RTD and the contracting team that built three commuter rail lines traded blame over costly delays and crossing-gate problems in court Monday as they opened a lengthy trial.
At stake is whether the Regional Transportation District must reimburse Denver Transit Partners for $111 million in costs that included crossing guards on the A-Line and B-Line, as well as delays and lost revenue for the G-Line. That line’s opening was pushed from late 2016 to April 2019, in large part because of the same issues.
DTP posted flaggers at train crossings for more than two years while it worked to dial in new wireless crossing-gate technology. That system was supposed to trigger gates to close about 30 seconds before a train came through, but gates often closed minutes in advance — though at least once, they didn’t close until a train already had passed through.
DTP and RTD struggled to win final sign-off from increasingly impatient state and federal regulators — and that is the basis for DTP’s lawsuit, filed two years ago.
DTP’s complex public-private partnership contract with RTD assigns responsibility for different kinds of unforeseen costs. The contract says RTD must absorb expenses that are due to unexpected changes in the law or purely unforeseen circumstances — and the two sides are arguing about whether either provision was triggered by the crossing-gate fiasco.
The $2.2 billion, 34-year deal called for DTP to build and maintain three commuter rail lines anchored at Union Station and then operate them for decades — the University of Colorado A-Line to the airport, the G-Line to Arvada and Wheat Ridge, and the B-Line to Westminster.
The need for flaggers at crossings for so long resulted in the largest, most prolonged blowup to date with the contracting team, even prompting RTD to threaten termination of the contract when the G-Line’s opening was delayed.
The trial began the same day that RTD’s new N-Line to Thornton, its latest commuter rail line, opened for service. It was built by another contracting team and also ran into delays and problems, but RTD is operating the N-Line itself rather than outsourcing it.
The case is scheduled for four weeks in Denver District Court, with the final week potentially delayed until mid-November because of a scheduling conflict in Judge Andrew P. McCallin’s courtroom. It’s a bench trial, leaving the verdict up to the judge instead of a jury.
The proceedings began with finger-pointing and conflicting interpretations of key events during each side’s opening statement.
DTP attorney Tiffanie Stasiak painted a picture of overzealous regulators who applied standards for the new crossing technology that went beyond existing regulations, singling out RTD’s new lines with requirements not faced by other railroads. While no law was changed, Stasiak argued that the regulations were applied in such a haphazard fashion that they amounted to new legal hurdles that weren’t envisioned at the time the contract was inked.
“The evidence will show that it does not require that a new law be enacted” for RTD to be on the hook, she said.
Jocelyn Knoll, RTD’s lead attorney, said the contracting group waived its right to make some of the claims in 2016 agreements it signed, just as the A-Line and B-Line were opening. She said DTP performed most of its duties well, but it failed to deliver a crossing-gate system that performed as designed — or within regulations.
“DTP’s attempts to revise history cannot withstand scrutiny,” Knoll said.
On its side, RTD is seeking $27 million in damages for DTP’s missed deadlines and failures to meet project requirements.