Judge grants city’s motion to drop lawsuit against contractor for faulty Fountain Square work

Close to $240,000 in attorney’s fees spent on the case

By Bob Seidenberg
A Cook County Circuit Court judge granted the city’s request Thursday to dismiss its nearly $6 million lawsuit brought against a contractor, alleging faulty workmanship on the downtown Fountain Square project.

Judge Patrick Sherlock granted  the city’s motion for voluntary dismissal without prejudice against the company, Copenhaver Construction, in a case that has run up close to  $240,000 in legal fees to date, records show.

Sherlock had ruled Aug. 9 that a Jan. 8, 2024, trial date would stand for the case after attorneys failed to report a breakthrough in a mediation session that had been set for Aug.7.

Two days later, Ice Miller LLP, the firm representing the city, petitioned the court to voluntarily dismiss the action against Copenhaver without prejudice. The action that would allow the city to refile its claims at a later date, subject to certain limitations.

In a press release, the city explained it was temporarily withdrawing its lawsuit “to allow time for settlement discussions and formal mediation proceedings.”

The turn in the case was dramatic, since the city  had publicly called out the firm in March of last year for its work on the fountain project, demanding reimbursement.

As recently as a few months ago, a top city official,  responding to questions from a Council member, explained why Copenhaver was being blamed.

Oversight at issue

In the suit filed on June 8, 2022, the city maintained that the contractor, installed incorrectly-sized waterstops inside the fountain and did not follow the manufacturer’s recommendations for installation, causing water loss  of up to 4,536 gallons a day.

The suit also maintained Copenhaver failed to submit the waterstops to the city,  or its engineering consultant on  the project, Christopher B. Burke Engineering Limited (CBBEL), for review or approval prior to  installation.

The fountain, a centerpiece of Evanston’s downtown, has been out of use since 2021.
Meanwhile, attorneys for Copenhaver mounted an aggressive defense against the city’s claim that the company installed the waterstops without approval.

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

Furthermore, Copenhaver asserted  in its response to the lawsuit that the scope of work to be performed by  Christopher Burke Engineering Limited (CBBEL) included “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.”

“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 further noted.

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 [Copenhaver] 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.”

Before the city moved to dismiss, Sherlock had agreed to grant both sides’ request to extend the discovery and witness deposition dates in the case.

Since the lawsuit was filed last June, the parties produced more than 60,000 pages of records and deposed 13 witnesses, including Stoneback and other officials, as well as representatives from CBBEL.

Records obtained through a Freedom of Information Act request show invoices billed  to the city for payment by Ice Miller total around $237,000.

The highest invoices for fees have occurred in recent months, including one for $65,251.01, for services rendered, that was dated July 23.

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