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HomeMy WebLinkAboutItem 06.n Date: February 4, 2019 Item No. JOINT POWERS AGREEMENT WITH VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION AND WENCK ASSOCIATES’ PROPOSAL FOR PROFESSIONAL SERVICES FOR SOUTH CREEK STREAM RESTORATION IMPROVEMENTS Proposed Action Staff recommends adoption of the following motion: Move to approve Joint Powers Agreement with Vermillion River Watershed Joint Powers Organization and accept Wenck Associate’s professional services proposal for South Creek Stream Restoration, City Project 19-06. Overview The City and Vermillion River Watershed Joint Powers Organization (VRWJPO) are partnering to the improve the stream habitat, stream bank stability and water quality of the South Creek. The restoration project targets two divergent streams that merge east of Hamburg Avenue. The project includes reconstructing and stabilizing stream banks that are experiencing erosion. In addition, the project incorporates additional features designed to: a) increase the diversity and complexity of aquatic habitats; b) reduce stream width to flush settled silt/sediment from stream floor; c) introduce features to promote meandering flow; and d) enhance buffer vegetation. The Joint Powers Agreement establishes City and VRWJPO project responsibilities and costs. Preliminary engineering is complete. Wenck’s proposal identifies the scope and estimated cost of professional services to complete the project. Construction is programmed for 2019. Primary Issues to Consider  The City is the lead agency; therefore, the total project cost (both City and VRWJPO share) is reflected in this memo. The estimated project cost is $327,450. The VRWJPO received a $282,000 MN DNR Conservation Partners Legacy (CPL) Grant. Project financing (including local match requirement) is listed below: o VRWJPO: $3,500 (In-Kind Professional Services) and $282,000 (CPL Grant) o City: $3,000 (In-Kind Professional Services) and $38,950 (Env. Res. Utility Fund)  Proposal is subject to Master Agreement for Professional Engineering Services between the City and Wenck Associates, Inc. approved by the City Council on July 18, 2016. Supporting Information  Joint Powers Agreement (VRWJPO Contract No. C0031196)  Wenck Associates, Inc. proposal dated January 7, 2019 Financial Impact: $327,450 Budgeted: Y☒ N☐ Source: Utility Fund – Env. Res. Envision Lakeville Community Values: Access to a Multitude of Natural Amenities and Recreational Opportunities Report Completed by: McKenzie Cafferty, Environmental Resources Manager JOINT POWERS AGREEMENT FOR THE SOUTH CREEK AT HAMBURG AVENUE STREAM RESTORATION PROJECT BETWEEN THE VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION AND THE CITY OF LAKEVILLE CITY PROJECT 19-06 WHEREAS, Minn. Stat. § 471.59 authorizes local governmental units to jointly or cooperatively exercise any power common to the contracting parties; and WHEREAS, the Vermillion River Watershed Joint Powers Organization is a watershed management body consisting of Dakota and Scott Counties (VRWJPO) governed by the Vermillion River Watershed Joint Powers Board (VRWJPB) and is charged with carrying out the duties set forth in Minn. Stat. § 103B.211 to 103B.255 and as otherwise provided by law; and WHEREAS, the City of Lakeville (City) is a governmental and political subdivision of the State of Minnesota; and WHEREAS, South Creek is a tributary to the Vermillion River; and WHEREAS, South Creek is identified on the EPA’s 303d Impaired Waters List for macroinvertebrates and fish due to stressors affecting their health; and WHEREAS, the habitat in South Creek is in poor condition and affects the health of the aquatic organisms in South Creek; and WHEREAS, improving in-stream and riparian habitats will improve the health of the aquatic organisms by limiting erosion, improving dissolved oxygen, and indirectly improving stream temperatures; and WHEREAS, restoration strategies were identified in the Vermillion River Watershed Restoration and Protection Strategy (WRAPS) report to aid in restoring South Creek; and WHEREAS, restoring and improving habitat in reaches of South Creek (Project) is a means to address the stressors affecting South Creek and removing it from the impaired waters list; and WHEREAS, the estimated Project cost is $327,450; and WHEREAS, the VRWJPO was awarded a $282,000 Conservation Partners Legacy Grant (Grant) from the Minnesota Department of Natural Resources (DNR); and WHEREAS, the Grant has a minimum match requirement equal to 10% of the amount of Grant monies received, which can be in the form of cash or in-kind services; and WHEREAS, the VRWJPO has included staff time as in-kind match and the City has included in-kind services and cash for this Project in their Capital Improvement Plan and will jointly participate in the design and construction and related activities after applying Grant monies. NOW, THEREFORE, in consideration of the mutual promises and benefits that the City and the VRWJPO shall derive from this Agreement, the VRWJPO, through the VRWJPB, and the City hereby enter into this Agreement for the purposes stated herein. VRWJPO Contract #C0031196 Page 1 of 6 ARTICLE 1 PURPOSE The purpose of this Agreement is to define the Project responsibilities and Project cost-sharing obligations of the VRWJPO and the City. ARTICLE 2 PARTIES The parties to this Agreement are the VRWJPO and the City. ARTICLE 3 TERM This Agreement shall be effective the date of the signatures of the parties to this Agreement and shall remain in effect until December 31, 2021, or until completion by the parties of their respective obligations under this Agreement, whichever occurs first, unless earlier terminated by law or according to the provisions of this Agreement. ARTICLE 4 COOPERATION The VRWJPO and City agree to cooperate and use their reasonable efforts to ensure prompt implementation of the various provisions of this Agreement and to, in good faith, undertake resolution of any dispute in an equitable and timely manner. ARTICLE 5 TECHNICAL AND QUALITY ASSURANCE The VRWJPO and City will provide technical and quality assurance for the Project. Any engineer providing technical or quality assurance for the Project must be a licensed Professional Engineer in the State of Minnesota. ARTICLE 6 PROJECT PLANS AND SPECIFICATIONS The City is the lead agency for design and construction administration of this Project, effective upon execution of this Agreement by both parties. The VRWJPO and City shall approve the plans and specifications (Project Plans) prior to advertising for bids. ARTICLE 7 PAYMENT 7.1 The City will administer the contract and act as the paying agent for all payments to the Contractor. 7.2 The Grant will reimburse the following project-related activities up to the amount listed: $282,000 related to the engineering, permitting, bidding and construction of the Project (City eligible). The City’s maximum eligible reimbursement amount is $282,000 (Agreement Maximum). 7.3 The Grant has a match requirement to the amount of monies received. The match shall be shared in the amount of $3,500 of in-kind services by the VRWJPO and up to $3,000 of in-kind services and $38,950 in cash match by the City up to a total maximum Grant match amount of $45,450 and expended prior to release of Grant monies. 7.4 No payment shall be made prior to Project Plans approval by the VRWJPO and City. 7.5 The VRWJPO, through the Grant, shall pay the City for construction costs on a reimbursement basis. Under the terms of the Grant, the VRWJPO will receive funds in the following disbursements: (a) 95% after receipt and approval by the DNR of an invoice from the VRWJPO; and (b) 5% after the VRWJPO submits a Grant accomplishment report that is satisfactory to the DNR. VRWJPO Contract #C0031196 Page 2 of 6 7.6 The VRWJPO may refuse to pay claims not specifically authorized by this Agreement. Payment of a claim shall not preclude the VRWJPO from questioning the propriety of the claim. The VRWJPO reserves the right to be repaid for any overpayment or disallowed claim. ARTICLE 8 CITY OBLIGATIONS 8.1 AUTHORIZED PURPOSE. The funds provided under the terms of this Agreement may only be used by the City for the payment of costs directly related to the Project. 8.2 CONSTRUCTION REQUIREMENTS. The Project shall be constructed in accordance with the Project Plans. The VRWJPO and City shall approve any modifications to the Project Plans. 8.3 CONSTRUCTION AND DESIGN FAILURES. Any failure related to construction or design of the Project shall be addressed in the contracts with the construction firm or professional services firm. 8.4 RIGHT-OF-ENTRY. The City hereby permits the VRWJPO, its employees, duly authorized representatives and agents to enter upon and have rights of ingress and egress over and access at reasonable times to the real property where the Project will be located for the purpose of inspecting the construction of the Project. 8.5 OPERATION AND MAINTENANCE. The City shall be responsible for on-going maintenance of the Project or will request shared responsibility with the VRWJPO for on-going maintenance of the Project upon completion unless necessitated by a failure due to Acts of God or Force majeure. 8.6 COMPLIANCE WITH LAWS/STANDARDS. The City shall abide by all federal, state, or local laws, statutes, ordinances, rules, and regulations in constructing the Project, including obtaining all necessary permits to construct the Project. The City shall follow all requirements contained within the Grant Contract hereby incorporated by reference to this Agreement as Exhibit 1. 8.7 PUBLICITY. The City hereby permits the VRWJPO to take and disclose photographs of the Project for use in publications or promotional material or on its website for the purpose of highlighting the VRWJPO’s programs. The City shall appropriately acknowledge the funding provided by the VRWJPO, the State of Minnesota, and the Lessard-Sams Outdoor Heritage Council in any promotional materials, signage, reports, publications, notices, and presentations related to the Project. This section shall survive the expiration or termination of this Agreement. ARTICLE 9 INDEMNIFICATION Each party to this Agreement shall be liable for the acts of its officers, employees or agents and the results thereof to the extent authorized by law and shall not be responsible for the acts of the other party, its officers, employees or agents. The provisions of the Municipal Tort Claims Act, Minn. Stat. ch. 466 and other applicable laws govern liability of the VRWJPO and the City. Each party warrants that they are able to comply with the aforementioned indemnity requirements through an insurance or self-insurance program and that each has minimum coverage consistent with liability limits contained in Minn. Stat. Ch. 466. In the event of any claims or actions filed against either party, nothing in this Agreement shall be construed to allow a claimant to obtain separate judgments or separate liability caps from the individual parties. This section shall survive the expiration or termination of this Agreement. ARTICLE 10 AUTHORIZED REPRESENTATIVES AND LIAISONS 10.1 AUTHORIZED REPRESENTATIVES. The following named persons are designated the authorized representatives of the parties for purposes of this Agreement. These persons have authority to bind the party they represent and to consent to modifications, except that the authorized representative shall have only the authority specifically or generally granted by their respective governing boards. Notice required to be provided pursuant to this Agreement shall be provided to the following named persons and addresses unless otherwise stated in this Agreement, or an amendment of this Agreement: VRWJPO Contract #C0031196 Page 3 of 6 TO THE VRWJPO: Mike Slavik or successor, Chair Vermillion River Watershed Joint Powers Organization 14955 Galaxie Avenue Apple Valley, MN 55124 Telephone: (952) 891-7030 TO THE CITY: Justin Miller, City Administrator, or successor City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 Telephone: (952) 985-4400 In addition, notification to the VRWJPO regarding termination of this Agreement by the City shall be provided to the Office of the Dakota County Attorney, Civil Division, 1560 Highway 55, Hastings, Minnesota 55033. 10.2 LIAISONS. To assist the parties in the day-to-day performance of this Agreement and to ensure compliance and provide ongoing consultation, a liaison shall be designated by the VRWJPO and the City. The VRWJPO and the City shall keep each other continually informed, in writing, of any change in the designated liaison. At the time of execution of this Agreement, the following persons are the designated liaisons: VRW JPO Liaison: Travis Thiel Telephone: (952) 891-7546 Email: travis.thiel@co.dakota.mn.us City Liaison: McKenzie Cafferty Environmental Resources Manager Telephone: (952) 985-4520 Email: mcafferty@lakevillemn.gov ARTICLE 11 MODIFICATIONS Any alterations, variations, modifications, or waivers of the provisions of this Agreement shall only be valid when they have been reduced to writing, approved by the parties’ respective Boards, or as delegated by the parties’ respective Boards, and signed by the Authorized Representatives, or delegated authority, of the VRWJPO and the City. ARTICLE 12 TERMINATION 12.1 IN GENERAL. Either party may terminate this Agreement for cause by giving seven days’ written notice or without cause by giving 30 days’ written notice, of its intent to terminate, to the other party. Such notice to terminate for cause shall specify the circumstances warranting termination of the Agreement. Cause shall mean a material breach of this Agreement and any supplemental agreements or amendments thereto. This Agreement may also be terminated by the City in the event of a default by the VRWJPO. Notice of Termination shall be made by certified mail or personal delivery to the authorized representative of the other party. Termination of this Agreement shall not discharge any liability, responsibility or right of any party, which arises from the performance of or failure to adequately perform the terms of this Agreement prior to the effective date of termination. 12.2 TERMINATION BY VRWJPO FOR LACK OF FUNDING. Notwithstanding any provision of this Agreement to the contrary, the VRWJPO may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, Minnesota Agencies, or other funding sources, or if it’s funding cannot be continued at a level sufficient to allow payment of the amounts due under this Agreement. The VRWJPO is not obligated to pay for any services that are provided after written notice of termination for lack of funding. The VRWJPO will not be assessed any penalty or damages if the Agreement is terminated due to lack of funding. The VRWJPO will pay for expenses incurred by the City up to Notice of Termination of work on the Project. VRWJPO Contract #C0031196 Page 4 of 6 ARTICLE 13 MINNESOTA LAW TO GOVERN This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Minnesota, without giving effect to the principles of conflict of laws. All proceedings related to this Agreement shall be venued in the County of Dakota, State of Minnesota. This section shall survive the expiration or termination of this Agreement. ARTICLE 14 MERGER This Agreement is the final expression of the agreement of the parties and the complete and exclusive statement of the terms agreed upon and shall supersede all prior negotiations, understandings, or agreements. ARTICLE 15 SEVERABILITY The provisions of this Agreement shall be deemed severable. If any part of this Agreement is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Agreement unless the part or parts that are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Agreement with respect to either party. ARTICLE 16 GOVERNMENT DATA PRACTICES The City and the VRWJPO must comply with the Minnesota Government Data Practices Act, Minn.Stat. ch. 13, as it applies to all data provided, created, collected, received, stored, used, maintained, or disseminated under this Agreement. The civil remedies of Minn.Stat. § 13.08 apply to the release of the data referred to in this clause by either the City or the VRWJPO. ARTICLE 17 SURVIVABILITY The provisions of sections 8.3 (Construction and Design Failures), 8.5 (Operation and Maintenance), 9 (Indemnification) and 16 (Government Data Practices) survive the expiration or termination of this Agreement. ARTICLE 18 DEFAULT: FORCE MAJEURE Neither party shall be liable to the other party for any loss or damage resulting from a delay or failure to perform due to unforeseeable acts or events outside the defaulting party’s reasonable control, providing the defaulting party gives notice to the other party as soon as possible. Acts and events may include acts of God, acts of terrorism, war fire, flood epidemic, acts of civil or military authority, and natural disasters. [Signatures on following page] VRWJPO Contract #C0031196 Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. CITY OF LAKEVILLE By ___________________________________ Douglas P. Anderson or successor, Mayor Date of Signature: _____________________ By ___________________________________ Char Friedges, City Clerk Date of Signature: _____________________ VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION APPROVED AS TO FORM: By ___________________________________ /s/Helen R. Brosnahan Mike Slavik or successor, Chair Date of Signature: _____________________ Assistant Dakota County Attorney Date of Signature: 1/17/19 VRW Res. No. 19-04 KS-18-591 VRWJPO Contract #C0031196 Page 6 of 6 Wenck | Colorado | Georgia | Minnesota | North Dakota | Wyoming Toll Free 800-472-2232 Web wenck.com January 7, 2019 Mac Cafferty Environmental Resources Manager City of Lakeville 20195 Holyoke, Ave Lakeville, MN 55044 RE: Buddy’s Kitchen Site South Creek Stream Restoration Project - Phase II Dear Mr. Cafferty: As requested, Wenck Associates, Inc. (Wenck) submits this proposal to assist the City of Lakeville (City) with continued engineering, permitting, and construction support for Phase II of the South Creek Stream Restoration Project at the Buddy’s Kitchen Site. In July 2018 Wenck began a project with the City to complete the initial field survey, channel assessment, and 30% design for the Buddy’s Kitchen Reach of South Creek. The information gathered during Phase I of this project was used to develop the concept design for the stream reach. The City worked in partnership with the Vermillion River Watershed Joint Powers Organization (VRWJPO) to apply for grant funds for the stream restoration and habitat improvement project. The project was successfully awarded grant funds in December 2018 and is now ready to proceed to Phase II. The City has requested additional support from Wenck to assist with the completing the design, obtaining permits, taking the project through the public bidding process, and providing construction oversite. Wenck will complete the following tasks to continue to support the City during Phase II of the South Creek Stream Restoration Project at the Buddy’s Kitchen Site: • Develop 75% Design Package: Wenck will conduct a follow-up field visit to the stream reach and review the 30% design concept for the reach. Revisions, updates, and/or adjustments to the proposed design features will be made based on the reach conditions to ensure project goals are met. Wenck will coordinate the schedule for this meeting with the City and VRWJPO to allow the opportunity to provide comments in the field. Design information conducted during this field visit will be combined with the concept design and previously acquired site data to develop the 75% design plan set. All information will be incorporated into AutoCAD and a full plan set, including design details sheets will be provided to the City and VRWJPO for review and comment. Wenck will address one round of comments from the City and VRWJPO and then provide the 75% plan set to the DNR for their comments on the habitat features of the design. Task Estimate: $12,500 • Project Permitting: The stream restoration and habitat improvement project will require permits from the Minnesota Department of Natural Resources (DNR) and the US Army Corps of Engineers (Corps). Wenck will utilize the 75% plan set to develop the total amount of proposed stream channel and wetland “impacts” and develop permit applications. The appropriate applications will be submitted to the DNR and Corps. The project will require a Work in Public Waters permit from the DNR and should qualify for a 404 Nationwide permit from the Corps. These permits will be needed before the project can be constructed. The City has jurisdiction for Wetland Mac Cafferty City of Lakeville January 7, 2019 2 \\wenck.local\wenckspace\Vol1\5895 Lakeville\0000 - Client Management\South Creek Buddys Kitchen_Phase II Proposal_Jan 2019.docx Conservation Act (WCA) permitting for the project site and it is assumed the City will internally handle WCA permitting requirements. Wenck will respond to comments on the permit applications from the DNR and Corps regarding project design as part of the permit acquisition process. The acquired permits will be provided to the City for their project records. Task Estimate: $6,500 • No Rise Modeling: The intent of the proposed project design will be to ensure that the improvements to the channel do not impact channel flow, including associated flood stage flow events. This will ensure that revisions or alterations to the local flood elevations are not required. Wenck will utilize existing hydrology models for the City that have been previously developed (it is assumed City will provide the base model). Wenck will prepare a “duplicate model” of the stream reach to document that the model accurately reflects current stream conditions. Wenck will then incorporate the project design features and channel dimensions to produce a “proposed model”. This model of the proposed conditions will document that the flood elevations for this reach will not be impacted by the design. Details from the model will be used to inform the design to ensure flood elevations are not altered. Wenck will prepare a “No Rise” memo documenting the modeling methodology, steps, and results. The memo will be similar to the memo provided to the City for the South Creek Golden Pond project. The memo will be retained by the City in their records to document that no additional modeling or floodplain permitting is needed to accommodate the project. Task Estimate: $7,300 • Final Plan Set and Bid Package: Wenck will address one round of DNR comments on the design and review these comments with the City and VRWJPO. Wenck will provide a cost estimate to the City and VRWJPO for review and comment at the 90% design stage. This will allow both parties an opportunity to review the project design compared to initial project goals, grant requirements, and grant funding. Wenck will make minor revisions to the project design if needed to ensure cost of the final design matches the grant requirements and funds. Wenck will then incorporate a final round of comments from the City and VRWJPO on the design and prepare the final engineering plan set for bidding and construction. Wenck will prepare the full Bid Package including the engineering plans for construction, project details, project specifications, and notice to bidders. Wenck will post the Bid Package to Quest to initiate the public bidding process. Task Estimate: $8,500 • Bidding Assistance: Our experience with recent City projects indicates that conducting a pre-bid meeting with potential contractors at the project site is beneficial to the overall bidding process. The onsite pre-bid meeting allows contractors to see important components of project access for construction and allows for time to directly answer contractor questions which results in competitive bid prices. Wenck will attend the pre-bid field meeting with the potential bidders and attend the bid opening with the City. Wenck will answer questions from the contractors during the bid period as needed. After the bid opening, Wenck will compile the bid tabulation and will be provide it to the City along with a recommendation regarding options to proceed based on the bids received. Task Estimate: $3,800 • Construction Staking: Wenck will provide field staking, including known utilities to facilitate the construction of the stream project. Wenck will also stake the access Mac Cafferty City of Lakeville January 7, 2019 3 \\wenck.local\wenckspace\Vol1\5895 Lakeville\0000 - Client Management\South Creek Buddys Kitchen_Phase II Proposal_Jan 2019.docx area along City property and clearly mark “No Access” areas identified by the City to the contractor. Wenck will also provide stakes showing the locations of specific design practices and stream features that need to be called out for the project. After the initial staking the contractor will be responsible for maintaining/replacing damaged or lost stakes. Task Estimate: $1,800 • Contractor Oversight and Contract Management: Wenck will partner with the City to coordinate the field schedule with the project contractor. Wenck will also review the contract items submitted for payment and provide confirmation to the City on the completed items to authorize payment. Task Estimate: $2,600. • Field Construction Oversight: Wenck has worked directly with City staff to conduct construction inspections site visits for stream similar projects. Project construction is expected to take three to four weeks to complete. Wenck will complete up to ten site visits in coordination with City staff to ensure stream features and key design components are properly installed and connected to existing City infrastructure. Wenck will coordinate directly with City staff during construction and provide verbal field updates to City each day Wenck field staff are onsite at the project. Some design features may be adjusted during construction as the installation of a habitat feature can alter stream conditions and require field adjustments. Wenck will work directly with the construction contractor as needed to ensure all features are properly installed at appropriate locations. During the last week of project construction Wenck will develop a punch list of final project items that need to be addressed before construction can be certified as complete. Wenck will review the punch list with the City and the construction contractor to ensure the project design and specifications have been met. Task Estimate: $11,750. • Final Project Review and As-built Surveys: Wenck will review the final contract submittals for the project from the construction contractor. Wenck will provide a recommendation to the City on the final project status. The final payment application will be reviewed and provided to the City for their records and processing. Additionally, Wenck will collect survey information on the installed elevation of various project features during construction of the stream project. This will include elevations of items such as channel centerline, toe of slope, top of bank, and installed design practices. Wenck will use the survey data collected during construction to create a final as-built plan sheet that will be provided to the City in PDF and GIS format (shapefiles or geodatabases) for inclusion within their GIS database. Task Estimate: $1,950. Wenck proposes to complete the tasks outlined above following the terms and conditions of the current Master Services Agreement. The total cost to complete the above described tasks is $56,700. We propose to complete the tasks outlined within this proposal under our time and materials rates. We would not exceed this budget amount without prior authorization from the City. If additional services are requested or out-of-scope tasks are identified, Wenck would provide the City with a scope and budget for authorization before proceeding. The City and VRWJPO have indicated that the target for this stream project will be to construct the project during the summer of 2019. South Creek is a coldwater stream and a designated trout stream and therefore there are periods where work within the stream channel is excluded. Based on DNR requirements, all channel work must be completed by September 1st, 2019. As a Mac Cafferty City of Lakeville January 7, 2019 4 \\wenck.local\wenckspace\Vol1\5895 Lakeville\0000 - Client Management\South Creek Buddys Kitchen_Phase II Proposal_Jan 2019.docx result, work on this project is recommended to being immediately. Wenck proposes to conduct the field visit under the initial design task outlined in January. Wenck will then work with the City to complete the project design and initiate project permitting in February 2019. The intent will be to have permits in hand by the end of April so the bidding for the project can be conducted in May and project construction can occur between June and August 2019. Wenck will work with the City as needed to adjust the project schedule. On behalf of the 280+ employee-owners of Wenck, thank you for this opportunity to work with the City of Lakeville. Should you have questions or need clarification of information presented in this proposal please do not hesitate to contact me at 763-479-4263 or via email at jmadejczyk@wenck.com. Sincerely, ACCEPTED BY: Wenck Associates, Inc. City of Lakeville Jeff Madejczyk By Principal Its Date