Lawsuit Cites Splash Pad Contractors’ ‘Collective Negligence’ and Bond Company’s Refusal to Pick Up Pieces

It also names the bonding company, revealing that the company has allegedly refused to comply by the bond’s terms, either to compel the principal contractor to conduct repairs or to take over the job itself by invoking the bond and sparing the city further expenses.

The Palm Coast City Council cleared the filing on Nov. 15. The suit was filed in Flagler County Circuit Court on Nov. 29, seeking damages in excess of $30,000–actually, in excess of $1.4 million, though that figure is not specified in the pleading. Trevor Arnold, the Gray Robinson attorney handling the case for the city, cited the figure to the council last month. The figure is expected to grow, especially as legal fees grow.

The our companies named as defendants are BBI Construction Management, the Gainesville-based general contractor; No Fault LLC, the Baton Rouge, La.-based company responsible for the surface of the splash pad; S&ME, a Raleigh, N.C.-based company that designed the splash pad, and Westfield Insurance Company of Westfield Center, Ohio. Westfield issued a $5.61 million payment and performance bond to BBI on April 5, 2019.

Dozens of other companies were involved in the project, from masonry to metal work to electrical, concrete and waterworks, and more than a dozen companies connected to the play structures, but none are blamed for the structural issues that have plagued the pad since it opened.




The city had two years earlier completed a $4.7 million revamp of Holland Park in 2017–itself plagued with delays and disputes with its contractor, whom the city fired–when the council approved the next phase, with two council members in opposition. The design was in the works since early 2018.

BBI was hired as the construction management company in February 2019 for what, by the time the splash pad opened on May 14, 2021, was billed as a $6.2 million project in city documentation. Even before it opened, there’d been “glaring issues,” according to Brad West, a former spokesman for the city, who wrote of the issues in a social media post. He described how the “unveiling” of the splash pad took place even as the administration had become aware of serious flaws.

So when the lawsuit cites the May opening date and states that “Thereafter, the City began noticing issues with the Splash Pad,” the “Thereafter” may be an inaccurate adverb on the timeline. “The City promptly notified S&ME, as the designer of record, and BBI, as the construction manager,” the pleading states. “Unfortunately, the issues continued to get worse.”




There were problems with the splash pad surface, with the jumping jets, with the water pumping and filtration system, with the drainage, with the “poured in place” mixture of the surfacing, with water seeping through the surface and pooling beneath instead of returning to the reservoir tank, wasting water and chemicals.

The splash pad opened only fitfully after that, closing for good in October 2021. It has been closed since, and surrounded with a deep-green mesh fence as it’s undergone testing and deconstruction, making the surface look like a small strip-mining operation instead of a water park.

“In October 2021, the City closed the Splash Pad for the season with the understanding that BBI would coordinate necessary repairs with other involved parties,” the lawsuit states. Repairs did not start. Finger-pointing did. “BBI later advised that given its belief that the issues and defects were attributable to design responsibilities of S&ME, BBI would not commence repairs without involvement of S&ME or another designer. [] The City repeatedly followed up with involved parties an effort to get the parties to commence and complete repairs. Unfortunately, the Defendants have still failed to fix or even commit to perform any repairs to address the outstanding deficiencies.”

By then problems had compounded. The city hired Martin Aquatics, an engineering firm, to evaluate the entire project and determine what should be done next. The report followed the complete removal of the surface. Its conclusions pointed to building code violations and other serious missteps in design and construction. (See: “Harsh Report Outlines List of Serious Issues at Splash Pad as Council Prepares Next Repair Step.”) The lawsuit summarizes the problems in 10 jargon-heavy bullet points that may frustrate judges or clerks trying to visualize the issues without appealing to translators (or news articles).

The lawsuit cites the four companies’ “independent and collective negligence, breaches, actions, and omissions on the Project,” causing additional costs to investigate the problems (Martin Aquatics’ report alone cost $50,000), plus of course the public’s losses in usage. The lawsuit does not mention one intangible but very costly loss: to the city’s reputation. So the suit goes on to accuse the companies of “performing defective work,” selecting inappropriate materials, failing to ensure that the splash pad was working properly before it opened, then failing to repair it.




The four companies don’t face exactly the same charges in the civil suit, though all three contractors face grave allegations. Westfield faces just one count of breach of bond.

Two of the companies were served on Dec. 5, but BBI has yet to be served, according to the filings. The city’s attorney has requested the appointment of a process server. No hearing has been scheduled yet, and won’t be until the companies answer the allegations. None of that precludes a resolution by way of one or more settlements, though the likelier route the lawsuit will take first is a series of motions and countermotions, a form of legal posturing that positions the parties in as best a position as possible should it come to a settlement. A civil trial is certainly a possibility, but that would most likely not happen for one or two more years.

Meanwhile, the council has asked its administration to present alternatives for the splash pad, both by way of reconstruction or, as some council embers have suggested, a razing of the grounds to return them to some form of enjoyable public use, rather than leave them, as now, as a depressing and off-limit ghetto of grime in the heart of the city’s most-used park.

[2022CA773]