The Lindon City Council held a special meeting on Tuesday, September 30, 2003 at 8:00 p.m. in the Lindon City Center, City Council Chambers, at 100 North State Street, Lindon, Utah.

Conducting: Larry A. Ellertson, Mayor
Pledge of Allegiance: Larry A. Ellertson, Mayor
Invocation: Lindsey Bayless

PRESENT

Larry A. Ellertson, Mayor
Jeff Acerson, Councilmember
H. Toby Bath, Councilmember
Lindsey Bayless, Councilmember
James A. Dain, Councilmember
Ott H. Dameron, City Administrator
Venla Gubler, Administrative Clerk

ABSENT

Jerald I. Hatch, Councilmember
Kevin Smith, Planning Director

The meeting began at 8:10 p.m.

MINUTES - The minutes of the regular meeting of September 2, 2003 will be reviewed.

The Minutes of the regular meeting of September 2, 2003 were reviewed. The following corrections were made:
Page 11, Line 24: Delete the word "not" after the word "will."
COUNCILMEMBER BATH MOVED TO APPROVE THE MINUTES OF SEPTEMBER 2, 2003 AS CORRECTED. COUNCILMEMBER ACERSON SECONDED THE MOTION. ALL PRESENT VOTED IN FAVOR. THE MOTION CARRIED.

OPEN SESSION - Citizens comments

There was no public comment.

MAYOR'S COMMENTS/REPORT

Mayor Ellertson commented that he did not have any report for tonight. He asked if there were questions for him. There were none.

CONSENT AGENDA - No Items

CURRENT BUSINESS

1. Review and Action - Development Agreement. This is a request by John Owens of Colliers International, representing Walmart Store, Inc., for consideration of a development agreement between Walmart and Lindon City.

Mayor Ellertson observed that the purpose of this special meeting is to address a development agreement between Walmart and Lindon City. He commented that members of the City Council had met last week and reviewed the proposed agreement. He confirmed with Mr. Marc Cohen and Mr. Darrell Tate that this agreement incorporated the changes discussed then. Mr. Cohen agreed. Mayor Ellertson noted that he had a few more questions and suggested that the agreement be reviewed again, page by page.

Mayor Ellertson referred to Section One and noted that this section deals with the vacation of 600 North and the subsequent lease of the right-of-way back to the City until the 800 West road section is completed by Walmart and opened to the public. He observed that the vacation of 600 North is not recorded yet, but when it is recorded, the lease of the right-of-way back to the City will allow public use with no liability to Walmart. He asked where the agreement addresses the Lindon City's retaining of the utility easements in 600 North. It was noted that the utility easements are depicted and recognized on the Walmart Subdivision Plat.

Mr. Gordon Duval, City Attorney, noted that Section 2.2 addresses the vacated portion of 600 North if the Walmart is not built. He observed that Section 2.1 sets a "completion date" and 2.2 states that if the Walmart is not completed by the defined date, the vacated portion of 600 North will revert back to Lindon City and Walmart will reimburse Lindon City the amount of the administrative expenses up to $10,000. Mayor Ellertson asked if Mr. Duval and Mr. Dameron were comfortable with this set amount. They both agreed.

Mayor Ellertson asked about other expenses that the City has incurred for the development of this parcel, such as off-site improvements. Mr. Dameron replied that this clause only deals with the vacated portion of 600 North and does not include any other expenses that may accrue. Mr. Duval agreed. Mayor Ellertson observed that the first draft had just stated "expenses" and had no limitation. Mr. Cohen commented that the objective of this section of the agreement is to just return the right-of-way back to the way it was if Walmart is not built. He observed that progress is being made and the likelihood of the project becoming reality is more promising daily. Mayor Ellertson commented that, in the event that the Walmart is not built and 600 North is returned to the City, who is responsible for putting the road back in? He asked if the $10,000 would cover those costs. Mr. Dameron replied that the amount would be insufficient, but noted that the road would probably not be torn out if Walmart does not build. Mayor Ellertson agreed that part of the agreement is that 600 North is not removed until the connector is built on 800 West. Councilmember Acerson pointed out that Section 10 is an all-inclusive default that provides for restitution of damages from the defaulting party.

Mayor Ellertson moved to Section 3.3 and asked what other permits than those issued by the City were being anticipated here. It was noted that Lindon City was agreeing to assist Walmart with UDOT. Mayor Ellertson confirmed that nothing is anticipated other than this one permit. This was confirmed. Mayor Ellertson observed that Section 4 now includes mention that Lindon City will retain the improvement completion bond until the end of the warranty period as provided in the Lindon City Code.

Mayor Ellertson noted that Section 6 deals with the store building closing and remaining empty for a period of time. Councilmember Bath asked if the term "commercially reasonable efforts" should be defined in the agreement. He asked for a definition of this term. Mayor Ellertson replied that Walmart and Lindon City had been "poles apart" when discussion of this clause had started. He commented that his interpretation of the clause is that Walmart will use reasonable efforts to market the property. Mr. Cohen explained that Walmart has two organizations that deal with their real estate: one to acquire and develop sites for stores, and one to dispose and market sites no longer useful. He told the Council that land is not left idle–it is either put into production or sold as speedily as possible. Mr. Tate added that Walmart only moves out of a location if there is no room to expand as necessary. He noted that he is working with Walmart on the disposal of the American Fork site, so he is acquainted with this policy. Councilmember Acerson commented that he had been told at the meeting last week that a Super Walmart has never been closed, which is what this Lindon store is intended to be.

Mr. Duval explained that the term "commercially reasonable" is a standard legal term. He commented that the term is not subject to Walmart's interpretation or policies, but is based on the market for commercial property in the area. He assured the Council that the legal community has an understanding of the meaning of this term.

Mayor Ellertson pointed out that Section #7 deals with the access to the Walmart site from 700 North. It states that if Lindon City finds that access needs to be limited to 700 North, Walmart and Lindon will work together to find solutions with final authority to the Lindon City Council. Mr. Cohen agreed to this interpretation. Mayor Ellertson commented that 7.3 limits actions against Lindon City. He noted a change in Section 9 and Section 21 from ten days to thirty days, and commented that Section 21 allows up to sixty days to correct a default.

Mr. Duval observed that other changes include the incorporation of the 600 North right-of-way lease as Exhibit D. Mayor Ellertson suggested that the exhibits be examined and the references to them in the agreement checked. He drew attention to Exhibit A, which is the legal description of the Walmart parcel. Mr. Cohen remarked that he would provide a new Exhibit A that correctly describes the project area and includes the UDOT agreement as of today. He noted that the legal description "less and excepts" the cul-de-sac that will be built on 600 North abutting the west boundary of the Walmart project. It was confirmed that although the property's legal description will change somewhat on the State Street side, the cul-de-sac portion will not change. Exhibit B is the approved Walmart site plan. Exhibit B-1 is a list of off-site improvements that have been agreed to between Walmart and Lindon City. This includes the extension of 800 West between 600 North and 700 North, and the realignment and improvements on 600 North east side of State Street. Exhibit C is the legal description of the vacated portion of 600 North. Councilmember Dain suggested that Exhibit C include a statement that retains the utility easements to the City. This was discussed and agreed upon. It was also decided to make a note on the plat to this effect. Mr. Duval clarified that the Exhibits are to be numbered A, B, B-1, C and C-1. Exhibit C-1 will show that the utility easements are retained by the City. This was agreed to by all parties. Mr. Cohen observed that the former Exhibit D is the previous description of the cul-de-sac that has now been moved to Exhibit A. The former Exhibit E will replace Exhibit D. This is the lease agreement for the 600 North right-of-way. Mr. Duval observed that the reason for the lease agreement is to transfer liability for the vacated portion of 600 North to Lindon City while it is still being used as a city street.

Mayor Ellertson asked if there were any other questions or comments. There were none. Mr. Dameron asked when he could expect a corrected copy of the agreement for signature. Mr. Cohen suggested that the Council approve the agreement with the changes as discussed. He would correct the paperwork and bring a clean copy in the morning to execute, express mail the document to Walmart to arrive on Thursday, which is in time to make the closing for Friday.

COUNCILMEMBER DAIN MOVED TO APPROVE THE DEVELOPMENT AGREEMENT BETWEEN LINDON CITY AND WALMART AND THE LEASE AGREEMENT BETWEEN THE SAME PARTIES WITH THE CHANGES, ADDITIONS AND CORRECTIONS NOTED IN THE DISCUSSION ABOVE AND AUTHORIZE THE MAYOR TO REVIEW AND EXECUTE BOTH DOCUMENTS. COUNCILMEMBER ACERSON SECONDED THE MOTION. ALL PRESENT VOTED IN FAVOR. THE MOTION CARRIED.

Mr. Cohen remarked that he had two other items to discuss with the Council. One is the water share submittal or bonding requirement before the plat is signed and recorded. He told the Council that Walmart desires to record the plat on Monday. He would like the Council to consider attaching this requirement to the issuance of the building permit rather than the recording of the plat. Mr. Dameron commented that, although the policy has been to require water shares or bonding with the plat recording, in this case the applicant would like more time to prepare the water bond. He expressed support for Walmart's request to meet the water share submittal or bonding requirements upon issuance of the building permit. Mayor Ellertson asked the estimated time table for issuance of the building permit. Mr. Cohen acknowledged that the timing was not specifically identified, but that the process was almost completed. Mr. Dameron agreed and estimated three weeks. Mr. Cohen commented that the construction bond is a letter of credit and asked if the water share bond could be the same. This was confirmed.

COUNCILMEMBER DAIN MOVED TO APPROVE THE REQUEST BY WALMART TO DEFER THE WATER SHARE SUBMITTAL REQUIREMENT FROM THE SUBDIVISION PLAT RECORDING TO THE BUILDING PERMIT ISSUANCE AND ACCEPT A LETTER OF CREDIT AS A PERFORMANCE BOND IN AN AMOUNT EQUAL TO THE VALUE OF THE REQUIRED AMOUNT OF SHARES AS SET FORTH IN THE LINDON CITY FEE SCHEDULE. COUNCILMEMBER BATH SECONDED THE MOTION. ALL PRESENT VOTED IN FAVOR. THE MOTION CARRIED.

Mr. Cohen thanked the Council and asked Mr. Dameron for a letter to Walmart indicating approval of this request. Mr. Dameron commented that he would like the City Engineer Mark Christensen to review the legal descriptions in the new Exhibits. Mayor Ellertson agreed. Mr. Cohen was asked to email the descriptions to Mr. Christensen for review before the Mayor signs the documents tomorrow. The Council asked if the property owners on the east side of State Street had signed the plat. Mr. Cohen replied yes. He invited the Council to sign the prepared subdivision plat and thanked them for their assistance.

2. Review and Action - Change Order Request - 700 North Street. This is a request by staff for Council's ratification of a change order amount which exceeds the parameters of staff approval authority. This item is included on the agenda as a follow up to the phone call of the Council.

Mayor Ellertson commented that this item is ratification and official action of a decision made by a phone call to the Councilmembers. The Council agreed.

After discussion, COUNCILMEMBER BAYLESS MOVED TO APPROVE THE PROPOSED CHANGE ORDER REQUEST. COUNCILMEMBER BATH SECONDED THE MOTION. ALL PRESENT VOTED IN FAVOR. THE MOTION CARRIED.

COUNCIL REPORTS:

WATER, GENERAL PLAN, BUILDING INSPECTION, ENGINEERING

Councilmember Dain requested an executive session to discuss some personnel. He asked Councilmember Bath if he had talked to the police about Randy Childs' concerns. He commented that he agreed with Mr. Childs' assessment of the situation and attested to the fact that the police are responding to calls at speeds that seemed unusually fast. Councilmember Bath responded that he had talked with both Chief Paul and Cody Cullimore about the report. They told him that they would talk to the officers.

Councilmember Dain reported that he had been observing the number of vehicles that are accessing the mountain since the Forest Service has closed and posted many of the traditional roads and trails. He noted that he had parked at the Lindon City Equestrian Staging Area on Sunday and had observed four cars access the mountain through the broken gate there. He added that some were passenger cars. Mr. Dameron reported that the gate had been worked on since Sunday and signs placed to post the mountain for no trespassing. Councilmember Bath commented that extra patrols by the police were being performed also. Councilmember Acerson asked about legal trails and access to hikers and bikers. He reported that he had received reports that the trails had been closed off and made inaccessible. Mayor Ellertson commented that the plan is to reclaim some roads. The Council discussed the need for communication between the City, Forest Service and Trails Agencies. Mr. Dameron commented that he would call the Forest Service and set up a meeting.

SEWER, SOLID WASTE, PUBLIC BUILDINGS AND PROPERTIES

Councilmember Hatch was excused.

TRAILS, PLANNING, ZONING, BOARD OF ADJUSTMENT, ADMINISTRATION

Councilmember Bayless reminded the Mayor that two planning commissioners are needed. Mayor Ellertson asked for recommendations. This was discussed.

STREETS, SIDEWALKS, PUBLIC SAFETY AND COURT

Councilmember Bath commented that he had nothing to report for tonight.

PARKS, RECREATION, EMERGENCY MANAGEMENT, LINDON FAIR, NEWSLETTER

Councilmember Acerson reported that 200 South near the Landfill needs to be cleaned. Mr. Dameron replied that he would call TAG. He also reported on his visit to Printing Resource. He referred an issue to Mr. Smith. Mayor Ellertson commented on his visit with Home Depot.

ADMINISTRATOR'S REPORT

Mr. Dameron:
1. Announced that the Lindon/Pleasant Grove Coordination meeting was scheduled for Monday, October 6, 2003 at 4:30 p.m. in the Pleasant Grove Community Development Office. Councilmembers Bath and Acerson volunteered to attend.
2. Reported that two public hearings are scheduled for the meeting of October 7. They are the hearing on the proposed adoption of an assisted living ordinance and on the revised residential zoning ordinance.
3. Presented the Project Tracking List and asked if the Council wanted to review any of these projects. Councilmember Bayless suggested Utah Auto Sales and the Council agreed.
4. Reported that Mr. Doug McKay had requested to be on the agenda. The Council discussed his request and decided to schedule a work session for October 21 at 6:00 p.m.
5. Noted that a revised draft of the sewer agreement with Orem City was ready for the Mayor's review.
6. Informed that Mayor that a draft agreement with Dean Blackhurst and Ron Anderson was also ready for review.
7. Reported that he had talked with John Logan and Hank Finch about a proposed easement for the city. They indicated that they were generally in favor of the proposal and would work up an agreement.
8. Informed the Council that he had also visited with Dan Fugal today. He reported that Mr. Fugal had been assessed some greenbelt rollback taxes on the portion of his property that he deeded to the City for 700 North. He told the Council that the City has an obligation to pay these taxes on property that is given to the City. He added that there is a possibility of similar taxes for the Ewell parcel also. Mayor Ellertson asked for information to present to the County Commission.

Mayor Ellertson discussed the possibility of paving a portion of 1550 West. The Council discussed the situation. The situation on the east end of Center Street was discussed briefly. Mayor Ellertson reported that the trees had been removed from the Canal Drive trail in readiness for construction. Councilmember Bath reported that a volunteer group had performed maintenance on the trail between Canal Drive and the Murdock Canal. Mayor Ellertson reported on a discussion he had with Dr. Stitch on trails. Dr. Stitch had a proposal on the pavement that the Council considered. The Council decided to leave the pavement on the side of the trail toward the trees. He informed the Council that a local service group is planning to put in sidewalk on 400 East between 200 North and 400 North on the east side of the street. Mr. Dameron was asked to contact Russ Rogers to coordinate the construction.

COUNCILMEMBER DAIN MOVED TO APPROVE THE PAY VOUCHERS. COUNCILMEMBER BAYLESS SECONDED THE MOTION. ALL PRESENT VOTED IN FAVOR. THE MOTION CARRIED.

ADJOURN

COUNCILMEMBER ACERSON MOVED TO ADJOURN THE CITY COUNCIL MEETING AT 10:22 P.M. COUNCILMEMBER BATH SECONDED THE MOTION. ALL PRESENT VOTED IN FAVOR. THE MOTION CARRIED.

APPROVED - December 16, 2003

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