Salina Approves $130,000 Change Order to Finish Schilling Water Tower Amid Contractor Lawsuit
The Salina City Commission voted 4-0 Monday to authorize an additional $130,000 for a three-tower maintenance project, creating a path for the contractor that sued the city to return in 2027 and complete unfinished work at the Schilling water tower.
The commission’s action applies to Project No. 24041, covering maintenance, repairs and painting at the Markley, Schilling and Wyatt water towers.
The city entered into the original $1,139,750 contract in January 2025 with Phillips Family Enterprises, LLC, doing business as Cunningham Sandblasting & Painting. The additional $130,000 represents an increase of approximately 11.4% over the original contract amount.
Commissioners approved the change order after meeting for approximately 10 minutes in executive session with City Attorney Patrick Hoffman. The closed session was held under attorney-client privilege because of an ongoing legal dispute with the contractor.
Although the vote provides a way to finish the Schilling tower, city officials did not publicly explain whether the change order resolves any portion of Cunningham’s lawsuit, including the company’s demand for $95,327.90 in retained funds.
Second mobilization needed for Schilling tower
Cunningham completed work at the Wyatt and Markley towers during the original project period. According to the contractor’s lawsuit, certificates of substantial completion were issued for Wyatt on Aug. 25, 2025, and Markley on Oct. 24, 2025.
Work at the Schilling tower was not completed.
Hoffman told commissioners the city originally combined the three towers into one project so a contractor could mobilize its workers and equipment once, complete all three towers during the same period and reduce the overall cost.
Because the Schilling work remains unfinished, Cunningham would have to mobilize a second time. Hoffman said the $130,000 change order would cover that additional cost and extend the project timeline so the company could return during the 2027 painting season.
Hoffman said the city believes bringing Cunningham back would cost less than hiring another contractor and rebidding the remaining work.
“The quality of the work that they were doing is really good,” Hoffman said. “They didn’t get it done in the painting season.”
He said city staff believes the change order represents the least expensive way to complete the project.
Contractor alleges city did not drain tower
The disagreement over why the Schilling work was not finished is also at the center of a civil lawsuit Cunningham filed May 21 in Saline County District Court.
The company alleges it was unable to complete interior repairs, maintenance, painting and refurbishing work because the city did not drain the Schilling tower. Cunningham’s petition describes draining the tower as an action within the city’s control and a necessary step before the contractor could proceed.
According to the lawsuit, city staff informed Cunningham in October 2025 that additional testing was being performed at the tower. The contractor alleges the city did not issue a formal stop-work order or provide authorization and a timeline for the Schilling work to resume.
Cunningham says it sent the city a letter Nov. 5, 2025, addressing the delay. On Feb. 2, 2026, the company notified the city that work had been suspended for more than three months.
The company alleges it then exercised a contractual right to terminate the agreement effective Feb. 11.
Cunningham submitted what it described as a final payment application two days later, seeking $95,327.90 in retained funds. The lawsuit alleges payment was due March 16 and that the city did not pay or formally dispute the application by that date.
The petition includes claims for breach of contract and alleged violations of Kansas public-construction payment law. Cunningham is seeking the retained funds, additional damages, interest, attorney fees, court costs and other relief.
Those claims are allegations made by the contractor and have not been established as fact by a judge or jury.
Commissioners question who caused the delay
Before entering executive session, commissioners questioned why the city should pay an additional mobilization expense when the original contract anticipated all three towers being completed during the same project period.
Hoffman acknowledged that the city and Cunningham disagree about who or what caused the Schilling delay.
“There’s basically a difference of opinion,” Hoffman said. “Several things happened on the project, and it didn’t go well.”
Asked whether the contractor simply ran out of time or whether other problems contributed, Hoffman characterized the situation as “a little bit of both.”
He said explaining the city’s position and the contractor’s allegations in greater detail would be difficult in open session because of the legal dispute.
A commissioner also asked about Cunningham’s allegation that the city had not drained the Schilling tower, preventing the company from completing testing and interior work. The commissioner questioned whether the city had fulfilled its responsibilities under the original contract.
Hoffman did not answer that question publicly and instead recommended discussing it in executive session.
After commissioners returned to open session, Hoffman said the two sides had become “a little bit sideways with each other” during the Schilling portion of the project.
“The solution that moves everyone forward is a change order that allows them to come back and finish the job,” Hoffman said.
He again said the city was satisfied with the contractor’s work at the two completed towers.
“We just had trouble with the timeline, and we think that this solves it by getting the tower painted in 2027,” Hoffman said.
City officials did not publicly identify the testing being performed at the Schilling tower, explain why the tower was not drained or state whether the city accepts any responsibility for the delay.
They also did not say whether Cunningham has agreed to withdraw its termination notice or dismiss its lawsuit as part of the proposed arrangement.
Residents question cost and lack of details
Salina residents addressed commissioners and questioned the additional cost and the limited public explanation of what occurred.
Tony Johnson characterized the arrangement as an out-of-court settlement rather than an ordinary construction change order.
“Since we’re struggling with the full truth, let’s call this what it is,” Johnson said. “It’s an out-of-court settlement, not a change order.”
Johnson cited allegations in Cunningham’s lawsuit and asked what testing was performed, what the results showed, why the city did not drain the tower and whether the city followed the same procedures at the Markley and Wyatt towers.
He also referred to language he said appeared to restrict city employees from being at the project site without prior authorization through legal counsel. City officials did not publicly address that statement.
The city formally presented and approved the action as a contract change order. Officials did not publicly characterize it as a legal settlement.
Susan Cooper initially questioned why work on one tower would cost the same amount as the original work on all three. Hoffman clarified that the original agreement was nearly $1.14 million, not $130,000, and that the change order was roughly 11% of the original amount.
Change order approved 4-0
The commission approved the $130,000 change order by a 4-0 vote and authorized the city manager to execute it on the city’s behalf.
City officials said the action would allow Cunningham to return during the 2027 painting season and finish the remaining Schilling tower work.
The vote establishes a proposed path for completing the project, but several issues remain publicly unanswered. Those include why the Schilling tower was not drained, what testing was being performed, why the work must wait until 2027, how the contractor’s February termination notice will be addressed and whether the change order resolves any part of the pending lawsuit or retainage claim.