Town wins judgment against splash pad contractor

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BENNINGTON — The town has won a default judgment against the contractor for a stalled splash pad project, including an award of $270,000 in punitive damages against Water Splash Inc.

In a ruling issued Monday in Bennington Superior Court Civil Division, Judge William Cohen also awarded the town $90,000 in compensation for a partial payment made to the contractor and $2,619 in attorney fees and costs.

"I think this shows we were in the right on this," Assistant Town Manager and Planning Director Daniel Monks said Wednesday.

He said the town will begin planning to address the drainage issues resulting from faulty installation of concrete at the project site in Merchants Park. However, no further work is expected before early spring, Monks said.

The town kept project funding in reserve, he added, and has enough in hand to complete the splash pad regardless of when the judgment amount can be collected from the company.

Water Splash, of Montreal, with a U.S. office in Champlain, N.Y., has 30 days to appeal the judge's ruling, which was issued in default after the defendant company "failed to answer or otherwise defend in this matter, and has defaulted," according to the ruling.

The punitive damages awarded represents three times the compensation awarded for money paid to the contractor, or $90,000. The total awarded, including attorney fees and costs, was $362,619.

Cohen found in favor of the town on all five counts in the suit, including breach of contract, breach of express warranties, breach of implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose, and violation of the Vermont Consumer Protection Act.

Company officials could not be reached for comment on the decision.

A motion seeking a default judgment in the suit was filed Sept. 16 by attorney Merrill Bent, of Woolmington, Bent & Stasny, on behalf of the town. It says that the company had not responded to the town's complaint, which was filed on Aug. 21.

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"The defendant has not filed an answer or otherwise appeared in this matter," Bent wrote. "The matter is now ripe for judgment of default."

In an affidavit filed by Monks supporting the town's motion, he states that Water Splash was hired Sept. 17, 2018, to design and install a children's splash pad. The contract price was set at $127,680, and Monks said $90,000 has been paid to Water Splash.

"As alleged in the complaint, shortly after the project began, significant deficiencies in the work product became apparent and, on December 12, 2018, the town notified Water Splash of same and requested remediation," Monks states.

He added that there were meetings to discuss the situation with the contractor and at one point a technician from Water Splash Inc. "confirmed the faulty installation."

Later, Monks said, "Water Splash representatives ceased responding to town officials' efforts to remedy the issues in order to move the project forward."

The project was developed by the Grow Bennington Initiative, the town, and the Better Bennington Corp., which have cooperated on the grant- and donation-funded project at the town-owned parcel at 109 North St.

The facility had been expected to open over the summer to area children.

According to a media release from the groups, issued in early September, a local contractor has offered plans to fix problems with the unfinished splash pad.

The project was funded primarily through grants and private donations by local citizens and business owners, while the town supplied labor for the project and installed a public restroom at the site.

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien


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