Wichita mayor, city manager at odds over how public to make water plant briefing

Wichita’s city manager on Friday suggested that the City Council should discuss issues raised in an Eagle investigation behind closed doors, “so it’s not misconstrued in the public.”

Mayor Lily Wu, a former journalist who campaigned on increasing transparency at City Hall, would have none of it.

“I want this in public,” Wu said.

Wu said she wants City Manager Dennis Marstall to get to the bottom of who on the city staff is responsible for a contract change in September 2024 that eliminated up to $5 million in late fees the city could charge Wichita Water Partners, a joint venture between Burns & McDonnell and Alberici. And she’s demanding answers on why no one told the council.

“I’m very disappointed that it requires a Wichita Eagle article for us to even know that a contract is completely different or something was omitted,” Wu said. “I believe that, again, someone needs to tell me who exactly took it out, which department took it out and then which department didn’t let this council know.”

Marstall had no answers for the mayor on Friday. But he did have a printout of The Eagle’s story and a proposal to spend an additional $769,446 on the project because of the delays. That money would extend a contract with Garver, a company hired for $17.1 million to provide project oversight on the water plant. The council will vote on that Tuesday.

Instead of briefing the council on the Garver proposal, Marstall chose to address the newspaper article.

“I would like to take the opportunity — I did see the unfortunate article in The Eagle,” Marstall said. “And I say unfortunate — I usually don’t criticize the media, but the context was not there. And even the headline of equating late fees to what the contract language is about — liquidated damages, substantial completion — really just confuse the issue.”

Marstall did not say what context he felt was missing in the story. The Eagle sent questions about the contract change to City Hall seven days before publication. A city spokesperson ultimately declined to comment beyond saying the city “retains remedies to address its damages” related to delays at the Wichita Water Works plant, without offering specifics.

The Wichita Water Works plant is the largest capital project in the city’s history. The project is more than a year behind schedule and is expected to take another year to complete, leaving Wichita to depend on an aging plant with significant deficiencies.

The Eagle reported Thursday that the city’s original contract with Wichita Water Partners would have charged the contractors thousands of dollars each day — up to $5 million total — for failure to meet the “substantial completion” deadline of September 17, 2024.

When the contractors failed to finish by September 17, 2024, the City Council voted to grant Wichita Water Partners a certificate of substantial completion, even though they had not met the terms of the original contract.

By doing so, the council moved the project into a phase — between substantial completion and final completion — where late fees for delays are $0 a day, according to the contract.

The contract calls those late fees “liquidated damages” and says they are the “sole and exclusive remedy for delay.”

Marstall, hired in recent weeks to replace longtime manager Robert Layton, insisted on Friday that the city would get money back from Wichita Water Partners for delays at the plant, but he did not offer specifics about what provisions in the contract would allow the city to do so.

“We will have an executive session scheduled on the 10th of February to give you another update on the plant, and to highlight we are going to recover all the costs that are owed because of this delay, and so we are focused on that,” Marstall said. “And we have other contract language that was part of the change order discussion that we’ll highlight. But given some of the issues with this, it’s best to have that information shared — again, in executive session — so it’s not misconstrued in the public as presented.”

Wu pushed back on that notion and said she wanted to talk about it in public because council members are being unfairly blamed.

“I don’t believe it’s right for this council to be thrown under the bus when we were not advised, or we were not pointed out, that what we were going to be signing was going to be taking away something off the table,” Wu said. “I don’t believe that my colleagues are to blame for this. Therefore, I do expect someone to tell me who is to blame for that and who did not advise us, because that’s not fair to this council, it’s not fair to each of these individuals who does work hard and does read their packets and does question. So that’s not fair to any one of these individuals who do want to make sure that we are working to make sure that taxpayers are actually being protected. I believe this council does do that.”