Salina City Manager Jacob Wood says city commissioners knew a contractor had filed a lawsuit against the City of Salina and were aware that negotiations were continuing before they voted to approve a $130,000 change order for the city’s water tower maintenance project.

Wood also said the city and the contractor reached an agreement before city officials believed it was necessary to file a formal response to the lawsuit.

The comments provide additional context following the Salina City Commission’s July 27 vote to approve more money for Project No. 24041, which covers maintenance, repairs and painting at the Markley, Schilling and Wyatt water towers.

The commission approved the change order 4-0 after meeting in executive session with City Attorney Patrick Hoffman. The public agenda listed the action as a $130,000 change order. During the meeting, city officials described an ongoing disagreement with the contractor but provided limited public discussion of the lawsuit or how the change order would affect the pending case.

Wood: Commissioners Were Aware of Petition

Salina311 asked Wood whether the City Manager’s Office informed commissioners that litigation was underway and that the proposed change order was connected to resolving the dispute.

Wood responded by email July 29:

“The City had multiple conversation about this project with the contractor. At a point in the negotiations they did file a petition, the discussions continued and the parties reached an agreement before the we felt the need to file a response. The City Commission was aware that a petition was filed and that there were ongoing discussions. The change order was transparent in that it referenced the case.”

Wood did not provide a specific date when commissioners were first told about the lawsuit. He also did not explain whether commissioners received the petition, a written summary of its allegations or the terms of any agreement before voting.

His response indicates the commissioners knew a petition had been filed, but it does not establish precisely what information each commissioner received or when each commissioner received it.

The Original Water Tower Contract

The city entered into a $1,139,750 contract in January 2025 with Phillips Family Enterprises, LLC, doing business as Cunningham Sandblasting & Painting.

The contract covered maintenance, repair and painting work at three city-owned water towers:

Markley

Wyatt

Schilling

Work at the Markley and Wyatt towers was substantially completed. According to Cunningham’s lawsuit, certificates of substantial completion were issued for the Wyatt tower on Aug. 25, 2025, and for the Markley tower on Oct. 24, 2025.

The Schilling tower work was not completed.

The city and Cunningham disagree about what prevented the remaining work from being completed during the original project period.

Contractor Filed Lawsuit in May

Cunningham filed its civil lawsuit against the city May 21 in Saline County District Court.

The company alleges it could not complete interior repairs, maintenance, painting and refurbishment work at the Schilling tower because the city did not drain the tower.

According to the petition, draining the tower was controlled by the city and was required before Cunningham could perform the interior work.

The contractor alleges city staff told the company in October 2025 that additional testing was being conducted at the tower. Cunningham contends that the city did not issue a formal stop-work order and did not provide authorization or a timeline for the work to resume.

Cunningham says it sent the city a letter Nov. 5, 2025, addressing the delay. The company later notified the city on Feb. 2, 2026, that its work had been suspended for more than three months.

The contractor alleges it exercised a contractual right to terminate the agreement effective Feb. 11.

On Feb. 13, Cunningham submitted what it described as a final payment application seeking $95,327.90 in retained funds. The company alleges the payment was due March 16 and that the city did not pay or formally dispute the application by that date.

The lawsuit includes claims for breach of contract and alleged violations of the Kansas Fairness in Public Construction Act. Cunningham is seeking the retained funds, additional damages, interest, attorney fees, court costs and other relief. It also demanded a jury trial.

Those claims are allegations made by the contractor. They have not been proven in court or established as fact by a judge or jury.

City Did Not File a Substantive Response

Court records reviewed by Salina311 showed the city was served with the lawsuit June 1. Attorney Aaron Martin entered an appearance on behalf of the city June 19, and the city received an extension to answer or otherwise respond.

No substantive city response was included in the court documents reviewed for the original Salina311 report.

Wood said that was because negotiations continued after the petition was filed and the parties reached an agreement before city officials believed a response was necessary.

Wood did not say whether the lawsuit has now been formally dismissed, whether the contractor has agreed to withdraw its February termination notice or whether the disputed $95,327.90 in retainage is covered by the agreement.

Commission Approves Additional $130,000

During the July 27 meeting, Hoffman told commissioners the three towers were originally grouped into one contract to reduce costs by allowing the contractor to mobilize its workers and equipment once.

Because the Schilling tower remains unfinished, Cunningham would need to mobilize a second time. The approved $130,000 change order is intended to cover that additional mobilization and allow the contractor to return during the 2027 painting season.

The additional amount increases the original contract cost by approximately 11.4%, bringing the potential total to approximately $1.27 million.

Hoffman told commissioners that bringing Cunningham back would be less expensive than rebidding the remaining work and hiring another contractor. He also said city staff was satisfied with the quality of Cunningham’s work on the two completed towers.

Before voting, commissioners met for approximately 10 minutes in executive session under attorney-client privilege. They then returned to open session and unanimously approved the change order, authorizing Wood to execute it on behalf of the city.

How the Negotiations Were Handled

Salina311 also asked whether it is standard procedure for city staff to negotiate a resolution before bringing the final proposal to commissioners.

Wood responded:

“Staff recommended the change order because it completes the project while avoiding additional legal expenses. Each situation is different, but generally staff work out the details, and the Commission takes action when necessary.”

Under Salina’s commission-city manager form of government, the city manager acts as the city’s chief executive and administrative officer, while the elected commission takes formal action on contracts, expenditures and other matters requiring governing-body approval.

Wood’s response indicates city staff handled the negotiations and brought the proposed change order to commissioners when formal approval was required.

Wood Declines to Address Communication Allegations

Salina311 asked Wood whether the city agrees with Cunningham’s allegation that a failure to communicate contributed to the Schilling tower delay.

Wood declined to address the substance of the contractor’s allegations:

“I will not comment on anything dealing with the petition that was filed. You should be aware that a legal petition like this one includes the plaintiff’s best legal argument, but it has remains to be proven. That is why the defendant has an opportunity to respond. In this case it was not necessary.”

Wood’s statement correctly distinguishes allegations in a lawsuit from proven facts. However, because the city did not file a substantive response and Wood declined to discuss the allegations, the city’s detailed account of why the Schilling tower was not drained remains unavailable publicly.

The city has also not publicly identified the additional testing that was being conducted at the tower, explained how that testing affected the project schedule or stated whether it believes city communication contributed to the delay.

What the City’s Response Clarifies

Wood’s response establishes the city’s position on several points:

The commissioners knew a legal petition had been filed and that negotiations were underway.

City staff continued negotiating after the lawsuit was filed.

Wood says the parties reached an agreement before the city believed it needed to file a formal court response.

The city recommended the $130,000 change order because staff believed it would complete the project while avoiding additional legal expenses.

Wood says staff generally negotiate the details of these matters before bringing necessary actions to the commission.

The city is not admitting that its communication caused the project delay.

Questions That Remain

The response does not answer several questions about the final resolution.

It remains unclear when each commissioner first learned that the contractor had filed a lawsuit, what documents or summaries commissioners received before the vote and whether they were told exactly how the change order would affect the litigation.

The approved change order creates a path for Cunningham to return and complete the Schilling tower in 2027. Wood’s response now confirms that the action followed negotiations conducted while an active lawsuit was pending and that commissioners were aware the petition had been filed before approving the additional expenditure.