BENNINGTON — The town has filed suit against the contractor of a partially completed and unuseable splash pad at 109 North St. — a project stalled since it was determined that concrete was not laid down according to specifications.
The unfinished splash pad in the heart of the downtown has at times provoked harsh criticism of town officials and project planners on social media. The facility was expected to open to the public over the summer.
The suit was filed against Water Splash Inc., alleging breach of contract, breach of express warranties, breach of implied warranties, and violation of Vermont's Consumer Protection Act.
The town is seeking to recover a partial payment made to Water Splash, of Montreal and Champlain, New York, along with the amount required to correct the concrete pad installation and complete the project, and to require the company to address deficiencies in the faulty installation.
The town likewise seeks exemplary or punitive damages and costs, plus its expenses, including attorney fees, as well as any other relief the court deems reasonable.
Merrill Bent, of Woolmington, Campbell, Bent & Stasny, attorneys for the town, filed the suit on Aug. 20 in Bennington Superior Court Civil Division.
According to the complaint, the town has paid the company approximately $90,000 of the $127,680 contract price for work completed before water drainage issues halted the project last year.
The contract, agreed to in September 2018, was for work to commence around Oct. 15, with payments to be made as stages of the project were completed. The estimated time for completion of the major project work was two weeks.
Since the problem was discovered, the suit states, the two parties met on Dec. 21, 2018, and later on Feb. 8 to discuss the deficiencies, which had been detailed in a report from Goldstone Architecture, of Bennington, that the town had provided.
"Shortly after Water Splash began the project installation, significant deficiencies in the work product became apparent," the suit states, and on Dec. 12 the town notified Water Splash CEO Gokhan Celik of the deficiencies and requested they be corrected.
In the spring of 2019, the complaint states, "a Water Splash technician tested the operation of the splash pad and confirmed the faulty installation," the suit states.
However, "although Water Splash has promised the town it take remedial action it has made no further effort to fix the deficiencies," according to the complaint.
Company officials did not return a call and email from the Banner seeking comment.
`Shocked' by silence
In a media release, the Grow Bennington Initiative, the town, and the Better Bennington Corp., which have cooperated on the grant- and donation-funded project on a town-owned parcel just north of the Four Corners intersection, expressed dismay at the contractor's alleged lack of response to the problem.
"The Grow Bennington Initiative commissioned detailed architectural and engineering plans before starting work," stated Lynn Green, the group's chairwoman. "The town hired a very reputable splash pad contractor. All in order to prevent such issues."
She added, "The architectural and engineering documents place the responsibility squarely on Water Splash. Quite frankly, we are shocked at their radio silence."
The release states that, "while Water Splash management initially accepted responsibility for the problem and verbally committed to correct the deficiencies, they subsequently became unresponsive to repeated requests from the town and the town's attorney to correct the situation."
The release adds, "Local concrete contractors did not complete the initial installation because Water Splash was not able to secure the services of a local contractor at the time of install. However, a well-regarded local contractor has stepped up and offered plans to fix the problem."
According to the release, although the site is within the town's Merchants Park site, "the project itself is not a taxpayer-funded project. The project has been funded primarily by grants and very generous private donations by local citizens and business owners. The town Select Board has been very supportive and the town has supplied a significant amount of labor for the project and has installed a new public restroom at the site."
Assistant Town Manager and Planning Director Daniel Monks said in the release that, "Contrary to the gossip of some, we did not already pay Water Splash the full contract amount. We held back significant funds and have sued to recover partial payments already made along with legal fees, etc. Once we get the green light from our attorney or the court, we will resume construction with a new contractor, if Water Splash is unwilling or unable to complete the project."
"We all wanted the park to open this summer as scheduled," said town Community Development Director Shannon Barsotti in the release. "Given that this park will be around for many decades, we knew we had to do the right thing and fix the drainage issue before launching."
The Grow Bennington Initiative is a joint effort of area businesses and individuals with the stated goal of enhancing the downtown with an infusion of new energy and financial support. It works on initiatives and projects with the town and Better Bennington Corp. (the downtown district entity) on projects such as streetscape improvements and lighting displays.
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien