As the splash pad at Palm Coast’s Holland Park continues to sit unused, fenced in and untended, a Circuit Court judge has set a trial date no sooner than September 2024 in the city’s litigation against contractors and subcontractors involved in the popular amenity that failed only weeks after it opened in May 2021.
The length of the civil trial, recommended by parties involved at a hearing on June 9, is a reflection of the immense technical and legal complexities of the case and the number of parties involved–the city on one side, four defendants on the other. Each named party has responded to the suit, rejecting the city’s allegations and pointing fingers either back at the city or at other contractors.
The complexity of the case is also a reflection of the challenge on the shoulders of the city’s legal team–and the expenses it will charge the city until the disposition of the case (at trial or through settlements), though the city would recoup all legal fees should it prevail. As of today, litigation has cost the city $81,037, City Clerk Kaley Cook said.
In a June 13 order, Circuit Judge Chris France set what will be a four-week trial starting at the beginning of September 2024, noting that “the summer months have proven to be difficult to deal with special set trials of this duration.” France is leaving open the possibilities that the trial would be heard by a senior judge, and that it could shift on the calendar.
Meanwhile the $5.1 million splash pad remains a sad eyesore of an expanse fenced off in chain links and green canvass, its enormous hand-carved black whale as if beached on a barren, 10,000 square foot expanse of baking concrete–the foamy sea-like blue and beige surface that itself became one of the problems long ago removed–and surrounded by dolphins, star fish, an enormous octopus and other hand-crafted sea creatures made more joyless by the absence of water and children.
It may look that way for a while. “Repairs are unfunded at this point and are not currently in progress,” a city spokesperson said today.
It is possibly not in the city’s interest to repair the splash pad and have it teeming with rejuvenated life at the same time that the city is seeking damages for the project gone awry: the eyesore in that sense would be Exhibit A in the city’s case against the contractors of “unacceptable failure,” in the words of the attorney the city hired in the case. But the companies are also arguing that, as one of them put it in its answer to the lawsuit, Palm Coast cannot recover damages because “it has failed to mitigate its losses or damages.”
The city hired Trevor Arnold of Gray Robinson, a statewide law firm, to represent it. He recommended moving ahead with a lawsuit over a year ago.
The city also hired Martin Aquatics, an engineering firm, to analyze what went wrong, propose solutions and outline costs. The firm’s report summarized numerous issues with the electrical system, the water filtering system, the pad surface’s foam, with the deck’s engineering, and with failures of following building codes
The city filed its lawsuit last November against BBI Construction management, the general contractor,
No Fault of Baton Rouge, La., which installed the splash pad surface, S&ME, which designed the pad, and Westfield Insurance Company, which had issued a $5.61 million payment and performance bond to BBI. The city is making a range of allegations against the three companies, and breach of bond against the bonding company. (See: “Lawsuit Cites Splash Pad Contractors’ ‘Collective Negligence’ and Bond Company’s Refusal to Pick Up Pieces.”)
Each company in turn has responded since, denying or rejecting the allegations, at times by pointing fingers in other directions, including at Palm Coast.
“Some or all of the damages alleged by Palm Coast are the result of its own failure or the failures of those hired by Palm Coast to properly maintain the [splash pad],” No Fault argued in its answers to the allegations, “as a result any damages sought should be reduced accordingly. For example, improperly treating water in the Splash Pad system, including but not limited to chlorine in concentrations higher than specified in No Fault literature, or the use of improper cleaning techniques and/or chemicals.”
That one answer (there are many more) hints at the degree of complexity a jury would be faced with, and the innumerable witnesses that defendants and the city would put on to duel over intricate technicalities that would have to be defined before damages, if any, are calculated and assigned. Each company makes similar claims about the percentage of faults.
No Fault goes on to claim that damages to the pad were the result of “premature use of the water/splash pad system before the PIP [poured-in-place] sufficiently cured,” which implies that the city opened the pad sooner than necessary. No Fault also blames “improper design or construction of the drainage and water systems, which caused the PIP material to be submerged for prolonged periods of time subsequent entities performing work after No Fault,” including BBI and the city.
No Fault continues along those lines, in that the “negligence of Palm Coast, BBI, SM&E and/or entities hired by or on behalf of Palm Coast, BBI, and S&ME have contributed to and/or caused the damages alleged…”
S&ME in its answers blamed the damages on the “unforeseeable result of intervening and superseding causes” with which it had “no domain or control,” again citing the operation of the splash pad before its concrete cured as well as “improper construction means and methods.”
BBI put it bluntly: “BBI should not be held liable for any of the claimed injuries and/or damages,” it states in its answers. “BBI served as the Construction Manager during the construction of the Splash Pad and did not perform any of the work. Therefore BBI could not have caused any of the purported damages.” BBI said it had no legal responsibility for the damages that occurred once the splash pad began operations.
Before operations, all subcontractor work was done in accordance with code, BBI states. The company makes an allegation of its own: that the city and/or “entities not a party to this lawsuit have destroyed, lost, spoiled and/or otherwise failed to properly maintain the key evidence in this matter, whether intentionally or negligently,” resulting in BBI being “substantially prejudiced.” The claim may refer to the removal of the splash pad surface during the analysis of what went wrong, and may also suggest why all work at the pad has ceased.
BBI also claims that the splash pad was operated “in an unintended or abnormal manner,” whether in improper use of spray nozzles, improper water treatment or improper use of cleaning techniques and chemicals.
Each named party in the suit also defends against “speculative” damages. Westfield, the bonding company, incorporated in its defense all the defenses made by BBI, though it does not appear to reject the possibility that it would have some liability. That liability, it states, “is limited to the penal sum of the performance bond,” or the total bond amount–but nothing relating to attorneys’ fees, the loss of use or enjoyment of the splash pad, city time or labor, and so on.
Given the case’s complexity and the expected pre-trial motions ahead, September 2024 may be an optimistic and nowhere-near sure date. France, the judge, alluded to that in a curiously revealing part of his order a few weeks ago as he discussed scheduling, trial length, and who may preside, if not him: “The Court advised the parties that it would seek any relevant information that would affect these determinations,” he wrote. “That endeavor yielded only vague responses from court administration (mainly regarding senior judge availability) so the court remains predictably unhelpful. The Court will remain undeterred and continue making proper arrangements.”
Jimbo99 says
Looks a lot like Marco Polo Park did back in the 1970’s, that at least had a legitimate shot at being Flagler County’s Disney World ? We need to remove the Government elected officials that approved this level of fiscal irresponsibility & incompetence in the 1st place. Adding another $ 80+K to something that should’ve never been considered. This was supposed to attract tourism or families to the area, really ?
Celia Pugliese says
Yes they keep using our hard earned taxes to patch up their costly goof ups. Meanwhile vote against our two traffic calming islands in Florida Parke Drive whos original cost before the Community Development director got his hands on it, was a bid at $200,000. No life saving walkway /or traffic humps to Cimmaron begged by the residents and a Wawa on the works to further mess up the traffic in Palm Coast Parkway and Florida Park Drive… all his bright ideas. I agree all approving to the splash pad…need to be gone. Most elected are already gone except the administrators pushing for that too, as they are still forced paid by us their six figures, while proceeding to further mess up our city in a very costly way.
Jack Howell says
As a sitting member of the City Council, I warned my fellow Council members that a Splash Pad is nothing but a nightmare. I went into great detail to discuss, in detail, the myriad of issues that the City of Jacksonville dealt with their Splash Pad at Hana Park. At the time, I was the Supervisor of Ocean Rescue for Jacksonville. I worked hand-in-hand with the Park manager to mitigate the many problems that plagued the operation of the Splash Pad. My objection to spending the funds on this project was defeated by 3 of the Council Members who thought they knew more than I did on this issue! Oh well! I hope you are proud of how you screwed over our residents.
David S. says
Yes these people are as dumb as a bag of rocks , oh how I wish there was a way the citizens could to dismiss the whole city government.
The dude says
One of the few things in this city for the kids…
My daughter enjoyed her two afternoons there while it was open.
It’s just sad.
Palm Coast tried to build something that children might enjoy, but those days are behind us.
It’s now to be a city of gated communities that nobody who works here can afford, and duplexes to house the service workers who bake pizzas and cut the all the old retirees grass. No place here for working middle class families.
Pogo says
@The dude
Florida. Period.
When it’s their turn on the last lap (bed bound, fed and watered in a factory farm for harvesting the residue of their net worth) they’ll still be oblivious to anything that’s not about themselves. In other words — Republicans (including the one’s like the Germans who supposedly never joined the Nazi Party, according to them — aka NPA, etc.)
Godspeed in your new home.
Land of no turn signals says says
Once again “money well spent” city of Palm Coast.
Mark says
“The city also hired Martin Aquatics, an engineering firm, to analyze what went wrong, propose solutions and outline costs. The firm’s report summarized numerous issues with the electrical system, the water filtering system, the pad surface’s foam, with the deck’s engineering, and with failures of following building codes”
Wasn’t this being inspected by the City since day one ground breaking all the way through opening day? I’ve seen many splash pads open with no problems, most likely because they were inspected all along the way. Well on to Court and let the Jury decide.
Ban the GOP says
Park was great the only week it was opened, very busy as not much around for kids. Closed after we went once. Seems like a giant waste of money of no one can enjoy it. Guess thats par for the course with Republican crowd holding nearly all offices. Im sure one of their donors will need a boost instead of doing something for kids.
TR says
This has nothing to do with political affiliation. It has everything to do with doing diligence on making sure it was done right through inspections. Not to mention this was built during the Holland administration. So you think that if the council was more Democratic it would have been done right? Yea sure it would have, Not.
Brad W says
Some questions No Fault should ask is why the City’s Parks & Rec Director at the time changed the name of the opening event from “Grand Opening” to “Ribbon Cutting” and was insistent upon only the latter be used in all communications? Why did the splash pad close by around noon right after the “Ribbon Cutting” event? What was taking place during each closure throughout the days after?
PC Dave says
This is gonna get ugly. From what I understand, there were certain members of the city that regularly overstepped there authority and undermined the construction management of this project.
Palm Coast may very likely come out of this with egg on its face, and a huge bill to pay.
Jimbo99 says
Somebody call Marineland or SeaWorld, all the marine wildlife that died & washed ashore at Holland Park.
https://flaglerlive.com/killer-whale-beached/
Shark says
I already know the outcome – Palm Coast will lose and once again the taxpayers will foot the bill .
oldtimer says
No wonder it takes over a year and a half to fix the weirs on the canals, has anyone seen the condition of the canal? level is down 4 ft ad barely flowing. Can’t anything in this town be done right the first time?
TR says
No because it’s called job security. Keep (so call) fixing everything a bunch of times to waste tax dollars.
palmcoaster says
Unfortunately Palm Coast is run by elected officials that keep bowing to a bunch of administrators that know jack what they are doing! Jack Howell above is correct…he voted against the splash park and I supported him as I thought that was a great idea “but” built in Disneyworld a paid park, that can afford the latest technology and mastering its repairs and replacement in house. In our city we can hardly keep up with proper funding and re-pavement of our streets. For worst our city stake holders running our city business with other peoples monies should have a heart after making their wealth with all of us and get together like they do when they need rezoning, spot zoning and special exception or amendments to the original zoning and for once have compassion and get together to donate to the total repair, maintenance and parts replacement when needed of the Palm Coast Stake Holders Splash Park and have it open again for the kids as is hot out there….Then all your names can be stenciled on it forever. Those kids will love you all for it! C’mon City Stake Holders…dig those pockets for the little children of Palm Coast and do something outstanding!