Hi! I’m [not] new to Wichita and a friend told me about a quaint and lovely Victorian style park set in the downtown area. I love little parks like these as they’re such an endearing surprise in the midst of old industrial buildings and warehouses. After seeing the pictures on your website, I can tell my friend understated the beauty of the park. I can’t wait to visit! One problem though, I can’t find the hours of park operation. Could you please tell me what time the park closes as I’d hate for people to think that I’m a bum just because I was visiting after 9:00 p.m.?
In the next paragraph, the author confessed that the post is “pure sarcasm laced with bitterness,” because, as most Wichitans know, the Victorian Naftzger Park has been replaced with something else. While opinions vary as to whether the new park is better than the old, there is one thing of which this author is correct: “Not even a whisper of the change.”
What hasn’t changed is the City of Wichita website, specifically the page devoted to Naftzger Park. 1 As of April 19, 2020, it shows photos of the old park and this description: “A mini-park located in the heart of downtown Wichita containing many beautiful flowers, trees and shrubs, and grass accenting the waterfall that flows into a pond. Park benches and a gazebo add to the park’s Victorian style as well as providing a quiet haven in the downtown area.”
Wichita.gov, captured April 19, 2020. Click for larger.
None of this, except for “mini-park located in the heart of downtown Wichita” has been true for a long time. Naftzger Park — the Victorian version — closed in May 2018, nearly two years ago, when construction started on the new version. The new version opened in March 2020.
So the city’s website is nearly two years outdated regarding Naftzger Park, outdated in a very material manner. Does this matter? In the scenario from the start of this article, yes, it matters. For an enthusiast of these parks that might travel to Wichita for that reason: Yes, it matters. For those looking to the city’s website for current and accurate information: Yes, it matters.
It matters for more than just Naftzger Park. Glaring examples like this cast doubt on the reliability of the rest of the city’s website. That’s a shame, because in my experience, the information on the city’s website is usually good. It could be more thorough in some simple but important ways, such as including spending records and legal notices. The city also overlooks simple ways to be innovative, such as posting fulfilled records requests.
Outdated information like this is a symptom of someone not caring. It’s especially troubling in light of this week’s city council meeting, where many council members were effusive in their praise of the city manager during his annual performance evaluation. I imagine that the city manager doesn’t maintain the Park and Recreation section of the city’s website. Maybe the Director of Parks and Recreation doesn’t update the website. But someone does. Someone must be responsible for keeping things current.
Naftzger Park, July 31, 2018.
When that responsible person doesn’t care, responsibility flows upwards. Hasn’t anyone at the city noticed this badly outdated information? Have any park board members or city council members noticed? Anyone at DowntownWichita.org, the agency that, in its own words, “amplifies the energy, capital, and growth of downtown by empowering residents, visitors, and businesses to explore the possibilities of our city’s core.” Or what about someone at Visit Wichita? (To its credit, its website showcases the new version of Naftzger Park.) Or have they noticed but not cared? Or did they report the outdated page, but no one cared to act?
It’s not the case that someone needs to spend hours creating a page for the new Naftzger Park. Just take the outdated stuff off the site.
In 2014 Wichita voters rejected a sales tax which would have provided $250 million to spend on a water project. What were the city’s concerns?
A recent Wichita Eagle article has ignited some revising of history regarding Wichita’s water infrastructure. 1 The article is grim, starting with, “Next time water comes out of your tap, don’t take it for granted. Wichita’s only water treatment plant could fail at any moment.” The article reports on the poor condition of Wichita’s existing water infrastructure, particularly the central water plant.
Wichita recently dealt with spending on a water project. That was in 2014, when the city asked voters to decide on a one cent per dollar sales tax for five years. Of the estimated $400 million the tax would raise, $250 million was earmarked towards water infrastructure. Since voters did not endorse the tax, some have blamed voters for the city’s current problems regarding water infrastructure.
Here, for example, is a social media exchange on Monday. The first person wrote, referring to Wichita Public Works Director Alan King, “Mr King is only now sounding a warning when he knew 8 years ago there was a problem?”
A second person responded: “Wrong Wrong Wrong. King has been yelling about this since he got here. Remember the temporary sales tax for the water where the citizens obeyed the Billionaire and his million dollars that said we can take the risk?”
To understand the errors in the second person’s comment, we need to understand the meaning of “for the water” and “the risk.” City documents have the answer.
A Wichita city white paper from May 2014 cites a community survey, concluding, “Wichitans have ranked a reliable water supply as their most important priority.” 2 The city interpreted citizens’ concerns are requiring protection from drought: “Protecting water sources during periods of drought is an important part of long-term water supply planning.” The paper presented “two options meet the goal of providing water for community growth and drought protection.” One option was using water from El Dorado Reservoir, and the second was expanding the ASR system. This paper does not mention the condition of existing water infrastructure.
On May 27, 2014 City Manager Robert Layton presented to the city council a “Strategic Plan Follow Up,” providing information about the possible uses of the proposed city sales tax. 3 For water issues, the only consideration was drought protection.
In July 2014, the city prepared a document titled “Strategic Plan Implementation Timetable.” 4 Regarding water, the activity needed was:
1. Develop a plan that addresses:
A. New water sources
B. Conservation strategies
C. Reuse opportunities for industry
D. Emphasize water as a priority with the State and Congressional delegation
E. Work with area communities to ensure water is also a priority for them
The long-term objective for water was: “Secure sufficient capacity from two identified options to provide water that supports the long-term growth of Wichita while protecting water users from future droughts. Implement cost-effective conservation strategies that complement water source capacity.”
Under measurements of success there were these items:
Year of final protection in a 1% drought without additional conservation efforts (target is 2030).
Variance in firm yield compared to demand in 2060 (target is 0%).
Volume of water treated (target is 20.8 billion gallons per year).
Annual water reductions from conservation programs (target is 0.35%).
Water conservation program cost to achieve water reduction goal (target is $300,000 annually).
None of this material mentions the condition of existing water infrastructure.
In September 2014 the city published a document titled “Water Supply Plan: The Proposed 1-cent Sales Tax.” 5 under “Plan Summary,” the document states: “Sales tax revenue would fund a new water supply, through Aquifer Storage and Recovery (ASR) improvements. This new supply would reduce the impact of any future drought and would support job growth.”
Later, the document says the plan does the following:
Pulls more water from the Little Arkansas River
Constructs new storage basins
Further utilizes existing treatment plant capacity
Stores treated water underground where it doesn’t evaporate
Builds an additional pipeline
The document clarifies that the “additional pipeline” is a “parallel pipeline” from the ASR plant to the central water plant.
Information from the City of Wichita. Click for larger.
An information sheet prepared for citizens said the same and warned of the costs of borrowing to pay for these facilities. 6
A lengthier presentation prepared for voters by the city held this:
THE NEED
Demand for water is expected to increase by more than seven billion gallons per year by 2060. A new water supply is needed to meet this demand. If the community should experience a significant drought, residents would face severe water restrictions.” 7
From these city documents, we can understand the error in the second commenter’s remarks. In the context of 2014, taxing and spending “for the water” meant expansion of supply, not maintenance of existing assets.
Further, in 2014 “the risk” that was to be addressed was the risk of water use restrictions in case of an extended drought. The risk of basic water plant infrastructure failing was not considered or addressed in the city’s plan for spending $250 million on a water project.
As Wichita prepares to award a large construction contract, let’s hope the city acts in an ethical manner this time.
As the Wichita City Council prepares to make a decision regarding a contract for the new baseball stadium, the council’s past reputation in these matters can’t be overlooked.
The controversy over the stadium contract has been covered by the Wichita Eagle: “The Wichita City Council hasn’t officially approved a design-build team for the city’s new $75 million Minor League ballpark, but there’s already been a protest over the recommended group. … At issue in a protest by a competing team is whether the JE Dunn team meets a key requirement to be selected, which is that it has built at least three similar Major or Minor League ballparks.” 1
The biggest potential for unethical behavior comes from Wichita Mayor Jeff Longwell. In 2012, as the Wichita city council was considering the award of the contract for the new airport terminal, Longwell (then a council member) received campaign contributions from executives of Walbridge, a Michigan construction company partnering with Key Construction to build the new Wichita airport terminal. 2
Two Walbridge contributions were made on July 16, 2012, the day before the council, Longwell included, voted to award the contract to the Key/Walbridge partnership. More contributions from Walbridge arrived on July 20, according to Longwell’s campaign finance reports.
When questioned about the Michigan contributions, Longwell told the Wichita Eagle, “We often get contributions from a wide variety of sources, including out-of-town people.” But analysis of past campaign finance documents filed by Longwell showed just three out-of-state contributions totaling $1,500. 3
In deciding the airport contract issue, the council was asked to make decisions involving whether discretion was abused or whether laws were improperly applied. It’s not surprising that Jeff Longwell made these decisions in favor of his campaign contributors. But he shouldn’t have been involved in the decision.
That was not the first time Jeff Longwell has placed the interests of his campaign contributors ahead of taxpayers. In 2011 the city council, with Longwell’s vote, decided to award Key a no-bid contract to build the parking garage that is part of the Ambassador Hotel project. The no-bid cost of the garage was to be $6 million, according to a letter of intent. Later the city decided to place the contract for competitive bid. Key Construction won the bidding, but for a price $1.3 million less.
It’s not only Longwell with problematic behavior in the past. In 2012, before the vote on the airport contract, executives of Key Construction and spouses contributed heavily to the campaigns of both Wichita City Council Member Lavonta Williams (district 1, northeast Wichita) and Wichita City Council Member James Clendenin (district 3, southeast and south Wichita). These contributions were not known to the public until months after the vote was cast.
Williams is no longer on the council, but Clendenin remains.
The city needs an adult in the room. That person is, or should be, Wichita city manager Robert Layton. In the past he has implemented policies to end the practice of no-bid contracts. We don’t know what will happen this week.
“A campaign finance report filed by Wichita City Council Member Jeff Longwell contains contributions from executives associated with Walbridge, a Michigan construction company partnering with Key Construction to build the new Wichita airport terminal. … These contributions are of interest because on July 17, 2012, the Wichita City Council, sitting in a quasi-judicial capacity, made a decision in favor of Key and Walbridge that will cost some group of taxpayers or airport customers an extra $2.1 million. Five council members, including Longwell, voted in favor of this decision. Two members were opposed.” Weeks, Bob. Michigan company involved in disputed Wichita airport contract contributes to Jeff Longwell. Available at https://wichitaliberty.org/wichita-government/michigan-company-involved-in-disputed-wichita-airport-contract-contributes-to-jeff-longwell/. ↩
“Analysis of Longwell’s July 30, 2012 campaign finance report shows that the only contributions received from addresses outside Kansas are the Walbridge contributions from Michigan, which contradicts Longwell’s claim. Additionally, analysis of ten recent campaign finance reports filed by Longwell going back to 2007 found three contributions totaling $1,500 from California addresses.” Weeks, Bob. Jeff Longwell out-of-town campaign contributions. Available at https://wichitaliberty.org/wichita-government/jeff-longwell-out-of-town-campaign-contributions/. ↩
A lawsuit claims that when the City of Wichita refinanced its special assessment bonds, it should have passed on the savings to the affected taxpayers, and it did not do that.
A lawsuit filed in Sedgwick County District Court charges that the City of Wichita improperly handled the savings realized when it refinanced special assessment bonds at a lower interest rate. The case is 2018-CV-001567-CF, filed on July 13, 2018, and available here.
The suit names David L. Snodgrass and Leslie J. Snodgrass as plaintiffs, and a long list of defendants, namely:
The City of Wichita, Kansas
Wichita City Manager Robert Layton
Wichita Finance Director Shawn Henning and Former Wichita Finance Director Kelly Carpenter
Wichita City Clerk Karen Sublett
Wichita Mayor Jeff Longwell and former Wichita Mayor Carl Brewer
Current Wichita City Councilmembers Brandon Johnson, Pete Meitzner, James Clendenin, Jeff Blubaugh, Bryan Frye, and Cindy Claycomb
Former Wichita City Councilmembers Lavonta Williams, Janet Miller, Sue Schlapp, Paul Gray, Jeff Longwell, Jim Skelton, and Michael O’Donnell
Springsted Incorporated
Gilmore And Bell, A Professional Corporation
Kutak Rock, LLP
Sedgwick County Treasurer Linda Kizzire
The suit asks for a class to be created consisting of “all other affected land owners paying excess special assessments,” which would, undoubtedly, be many thousands of land owners. No specific amount of relief is requested.
The suit’s basis
The city borrows money by issuing bonds to fund improvements to (generally) new neighborhoods. These bonds pay for things like residential streets, water pipes, and sewer lines. The debt service for these bonds, that is, the money needed to make the bond payments, is charged to benefitting property owners in the form of special assessment taxes, often called “specials.” These specials are separate from the general property taxes that are charged to all property.
General property taxes are based on a property’s assessed value multiplied by a mill levy rate. Specials, however, are based on the cost of the infrastructure and the payments needed to retire the debt. This amount is determined at the time bonds are sold and the repayment schedule is established. (Bond payments depend on the amount borrowed, the length of the repayment period, and the interest rate. All this is known at the time the bonds are issued.)
These specials usually last 15 years, and after paid, no longer appear on a property’s tax bill. Sometimes special assessments are prepaid.
What the city did, and didn’t do, according to plaintiffs
During the last decade, interest rates on long-term bonds generally fell. In response, the city issued refunding bonds. These bonds took advantage of low interest rates by paying off old bonds that had higher interest rates, replacing them with bonds with lower interest rates. The lawsuit alleges that since 2009, the city has issued $216 million in refunding bonds saving $60.2 million, according to city documents cited in the lawsuit. The suit does not specify how much of this savings is attributed to special assessment bonds.
So the city refinanced special assessment debt at a lower rate, reducing the cost of the debt. That’s good. Homeowners often do this when mortgage rates are low, and it’s good that the city does this too.
The problem, according to the lawsuit, is that some of the refinanced debt was special assessment debt. The lawsuit contends that, based on Kansas law, the city should have passed on the savings to the property owners that were paying off this special assessment debt. Instead, says the suit, “the City of Wichita transferred the excess special assessment money paid by affected Wichita taxpayers to support its general fund and/or other municipal funds.” In other words, the city spent the savings on other things, when it should have directed the savings to land owners who were paying the special taxes.
Plaintiffs allege that the conduct of the city and its advisors constitutes fraud against those paying special assessment taxes:
The fraudulent actions of Defendant City of Wichita, along with the other Wichita Defendants, and Defendants Springsted, Gilmore and Bell and Kutak Rock resulted in the misappropriation of millions of dollars of “saved” tax payments that should have been returned to Plaintiffs along with all other affected land owners paying special assessments levied under the General Improvement and Assessment Laws of the State of Kansas.
Further, the suit alleges that the liability faced by many of the defendants is personal:
Because the Wichita Defendants actively participated in the fraud practiced by Defendant City of Wichita, they cannot escape personal liability for the fraudulent actions of the City of Wichita upon Plaintiffs and all other affected land owners paying special assessments.
While there is one named party as plaintiff, the suit alleges that all similarly situated persons have been harmed, and so a class action is appropriate. That would be all property owners who have paid special assessment taxes to Wichita since 2009, including myself.
Despite promises, Wichita fails to inform citizens on important activities of its government.
For several years, the Kansas city of Lawrence has published an economic development report letting citizens know about the activities of the city in this area. The most recent edition may be viewed here.
The Lawrence report contains enough detail and length that an executive summary is provided. This report is the type of information that cities should be providing, but the City of Wichita does not do this.
Example from the Lawrence report. Click for larger.It’s not like the City of Wichita does not realize the desirability of providing citizens with information. In fact, Wichitans have been teased with the promise of more information in order to induce them to vote for higher taxes. During the campaign for the one cent per dollar Wichita city sales tax in 2014, a city document promised this information regarding economic development spending if the tax passed: “The process will be transparent, with reports posted online outlining expenditures and expected outcomes.” (This is what Lawrence has been doing for several years.)
The “Yes Wichita” campaign promised, “Reports will be measured and reported publicly.” (But “Yes Wichita” was a campaign group and not an entity whose promises can be relied on, and can’t be held accountable for failure to perform.)
These are good ideas. The city should implement them even though the sales tax did not pass. If it’s good for citizens to have this type of information if the sales tax had passed, it’s good for them to know in any circumstance, because the city (and other overlapping governmental jurisdictions) still spends a lot on economic development.
Why is this information not available? Is the communications staff overwhelmed, with no time to provide this type of information?
During the sales tax campaign Wichita city staff had time to prepare news releases with titles like “City to Compete in Chili Cook-off” and “Jerry Seinfeld Returns to Century II.”
This year the city produces headlines like “Annual Arbor Day Returns Friday” and “Arkansas River Trash Roundup Saturday.”
But if you want to know how much — and how well — the city spends economic development dollars, you won’t find that.
Wichitans need to know that besides living in a city that doesn’t provide much information about its operations, the city believes it is doing a good job. Here is a Wichita city news release from 2013:
“The City Council has stressed the importance of transparency for this organization,” City Manager Robert Layton said. “We’re honored to receive a Sunny Award and we will continue to empower and engage citizens by providing information necessary to keep them informed on the actions their government is taking on their behalf.”
In 2015 the city won another award, with the city reporting: “The City of Wichita has been recognized nationally for leading efforts related to technology, community engagement and transparency.
The official city biography for Wichita Mayor Jeff Longwell says he has “championed many issues related to improving the community including government accountability, accessibility and transparency.”
When I’ve expressed frustration with the process of asking for information from the city, communications staff told me this: “I should note that the City has won multiple awards for openness and citizen participation, but City leaders recognize this work is never done. They strive each and every day to become more open and transparent and will continue to do so.”
Wichitans need to wonder:
Why can’t we have the same information about our city government that residents of Lawrence have?
Was transparency promised only to get people to vote for the sales tax in 2014?
Does the city believe it deserved the awards it has received?
Is transparency really a governing principle of our city?
Wichita decides to have someone else conduct public engagement.
At the November 7, 2017 meeting of the Wichita City Council, the council will be asked to approve a request for proposal (RFP) document relating to Century II.
The RFP is a document that spells out what the city wants done relating to public engagement regarding the future of Century II. Specifically, interested parties are invited to “design and implement a transparent public engagement process that involves a broad cross-section of Wichita residents in a discussion of interests related to the future of Century II as a performing arts center.”
A “Screening and Selection Panel” selected by the Wichita city manager will evaluate the proposals based on several criteria and select a winner.
The introduction to the RFP states: “The primary purpose of this engagement is to identify the community’s interests and recommendations related to Century II as a performing arts center, to include the option of its removal and replacement, as well as its relationship to the convention center, both in function and spatial proximity.” No cost ceiling is given by the city.
Of note, the schedule in the RFP gives November 3 as the due date for proposals. But it is four days after that, on November 7, that the city council will be asked to, according to city documents, “approve the scope of services and amendment for the Request for Proposals.”
While some may criticize the city for relying on an outside consultant to conduct public engagement, the reason given is a recommendation by the city manager that the process be “be led by an independent third party to ensure neutral framing of the issues.”
That makes a lot of sense, as Wichita doesn’t have a good track record in this regard. For example, in even-numbered years the city has surveyed residents asking them to rate “the job Wichita does at welcoming citizen involvement.” The results are shown in the nearby chart created from data found in versions of the Wichita Performance Measure Report. The numbers are the percent of respondents giving “excellent” or “good” as their response to the question.
The report says this performance is “much below” a benchmark set by the National Research Center National Citizen Survey, the group that conducted the survey for the city.
There’s also the 2014 city sales tax election, where the city was proud of its engagement with citizens, convincing them of the need for the tax. On election day, 62 percent voted against the tax.
Before that there was Activate Wichita, a system for gathering citizen feedback. But when rating ideas, there was no voting option for expressing disagreement or disapproval with an idea. “Neutral” is as much dissent as Wichitans were allowed to express in this system. This system fell into disuse and became an embarrassment for the city.
A City of Wichita town hall meeting ends in less than nine minutes, with a question pending and unanswered.
As part of its engagement with citizens, the City of Wichita holds social media town hall meetings. On June 20, 2107, there was a Facebook town hall on the topic of economic development featuring Assistant City Manager Scot Rigby. His charge is “developing and implementing a coordinated and comprehensive development services program and for developing, implementing and overseeing economic development, redevelopment and real estate programs and projects.” He’s worked for the city for two years. 1
Promoting the town hall. Click for larger.There is not a customary duration for events like this, although other social media town halls have been promoted by the city as lasting 90 minutes. Surely citizens might expect any meeting like this to last at least 30 minutes, if not 60 or more.
But Wichita Assistant City Manager Scot Rigby’s town hall meeting on June 20 lasted eight minutes and 22 seconds.
(A screen capture of the event is available here, and the entire event as recorded on Facebook is here.)
It wasn’t for lack of questions that the meeting ended so quickly. One question I asked had to do with the city’s reporting on its economic development efforts. The City of Lawrence annually produces a comprehensive report, but Wichita does not. 2 Rigby answered this question online, which is the way these things are supposed to work.
An excerpt from the town hall. Click for larger.Then I asked this question: “There has been a lot of investment, public and private, in downtown Wichita. What has been the trend in the number of business firms, employees, and payroll during that time?” That was six minutes and 50 seconds after the start of the meeting, according to Facebook. The meeting ended 92 seconds later with no answer to this question.
But I wanted the city to answer my question. After five weeks of multiple requests through both Facebook and email, I received a response from the city:
from: Bob Weeks
to: Scot Rigby
Hi, I’m still wondering why the social media town hall from June 20 was ended after less than nine minutes. There is still a pending question.
For your convenience, here is the link to the Facebook video:
“https://www.facebook.com/cityofwichita/videos/1450322791680383/”
Thank you,
Bob Weeks
Dear Mr. Weeks-
Scot Rigby asked that I follow up with your question since I was involved with coordination of the Social Media Town Hall events.
During the Social Media Town Hall events on June 15 and June 20 we presented content in a variety of formats on Facebook and Twitter. We used the Facebook Live format for one topic, but 30 second videos for 14 other topics (seven on each day). We publicized the Facebook Live topic the day before, and our intent was to respond to questions from that topic as well as during the event. We ended the Facebook Live event after responding to comments and feedback from June 15 and focused efforts on responding to other posts as well as Nextdoor, which we used for the first time during the Social Media Town Hall this year. Because of changes in technology, each year the Social Media Town Hall is a little different.
Sincerely-
Elizabeth
Elizabeth Goltry Wadle
Principal Budget Analyst
City of Wichita
I think I’ll characterize this as nonresponsive.
Besides this answer, the city also responded on Facebook on July 18, nearly a month after I posed the question. That response referred me to the 2016 State of Downtown Report from the Wichita Downtown Development Corporation. That is also (mostly) nonresponsive to my question.
Trends of business activity in downtown Wichita. Click for larger.In a way, I can sympathize with Rigby not wanting to answer my question. Perhaps he doesn’t know the answer. But he might know — he should know — the answer, which is that since 2007 there are fewer business establishments, fewer people working downtown, and lower earnings generated in downtown Wichita. In all cases, the trend is lower. 3
Regarding the 2016 State of Downtown Report from the Wichita Downtown Development Corporation: That document claims there are 26,000 workers in downtown Wichita. That is a large mistake and greatly overstates the number of workers. 4
It’s curious that the city did not refer me to a 2017 edition of the State of Downtown Report. But that document does not exist. It’s common for these reports to be released in May, but this year’s report is not yet available.
The city takes pride in being responsive to citizens. Former Mayor Carl Brewer often spoke in favor of government transparency. For example, in his State of the City address for 2011, he listed as an important goal for the city this: “And we must provide transparency in all that we do.”
“The City Council has stressed the importance of transparency for this organization,” City Manager Robert Layton said. “We’re honored to receive a Sunny Award and we will continue to empower and engage citizens by providing information necessary to keep them informed on the actions their government is taking on their behalf.”
Shortly after his election, current Mayor Jeff Longwell penned a column in which he said, “First off, we want City Hall to be open and transparent to everyone in the community.”
Is a lack of staff at city hall the reason why I can’t get an answer to a question? I don’t think so. Two years ago the city expanded its staff by hiring a Strategic Communications Director. When the city announced the new position, it said: “The Strategic Communications Director is the City’s top communications position, charged with developing, managing, and evaluating innovative, strategic and proactive public communications plans that support the City’s mission, vision and goals.”
My experience with this social media town hall runs contrary to the city’s proclaimed goals, and this is not the only time I’ve had problems with the city regarding requests for information. 5
Wichita city hall failed to uphold the terms of a development agreement from five years ago, not monitoring contracts that protect the public interest.
Two weeks ago a Wichita Eagle article reported on a 2002 public-private partnership that called for the private-sector company to submit an annual report to the city. But the company did not submit the reports, and the city didn’t ask for them. The city did after the Eagle inquired. 1
Much of the Eagle article described why current city officials were not aware of the 2002 agreement: “Due largely to turnover on the city staff and term limits on the City Council, top officials at City Hall were unaware of the contract provisions until The Eagle inquired about them. … No city official who played a major role in the 2002 contract is still actively involved in government.”
The article quoted Mayor Jeff Longwell as “interested in WaterWalk fulfilling any contractual agreement they have in place (with the city), even if that contract was made 20 years prior to my time.”
Now we know that the city did not enforce a similar agreement with the same WaterWalk developer made while Longwell was a council member. The city manager who oversaw the agreement is still manager.
WaterWalk additional rent calculation, excerpt. Click for larger.We don’t have to look as far back in history as 2002 to find an agreement the city did not enforce, one where the city was not protecting the interest of taxpayers. In 2012 the city entered into a same or similar agreement in the same WaterWalk development with the same developer, Jack P. Deboer. It also called for the city to potentially earn payments, called “additional annual rent.” It also called for reports to be made, although the exact language used is “provide that calculation.” 2
I asked for the annual reports on July 10. Three days later I received a message indicating the documents would be ready on July 19. On that day they arrived. Like those provided to the Eagle, they were heavily redacted and showed that no additional rent was due the city.
Upon further inquiry, it is clear that these reports were not filed with the city on an annual basis, but were created only after I asked for them. 3
Calculations use incorrect formula
The 2012 agreement specified that the WaterWalk developer would be able to annually deduct 20 percent of the construction costs as “development cost return.” But, in the calculations provided to me by the city, 17 percent is used instead. 4
WaterWalk additional rent calculation, excerpt. Click for larger.
The city excused this error as being in favor of the city, and no additional rent was due in any case.
Redacted, not really
As shown in the examples above, the documents provided to me were heavily redacted, with nearly all numbers obscured. The illustrations show the appearance of the pdf document when opened in Acrobat reader or another pdf reader.
But a simple copy and paste into another application like Microsoft Word revealed the blacked-out numbers. The procedure used by the city didn’t really redact the numbers. It appears that someone used the Acrobat drawing tools to draw thick black lines over the numbers, which isn’t effective. Acrobat offers a set of redaction tools specifically designed for removing sensitive content from pdfs, and the city should have used this method. 5
When I reported this finding to the city, Elder replied: “We would ask that you respect the privacy of this information as well as the City’s obligations under the Kansas Open Records Act at K.S.A. 45-221(b), included below, which strictly prohibits the release of the financial information of a taxpayer, and not disclose the financial information.” 6
I don’t believe that the Kansas Open Records Act prohibits the disclosure of this information, and it is in the public interest that these numbers are available. At the moment, I am inclined to respect the city’s request.
Again
Here is another example of the city and its private-sector partners failing to observe a contract. The city did not monitor its agreements to protect the public interest, and this agreement is recent enough that remoteness in time is not an excuse.
Were the 2002 and 2012 development agreements wise for the city? At the time of the 2012 deal, I wrote this: 7
[There] is a provision that requires the apartment developer to pay “Additional Annual Rent.” Under this concept, each year the apartment developer will calculate “Adjusted Net Cash Flow” and remit 25 percent of that to the city.
To the casual observer, this seems like a magnanimous gesture by the apartment developer. It makes it look like the city has been a tough negotiator, hammering out a good deal for the city, letting citizens profit along with the apartment developer.
But the definition of cash flow includes a comprehensive list of expenses the may be deducted, including the cost of repaying any loans. There’s also an allowable expense called “Tenant Development Cost Return,” which is the apartment developer’s profit. The agreement defines this profit as 20 percent, and it’s deducted as part of the computation of “Adjusted Net Cash Flow.”
If there is ever any money left over after the dedication of all these expenses and profit margin, I will be surprised. Shocked, even. Here’s one reason why. One of the allowable deductions that goes into the computation of “Adjusted Net Cash Flow” is, according to city documents: “Amounts paid into any capital, furniture, fixture, equipment or other reserve.” There’s no restriction as to how much can be funneled into these reserve accounts. We can be sure that if this project was ever in the position where it looked like it might have to remit “Additional Annual Rent” to the city, contributions to these reserve funds would rise. Then, no funds paid to the city.
This is an example of the city appearing to be concerned for the welfare of taxpayers. In reality, this concept of “Additional Annual Rent” is worse than meaningless. It borders on deception.
Beyond this, we now know that neither the city nor the WaterWalk developer followed the terms of the deal. The annual reports were not supplied by the company, and they were not requested by the city. As it turns out the annual reports purport to show that the city was owed no money under the profit sharing agreement.
But that’s not the point. The issue is that the city did not enforce a simple aspect of the agreement, and the private-sector company felt it did not need to comply. Taxpayers were not protected, and we’re left wondering whether these agreements were really meant to be followed.
“As Additional Annual Rent Tenant shall pay a sum equal to twenty-five percent (25%) of the Adjusted Net Cash Flow commencing with the first day the Tenant Improvements open for business. The Tenant shall calculate Adjusted Net Cash Flow for each Current Year within forty-five (45) days after the end of the Current Year (or portion thereof) and provide that calculation, and pay to the Landlord the Additional Annual Rent, within sixty (60) days after the end of the Current Year. Additional Annual Rent shall continue until this Lease expires. Adjusted Net Cash Flow is Gross Revenues less Total Expenses, less the total amount of capital expenses for furniture, fixtures, and equipment for the Tenant Improvements in excess of the aggregate amount expended from any reserve during such year.” Amendments to WaterWalk Developer Agreements. August 21, 2012. Available at https://drive.google.com/file/d/0B97azj3TSm9Mdm1tWjlQbVAzemM/view?usp=sharing. ↩
Email from city development analyst Mark Elder, July 21, 2017. “The annual report for this project was requested in the same time frame as the reports provided for Gander Mountain however, the documents were provided to the City within the last week.” ↩
Wichita City Council agenda packet for August 21, 2012. Waterwalk Ground Lease, Section 16.08. “Tenant Development Cost Return, defined as, on an annual basis, twenty percent (20%) of the total Construction Costs for all Tenant Improvements paid by Tenant, Developer, or permitted assignees and sublessees. As further clarification, the amount determined to be twenty percent (20%) of the total Construction Costs for all Tenant Improvements may be included in the calculation of the Total Expenses each year during the Term of this Lease.” ↩
“Except to the extent disclosure is otherwise required by law or as appropriate during the course of an administrative proceeding or on appeal from agency action, a public agency or officer shall not disclose financial information of a taxpayer which may be required or requested by a county appraiser or the director of property valuation to assist in the determination of the value of the taxpayer’s property for ad valorem taxation purposes; or any financial information of a personal nature required or requested by a public agency or officer, including a name, job description or title revealing the salary or other compensation of officers, employees or applicants for employment with a firm, corporation or agency, except a public agency. Nothing contained herein shall be construed to prohibit the publication of statistics, so classified as to prevent identification of particular reports or returns and the items thereof.” ↩
