The lawsuit Palm Coast government filed to recover damages from the broken splash pad at Holland Park names three contractor, accusing them of negligence, breach of contract and warranties, and violations of Florida’s building code.
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]
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Celia Pugliese says
Then on the proposal meeting councilman Jack Howell wisely voted No to this “visionary” project of Mayor Holland, Klufas, Cuff and the other councilmen. I also thought will be a very problematic tear and wear, maintenance and liability very costly project that only belongs in to a paid theme park financially sustained a’la’ Disney. Most public water parks I’ve seen in use do not have “soft landing pads” like the one proposed in that council meet.
Councilman Jack Howell words then totally ignored: “In explaining his no vote, Councilman Jack Howell said he had a major issue with the safety of the splash pad planned for Holland Park, saying he saw a number of children injured at such parks when he worked an ocean rescue operation in Jacksonville several years ago.
“It was a nightmare; it was the worst thing that I could ever have,” he recalled. “I love Holland Park, but I don’t think this is needed. I’m sorry, but I’ve lived that nightmare. You guys, if it’s approved, you’re not going to be out there living that nightmare.” https://www.news-journalonline.com/story/news/local/flagler/2019/04/04/palm-coast-park-plans-prevail-despite-opposition/5514251007/ Hopefully this suit brings our taxpayer millions wasted back or if unlucky these contractors declare bankruptcy and we get peanuts? Is the typical issue when too many different hands baking one pie they then blame each other for the failure! Good luck.
Skibum says
Any individual or entity that would hire a contractor with the name “No Fault LLC”, who now has denied fault on their part for the horribly deficient splash pad installation, should have had all of the red warning flags furiously waving just by the company’s name! What a mess this has turned out to be for the city and the taxpayers. I have seen a number of very successful and well-built children’s splash pads, a few of which have been in existence for years in the Seattle, WA area where I used to live. I had envisioned a similarly well-built one here at Holland Park, but you really need to do careful due diligence, especially when, like here in Palm Coast, we have never had one of those built before and may not have had enough local expertise to know what to look for during the planning and construction process. But that is no excuse for what eventually happened, and especially with the bonding company who has apparently refused to pay the city the cost of the bond for the failures of the contractors, that is something that I hope the court will rectify.
OMG Just Fix the damn thing says
My God, Hire a reputable company maybe NOT named no fault, rip the pad up, and apply a new one but this time?!?! Use the recommended higher quality correct binder adhesive even if a bit more expensive so we dont have bits and pieces clogging the filters. Anyone dosnt want the splash pad are sad and old and have no kids/grand kids/ great-grand kids, and guess what theres probably a bridge club somewhere or a pickle ball court you can use, or a plethora of things like cell towers to complain about. Palm coast has something for everyone. The Kids want their Splash pad Pad and it should be open again by April.
Celia Pugliese says
OMG Just: would be nice that you do not cowardly hide behind an alias first of all when you point the costly battles that our elected officials impose against residents regarding the proposals for ridiculous illegal “locations” of cell towers affecting adjacent neighbors and their children’s health : https://childrenshealthdefense.org/defender/chd-seeking-plaintiffs-wifi-cell-towers-schools-neighborhoods/, plus the 20% or more devaluation of those adjacent homes plus the eyesore. You are battling for your children and grand children FUN splash pad and we are battling for our children’s Health preservation from proven 4 and 5G waves 160 feet 24-7 exposure on our homes! Shame on you attacking us from the shadows enticed by the lies of better reception in your cell. We do not oppose the tower but its illegal offered location on a PSP lot that requires an Special Exception of our residential area code ” on #7 Clubhouse Drive” and if you think is safe please be our guest and offer it 160 feet from your house, unless that you care more for your children’s fun and your misguided belief of better cellphone reception than their health! By the way we are the first also to wish that the splash pad suit will be successful for us (city) and the funds will be available soon to repair and reopen. As a retired buyer, I suggested to the city to request from the pad manufacturer that will train for free, city public works techs on the installation and maintenance of the pad that seemed to be the biggest failure, to reassure a work well done and future often maintenance saving cost. We all know American manufacturers are eager to give free training on installation, replacement and maintenance just for selling their products! You just need to bark at the right tree and sooner or later your wish will be granted and never give up. We do not win battles by fighting among us, but instead supporting each other versus those in power that we present our request in a civil way.