The City of Lawrence and hired contractors have denied allegations that construction of an access road prior to maintenance work performed on the Bowersock Dam in 2020 destabilized the Kansas River shoreline and caused damage to the Riverfront Plaza.

A lawsuit filed earlier this year by building owners alleges that the road construction compromised the integrity of the land underneath the structure, leading to damages with a monetary loss expected to exceed $75,000.

In response to the suit, attorneys for the city submitted photos that they assert show damage to the structure’s foundation and supporting piers prior to construction.

“Contrary to Plaintiffs’ allegations, the building’s footings and the footings for columns supporting the promenade were undermined before the installation of the access road,” attorneys wrote in their response. “Photographs taken in September 2020, before the installation of the access road, show the footings for the building and the promenade were undercut and/or exposed at that time. The same photographs also show deflection of, and damage, to a concrete support beam.”

The city attributes the damage to flooding that delayed the Bowersock repair project for almost a full year, or to “other previous high-water events.”

The 150,000-square-foot building, which sits on city-owned land, was originally opened in 1990 as a outlet mall. It is currently owned by La Posada Group LLC and BC Lynd Hospitality LLC, operating SpringHill Suites, and Riverfront LLC, which leases office spaces. The owners are represented in the suit by Kansas City, Missouri-based Edgar Law Firm LLC.

The building operates under two agreements with the city, a “Lodging Lease” and a “Riverfront Lease,” that outlines maintenance responsibilities and indemnification from claims in connection with building conditions and operation. In its response, the city asserts that building owners were notified about structural concerns, and this lawsuit is an attempt to skirt owner obligations to pay for maintenance.

“The City notified Riverfront LLC of its concern regarding the condition of the northwest corner of the Riverfront Building,” the city states in court documents. “In response, Plaintiffs retained counsel and threatened to sue the City for a condition that predated the construction of the access road. The City believes this lawsuit is nothing more than Plaintiffs’ attempt to avoid their obligations to pay for the maintenance and repair of the Riverfront Building.”

More photos from the city’s answer

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.

According to the lawsuit, the city selected Michigan-based TSP Environmental over two other teams that submitted proposals for the dam repair project in 2018. TSP’s bid of $1.5 million was reported in court documents to be “substantially lower” than the other two bids.

Plaintiffs in the suit state that planning for the project recommended outside fill material to be brought in for the access road because “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.”

In its response, TSP states that it performed as contracted by the city and has not received any complaints regarding the work that was done.

“TSP denies that R. D. Johnson cut away a substantial portion of embankment directly adjacent to Plaintiffs’ building or that anyone had warned against constructing the road or how it was to be constructed,” the response states.

R.D. Johnson said in its response that all worked performed by their firm was done at the direction of the city and TSP, including their experts, consultants, contractors and subcontractors. R.D. Johnson also says all of the work it performed was accepted and approved by those entities.

Broken into phases, the projects were estimated at approximately $600,000 for dam repair, $574,000 for bank stabilization, and $323,000 for recreational features. A project review committee fully funded the first two phases but reduced the third phase to $62,000.

Both REP and S2O were contracted as part of the final phase of the project, which originally was to convert the temporary access road into a permanent access road that would give the public improved river entry for boats and kayaks.

REP admits in its response that the company recommended some bank stabilization in conjunction with the project. S2O admits not utilizing a geotechnical engineer. Both firms assert that if damages were sustained, neither can be held liable for the acts of others.

The city acknowledges that it received letters and emails in the fall of 2020 from “stakeholders” including representatives from Bowersock Power Company, Friends of the Kaw, and the Federal Energy Regulatory Commission, which has authority over the dam due to its nature as a hydroelectric project.

Issues raised by FERC concerned the risks associated with TSP’s proposal to use underwater divers to perform dam repairs, which it says resulted in no injuries and saved the city thousands of dollars. In its response to the complaint the city said that work has no bearing on the damages alleged in the complaint and asks that the information be stricken from the case.

Bowersock concerns noted in the suit also refer primarily to the dam repair process, but the city’s response indicates that the company was possibly among several groups who questioned whether TSP was “competent or capable of safely and efficiently doing the needed Dam repairs and associated construction” and began independently researching the company, including calling references it had listed in its proposal to the city.

TSP denies that its work was subpar and said that it cannot refute information that it doesn’t have.

“TSP is not aware of what misinformation unidentified ‘stakeholders’ might have fed the City or what stakeholders may have believed or perceived and thus lacks sufficient information to admit or deny the allegations,” TSP says in its response.

Additional defenses set forth by the city and its contractors include:

• The project was completed more than two years ago and is beyond the statute of limitations.
• Kansas statutes indicate that plaintiffs have no right of lateral support for the building. “The right of lateral support applies only to the land in its natural state and does not include the right to have the weight of a building placed upon the land supported.”
• The two leases controlling responsibility for building maintenance indicate that owners must carry insurance to cover claims of property damage to the building.
• The two leases “indemnify and hold Landlord harmless against and from any and all claims by or on behalf of any person arising from or in connection with … the condition of the demised premises and the building.”

All of the entities that submitted responses to the lawsuit deny all allegations of carelessness or negligence, but state that if damages are assessed against them, that they should be divided and levied as an allocation based on contributory or comparative fault.

The city is being represented by Husch Blackwell; TSP is represented by James | Sobba LLC; R. D Johnson is represented by Graves Garrett Greim LLC; S2O Design & Engineering is working with Woodworth Snow; and Dondlinger & Sons has hired Fisher, Patterson, Sayler & Smith — law firms all based in the Kansas City and Topeka areas. Recreation Engineering and Planning is represented by Sodoro Law Group based in Omaha.

As of Wednesday evening, none of the attorneys contacted responded to a request for comment.

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.

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