Motion allows ‘time for settlement discussions’

By Bob Seidenberg

In a major twist in the longstanding Fountain Square saga, the city on Friday afternoon filed a motion in Cook County Circuit Court requesting that its nearly $6 million lawsuit against a contractor for alleged faulty fountain work be voluntarily dismissed.

The motion, filed at 1:46 p.m. Friday, came two days after Judge Patrick Sherlock had ruled to allow a trial date of Jan. 8, 2024, stand in the case.

In the case, attorneys for Copenhaver Construction have waged an aggressive defense against city claims that the work was done without officials’ knowledge on the zero-depth fountain installed in 2018 at Fountain Square, a centerpiece of downtown.

The city alleges that Copenhaver did not follow the manufacturer’s recommendations in its work and claims errors caused water loss of up to 4,536 gallons a day, which has led to the fountain being shut off for years.

In documents, the contractor maintained that its installation of water stops at the fountain had been done according to city notes for the project and under the supervision of firms hired by the city for oversight.

The case had already included more than 60,000 documents in its discovery phase and depositions were taken from a number of city officials as well as Christopher Burke Engineering, which had been hired by the city to provide oversight on the project.

Time for discussions

In a Monday afternoon news release, the city said it will temporarily withdraw its lawsuit “to allow time for settlement discussions and formal mediation proceedings.” The parties to the suit had been scheduled to participate in a mediation session on Aug. 7.

In Friday’s motion, Ice Miller, the Chicago-based law firm representing the city, moved to voluntarily dismiss the action against Copenhaver without prejudice, which would allow the city to refile its claims at a later date, subject to certain limitations.

The motion stated that Copenhaver does not oppose the motion and that the city will tender to Copenhaver’s counsel the costs pursuant to the statute that governs voluntary dismissal.

The motion is set for hearing at 9:30 a.m. Aug. 24.

Sherlock had ruled Aug. 9 that a Jan. 8, 2024, trial date before a jury would stand in the city’s suit against Copenhaver Construction.

His ruling came after the parties in the suit in a June 30 motion had requested that he freeze discovery and depositions in the case pending the outcome of a mediation session that was set for Aug. 7.

As an alternative, they requested that the judge modify the discovery schedule and trial date, which the judge previously set for Jan. 8, 2024.

At the Aug. 9 hearing, Judge Sherlock ruled that the trial date of Jan. 8, 2024 would stand, according to the order issued after the court session. The judge did, however, grant the parties’ request to extend the discovery and witness deposition dates in the case, which has already generated the production of 60,000 pages of records during the discovery phase.

The city filed the lawsuit on June 8, 2022, seeking damages of nearly $6 million from Copenhaver Construction, alleging the firm installed water stops inside the fountain and did not follow the manufacturer’s recommendations for the work, causing water loss of up to 4,536 gallons a day.

As a result, the fountains in Fountain Square, downtown Evanston’s centerpiece, have been off since 2021. In 2022, officials said in a statement published on the city’s website that they would budget for the fountain repairs in 2023 as they continued to pursue reimbursement from Coperhaven.

Meanwhile, attorneys for Copenhaver have waged an aggressive defense against the city’s claim that company, without getting approval, installed incorrect water stops that led to structuraldamage throughout the fountain.

The firm maintained that the waterstop installed was permitted by the structural notes for the project provided by the city.

Furthermore, the firm has maintained that the scope of service of Christopher Burke Engineering Limited (CBBEL) – the firm the city engaged to provide oversight on the project – included “full-time, on site, construction engineering services to ensure that the work was being performed in accordance with the construction documents and to document construction activities.”

As part of CBBEL’s scope of services for this project, “CBBEL/Teska (Evanston-based Teska and Associates)/Waterworx will provide full time, on-site, construction engineering services to ensure that the work is being performed in accordance with the Construction Documents and to document construction activities,” Coperhaven’s response to the city’s complaint further noted.

(Teska and Waterworx were not named in the suit.)

At the June 8 City Council Administration & Public Works Committee meeting, Deputy City Manager Dave Stoneback told Council members that staff’s review found that  Christopher Burke should not bear responsibility for what went wrong on the project.

Rather, Stoneback, who headed the city’s Public Works department at the time of the project, maintained staff’s review found that it was “the contractor who used a product which they never submitted for review or approval and then put it into the fountain without approval from the engineer and a consulting engineer doing the work.”

Stoneback is one of a number of city officials who have been deposed in the project, one filing shows.

Other officials who have been called to give depositions include Stefanie Levine, the city’s Senior Project Manager, and Lara Biggs, the city’s Capital Planning & Engineering Bureau Chief. Three employees for CBBEL have also been disposed, the record shows.