliance for Unity toward its donation. I. By adopting the Ordinance, the Salt Lake City Council has considered this Settlement Agreement and all instruments and transactions referenced by this Settlement Agreement as well as the public comments regarding the Mayor's proposal. Agreement In consideration of the mutual promises and covenants set forth below, the Parties agree as follows: 1. Mutual Release of All Claims—Effective at "Closing," as defined in paragraph 8 below, and subject only to the obligations arising from this Settlement Agreement, the City and the COPB shall release, forgive, and forever discharge each other of and from any and all claims, demands, causes of action, liabilities, damages or losses of any kind whatsoever relating in any way to the Disputes, including, without limitation, those relating to the decision of the United States Court of Appeals for the Tenth Circuit in the Federal Litigation,the Pedestrian Easement and limitations thereon in the Special Warranty Deed,use of the Main Street Plaza Property as a public forum, and the COPB's regulation or prohibition of conduct and activity on the Main Street Plaza Property. 2. Consideration Provided by the COPB —At Closing,the COPB will convey 2.125 acres of property(hereinafter the"Glendale Property") located at 1385 South 900 West, Salt Lake City, Utah,by executing, delivering and recording a Special Warranty Deed in substantially the form annexed hereto as Exhibit 3 (the"Glendale Special Warranty Deed"). The Glendale Property has been appraised at a value of Two Hundred Seventy-Five Thousand Dollars ($275,000)by an independent appraiser retained by the City. The City acknowledges that the COPB is providing additional consideration equalling (a) Two Hundred Fifty Thousand Dollars ($250,000) through the Foundation's contribution to the Alliance for Unity, and (b) approximately One Hundred Four Thousand Five Hundred Eighty-Six Dollars ($104,586) as provided in paragraph 7, below. The City also acknowledges that it will receive other monetary consideration from third parties and other intangible consideration from the COPB and third parties. 3. Vacation and Conveyance of Public Access Easement—At Closing, pursuant to the Ordinance, the City will close, vacate, abandon, and convey to the COPB the Pedestrian Easement by executing, delivering and recording a"Deed Conveying Easement Rights and Amendment to Special Warranty Deed" substantially in the foam annexed hereto as Exhibit 4 (the"Deed Conveying Easement Rights"). By virtue of the passage of the Ordinance and the execution, delivery and recording of the Deed Conveying Easement Rights, the Parties intend to effectuate the complete extinguishment of the Pedestrian Easement in return for all promises and covenants by the COPB in this Settlement Agreement and all donated funds and land received from the Alliance for Unity and James L. Sorenson. It is further the intent of the Parties that, 235783.11 3 following implementation of this Settlement Agreement, the City will own no interest whatsoever in the Main Street Plaza Property except those interests arising from the COPB's obligation to use and maintain the Property as a landscaped space and the easements for emergency and public safety services and public and private utilities and the view corridor restrictions, as set forth specifically in Paragraphs 1.1, 1.2 and 1.4 of the Special Warranty Deed, as amended pursuant to this Settlement Agreement. 4. Other Consideration. The COPB acknowledges that the receipt by the City of the consideration to be provided by the Alliance for Unity and James L. Sorenson is material to the City's decision to enter into this transaction. 5. Amendment of Special Warranty Deed—At Closing, the City and the COPB will execute, deliver and record the Deed conveying Easement Rights, which will amend the Special Warranty Deed as follows: (a) Paragraphs 1.3, 2 (including all subparagraphs thereof), and 6.3 of the Special Warranty Deed will be deleted in their entirety and shall have no further force or effect whatsoever. (b) Paragraph 1.4 of the Special Warranty Deed will be amended to add the following: "To ensure the preservation of the view corridor established in this paragraph 1.4 and the aesthetics of the property and surrounding areas, Grantee may not erect fences, walls or gates on the Property without the written approval of Grantor, which approval shall not be unreasonably withheld. Grantor's approval authority shall be exercised based on aesthetic, safety, and security considerations and the need to preserve the view corridor established in this paragraph, and not on concerns about public access. All fences, walls and gates currently in place on the Property have been approved by Grantor. If a court of competent jurisdiction holds (without regard to any right to appeal) that the provisions in this paragraph 1.4 relating to fences, walls and gates, alone or in combination with any other factor, create or establish the basis for a First Amendment forum of any kind, then and thereupon the requirement that Grantee must obtain approval from Grantor to erect fences, walls or gates shall automatically terminate and be of no further force or effect whatsoever." (c) Paragraph 4 of the Special Warranty Deed will be amended in its entirety to read as follows: 4. Right of Reentry. In the event that Grantee fails to use and maintain the Property as a landscaped space or to permit Grantor access to the Property pursuant to the easements reserved in Paragraphs 1.1 and 1.2, or violates the view corridor and fencing restrictions in Paragraph 1.4, then the Property shall, at Grantor's option exercised in accordance with Paragraph 5, revert to Grantor. Notwithstanding the foregoing, none of the provisions of this paragraph 235783.11 4 4, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. (d) Paragraph 6.1 of the Special Warranty Deed will be amended in its entirety to read as follows: 6.1 Integrated Agreement. This instrument is complete and integrated, and constitutes the entire understanding between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, understandings,promises,warranties, representations, inducements or conditions, oral or written, except as contained herein and in the Settlement Agreement between the Parties entered into on June 19, 2003. The express terms hereof control and supersede any course of performance inconsistent with any terms hereof. Any revisions, amendments or modifications to this instrument must be in writing and signed by all parties. Any implied and/or oral revisions, amendments or modifications will not be binding on any of the parties. (e) Paragraph 6.2 of the Special Warranty Deed will be amended in its entirety to read as follows: 6.2 Severability. If any term, condition, or provision of this instrument is held by a court of competent jurisdiction-to be invalid, illegal or unenforceable for any reason, all other terms, conditions and provisions of this instrument shall nevertheless remain in full force and effect so long as the primary purposes of the instrument are not thereby affected in any manner materially adverse to any party. Upon such determination that any term, condition or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this instrument so as to effect as closely as possible the original intent of the Parties in a mutually acceptable manner to the fullest extent permitted by applicable law. (f) The Special Warranty Deed will be amended by adding the following paragraphs: 6.7 Intent of the Parties. Termination of Right of Reentry. The parties expressly intend and agree that the Property be private property and that Grantee shall have full, complete and absolute control over all activities on and uses of the Property, subject only to its obligation to use and maintain the Property as a landscaped space with the easements reserved in Paragraphs 1.1 and 1.2, the view corridor and fencing restrictions in Paragraph 1.4, and Grantor's police powers applicable to private property in general. Nothing in this Special Warranty Deed, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. If a court of competent jurisdiction holds (without regard to any right to appeal) that the right of reentry in paragraph 4 alone or in combination with any other factor creates or 235783.11 5 establishes the basis for a First Amendment forum of any kind, then and thereupon the right of reentry shall immediately and automatically terminate and be of no further force or effect whatsoever. If, however, the court's holding is reversed, the reentry clause shall immediately and automatically revive. Any termination of the reentry clause shall not impair the right of Grantor to obtain equitable or other relief should Grantee's obligation to use and maintain the Property as a landscaped space or the provisions of Paragraphs 1.1, 1.2, or 1.4 be violated, provided that no such right in favor of Grantor , alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. 6.8 Notices. Notices will be in writing and will be given by personal delivery or by express delivery service (such as FedEx), freight prepaid. Notices will be delivered or addressed, in the case of Grantee, to the following: (1) Presiding Bishop The Church of Jesus Christ of Latter-day Saints 50 East North Temple, 18th Floor Salt Lake City, UT 84150 (2) General Counsel The Church of Jesus Christ of Latter-day Saints Second Floor, West Wing 50 East North Temple Salt Lake City, UT 84150 and in the case of Grantor, to the following: (1) Office of the Mayor Salt Lake City Corporation 451 South State, Suite 306 Salt Lake City,Utah 84111 (2) Office of the City Attorney Salt Lake City Corporation 451 South State, Suite 505 Salt Lake City,Utah 84111, or to such other persons as the parties may designate in writing. The date notice is deemed to have been given, received and become effective will be (a) the date on which the notice is delivered, if notice is given by personal delivery, (b) the date of actual receipt, if the notice is sent by express delivery service. 6. No Right of Public Access—It is the intent of the Parties to eliminate any right of public access or passage enforceable by the City or by members of the public in relation to the 235783.11 6 Main Street Plaza Property, and nothing in this Settlement Agreement should be construed otherwise. The Parties do not intend to create any obligation,promise, dedication, servitude, or easement of any kind that would require the COPB to permit public access or passage. 7. Division of Litigation Costs—All costs and attorneys' fees awarded at any time against the City in the Federal Litigation shall be paid one-half by the City and one-half by the COPB. The City hereby acknowledges that such payment of costs and attorneys' fees by COPB, equalling approximately One Hundred Four Thousand Five Hundred Eighty Six Dollars ($104,586), when and if made, represents additional consideration received by the City from the COPB in connection with the closing, vacating, abandoning and conveyance of the Pedestrian Easement. 8. Closing—The closing of all of the transactions and deliveries contemplated hereby(the "Closing") shall be held at the offices of Mayor Ross C. ("Rocky") Anderson, 451 South State Street,Room 306, Salt Lake City,Utah 84111, at 10:00 a.m., Salt Lake City time, on or before a date that is no earlier than thirty five (35) days,nor later than sixty(60) days, following (a) the date on which the Ordinance shall have been finally published, or (b)the date on which the Mayor and the COPB execute and deliver this Settlement Agreement, whichever is later, or at such other date and time upon which the parties mutually agree in writing. 9. Conditions and Events of Closing (a) Conditions and Deliveries. For the Closing to occur, each of the following conditions must be met, and each shall be considered a condition precedent to the others: (i) The Ordinance shall have been enacted by the City Council and finally published. (ii) No law suit or administrative proceeding shall have been commenced against the City, the COPB, or the officers, agents or affiliates of either challenging the Ordinance, this Settlement Agreement, or any of the transactions or instruments contemplated in this Settlement Agreement, unless satisfaction of the foregoing condition shall have been waived by the Mayor on behalf of the City and by the COPB. (iii) First American Title Insurance Company("Escrow Holder") shall be in receipt from the Salt Lake Alliance for Unity and James L. Sorenson of cash (in collected funds) and land with a total value (as determined by the City in its sole discretion,based on an M.A.I. appraisal) of at least Five Million Dollars ($5,000,000) (the "Cash and Land") for construction and, in the City's discretion, furnishings, fixtures, equipment and maintenance therefor. (iv) The City and the COPB shall have executed and delivered to Escrow Holder the Deed Conveying Easement Rights. 235783.11 7 (v) The COPB shall have executed and delivered to Escrow Holder the Glendale Special Warranty Deed. (vi) Escrow Holder shall be irrevocably prepared to issue to the City an ALTA standard coverage owner's policy of title insurance, Fotiu 10-17-92, in the amount of Two Hundred Seventy-Five Thousand Dollars ($275,000) (the "Glendale Title Insurance Policy"), naming the City as the insured and insuring all of the City's right, title and interest to the property described in the Glendale Special Warranty Deed, subject to the noiiiial printed teiiiis and conditions of such policy. The COPB shall pay the premium for the issuance of the Glendale Title Insurance Policy. (b) Costs; Closing Events. All recording costs for the Deed Conveying Easement Rights and the Glendale Special Warranty Deed shall be paid by the COPB. Escrow Holder's escrow fee shall be divided equally between the City and the COPB. At the Closing, Escrow Holder shall simultaneously(i)record with the Salt Lake County Recorder the Deed Conveying Easement Rights an the Glendale Special Warranty Deed, and (ii) deliver to the City the Cash and Land (with the land portion to be conveyed by Special Warranty Deed in form acceptable to the City in its sole discretion)without condition. As soon as practicable following the Closing, Escrow Holder shall deliver to the City the original Glendale Title Insurance Policy. 10. Miscellaneous (a) The Parties each represent and acknowledge that, in executing this Settlement Agreement, they do not rely and have not relied upon any representation or statement made by each other(except as expressly set forth in the recitals in this Settlement Agreement) or by any agents, representatives, or attorneys of the other with regard to the subject matter,basis, or fact of this Settlement Agreement, or otherwise. (b) Each of the Parties represent and warrant that the persons signing this Settlement Agreement in their representative capacities have been duly authorized to do so by the party for whom he or she has signed. (c) This Settlement Agreement is complete and integrated, and constitutes the entire understanding between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, understandings, promises,warranties, representations, inducements or conditions, oral or written, except as contained herein. The express teinis hereof control and supersede any course of performance inconsistent with any terms hereof. Any revisions, amendments or modifications to this Settlement Agreement must be in writing and signed by all Parties hereto. Any implied and/or oral revisions, amendments or modifications will not be binding on any of the Parties. 235783.11 8 (d) The Parties each acknowledge that they are entering into this Settlement Agreement having fully reviewed the teitiis hereof, and they are signing this Settlement in consultation with their respective legal counsel. By signing below, the Parties' respective legal counsel each acknowledge that they have reviewed and approved the foiiu and content of this Settlement Agreement in consultation with their respective clients. (e) The Parties each acknowledge and understand that this is a legally binding contract and further acknowledge that prior to signing below they have each fully read and understood all of the terms of this Settlement Agreement. (f) The Parties also acknowledge that they have signed this Settlement Agreement freely and voluntarily, and that they have not been threatened or coerced into making this agreement or releasing any rights hereunder. (g) This Settlement Agreement shall be binding upon and inure to the benefit of all of the Parties hereto and their respective successors and assigns. No party to the Settlement Agreement may assign its rights or obligations hereunder without the prior written consent of the other party hereto. (h) No forbearance of any party to enforce any provision hereof or any rights existing hereunder shall constitute a waiver of such provisions or rights or be deemed to effect an amendment or modification of this Settlement Agreement. (i) This Settlement Agreement shall be governed by and construed in accordance with the laws of the state of Utah without regard to the principles choice of law of Utah or any other state. (j) In the event any suit is brought to enforce any of the provisions of this Settlement Agreement, in addition to any damages that may be claimed, the prevailing party shall be entitled to an award of costs and reasonable attorney fees incurred in connection with the prosecution of such action. (k) If any Willi, condition, or provision of this Settlement Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, all other teaitis, conditions and provisions of this Settlement Agreement shall nevertheless remain in full force and effect so long as the primary purposes of the Settlement Agreement are not affected in any manner materially adverse to any party. Upon such deteiiiiination that any teuu, condition or other provision is invalid, illegal or unenforceable,the parties hereto shall negotiate in good faith to modify this Settlement Agreement so as to effect as closely as possible the original intent of the Parties in a mutually acceptable manner to the fullest extent peiiiiitted by applicable law. (1) Unless mutually agreed otherwise, the Parties agree to cooperate in the defense of or prosecution of claims,thorough all levels of appeal, brought by or against 235783.11 9 • the Parties, or either of them,regarding the enforceability of this Settlement Agreement and all covenants and promises made hereunder. Each Party consents to share with the other Party such common communications and other litigation material related to such an action as each Party deems appropriate. The sharing of common communications is not intended to, and shall not be deemed to, constitute a waiver of any privilege or other protection that may pertain to such common communications and other litigation material. (m) This Settlement Agreement may be executed in counterparts. IN WITNESS WHEREOF, the Parties have each executed this Settlement Agreement as of the date written below. ATTEST AND COUNTERSIGN SALT LA CITY CORPORATION By .-Z By: Kendrick C ey Ross C. Anderson Salt L City Recorder Mayor erg �; ^� CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER- C. DAY SAINTS, a Utah corporatio e -...,T e, By: RECORDED `' . . David Presiding Bishop JUN 1 9 2003 CITY RECORDER 235783.11 10 List of Exhibits 1 Mayor's Petition 2 City Council Ordinance 3 Glendale Special Warranty Deed 4 Deed Conveying Easement Rights 235783.11 1 1 List of Exhibits 1 Mayor's Petition 2 City Council Ordinance 3 Glendale Special Warranty Deed 4 Deed Conveying Easement Rights 235783.10 1 1 EXHIBIT `B" DRAFT 6/3/03 WHEN RECORDED, RETURN TO: [Tax Parcel No. 1 SNELL&WILMER Gateway Tower West 15 West South Temple, Suite 1200 Salt Lake City, Utah 84101 Attention: Alan L. Sullivan DEED CONVEYING EASEMENT RIGHTS AND AMENDMENT TO SPECIAL WARRANTY DEED (Main Street Plaza) This DEED CONVEYING EASEMENT RIGHTS AND AMENDMENT TO SPECIAL WARRANTY DEED (the "Amendment Deed") is made and entered into as of , 2003, by and between the CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, whose address is 50 East North Temple, Suite 1800, Salt Lake City, Utah 84111 (the "Grantee") and SALT LAKE CITY CORPORATION, whose address is 451 South State Street, Salt Lake City,Utah 84111 (the"Grantor") RECITALS: A. By Special Warranty Deed, recorded on April 27, 1999, as Entry No. 7335190, in Book , at page , records of Salt Lake County, Utah (the "Original Deed"), Grantor conveyed to Grantee the real property more particularly described on Exhibit A to this Amendment Deed (the "Property"). B. Paragraph 1.3 of the Original Deed reserved a pedestrian access and passage easement over the Property in favor of Grantor. The easement rights reserved by Paragraph 1.3 of the Original Deed are referred to in this Amendment Deed as the "Pedestrian Easement." C. The Pedestrian Easement was limited by the terms of Paragraph 2 of the Original Deed. The conditions, limitations and restrictions contained in Paragraph 2 of the Original Deed are referred to in this Amendment as the "Pedestrian Easement Restrictions." D. Questions have arisen as to the enforceability of the Pedestrian Easement Restrictions, with the United States Court of Appeals for the Tenth Circuit holding the Pedestrian Easement Restrictions unconstitutional in First Unitarian Church of Salt Lake City, et al. v. Salt Lake City Corporation, 308 F.3d 1114 (10th Cir. 2002). 235296,10 E. To settle disputes between them with respect to the Pedestrian Easement and the Pedestrian Easement Restrictions, Grantor and Grantee have entered into a Settlement Agreement, dated as of , 2003 (the "Settlement Agreement"). This Amendment Deed is being executed and delivered pursuant to the terms and conditions of the Settlement Agreement and pursuant to the actions of the Mayor and City Council of Salt Lake City, as described in the Settlement Agreement. F. Pursuant to Salt Lake City Ordinance No. , adopted by the City Council of Salt Lake City on , 2003 and signed by the Mayor of Salt Lake City, Grantor has closed, vacated, and abandoned the Pedestrian Easement, subject to the terms and conditions set forth in such ordinance. Now, therefore, for valuable consideration, as more particularly set forth in the Settlement Agreement, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Conveyance of Pedestrian Easement; Intent; Grantor's Interest. (a) Grantor hereby grants and conveys the Pedestrian Easement and all of its right, title and interest in and to the Pedestrian Easement to Grantee. Grantor hereby warrants the title so granted and conveyed as to all claims or defects arising by, through, or under Grantor , but not otherwise. This grant and conveyance shall be subject to the terms of the Original Deed as amended herein. (b) The parties intend, by this conveyance, that Grantee own the Property in fee simple defeasible title (with a right of reentry), subject only to Grantee's obligation to use and maintain the Property as a landscaped space, the easements reserved in Paragraphs 1.1 and 1.2 of the Original Deed (collectively, the "Utility and Service Easements"), and the view corridor and fencing restrictions in paragraph 1.4 of the Original Deed, as amended herein (the "View Restriction"). From and after recordation of this Amendment Deed and except for its rights pursuant to the Utility and Service Easements, the View Restriction, and Grantor's obligation to use and maintain the property as a landscaped space, Grantor relinquishes, releases, and disclaims any and all ownership interest in or rights of any kind with respect to the Property. Grantor also disclaims any right or authority to regulate any expression or conduct on the Property other than pursuant to Grantor's police powers applicable to private property in general. 2. Amendment of Original Deed. The Original Deed is amended as follows: (a) Paragraphs 1.3, 2 (including all subparagraphs thereof), and 6.3 of the Original Deed are deleted in their entirety and shall have no further force or effect whatsoever. (b) Paragraph 1.4 of the Original Deed is hereby amended to add the following: "To ensure the preservation of the view corridor established in this paragraph 1.4 and the aesthetics of the Property and surrounding areas, Grantee 235296.10 2 may not erect fences, walls, or gates on the Property without the written approval of Grantor, which approval shall not be unreasonably withheld. Grantor's approval authority shall be exercised based on aesthetic, safety, and security considerations and the need to preserve the view corridor established in this paragraph, and not on concerns about public access. All fences, walls, and gates, currently in place on the Property have been approved by Grantor. If a court of competent jurisdiction holds (without regard to any right to appeal) that the provisions in this paragraph 1.4 relating to fences, walls, and gates, alone or in combination with any other factor, create or establish the basis for a First Amendment forum of any kind, then and thereupon the requirement that Grantee must obtain approval from Grantor to erect fences, walls, and gates shall automatically terminate and be of no further force or effect whatsoever." (c) Paragraph 4 of the Original Deed is amended in its entirety to read as follows: 4. Right of Reentry. In the event that Grantee fails to use and maintain the Property as a landscaped space or to permit Grantor access to the Property pursuant to the easements reserved in Paragraphs 1.1 and 1.2, or violates the view corridor and fencing restrictions in Paragraph 1.4, then the Property shall, at Grantor's option exercised in accordance with Paragraph 5, revert to Grantor. Notwithstanding the foregoing, none of the provisions of this paragraph 4, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. (d) Paragraph 6.1 of the Original Deed is amended in its entirety to read as follows: 6.1 Integrated Agreement. This instrument is complete and integrated, and constitutes the entire understanding between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, understandings,promises, warranties, representations, inducements or conditions, oral or written, except as contained herein and in the Settlement Agreement between the Parties entered into on , 2003. The express terms hereof control and supersede any course of performance inconsistent with any terms hereof. Any revisions, amendments or modifications to this instrument must be in writing and signed by all parties. Any implied and/or oral revisions, amendments or modifications will not be binding on any of the parties. (e) Paragraph 6.2 of the Original Deed is amended in its entirety to read as follows: 6.2 Severability. If any term, condition, or provision of this instrument is held by a court of competent jurisdiction to be invalid, illegal 235296.10 3 or unenforceable for any reason, all other terms, conditions and provisions of this instrument shall nevertheless remain in full force and effect so long as the primary purposes of the instrument are not thereby affected in any manner materially adverse to any party. Upon such determination that any term, condition or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this instrument so as to effect as closely as possible the original intent of the Parties in a mutually acceptable manner to the fullest extent permitted by applicable law. (f) The Original Deed shall be amended by adding the following Paragraphs: 6.7 Intent of the Parties. Termination of Right of Reverter. The parties expressly intend and agree that the Property be private property and that Grantee shall have full, complete and absolute control over all activities on and uses of the Property, subject only to its obligation to use and maintain the Property as a landscaped space with the easements reserved in Paragraphs 1.1 and 1.2, the view corridor and fencing restrictions in Paragraph 1.4, and the City's police powers applicable to private property in general. Nothing in this Special Warranty Deed, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. If a court of competent jurisdiction holds (without regard to any right to appeal) that the right of reverter in paragraph 4 alone or in combination with any other factor creates or establishes the basis for a First Amendment forum of any kind, then and thereupon the right of reverter shall immediately and automatically terminate and be of no further force or effect whatsoever. If, however, the court's holding is reversed, the reverter clause shall immediately and automatically revive. Any termination of the reverter clause shall not impair the right of Grantor to obtain equitable or other relief should Grantee's obligation to use and maintain the Property as a landscaped space or the provisions of Paragraphs 1.1, 1.2, or 1.4 be violated, provided that no such right in favor of Grantor, alone or in combination with any other factor, shall be interpreted to create or establish the basis for a First Amendment forum of any kind. 6.8 Notices. Notices will be in writing and will be given by personal delivery or by express delivery service (such as FedEx), freight prepaid. Notices will be delivered or addressed to the COPB and the City at the addresses set forth on the first page of the Amendment Deed or at such other address as a party may designate in writing;provided, however, that if the notice is given by personal delivery, delivery, in the case of the COPB, must be to one of the following: and in the case of the City, must be to one of the following: . The date notice is deemed to have been given, received and become effective will be (a) the date on which 235296.10 4 the notice is delivered, if notice is given by personal delivery, (b) the date of actual receipt, if the notice is sent by express delivery service. 3. Ratification. As modified and supplemented by this Amendment Deed, the Original Deed is ratified and confirmed and shall continue in full force and effect. DATED this day of , 2003. THE CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole By: H. David Burton Presiding Bishop SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah By: Ross C. "Rocky"Anderson Mayor ATTEST AND COUNTERSIGN: By Kendrick Cowley Salt Lake City Recorder 235296.10 5 STATE OF UTAH ) : ss COUNTY OF SALT LAKE ) The foregoing instrument was acknowledged before me this day of , 2003 by , , of the CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, on behalf of the corporation. My Commission Expires: NOTARY PUBLIC Residing at STATE OF UTAH ) : ss COUNTY OF SALT LAKE ) The foregoing instrument was acknowledged before me this day of , 2003 by , the , and , the of SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah, on behalf of the corporation. My Commission Expires: NOTARY PUBLIC Residing at 235296.10 6 DRAFT 6/3/03 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 235296.10 EXHIBIT"C" MAIN STREET PROPERTY DESCRIPTION Beginning at the Southeast corner of Block 87,Plat A,Salt Lake City Survey,located in the Southwest quarter of section 31, Township 1 North, Range 1 East, Salt Lake Base Meridian,and running thence North 00°01'42"west 660 feet along the east line of said block 87 to the Northeast corner of said block 87.Thence North 81°22'22"East 134.07 feet to the South right of way line of North Temple Street,a point that is North 00°02'13" West 18 feet from the Northwest Corner of Block 88,Plat A, thence South 00°02'13" East 678 feet along the west line of block 88 to the Southwest corner of block 88:thence South 89°05'14"West 132.68 feet to the point of beginning.• `+r