City allowed to drop Fountain Square lawsuit

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A Cook County Circuit Court judge granted the City of Evanston’s request Thursday to dismiss its nearly $6 million lawsuit against a contractor, alleging faulty workmanship on the downtown fountain.

Judge Patrick Sherlock granted the city’s motion for voluntary dismissal without prejudice in its suit against the company, Copenhaver Construction, in a case that has approached $240,000 in legal fees so far, records show.

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

Two days later, Ice Miller, the law firm representing the city, moved to voluntarily dismiss the action against Copenhaver without prejudice – an action that would let the city 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 City Council member, explained why Copenhaver was being blamed.

In the suit filed on June 8, 2022, the city maintained that the contractor, installed incorrectly-sized water stops 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 water stops to the city, or its engineering consultant on the project, Christopher B. Burke Engineering (CBBEL), for review or approval before installation.

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

The firm maintained that the water stops were installed as was permitted by the city’s structural notes for the project.

Furthermore, Copenhaver asserted in its response to the lawsuit that the scope of work to be performed by the engineering firm 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,” Copenhaver’s response further noted.

At the June 8 City Council Administration and 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, maintained that the review found that it was 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 the lawsuit, 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 from Ice Miller billed to the city total around $237,000.

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

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Bob Seidenberg is an award-winning reporter covering issues in Evanston for more than 30 years. He is a graduate of the Northwestern University Medill School of Journalism. More by Bob Seidenberg