Palm Coast Sues Holland Park’s Splash Pad Contractors as Losses Reach $1.4 Million and Rising

After a divided council approved its construction in 2019, the splash pad went from a $6.28 million crown jewel in the city’s park system to a an embarrassing and costly boondoggle, with estimated losses and repair costs so far of $1.4 million. Those costs are expected to rise.

The splash pad closed in the fall of 2021 as the rubber pad surface became a safety hazard. At the time, the city expected to reopen the pad in the spring of 2022. Instead, as problems accumulated, the splash pad last August was ripped up so its substructure could be analyzed and a roadmap to repairs drawn, and to give the city’s lawyers the data necessary to begin their legal proceedings against the several firms involved in designing and building the pad. The city hired Gray Robinson, a statewide law firm, to handle the case, with Trevor Arnold the lead attorney.

The lawsuit is all but filed. Legal proceedings will not be swift. Every party must be served. Arnold said the goal is for a trial in the next calendar year. That’s a wildly optimistic if not ludicrous assumption about Flagler County civil court even with one defendant, let alone several, some of whom will grind down the clock by attempting to remove themselves from the lawsuit. It’s not yet clear how many parties are being sued.




The city listed no fewer than 64 contractors, subcontractors, engineering and architectural firms as taking part in the project when it opened in May 2021. (See the list here.) While only some of those are being sued, each defendant will have its own team of lawyers. Each defendant will file its own motions, and some may try to “sever” their case from others, seeking separate trials, even if for no other reason than to tactically complicate matters for the city.

For perspective, Captains BBQ at Bings Landing sued Flagler County government in June 2019 over a breach of contract claim. On Aug. 2, the court finally set a trail date–on June 26, 2023, four years after the lawsuit was filed. That date may yet change. Even removing two years from the calendar due to Covid disruption, that still leaves a two-year stretch.

Arnold said the court “might” require another mediation before trial. But that’s not a maybe: the court will require mediation, and possibly more than one round. In the Captain’s case, mediation was ordered early in the proceedings and is again on the schedule no later than 30 days before trial.

Arnold acknowledged the vagaries of a lawsuit’s trajectory. “There would be various milestones through that year process to see if we could resolve with all or some of the parties,” he said. “So just filing the lawsuit doesn’t mean we go all the way to the finish line.” While most cases get resolved before trial, he said “we will be looking at approximately a year for trial.”




The city has so far spent about $50,000 in legal fees to Gray Robinson since the process started, and expects to spend at least that much or more if the proceedings take another year: a trial week alone can run between $10,000 and $20,000. Damages claimed will include recovery of legal fees. If the city loses, the fees may not be recovered, and the city may be liable for the defendants’ fees.

The legal fees include costs for architectural and engineering expertise, but not the $50,000 that went to Martin Aquatics, the engineering firm the city hired to conduct the analysis. The whole surface of the splash pad was removed. The result was a sobering report of serial construction errors and some code violations. Defendants are almost certain to raise questions about the city’s own code inspectors missing those errors on their own turf. That will likely complicate the legal proceedings ahead. (See: “Harsh Report Outlines List of Serious Issues at Splash Pad as Council Prepares Next Repair Step.”)

Martin Aquatics also provided a scope of work, if the splash pad were to be repaired. Gray Robinson’s architectural consultant, an engineer and a contractor provided cost estimates for losses and repairs, finding damages in excess of $1.4 million, the figure submitted to council members today. The figure is more than double the estimated repair costs the council heard in April.

As is always the case in such disputes, there were attempts to resolve the problems through mediation. Last August the city issued an optimistic press release, saying “the Parties are working together to understand why the splash pad is not performing properly and how to resolve this matter effectively” even as contractors and sub-contractors involved in the project were served with Notices of Claim. Mediation was scheduled for October 22. It did not go well.

“We invited all involved parties,” Arnold said. “Most of the parties did attend the mediation and did participate in the mediation. Ultimately we reached an impasse, which is a non-settlement.” The reason: the parties were willing to pay damages amounting to a fraction of the damages. “The combined offer from the five parties was a very small fraction of that, less than 10 percent, Leaving us with little choice but to proceed” with a lawsuit, Arnold said.




“Since the mediation,” he continued, “we did further invoke rights against the performance bond surety, who did not attend the mediation. And so we have moved forward with termination of the construction contract to fully trigger rights under the bond, and the surety is now further investigating–we plan to include them in the lawsuit. So the lawsuit would be against design and construction team and surety, as well as the supplier of the product. We anticipate the contractor would bring in some other parties. The lawsuit is prepared and ready.”

Some of the parties have since put forward additional proposals to settle the issue, some as late as last Friday, but the city still finds those “vastly insufficient,” in Arnold’s characterization. “They do not represent compensating the city for cost incurred, and there have been substantial costs incurred with experts and engineering assessments and destructive testing,” Arnold said, “and also it lacks sufficient detail about how they’re going to fix this any different than it was performed initially. Essentially, ‘we’ll go out there and put the same product.'”

The possibility of a resolution is not completely closed. But, he said, “we simply have not made sufficient progress that would warrant not proceeding with the lawsuit.”

Damages to be recovered will include a calculation of lost values in rentals of the splash pad as well what Mayor David Alfin described as “the value lost by our residents over this very extended period of time.”

Councilman Ed Danko asked whether punitive damages would be part of the lawsuit, “to basically send that message that this is not what you do in business.” But punitive damages are not part of the equation for now but “that is something we can assess at a later time,” Arnold said.

“The only thing I object to is the reference that ‘we’ve spent'” money, Alfin said. “I’m not willing to take ownership for those expenses. I’m going to make an assumption that they’re all recoverable. And that certainly is the is the target.”

Council member John Fanelli, sitting for his last meeting after he was appointed to the seat eight months ago, said proceeding with the lawsuit is one track, but reopening the splash pad is the other. “We need to to get this reopened, and not a year from now after all of the legal proceedings go through,” he said.

The council had not finally settled the question of whether to rebuilt the splash pad or not when it last discussed that in detail, last April. There was some talk of doing away with the amenity altogether. Alfin had raised a key question at the time, before himself raising the possibility of razing the splash pad: “Is there such an expert out there willing to accept the responsibilities of potential liabilities for another failure?”




It was Alfin who raised the possibility of razing the splash pad, especially if the alternative was to continue lengthening the period when the grounds were off limits. “That’s a big problem for me. Huge,” Alfin said in April. “If I remake the park, if I build a different park that we know will serve the public and not require the attention and the potential future problems that this one has and will have in the future, does that reduce the leverage we have in our legal standing going forward?”

It essentially did, Arnold told him, turning the lawsuit the council approved today into a crutch as well: it’ll implicitly force the council to go the reconstruction route so as not to weaken its case in court. “That is a priority, to make sure that steps are being taken so that the park can be opened by the time of the next season,” Arnold said. “City staff was working hard with the engineers in order to move forward with that but I don’t think that’s ripe for the detailed discussion today.”

Today, Alfin asked the city administration to come back to the Council with “a presentation on the options that could could include opening the park at the earliest possible date.” But not before Council member Nick Klufas echoed Alfin’s remarks from April: “If we can tear all this up and just have concrete pad and just allow for some type of usage in the future,” he said. “I know we’re not going to discuss that today. But I’m with you, that we need to figure out a creative solution to be able to open this sucker back up.”

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