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work for the city. At the public hearings, the city engineer in theory would <br />have to stand up twice; once as the developer presenting the grading plan, <br />and another time as the city to review and comment on the plans. Clearly at <br />this point, the city is "crossing over the line" and getting into the <br />development business on behalf of the private developer. The black and <br />white difference between the city and the development project at this point <br />would become gray, and the public or the citizens may begin to see no <br />difference between the city and the developer. <br /> <br />What is an even larger concern is that the courts may see the city as the <br />developer if there is a lawsuit involved with some parts of the grading plan <br />that don't work as proposed. The liability exposure to the city is the biggest <br />concern with this request. Please see the attached two page report from the <br />League regarding city liability and code enforcement. While the situation in <br />the report and this request are not identical, the "special duty" role of the city <br />and the liability concerns are comparable. <br /> <br />In many cases there are two, or even more than two, ways to do a grading <br />plan. If this is true in this project, a concern is whether or not the grading <br />plan is done in the best interest of the city or if the grading plan is done in <br />the best interest of the developer. The city engineer will be trying to serve <br />two different masters at this point, and while I believe the city's concerns will <br />"win", I do not believe that this is a good situation. <br /> <br />If this exception to city policy is approved, the city must also be concerned <br />about what additional requests will be coming in the future. I really don't <br />know what would be on the horizon, but if this policy exception is approved, <br />we have begun to cross the line and we can only hope that there will not be <br />other requests in the future. We especially do not want the city to do <br />residential grading plans. <br /> <br />This particular request from Mr. Foster is associated with his PUD project <br />and the proposed Menards project. I believe that the city engineer could do <br />the grading plans for this plat without it becoming a problem for the city <br />because of the ongoing good working relationship we have with Mr. Foster. <br />However, in the long term, and looking at the big picture, staff must <br />recommend against this request. I don't know how we could say yes and <br />make an exception to our policy in response to this request, and then say no <br />to other developers. <br /> <br />If the City Council disagrees with this staff recommendation for whatever <br />reasons, then the approval of this request should only happen if the developer <br />will sign a waiver of claim against the city and a hold harmless release for <br />the city for a claim by a third party. If this request is approved, it must be <br />noted that this is an exception to city policy and that it is not anticipated that <br /> <br /> <br />