The City of Lawrence and several of its hired contractors are facing allegations of negligence and property damage related to a construction project along the bank of the Kansas River adjacent to the Riverfront Plaza.
According to a lawsuit filed this month in Douglas County District Court, building owners allege that construction of an access road on the south bank of the river compromised the integrity of the land supporting the buildings, causing cosmetic and structural damage, and monetary loss expected to exceed $75,000.
“[T]he work performed by the city’s chosen contractors, specifically the cutting into the embankment directly adjacent to plaintiffs’ building, has led to significant damage to not only the buildings’ foundation, but also significant damage to the interior of the building that continues to worsen to this day,” the petition alleges.
The building, which currently houses Marriott SpringHill Suites, Lawrence Municipal Court and additional city offices, was originally opened in 1990 as a 150,000-square-foot outlet mall. The building sits on city-owned land. It is currently owned by La Posada Group LLC and BC Lynd Hospitality LLC, operating SpringHill Suites, and Riverfront LLC, which operates office leases. The owners are represented in the suit by Kansas City, Missouri-based Edgar Law Firm LLC.
In addition to the City of Lawrence, defendants listed in the suit are TSP Environmental Inc.; R.D. Johnson Excavating Company LLC; Dondlinger & Sons Construction Company Inc.; Recreation Engineering & Planning Inc.; and S2O Design and Engineering.
The road was built as part of a project to repair a portion of the Bowersock Dam located just west of the Riverfront Plaza. An agreement with the Bowersock Mills & Power Company originating in 1977 requires that the city provide maintenance for the dam, which controls public water intakes and is a renewable power source for the Kansas City Board of Public Utilities.
The suit states that in 2018, the city solicited bids for repairs to the dam, as well as restoration of a retaining wall adjacent to Abe & Jake’s Landing. The request also sought proposals for “new recreational amenities” that included a public trail and water access points.
The city received three proposals for the project, and a review committee selected Michigan-based TSP Environmental, whose bid of just less than $1.5 million was “substantially lower” than the other submittals. Broken into phases, the projects were estimated at approximately $600,000 for the dam repair, $574,000 for bank stabilization, and $323,000 for recreational features.
In a memo to the city manager, then-Assistant Director of Municipal Services & Operations Charles Soules indicated that the review committee recommended fully funding the first two phases but reduced the recreational features budget to $62,000.
According to court documents, planners determined that before starting the project crews would need to construct a road along the south embankment of the river to provide access to the damaged portion of the dam. At the project’s conclusion, the road was to be the base for a concrete portage trail to in-river recreational amenities outlined in the project description.
“The road would need to be built off of the embankment using outside fill material, because all professionals recognized that cutting into the embankment directly abutting plaintiffs’ building to make the road could cause substantial problems with bank destabilization and harm to plaintiffs’ building,” according to the lawsuit.
“High-water events” in 2019 pushed the project to 2020. Court documents state that during the months of delays, stakeholders and concerned citizens began voicing concerns about TSP, culminating with a dam safety engineer from the Federal Energy Regulatory Commission expressing serious concerns about TSP’s proposed use of underwater divers.
“The dam safety engineer stated, and it was directly conveyed to city officials, that the use of underwater construction should be reserved for ‘emergencies only,’” the petition states. “Stakeholders also voiced concerns about the chosen method of using underwater divers because of the inherently high, and unnecessary, risks.”
Using the rejected bid proposals and information gathered from other contractors, the city was shown that repairs made in dry conditions using a cofferdam, which is an enclosure built within a body of water to allow the enclosed area to be pumped out or drained, would be more safe and cost effective. Stakeholders also offered to provide financial assistance if the city would adopt the alternative method.
After initially agreeing to the change, the city eventually authorized TSP to continue as originally planned after company officials reasserted that using divers would be less risky and cheaper for the city, the lawsuit alleges.
Now questioning TSP’s capability and competency, stakeholders began researching the company and calling references listed in their proposal.
“Stakeholders soon learned that some references listed by TSP Environmental had no recollection of working with TSP Environmental,” the lawsuit alleges. “Others had to look back at projects to recall what aspects TSP Environmental worked on, and even when remembering described TSP Environmental as ‘not great’ and would only use them if they were the ‘low bidder.’”
In one case, TSP was alleged to have made a “substantial mistake” in a Topeka levee repair project, significantly increasing the cost and causing it to be put on hold indefinitely.
As weeks passed without the Lawrence dam repairs beginning, additional concerns were presented to City Manager Craig Owens. According to the court filing, by September 2020 the city had been told:
• There were no designs or stamped drawings of any portion of the project.
• TSP had not addressed concerns regarding materials proposed to secure the river bank.
• In communications with Bowersock representatives, the proposed diving team had shown a lack of familiarity with the site conditions, had not provided safety protocols to dam operators, and were concerned that delays would prevent repair completion in 2020.
• Calls made to a Lawrence quarry and a Topeka stone supplier identified by TSP revealed that neither had knowledge of being involved with the project.
“Despite pages upon pages of complaints and hours of conversation covering months of stakeholders’ concerns, the city refused to intervene with TSP Environmental,” the court filing alleges.
According to the document, in late October 2020, TSP contracted with R.D. Johnson to begin construction of the access road. Rather than building the road with outside fill material sourced from a supplier as outlined in the contract, TSP directed R.D. Johnson to cut into the south river embankment without reinforcing it, and use the excavated materials to complete construction, according to the petition.
Building owners allege in the court document that this work was done without input from a geotechnical engineer or any other expert who could give guidance. They also state that R.D. Johnson secured an agreement to indemnify the excavation company against any liability for damages that might result from changes to the embankment.
After a letter of concerns about erosion from Friends of the Kaw, a Lawrence organization dedicated to protecting the river, city officials responded on Oct. 30, 2020, that the project was not complete and bank stabilization would occur in “future project phases.” By the next spring, no structural support had been added to the riverbank, threatening the integrity of the Riverfront Plaza’s promenade deck and building, according to the petition.
“In February 2022, plaintiffs began to experience unusual damage in their building,” the petition states. “Plaintiffs employed professionals and eventually determined that this damage was the result of foundation shifting caused by the destabilization of the riverbank. This damage has resulted in both cosmetic and structural damage to the property that is ongoing.”
The petition accuses the city and its contractors of 10 counts of negligence; one count of private nuisance — interference with enjoyment and use of property; one count of inverse condemnation — interference with the ability to operate business; one count of damage to property; one count of municipal nuisance; and one count of trespass to land — damaging land in which the plaintiff has interest.
Plaintiffs are requesting compensation for physical damage and lost profits. They are seeking a jury trial.
The attorney who filed the case on behalf of the building owners did not respond to an email seeking comment for this article, nor did spokespeople for the City of Lawrence or TSP Environmental Inc.
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Andrea Albright (she/her), reporter, can be reached at aalbright (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.
— Reporter Mackenzie Clark contributed to this article.
