Naftzger Park contract: Who is in control?

The City of Wichita says it retains final approval on the redesign of Naftzger Park, but a contract says otherwise.

As part of the proposed redesign of Naftzger Park in downtown Wichita, an architectural firm has been engaged, and a contract agreed to. I’ve made the document available through Google Drive here.

In responding to my request for the contract, the city included this information:

The Naftzger Park design contract you requested is between SWA Balsley and TGC Development Group. SWA has provided a copy of the draft agreement. The City has coordinated with TGC in this effort to ensure that the selection process followed City procedures. The City Council has taken action to select SWA as the design team and did accept the design funding proposal of SWA Balsley, but is not a party to the design contract. The City is utilizing this collaborative approach to take advantage of the experience and expertise in project management of TGC Development in this unique project. Any final Naftzger Park design approval is retained by the Parks Board and the City of Wichita. 1 (emphasis added)]

As stated, and according to the language of the contract, the parties to the contract are SWA/Balsley Landscape Architects, P.C. (“SWA/Balsley”) and TGC Development Group, which is referred to as the “Client.” The City of Wichita is not the Client; that party is a private business firm. And not just any private firm, but one that owns property abutting Naftzger Park and is clearly looking to rebuild the park according to its needs and profitability, not what is good for the city at large.

As to the city’s contention that final approval is retained by it alone, the contract holds language like this:

“Upon the Client’s authorization to commence design development …”

“Upon the Client’s approval of the design development plans and preliminary cost estimate …”

“SWA/Balsley shall prepare and process change orders only with prior approval of the Client.”

Example from the contract. Click for larger.
(The document is covered with a large watermark that obscures parts of its text. As the document is encrypted, there is no way to remove the watermark without the password, as far as I know.)

Remember, the city is not the Client. TGC Development is the Client.

Here is a paragraph near the end of the contract:

“As material inducement to SWA/Balsley to enter into this agreement, Client represents it warrants that it has full authority to bind the City to the terms of this Agreement, and that the City will assume full responsibility for payment.” (emphasis added)

There’s a discrepancy here. The city says final approval rests with it alone, but TGC Development has agreed to a contract which states it can bind the city to an agreement.

By the way, if you thought the Naftzger Park redesign was a $1.5 million project, think again, as this language from the contract shows:

“Based upon our understanding of the project, the park design should encompass the vision as described in the RFQ and be planned with phased implementation. Conceptual and Schematic Design phases were based on a complete vision of an estimated $3,000,000 budget. Design Development, Construction Documentation, and Construction Observation, which are to be completed under Phase One, are established at $1,500,000. The fee quoted in this proposal is based upon this present understanding and these budgetary figures.”


Notes

  1. Correspondence from Lauragail Locke of the Wichita City Manager’s Office, August 3, 2017.

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