DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street
Denver, Colorado 80202

Plaintiff:
DENVER TRANSIT PARTNERS, LLC, a
Delaware limited liability company,

vs.

Defendant:
REGIONAL TRANSPORTATION
DISTRICT, a political subdivision of the State of
▲ COURT USE ONLY ▲
Colorado.

Attorneys for Defendant Regional Transportation

District: Case Number: 2018CV33495
Gregory S. Tamkin, Colo. Reg. No. 27105
Andrea Ahn Wechter, Colo. Reg. No. 43722 Division: 368
DORSEY & WHITNEY LLP
1400 Wewatta Street, Suite 400
Denver, Colorado 80202-5549
Telephone: (303) 629-3400
Fax: (303) 629-3450
Email: [email protected]
Email: [email protected]

Jocelyn L. Knoll (pro hac vice pending)

Lincoln Loehrke (pro hac vice pending)
DORSEY & WHITNEY LLP
50 South Sixth Street, #1500
Minneapolis, MN 55402
Telephone: (612) 340-2600
Fax: (612) 340-2868
Email: [email protected]
Email: [email protected]

DEFENDANT REGIONAL TRANSPORTATION DISTRICT’S

COUNTERCLAIMS AND ANSWER TO COMPLAINT
 The Regional Transportation District (“RTD”), by and through its counsel, Dorsey &
Whitney LLP, hereby files its Counterclaims and responds to Plaintiff Denver Transit Partners,
LLC’s (“DTP”) Complaint as follows:

COUNTERCLAIMS

As for its Counterclaims against DTP, RTD pleads as follows:

INTRODUCTION

1. The Eagle P3 Project (the “Project”) is intended to be a cornerstone of the Denver

region’s FasTracks transportation program. The $2.2 billion Project includes, among other
things, the design, construction, maintenance, and operation of three new commuter rail lines:
the A-Line (Union Station to Denver Airport Station), the B-Line (Union Station to
Westminster), and the G-line (Union Station to Wheat Ridge). Unfortunately, DTP, who was
retained to design and build the Project by 2016, has not performed critical obligations and has
attempted to shift the blame for its cost over-runs and delays to RTD and regulators.

2. In 2010, RTD hired DTP as the Project Concessionaire, charged with broad
design, build, finance, operation, and maintenance (“DBFOM”) responsibilities. RTD and DTP
executed a Concession and Lease Agreement (“CA”) dated July 9, 2010. Unless otherwise
defined herein, capitalized terms have the same meaning as in the CA.

3. DTP is a joint venture managed by and owned in significant part by Fluor

Enterprises, Inc., a unit of Fluor Corporation. Other leading members of DTP’s Project team
include Balfour Beatty Infrastructure, Inc.; Ames Construction; and units of John Laing plc and
Aberdeen Global Infrastructure Partners LP.

4. This dispute is about DTP’s failure to satisfy its obligations as a DBFOM

Concessionaire—including DTP’s belated efforts to dismiss concerns about the safety and
performance of its system and retroactively shift blame for grade crossing attendant costs and
Project delays from its design/build contractors (also managed by Fluor) to the railroad
regulatory professionals at the Federal Railroad Administration (“FRA”) and Colorado Public
Utilities Commission (“CPUC”).

5. Pursuant to the CA, the A-Line, B-Line, and G-Line were scheduled to open for
revenue service at staggered dates in 2016.

6. Two years later, DTP has not completed or opened the G-Line. Testing and
resolution of system defects continue to the present.

7. DTP has not achieved all Revenue Service Commencement Certificates by the
Project’s Revenue Service Deadline Date. This failure constitutes a Concessionaire Termination
Event under the CA.

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 8. Although the A-Line and B-Line opened on time, they did so with deficient and
incomplete systems. Both the FRA and the CPUC required grade crossing attendants (a/k/a
“flaggers” or crossing guards) as a condition of various waivers and conditional approvals
because, among other safety concerns regarding DTP’s performance, DTP’s grade crossing
activation system did not function as intended. Of particular concern was the crossing warning
time; i.e., the time from when the crossing systems begin to activate (lights flashing) to when a
train arrives at the crossing.

9. In exchange for being allowed to begin A-Line and B-Line service

notwithstanding its failure to satisfy the CA’s prerequisites, DTP agreed in certain “Stipulation
and Limited Waiver Side Agreement[s] to the Concession and Lease Agreement” (hereinafter
“Side Agreements”) to accept reduced service payments as its “full compensation” and bear “all
increased costs” necessitated by compliance with FRA and CPUC requirements—including the
cost of crossing attendants. Since 2016, RTD has paid DTP more than $160 million in service
payments, which constitute DTP’s full compensation under the Side Agreements.

10. In 2016, DTP acknowledged the deficiencies in its system and its responsibility
for the grade crossing attendants.

11. DTP (through the railroad of record, RTD) sought regulatory waivers, explaining
that its Wireless Crossing Activation System (“WCAS”) was inoperable and not yet complete.

12. DTP did not comply with the longstanding FRA requirement that the grade
crossing system “activate in accordance with the design of the warning system,” 49 C.F.R. §
234.225, nor was its system in conformance with the design warning times submitted to and
approved by the CPUC.

13. During the period regulators required crossing attendants on the A-Line and B-
Line, DTP provided regulators data and warning time reports showing deficient performance,
including reports showing warning times for various crossings averaged 200% or more of the
design time. In 2016, warning times over thousands of activations often averaged more than a
minute, compared to approximately 30-second design times. Similarly excessive warning times
continued after DTP turned on the WCAS. The warning time data—including average and
median warning times far in excess of warning time design values—indicated that (1) DTP’s
system was not functioning as intended and activating in accordance with the warning system
design; (2) occasional, unpredictable human factor considerations were not the root cause of
DTP’s excessive and inconsistent warning time performance; and (3) DTP had failed to design
and commission its crossing activation systems to account for normal train handling behavior
and typical crossing operation.

14. In August 2016, DTP and its system designer, Wabtec, represented to the FRA
and CPUC that the system was not “functioning as intended” and required updated software to
work as intended.

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 15. In October 2016, DTP’s consultants admitted warning times were “excessive,”
“inconsistent,” and “higher than design,” requiring “corrective actions.”

16. Accordingly, without objection or claim, DTP made substantial corrective actions
and modifications to its WCAS and other crossing activation systems in late 2016 and beyond.
DTP’s system modifications through March 2017 improved warning time performance.
Nevertheless, performance continued to differ significantly from DTP’s previously submitted
designs.

17. In September 2017, DTP sought to amend the previously approved CPUC
crossing applications to include a Wireless Crossing Activation Buffer Time (“WCABT”),
developed in 2017 by DTP’s WCAS designer Wabtec, that DTP had omitted from its earlier
design submittals.

18. DTP failed to provide the CPUC and other railroad stakeholders sufficient
evidence of the WCABT’s safety, causing additional delay pending an evidentiary hearing
before the CPUC, which ultimately resulted in an April 25, 2018 CPUC Order approving the
WCABT design amendment and allowing the railroad to use the WCABT.

19. Section 17.1 of the CA specifies that DTP is the party that must “apply for,
obtain, renew, replace, extend the validity of and arrange necessary amendments to” CPUC
approvals and other Project Permits (with certain exceptions not at issue here). RTD’s
obligations are limited to cooperating with DTP’s regulatory efforts at DTP’s cost, such as
executing or filing DTP’s applications in RTD’s name (given RTD’s status as the railroad of
record).

20. The substantial Project delays, and extended presence of crossing attendants,
attributable to excessive and inconsistent warning times, would have been avoided if DTP had
properly completed the design, construction, testing, and commissioning of its grade crossing
activation systems before starting revenue service (so that warning times did not differ
significantly from design), and if DTP had included in its original CPUC submittals the buffer
time and allowable acceleration design parameters that DTP now believes necessary for its
subcontractor Wabtec’s first-of-a-kind WCAS to function at these crossings.

21. More than a year after the A-Line opened for service, DTP first claimed a Change
in Law and Force Majeure for regulatory review of crossing warning times and sought the costs
of grade crossing attendants. Doing so, DTP attempted to renege on the Side Agreements,
dismiss its own admissions about the deficient performance of its crossing activation system, and
claim entitlement to retroactive relief on the theory that both the FRA and CPUC somehow
changed the law.

22. In addition to providing warning times in accordance with the design of its
system, the CA required DTP to provide properly functioning Constant Warning Time devices

3
sufficient for the establishment of Quiet Zones. Quiet Zones allow the Project’s high-frequency
commuter trains to operate without blaring loud train horns at each crossing.

23. DTP has, to date, failed to establish to the FRA that it has provided properly
functioning Constant Warning Time devices and demonstrate to the FRA that DTP’s first-of-a-
kind WCAS is performing satisfactorily within DTP’s design parameters.

24. As a result, none of the Project lines have achieved Quiet Zone status as required
in the CA. DTP’s performance failures have forced RTD to seek additional waivers from the
FRA while local residents, businesses, and other valued Project stakeholders endure continued
train horns.

25. Problems with DTP’s crossing activation systems continue to this day. DTP has
failed to satisfy the FRA that DTP’s system is performing within its relaxed WCABT parameters
and providing Constant Warning Time.

26. Other software defects in the WCAS have resulted in the renewed presence of
crossing attendants at some crossings, and continued delays that are not excusable under the CA.

27. The DTP team of Fluor, Balfour Beatty, Ames, and others—not RTD, or the
FRA, or the CPUC—is responsible for the Project delays, crossing attendant costs, and extended
duration of loud train horns.

28. Additionally, DTP has not made RTD whole for DTP’s other failures to perform
in accordance with the CA. DTP initially designed and built Project rail bridges to the wrong
design standard—it designed the bridges to highway (AASHTO) instead of the rail (AREMA)
standards expressly specified in the CA. Although DTP rebuilt or retrofitted the bridges—at
significant impact to the Project—the bridges are not built to the contractually required design
standard. RTD will incur additional maintenance costs at the end of the concession and other
impacts as a result of DTP’s failure to comply with the CA’s standards.

29. DTP’s failure to perform under this DBFOM public-private partnership has
caused, and is causing, RTD to suffer substantial damages including without limitation reduced
revenue (e.g., the unopened G-line has not produced revenue for two years); increased expenses
such as heightened and extended overhead and project management (e.g., DTP’s delayed and
deficient performance has generated substantial unanticipated overhead costs); added regulatory,
compliance, and insurance costs (e.g., fees and costs RTD incurred before the FRA and CPUC);
and reputational harm.

30. Crucially, DTP’s failure to perform on its DBFOM contract has left the public
without the fully functioning and regulatory compliant commuter rail system DTP promised to
substantially complete, and was paid to complete, two years ago.

31. In January 2018, DTP referred what it called the Change in Law and Force
Majeure dispute to a Dispute Resolution Panel (the “Panel”). The Panel of three respected
4
construction law neutrals reached a non-binding decision favorable to RTD on June 26, 2018.
Among other things, the Panel concluded there was no Change in Law by the FRA or Force
Majeure with respect to the FRA’s review of, and response to, DTP’s excessive and inconsistent
grade crossing warning times; that DTP’s crossing activation system was not functioning as
designed in 2016 or thereafter and required significant redesign; and that DTP’s alleged “bicycle
exit gate delay” and “FAST Act” Changes in Law did not cause any critical path delay and had
no significant monetary impact on the Project.

32. Through its Complaint, DTP allegedly seeks among other things this Court’s de
novo review of the Dispute Resolution Panel’s decision as specified in the CA’s dispute
resolution procedure.

33. Through its Counterclaims, RTD likewise seeks the Court’s de novo review and
judgment on the Panel’s decision, and further sets forth its entitlement to:

a. A declaration that DTP did not establish any of the Changes in Law, Change in
Law Changes, or Force Majeure Events alleged in the Complaint; that DTP’s
alleged damages are self-inflicted; and that DTP is responsible for the Project
delays and all RTD’s damages resulting from such delays and DTP’s failure to
deliver the Project in accordance with the terms and conditions of the CA;

b. A declaration that DTP is in default under the CA, and that one or more
Concessionaire Termination Events have occurred;

c. Breach of contract damages from DTP as a result of DTP’s unexcused Project

delay and DTP’s failure to satisfy its obligations under the CA;

d. Breach of contract damages attributable to DTP’s failure to design and build

Project bridges to the specified design standards; and

e. Such other and further relief in favor of RTD as the Court deems just and proper.

PARTIES, JURISDICTION, AND VENUE

34. DTP, the Project’s DBFOM Concessionaire, is a Delaware limited liability

company composed of a partnership between Fluor Enterprises, Inc. (hereinafter “Fluor”), a unit
of Fluor Corporation; Denver Rail (Eagle) Holdings, Inc., a unit of John Laing Group plc; and
Aberdeen Infrastructure Investments (No 4) USA LLC, a unit of Aberdeen Global Infrastructure
Partners LP. DTP’s principal place of business is located at 701 West 48th Avenue, Denver,
Colorado 80216.

35. Upon information and belief, Fluor is managing partner of DTP.

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 36. DTP engaged Denver Transit Systems, LLC (“DTS”)—a joint venture of Fluor
and Balfour Beatty Infrastructure, Inc. (hereinafter “Balfour Beatty”)— as its design-build
contractor for the Project.

37. Upon information and belief, Fluor is managing partner of DTS.

38. DTS, in turn, engaged Denver Transit Constructors, LLC (“DTC”)—a joint
venture of Fluor, Ames Construction, and Balfour Beatty—as the design-build subcontractor for
the Project. Fluor/HDR Global Design Consultants, LLC, operating as a subsidiary of Fluor, is
the Project’s lead designer.

39. Upon information and belief, Fluor is managing partner of DTC.

40. DTP engaged Denver Transit Operators, LLC (“DTO”) — a joint venture of
Fluor, Balfour Beatty, and Alternate Concepts, Inc.—as its operations and maintenance
contractor for the Contract.

41. Upon information and belief, Fluor is a 33% partner in DTO.

42. Fluor is managing partner of the concession and of design-build contracts. As

managing partner of DTP, Fluor is responsible for financing, design, construction, testing and
commissioning, and operations and maintenance of the 36-mile Eagle commuter rail network.
This includes arranging and managing the financing and directing the efforts for design-build
and operations and maintenance.

43. RTD is a public body politic and corporate and political subdivision of the State
of Colorado, organized and existing under the terms of the Regional Transportation District Act,
C.R.S. §32-9-101 et seq., as amended, with its primary place of business located at 1660 Blake
Street, Denver, Colorado 80202.

44. This Court has jurisdiction over this civil action pursuant to C.R.S. § 13-1-
124(1)(g), because the causes of action arise out of business transacted by RTD and DTP in
Colorado, and out of the use of real property in Colorado.

45. Venue is also proper in this judicial district pursuant to C.R.C.P. 98, because the
claims concern real property in Denver County, and because RTD resides in Denver County.

46. RTD has complied with C.R.C.P. 16.1 by filing a District Court Civil Cover Sheet
for Initial Pleading of Counterclaim and Notice to Elect Exclusion from C.R.C.P. 16.1 Simplified
Procedure. RTD further states that this case is not subject to the simplified procedures for court
actions under C.R.C.P. 16.1 because its counterclaims against DTP exceed $100,000.

6
 GENERAL ALLEGATIONS

DTP Assumed the Responsibilities and Risks of a Design, Build, Finance, Operate, and
Maintain Concession

47. The Project is a DBFOM public-private partnership. DTP is the Project’s

Concessionaire. DTP agreed to design, construct, operate, and maintain the subject rail lines to
the CA’s requirements and in accordance with regulatory requirements.

48. In the CA, DTP agreed to (among other things) design, build, test, and gain
regulatory approval for the Project, including the highway-rail grade crossing control systems.
The grade crossings were to employ state-of-the-art technology, comply with regulatory
requirements, and provide constant warning times in an electrified commuter rail context.

49. DTP must carry out and complete the Work “in accordance with the provisions of
[the Concession] Agreement, the Project Requirements and Good Industry Practice to ensure that
the Work and each part of the Commuter Rail Projects and the Commuter Rail Maintenance
Facility are in compliance with the Project Requirements and Good Industry Practice.”

50. DTP must carry out and complete the Work “materially in accordance with the
contents of the Concessionaire’s Proposal.”

51. The CA defines Project Requirements to include an array of design, construction,

rolling stock, and O&M specifications, all Permits, the Environmental Requirements, and all
Applicable Requirements, among other things. Applicable Requirements “means the
requirement of any Law made or of any Permit issued by any Relevant Authority in each case to
the extent that the same are applicable to the Concessionaire, the Work, the Concessionaire-
operated Components or the Eagle Project.”

52. The CA further requires that DTP obtain all regulatory approvals, with the
exception of certain RTD Permits not at issue here. The CA specifies DTP “shall apply for,
obtain, renew, replace, extend the validity of and arrange necessary amendments to, all Permits
legally required in connection with its performance of this Agreement except for RTD Permits.”

53. With respect to the train control and at-grade crossing systems, the CA made DTP
responsible for providing “state-of-the-art railway signalizing techniques and products,”
including “highway-rail grade crossing warning systems.” DTP is responsible for designing,
furnishing, installing, and testing these systems, and ensuring they are, at a minimum, compliant
“with the requirements of applicable Law.”

54. A crucial grade crossing design requirement is that DTP provide “constant
warning time” at the grade crossings. The CA specifies that DTP’s system “shall be consistent
with those measures necessary for the establishment of a quiet zone defined in 49 CFR 222.35,”
and states crossings “shall have constant warning train detection.”

7
 55. In addition to constant warning time requirements, a key and longstanding FRA
regulation requires that the grade crossing warning system “activate in accordance with the
design of the warning system, but in no event shall it provide less than 20 seconds warning time
for the normal operation of through trains before the grade crossing is occupied by rail traffic.”
49 C.F.R. § 234.225. FRA regulations require compliance with the warning time design (in
addition to a 20-second floor). Regulatory guidance and practice explains that crossing warning
time should not “differ significantly” from design.

56. To satisfy the Project’s grade crossing and constant warning time standards, DTP
proposed a “wireless crossing activation system” (“WCAS”) to overcome what it perceived as
challenges with providing constant warning time using traditional technology in an electrified
commuter railroad. In so doing, DTP’s Technical Proposal promised “robust” and “reliable”
constant warning times in an electrified, commuter rail context. To accomplish this result, DTP
unilaterally chose to meet the constant warning time standards through the use of technology
from a sub-supplier, Wabtec, that was a first-of-a-kind system for both Wabtec and DTP. DTP’s
choice to pursue the constant warning time standards in this manner was a business decision
DTP made in competitively pursuing this Project.

DTP Has Not Timely Designed and Built the Project to Satisfy Project Requirements and
Obtain Regulatory Approvals

57. DTP has not completed its work, and satisfied the Revenue Service
Commencement Requirements, by the CA’s deadlines. DTP’s failure to comply with its
regulatory and contractual obligations resulted in, among other things, a two-year delay to the
Project and commuter rail lines that operate only through FRA waivers.

58. Under the CA, the Independent Engineer is to issue Revenue Service
Commencement Certificates (“RSCC”) upon satisfaction of all Revenue Service Commencement
Requirements, and Final Completion Certificates upon satisfaction of all Final Completion
Requirements. The CA contemplates that DTP will receive certain Construction Payments and,
following satisfaction of the Revenue Service Commencement Requirements and issuance of
RSCC, monthly Service Payments based on the availability and performance of the Project.
Pursuant to the CA, no Service Payments are due prior to completion of the Revenue Service
Commencement Requirements and the Independent Engineer’s issuance of the appropriate
Revenue Service Commencement Certificate.

59. The Revenue Service Commencement Requirements include, among other things,
the requirements that (1) except with respect to certain Punch List Items, DTP has completed the
respective Commuter Rail Project “in accordance with the provisions of [the CA], the Project
Requirements and Good Industry Practice to ensure that the Work, such Commuter Rail Project
and each part of them are completed and operate in compliance with the Project Requirements”
and (2) “all Permits required for the operation of such Commuter Rail Project and such
Commuter Rail Service have been obtained in final form and are not subject to appeal.”

8
 60. The CA requires that DTP obtain all Revenue Service Commencement
Certificates on or before the Revenue Service Deadline Date. As extended due to certain relief
events and through negotiations, that date is June 2, 2018.

61. DTP did not obtain all Revenue Service Commencement Certificates on or before
the Revenue Service Deadline Date.

62. Failure to obtain all Revenue Service Commencement Certificates prior to the
Revenue Service Deadline Date is a Concessionaire Termination Event.

63. The CA further included Revenue Service Target Dates. As adjusted for various
events not at issue in this lawsuit, the Revenue Service Target Dates were April 22, 2016, July
25, 2016, and October 26, 2016, for the A-Line, B-Line, and G-Line, respectively.

64. DTP did not obtain the Revenue Service Commencement Certificates by the
Revenue Service Target Dates.

65. DTP represented to RTD during the Project that it would be ready to commence
revenue operations on the Revenue Service Target Dates specified above, particularly the April
22, 2016 and July 25, 2016 start dates. RTD relied on DTP’s representations.

66. The Independent Engineer issued the A-Line RSCC, with deferred requirements,
on September 8, 2018.

67. The Independent Engineer issued the B-Line RSCC, with deferred requirements,
on October 23, 2017.

68. The Independent Engineer has not issued the G-Line RSCC. DTP has not
completed pre-revenue testing and other Revenue Service Commencement Requirements.

69. DTP has not established its entitlement to any further adjustment to the Revenue
Service Deadline Date or the Revenue Service Target Dates. DTP’s delays and failure to
perform are not excusable under the CA, and constitute a breach of DTP’s obligations to RTD.

DTP’s Design and Construction Deficiencies Delayed Pre-Revenue Service Testing, Caused
Life Safety Concerns, and Drew Regulatory Ire

70. DTP experienced a multitude of self-inflicted construction delays that impacted

and compressed the period available for testing and commissioning its train control and crossing
systems.

71. For example, DTP built numerous rail bridges to the wrong design standard. In
2014 and thereafter, DTP then had to retrofit or rebuild the bridges.

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 72. The bridge rework and other design and construction deficiencies impacted the
communication and power lines necessary for testing and commissioning, and compressed the
testing schedule. This resulted in DTP attempting to test crossings when civil improvements
were not yet complete, and was in contravention of CPUC guidance.

73. Likewise, DTP’s subcontractor charged with providing the train control and
crossing systems (Wabtec) was late in installing and testing those systems. Thus, instead of
executing the as-planned, several months-long testing and commissioning period prior to
commencing A-line revenue service in April 2016—time in which DTP’s first-of-a-kind systems
could be installed, thoroughly tested, and appropriately tuned—DTP started revenue service
without the WCAS even operable.

74. DTP’s attempt to test an incomplete system in 2015 and 2016 created significant
problems and raised regulatory concerns. Project personnel documented numerous complaints
from the public, media, and local emergency services personnel about crossings that
malfunctioned. For example, warning times routinely ran into the minutes. Occasionally, gates
would be down for 10, 20, or 30 minutes—in some cases for hours—without a train present.
Gate arms would be stuck in the down position, or would move up and down periodically.
DTP’s performance during testing drew regulatory attention from both the FRA and CPUC.

75. Regulatory scrutiny increased further following the safety-critical events of

March 1, 2016. On that date, there were a total of 3 grade crossing failures, the most serious of
which resulted in a near miss with two motor vehicles. In other words, DTP’s crossing system
failed, allowing trains to enter unprotected crossings. Although DTP sought to fix the precise
software defect that caused or contributed to the March 1 event, warning times remained highly
variable and clearly deficient.

DTP Admitted Its System was Incomplete and Inoperable, Sought Regulatory Waivers
Conditioned on Grade Crossing Attendants, and Promised in Side Agreements to Bear the
Cost of Crossing Attendants

76. Meanwhile, the April 22, 2016 A-Line opening date—advertised to the public
months beforehand, based on DTP’s representations about Project completion—rapidly
approached. The Independent Engineer and other independent monitors recognized that DTP
had not satisfied all Revenue Service Commencement Requirements, i.e., all contractual
prerequisites to opening the line to the public. Among other things, DTP had not provided an
operational constant warning time grade crossing activation system, performed all required
system demonstrations, or gained all necessary regulatory approvals.

77. To open the A-line on April 22, 2016, DTP and RTD first had to seek conditional
approvals and waivers from the FRA and CPUC. A key condition, from FRA and CPUC, was
that DTP maintain grade crossing attendants. At DTP’s behest, in April 2016 the FRA issued the
first of a series of short-term waivers (ultimately extending into 2017) that provided relief from
certain regulatory requirements “with regard to the inoperative Wireless Crossing Activation

10
System (WCAS) and the corresponding long warning times,” provided that grade crossing
attendants “must be used until the grade crossing warning systems provide warning times within
the designed time for all trains for 7 consecutive days.”

78. In April 2016, the CPUC described “numerous safety issues that have occurred
and continued to occur” on the A-line; these operational and safety concerns lead the CPUC to
also require crossing attendants until DTP and RTD could certify and demonstrate that crossings
were “complete, operational, and in conformance with the approved design and operational
parameters of the crossing.”

79. DTP also had to seek agreement from RTD to open the A-Line without satisfying
the revenue service prerequisites. The parties executed a Stipulation and Limited Waiver Side
Agreement (the “A-line Side Agreement”) wherein RTD allowed DTP to begin revenue service
notwithstanding the inoperable crossing activation system and other deficiencies. In return, DTP
agreed to accept reduced Service Payments (deducting $250,000/month) until DTP completed
the constant warning time function and other Revenue Service Commencement Requirements,
and the Independent Engineer issued the RSCC.

80. In the A-Line Side Agreement, DTP further agreed to “comply with all applicable
requirements of the FRA and the Public Utilities Commission regarding operations prior to the
completion of the constant warning time function for the grade crossing activation system”;
agreed to bear the cost of grade crossing attendants and be “responsible for all increased costs
necessitated by this stipulation”; and agreed that the modified service payments were its “full
compensation” related to the issue.

81. On July 23, 2016, the parties executed a similar Side Agreement for the B-Line,
with a $100,000/month deduction.

82. Since 2016, RTD has paid DTP more than $160 million in service payments.
DTP received these funds pursuant to the A-Line and B-Line Side Agreements, notwithstanding
DTP’s failure to satisfy the Revenue Service Commencement Requirements and timely obtain
Revenue Service Commencement Certificates on the A-Line and B-Line. Receipt of these
payments is DTP’s “full compensation” under the A-Line and B-Line Side Agreements.

83. In the A-Line and B-Line Side Agreements, DTP further stipulated it would
“provide an additional five Key Personnel as mutually agreed between DTP and RTD until such
time that the Revenue Service Commencement Certificate has been issued.” DTP did not
provide the additional personnel.

84. The A and B lines opened for service in April and July 2016, respectively, with
non-conforming grade crossing activation systems and unsatisfied Revenue Service
Commencement Requirements. DTP had agreed in stipulations and waivers that reduced Service
Payments were its full compensation, and further agreed to comply with all FRA and CPUC
requirements.

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 85. The FRA and CPUC’s waivers required grade crossing attendants. DTP expressly
agreed to bear all of those costs, without limitation or reservation. DTP did not
contemporaneously claim any Change in Law or Force Majeure events regarding the regulatory
consensus that DTP had not satisfied warning time and constant warning time requirements.

86. DTP’s admitted failure to provide a fully functioning system, satisfying all Project
Requirements and applicable law, prior to commencing revenue operations placed the Project in
a waiver regime, for which different and unique regulatory requirements exist. Contrary to
DTP’s representations to RTD, DTP failed to timely correct its system’s deficiencies and
establish satisfactory performance under the Project waivers and existing law. This caused the
project to linger in a waiver regime, and to this day the portions of the Project open for revenue
service operate under time-limited FRA waivers.

Following Revenue Service on the A- and B-lines, DTP Failed to Timely Complete and
Correct its Grade Crossing Systems. DTP Continued to Redesign and Modify Its System
and Make Required Corrective Actions into 2017, Without Asserting Any Relevant Change
in Law or Force Majeure.

87. DTP did not timely resolve its crossing system deficiencies following
commencement of A- and B-line revenue service operations. Instead, warning times continued
to be excessively long and variable. Average and median warning times were often in the
minutes—on crossings with approximately 30-second design times. Some crossings never
achieved their design time, and instead experienced excessive warning times on essentially every
activation. For instance, data DTP provided to regulators showed the Clayton Street crossing
had a 32-second design warning time. Even after multiple software iterations, as of August 2016
(four months after commencement of A-line revenue service) the average warning time was over
55 seconds, and the crossing never provided the 32-second design time.

88. In Summer and Fall 2016, DTP admitted through its words and actions that its
grade crossing systems were not functioning appropriately. While DTP proposed certifying that
certain crossings were complete in June 2016, the data it provided disproved its own
contentions—it reflected average warning times several times above design, instead of the
“moderate percentage” promised by DTP. DTP did not object or claim a Change in Law when
CPUC personnel suggested the purported certifications would be rejected. RTD rejected DTP’s
purported June 2016 certifications based on the warning time concerns and other deficiencies
such as incomplete and non-conforming civil improvements. Instead of objecting to the rejection
of its June 2016 certifications, in August 2016, DTP and Wabtec expressly admitted to FRA and
CPUC that numerous crossings still were not “functioning as intended” and required “updated
software” to “work[] as intended.”

89. Given Wabtec’s failure to complete and correct the warning time systems, in Fall
2016, at the request of FRA, DTP engaged a separate consultant, HNTB, to review Wabtec’s
performance.

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 90. In October and November 2016, HNTB identified many items in DTP’s then-
existing system leading to “higher than design”, “inconsistent,” and “excessive” warning times.
HNTB proposed several categories of corrective action items and an ambitious schedule to
complete the software and system changes over the next several months. HNTB also issued
crossing performance monitoring and corrective action reports measuring, among other things,
only 27% compliance with its grade crossing activation standard.

91. Faced with such reports of its system’s performance, DTP did not claim any
Change in Law. Instead, Wabtec acknowledged that its “original WCA software” generated
“longer than desired warning times,” and that “concerns about excessive warning times” required
“a change” in the WCAS. Wabtec set about changing its system design to include “Approach
Condition Adjustment Factors,” which would allow the system to account for driver behavior
and unique conditions at each crossing. Prior to this modification, DTP’s WCAS was incapable
of being tuned to account for such factors. Wabtec believed its various system modifications
would “bring the crossing warning time in line with the crossing design” when “an excessive
warning time due to normal train handling is observed at [the] crossing.”

92. DTP’s schedules reflect that A-Line crossing system “modifications”

recommended by HNTB were not complete before March 31, 2017.

93. In or about August 2016, testing was suspended on the G-Line due to DTP’s
failure to comply with FRA regulations, including ongoing A- and B-line crossing warning time
deficiencies, and FRA enforcement action for G-Line warning time deficiencies. DTP did not
contemporaneously assert any Change in Law as a result. The FRA and CPUC allowed DTP to
resume G-Line testing at various dates in 2017.

94. Likewise, the FRA and CPUC required, and continued to require, crossing
attendants due to DTP’s deficient and incomplete crossing activation systems—not the bicycle
exit gate delay issue. RTD appropriately rejected DTP’s alleged Change in Law related to the
bicycle exit gate delay issue.

95. Among other things, DTP had the option of using either (1) an exit gate delay
(where the crossing exit gates delay closing for a fixed period of time, to allow highway users
still in the crossing to escape prior to the arrival of a train) or (2) vehicle detection (where the
crossing determines whether to delay the closing of exit gates depending on whether it detects a
vehicle inside the crossing).

96. DTP initially chose to design the crossings using vehicle detection, but then failed
to provide detection for all “vehicles” as that term is defined in the Colorado Revised Statutes.
The Colorado Attorney General’s office, in conjunction with the CPUC, confirmed that under
longstanding Colorado law “vehicles” include bicycles.

97. The CPUC’s concern was that DTP’s failure to provide detection for all
vehicles—including bicycles—risked having bicyclists trapped inside the four-quadrant gates,

13
with potential life safety consequences. In light of this concern, DTP proposed to use the exit
gate delay option instead—where the exit gates delay closing for a fixed period of time, to allow
bicyclists and other vehicles time to escape the crossing.

98. The change to implement an exit gate delay, while sufficiently significant to
warrant a design amendment under existing CPUC practice, required nominal time and costs to
implement (upon information and belief, programming took two days) and was complete prior to
the time period DTP seeks relief.

In Addition to Making Corrective Actions to its Grade Crossing Systems, in 2017 DTP
Discovered It Omitted Parameters from Its Previously-Approved Warning Time Design

99. In or around March 2017, DTP’s subcontractor Wabtec discovered that it did not
consider certain factors in the warning time calculations submitted to, and approved by, the
CPUC in 2013 and 2014. To account for these factors unique to its design, DTP proposed to add
certain “buffers” to the conventional design warning time calculation, calling it a “Wireless
Crossing Activation Buffer Time” or “WCABT.” DTP and HNTB stated to FRA that other
systems similar to its own “commonly use” such buffers, but DTP did not use them previously
for its RTD design. FRA, for its part, “expressed concern that this missed parameter was just
now being discovered.”

100. In Spring 2017, DTP was still working on completing its A- and B-Line grade
crossing activation systems and implementing the necessary corrective actions identified by its
consultants. While warning times improved with these changes, they were not in accordance
with DTP’s design submittals.

101. Further investigation revealed that DTP had failed to include necessary factors in
its design. DTP then set out to “change” its design submittals to include its Eagle-specific
WCABT. The WCABT, in essence, demonstrated that DTP’s first-of-a-kind WCAS required up
to a 20-second buffer time to account for complexities in its system—significantly more than the
two or five second buffers included in DTP’s original design. DTP neither made this discovery,
nor did it seek regulatory approval for the design change, until various points in 2017.

DTP Claimed a Change-in-Law on May 26, 2017 on the Mistaken Belief that the FRA
Would Deny its WCABT Amendment

102. On May 26, 2017, DTP for the first time claimed a Change in Law and Force
Majeure with respect to the grade crossing systems and warning times. DTP claimed the
“unquestionable tipping point” for this alleged Change in Law was certain May 2017 meetings
with the FRA which, according to DTP, suggested the FRA would not accept DTP’s revised
WCABT design.

103. On June 16, 2017, the FRA indicated it may accept DTP’s new WCABT design
concept based on the same meetings that DTP inexplicably claimed to evince a Change in Law.
FRA stated its acceptance would be limited to the regulatory requirement that DTP’s crossing
14
systems operate as designed. (FRA continued to express concern regarding whether DTP’s
WCABT design provided constant warning times, and in 2018 confirmed that DTP’s system is
currently not in compliance with constant warning time requirements.) FRA conditioned its
acceptance on DTP subsequently developing new design documentation, proposing measurement
criteria for its system, and providing data reflecting that its system was performing within such
criteria.

104. DTP’s May 2017 Change in Law and Force Majeure notice, and DTP’s request
for retroactive relief to 2016, was baseless and untimely under the CA. It is not a Change in Law
or Force Majeure to insist that the system operate as designed.

DTP Did Not Attempt To Establish Its System Was Operating Within Its WCABT Design
Until September 2017

105. DTP did not complete the WCABT design documentation, develop the necessary
grade crossing measurement criteria, and provide requested warning time bell curve data to FRA
until September 2017.

106. In response to that information, on September 28, 2017, the FRA granted the
railroad a five-year waiver “from the operational restrictions in the current FRA waiver
applicable to the A-Line and B-Line for purposes of compliance with 49 CFR § 234.225.” Thus,
the FRA’s five-year waiver provided a path for removal of the crossing attendants on the A-Line
and B-Line, subject to DTP satisfying certain conditions (such as submitting a flagger removal
plan) and satisfying the requirements of other regulatory agencies, such as the CPUC. FRA
subsequently continued to express concern regarding whether DTP provided constant warning
times for quiet zone purposes and demonstrated performance within the WCABT design
parameters, and continued to request data from DTP pursuant to the terms of the five-year
waiver.

The CPUC Sought An Evidentiary Hearing On the WCABT Amendment

107. The CPUC is the regulatory entity charged with approving the grade crossing
design, thus the CPUC had a different role than the FRA with respect to design amendments.
DTP did not prepare a design amendment that RTD, as the railroad of record, could submit to the
CPUC until September 2017. DTP’s pleading was expressly characterized as a design
amendment, and sought to change the earlier-approved warning time design to include the -5/+15
second WCABT.

108. On or about September 27, 2017, the CPUC denied the WCABT amendment,
referencing a lack of evidence in the record that the additional 15 seconds was safe. The CPUC
noted that DTP’s earlier design had already been approved by the CPUC and did not include
WCABT, and admonished DTP for “anticipat[ing] none of the issues that it now claims is
creating the need to extend warning times”. The CPUC also noted that other stakeholders, such

15
as the Union Pacific Railroad, which shares certain of the crossings with DTP, expressed
concerns about the safety and necessity of the WCABT.

109. The CPUC invited RTD and DTP to seek a rehearing where they could submit
evidence that the WCABT is safe. RTD and DTP presented such evidence in a February 15,
2018 hearing. RTD relied upon DTP’s assertions, data, and experts, and cooperated with DTP’s
efforts to obtain regulatory approval pursuant to Section 17 of the CA.

110. The CPUC accepted the WCABT as a crossing certification standard in an April
25, 2018 Order. The Order provided a path for the removal of grade crossing attendants upon
completion of CPUC staff field inspections and certification that the crossings were complete
and operational.

DTP Has Not Provided a Properly Functioning Constant Warning Time System and Has
Not Achieved All Revenue Service Commencement Requirements

111. The FRA’s September 28, 2017 Five-Year Waiver and the CPUC’s April 25,
2018 Order provided a path for removal of the crossing attendants on the A-Line, following
certain field demonstrations and other actions. Crossing attendants were fully removed on the A-
Line and B-Line in July 2018 and October 2017, respectively.

112. Crossing attendants remained on the G-Line, as that line was in pre-revenue
service testing. G-line testing had been suspended due to DTP’s A-Line and B-Line deficiencies
and FRA enforcement action for G-Line warning time deficiencies. DTP was allowed to resume
G-line testing in 2017. To date, DTP has not completed testing for the G-line. The line remains
unopened, notwithstanding its October 2016 targeted completion date.

113. Contrary to DTP’s obligations under the CA and Side Agreements, a significant
percentage of crossing activations continue to be outside of DTP’s WCABT design.

114. On July 19, 2018, the FRA informed RTD that DTP’s system is not providing
constant warning time, thus DTP has not to date provided constant warning time functionality.
As a result, the FRA informed the parties that RTD and the local municipalities will be required
to apply for additional waivers to achieve FRA approval for quiet zones, rather than immediately
receiving the quiet zones promised in DTP’s Proposal and required by the terms of the CA.

115. Neither the A-Line nor G-Line has achieved quiet zone status, due to DTP’s
failure to properly provide the crossing equipment and systems promised in the CA and reflected
on its design documentation.

116. The FRA has recently identified various other significant deficiencies with DTP’s
performance, including DTP’s failure to provide a “vital” PTC system, DTP’s failure to
complete FRA-required testing, and a WCAS software defect that can result in insufficient
warning times. System deficiencies required the renewal of crossing attendants at certain
crossings. The deficiencies are breaches of DTP’s obligations under the CA.
16
 117. Although the IE issued RSCCs for the A-Line and B-Line, it did so with certain
deferred requirements. DTP’s failure to timely satisfy these and other obligations is a breach of
the CA.

DTP Has Not Made RTD Whole For DTP’s Failure to Follow the Correct Design
Standards on Railroad Bridges

118. DTP designed and constructed Project rail bridges to the wrong design standard.
While DTP rebuilt, retrofit, or reinforced the bridges, the bridges are not as robust as they would
have been had DTP designed and built them to contractually required standards. To date, DTP
has not made RTD whole for the damages RTD has or will suffer, including diminished value,
decreased service life, and increased maintenance expenses RTD will incur following cessation
of the DTP concession.

119. The CA required that DTP “design and construct rail bridges and associated
structures in accordance with the AREMA Manual for Railway Engineering and the CDOT
Design Manual.” The AREMA (American Railway Engineering and Maintenance-of-Way
Association) standards are common for commercial train bridges.

120. Contrary to the CA’s specifications, DTP initially designed and constructed the
bridges to American Association of State Highway and Transportation Officials (“AASHTO”)
standards. AASHTO standards are common for motor vehicle highway bridges, and are in
general less rigorous than AREMA standards.

121. The bridges DTP provided to RTD have less strength or decreased service life
relative to the AREMA-standard structures specified in the CA. This diminishes the value of the
bridges, increases RTD’s costs, and will result in additional maintenance of the structures once
RTD takes possession.

122. In December 2014, DTP submitted an “Independent Design Check” (“IDC”),

performed by Fluor/HDR, that had been prompted by concerns first raised by RTD. The IDC
found that DTP’s design entities failed to design numerous structures in “compliance with the
contract (specifically, the AREMA Manual for Railway Engineering).” The IDC found that the
Jersey Cutoff bridge required demolition and replacement, and various other structures required
retrofits. The IDC further stated that the proposed retrofits were “pending structural analysis”
and that “bridge retrofits required as a result of this IDC will be discussed” at a later date.

123. Bridge reconstruction and remediation work impacted the Project schedule and
compressed the time available for DTP’s commuter rail testing and commissioning activities
prior to the scheduled commencement of revenue service.

124. DTP sought to comply with alternative design standards rather than replace or
retrofit structures to AREMA standards. RTD notified DTP that it would incur additional
maintenance costs (e.g., additional cracking to be repaired), reduced service life, and other
impacts as a result of DTP’s failure to design the bridges to AREMA requirements. In
17
December 2015, DTP submitted design variance requests that RTD accepted in February 2016,
subject to comments and RTD’s right to continue seeking its damages resulting from DTP’s
failure to comply with AREMA standards.

125. Negotiations regarding RTD’s claims against DTP, including RTD’s damages
attributable to the Project delay and damages from defective bridges, continued until discussions
ceased on September 19, 2018. At or about 12:30am on September 20, 2018, DTP filed its
Complaint. To date, neither RTD nor DTP has referred certain of RTD’s claims to a Dispute
Resolution Panel. In the event the Court determines that the CA’s Dispute Resolution Panel
process is necessary for any of RTD’s counterclaims, RTD respectfully reserves its right to
request a stay, or any other appropriate relief, pending a Dispute Resolution Panel process.

FIRST COUNTERCLAIM FOR RELIEF

(Declaratory Judgment)

126. RTD incorporates the allegations in paragraphs 1 through 125 as if fully set forth
herein.

127. A dispute has arisen between RTD and DTP regarding the cause of Project delays,
whether DTP’s delays are excusable due to the existence of any Change in Law Changes or a
Force Majeure event, and the apportionment of the parties’ damages stemming from the delays
and crossing attendants.

128. RTD asserts that DTP has not established the existence of its alleged Changes in
Law or Force Majeure Event; DTP’s delays are inexcusable and non-compensable; DTP’s
damages are self-inflicted; and RTD is owed all appropriate relief stemming from DTP’s failure
to comply with the CA and a construction of contract terms regarding future costs and
obligations stemming from DTP’s failure to so comply. RTD further asserts that DTP is liable
for RTD’s damages resulting from DTP’s failure to design and construct bridges to the standards
specified in the CA. DTP disagrees.

129. RTD requests that the Court declare that (a) DTP’s failure to perform is not
excused by the CA’s Change in Law and Force Majeure provisions; (b) DTP’s failure to timely
complete the project pursuant to the Project Requirements is not caused by the actions of RTD,
the FRA, or the CPUC, but rather is attributable to DTP’s actions and omissions; (c) DTP is not
entitled to any relief; (d) RTD is entitled to all damages and relief under the CA resulting from
DTP’s failure to perform when and as promised; and (e) DTP is in default under the CA, and one
or more Concessionaire Termination Events have occurred.

SECOND COUNTERCLAIM FOR RELIEF

(Breach of Contract—Failure to Timely Complete the Project and Comply with Project
Requirements)

18
 130. RTD incorporates the allegations in paragraphs 1 through 129 as if fully set forth
herein.

131. RTD and DTP entered into the CA described above, which provides that DTP
must design, build, finance, operate, and maintain the Project pursuant to the terms and
conditions set forth.

132. DTP has not completed its work in accordance with the requirements, deadlines,
and other terms and conditions of the CA. Among other things, DTP has not completed the
commuter rail lines on time, nor has it complied with the Project Requirements such as the CA’s
specifications for the crossing activation systems.

133. DTP has breached the CA by so failing to complete its work.

134. RTD has substantially performed its duties pursuant to the CA.

135. DTP’s breach of the CA has caused damages to RTD in an amount to be

determined at trial.

THIRD COUNTERCLAIM FOR RELIEF

(Breach of Contract—Bridges)

136. RTD incorporates the allegations in paragraphs 1 through 135 as if fully set forth
herein.

137. RTD and DTP entered into the CA described above, which provides that DTP
must design, build, finance, operate, and maintain the Project pursuant to the terms and
conditions set forth.

138. DTP did not design and construct Project structures pursuant to terms and
conditions of the CA. Among other things, DTP did not design and construct the rail bridges to
AREMA standards.

139. DTP has breached the CA by so failing to design and construct Project structures
in accordance with the CA’s specified design standards.

140. RTD has substantially performed its duties pursuant to the CA.

141. DTP’s breach of the CA has caused damages to RTD in an amount to be

determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Defendant Regional Transportation District requests:

19
a. That the Court enter judgment in favor of RTD and against Denver Transit Partners, LLC,
adjudges DTP liable to RTD on RTD’s counterclaims in an amount of damages to be
determined at trial, and for pre-judgment and post-judgment interest, costs and expenses,
reasonable attorneys’ fees incurred by RTD in this action, and for such other and further
relief as the Court deems just and proper.

b. For a declaratory judgment to declare, adjudge, and order that (a) DTP’s failure to perform
under the CA is not excused by the CA’s Change in Law and Force Majeure provisions; (b)
DTP’s failure to timely complete the project pursuant to the Project Requirements is not
caused by the actions of RTD, the FRA, or the CPUC, but rather is attributable to DTP’s
actions and omissions; (c) DTP is not entitled to any relief; (d) RTD is entitled to all damages
and relief under the CA resulting from DTP’s failure to perform when and as promised; and
(e) DTP is in default under the CA, and one or more Concessionaire Termination Events
have occurred.

RTD’S RESPONSES TO DTP’S COMPLAINT

142. RTD admits the allegations in paragraph 1 of the Complaint, except insofar as
DTP alleges its business address is located in the 80226 zip code.

143. RTD admits the allegations in paragraph 2 of the Complaint.

144. RTD admits the allegations in paragraph 3 of the Complaint.

145. In response to paragraph 4 of the Complaint, RTD admits that venue is proper in
this judicial district.

146. In response to paragraph 5 of the Complaint, RTD admits DTP filed a District
Court Civil Case Cover Sheet for Initial Pleading of Complaint, Counterclaim, Cross-Claim or
Third Party Complaint. RTD states DTP’s Complaint purports to make a Jury Demand
(notwithstanding the parties’ contractual waiver of any right to a jury in this matter), but DTP did
not indicate a jury demand or payment of the requisite fee in said Civil Cover Sheet. RTD
admits the allegations in the second sentence of paragraph 4 of the Complaint.

147. RTD admits the allegations in paragraph 6 of the Complaint.

148. RTD admits the allegations in paragraph 7 of the Complaint.

149. RTD admits that DTP appeals a Dispute Resolution Panel (“DRP”) determination
that did not result in settlement, and denies the remaining allegations in paragraph 8 of the
Complaint.

150. In response to paragraph 9 of the Complaint, RTD states that the Concession and
Lease Agreement (“CA”), and the CA’s Change in Law and Force Majeure provisions, speak for
themselves. RTD states that it is without sufficient information or knowledge to form a belief as
20
to whether and how DTP passed its assumed risks to other entities and persons. RTD denies the
remaining allegations in paragraph 9.

151. In response to paragraph 10 of the Complaint, RTD states that the CA speaks for
itself. RTD denies the allegations in paragraph 10.

152. In response to paragraph 11 of the Complaint, RTD states that the CA speaks for
itself. RTD denies the allegations in paragraph 11 to the extent they are inconsistent with the
CA.

153. RTD admits the first sentence of paragraph 12 of the Complaint, and further
admits that DTP did not complete testing necessary for the Independent Engineer (“IE”) to issue
a completion certificate. RTD denies the remaining allegations in paragraph 12.

154. In response to paragraph 13 of the Complaint, RTD is without sufficient

information nor knowledge to form a belief as how any relief would flow down to others or for
what purpose DTP is pursuing recovery, and denies that DTP is entitled to any relief. RTD
states that the CA’s Dispute Resolution Procedure speaks for itself, and denies the allegations in
paragraph 13 to the extent they are inconsistent with the CA.

155. RTD admits the first sentence of paragraph 14 of the Complaint. RTD denies the
remaining allegations in said paragraph, and specifically denies that RTD has breached its
obligations under the CA.

156. In response to paragraph 15 of the Complaint, RTD states that the RFP and FRA’s
Train Horn Rule speak for themselves, and denies all allegations to the extent they are
inconsistent with the RFP and the Train Horn Rule. RTD admits that the Request for Proposals
(“RFP”) contained preliminary engineering reflecting certain at-grade crossings instead of grade
separated crossings or other alternatives, and that the RFP (among other things) required the
creation of “Quiet Zones,” provision of Constant Warning Time (“CWT”) systems, and Positive
Train Control (“PTC”). RTD further admits that Quiet Zones must satisfy FRA regulations.
RTD denies the remaining allegations in paragraph 15.

157. RTD denies the allegations in paragraph 16 of the Complaint.

158. RTD denies the allegations in paragraph 17 of the Complaint, and further states it
is without sufficient information to form a belief as to whether or how unspecified persons or
regulators view at-grade crossings.

159. In response to paragraph 18 of the Complaint, RTD admits that the FRA
prescribes certain standards and approves Quiet Zones in certain circumstances, and further
admits that the Colorado Public Utilities Commission (“CPUC”) has, among other things,
oversight responsibility for the configuration and design of public highway-rail crossings in the
State of Colorado. RTD denies the remaining allegations in paragraph 18.

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 160. RTD denies the allegations in paragraph 19 of the Complaint.

161. RTD denies the allegations in paragraph 20 of the Complaint.

162. In response to the first sentence of paragraph 21 of the Complaint, RTD admits
that DTP’s design included the installation of four-quadrant gates at certain crossings. RTD
admits the allegations in the second sentence of paragraph 21 of the Complaint.

163. In response to the allegations in the first sentence of paragraph 22 of the

Complaint, RTD admits that DTP conducted some testing in June and July 2015, but denies the
remaining allegations in said sentence, including whether the June/July 2015 testing was all the
testing performed, that the testing was adequately performed, and that this testing did in fact
reflect proper operation. RTD further denies that DTP had completed construction pursuant to
the approved design. In response to the second and third sentences of paragraph 22, RTD is
without sufficient information nor knowledge to form a belief as to the truth of these allegations.

164. RTD denies the allegations in the first sentence of paragraph 23 of the Complaint,
and with respect to the second sentence admits that DTP’s revenue service operations were
scheduled to commence in April 2016. RTD denies the remaining allegations in paragraph 23,
and states that to RTD’s knowledge the CPUC’s concern with DTP’s then-existing vehicle
detection and four-quadrant gate system is that it did not detect all vehicles such as bicycles, and
that bicyclists risked being trapped in the crossing by the four-quadrant gates.

165. RTD denies the allegations in paragraph 24 of the Complaint, and further states
that DTP had the option to provide for (1) vehicle detection or (2) an exit gate delay. DTP
initially chose to utilize vehicle detection but then failed to provide a system that detected all
vehicles.

166. In response to paragraph 25 of the Complaint, RTD is without sufficient

information or knowledge to form a belief as to whether or how bicycle detection technology
may be usable with or approved by the FRA.

167. In response to paragraph 26 of the Complaint, RTD denies, and states that DTP
agreed to implement a timed exit gate solution and developed the Exit Gate Operations Proposal.
RTD denies the second sentence of paragraph 26.

168. RTD denies the allegations in paragraph 27 of the Complaint.

169. RTD denies the allegations in paragraph 28 of the Complaint.

170. RTD denies the allegations in paragraph 29 of the Complaint, and by way of
further explanation, states that both RTD and DTP proposed crossing attendants, and that the
FRA and CPUC required crossing attendants—which DTP offered to provide and did not object
to—due to multiple safety, performance, and completeness concerns with DTP’s system that
were unrelated to the bicycle exit gate delay issue.
22
 171. In response to paragraph 30 of the Complaint, RTD admits that the CPUC
required the railroad to post guards at the crossings. RTD denies the remaining allegations in
paragraph 30.

172. RTD denies the allegations in paragraph 31 of the Complaint.

173. In response to paragraph 32 of the Complaint, RTD admits that the CPUC
applications and approvals (that were DTP’s responsibility) were still pending during the time of
the scheduled April 2016 opening of the A-line, and denies the remaining allegations.

174. In response to the first sentence of paragraph 33 of the Complaint, RTD admits
that A-Line and B-Line entered operations on April 22, 2016 and July 25, 2016, respectively,
and further states that they did so with crossing attendants made necessary by DTP’s failure to
complete its scope of work and achieve regulatory approvals, and pursuant to Side Agreements
made necessary by DTP’s failure to satisfy the Revenue Service Commencement Requirements
specified in the CA. RTD denies the second sentence of paragraph 33.

175. In response to paragraph 34 of the Complaint, RTD admits that the CA required
DTP provide CWT devices, among other things. RTD denies the remaining allegations in
paragraph 34, particularly to the extent they conflict with FRA regulations.

176. In response to paragraph 35 of the Complaint, RTD admits the CA specifications

require CWT devices, among other things. RTD denies the remaining allegations in paragraph
35, and states that although DTP promised to provide CWT through its Wireless Crossing
Activation System (“WCAS”) and other means, it has to date failed to provide properly
functioning CWT devices that satisfy the FRA’s Quiet Zone requirements.

177. RTD denies the allegations in paragraph 36 of the Complaint.

178. In response to paragraph 37 of the Complaint, RTD admits that DTP’s system
required a waiver—indeed, a series of waivers—from the FRA Maintenance Rule, and that said
waivers required crossing attendants. RTD denies the remaining allegations in paragraph 37.

179. In response to paragraph 38 of the Complaint, RTD admits that the FRA allowed
operations with the WCAS turned on and conditionally certified PTC. RTD states that the FRA,
CPUC, and others, including DTP itself, did not believe that the WCAS and the CWT system
were functioning properly when the WCAS was turned on or thereafter, and that DTP
subsequently implemented numerous modifications and corrective actions to its WCAS. RTD
further states that as a result of DTP’s incomplete and improperly operating system, the Project
required a series of FRA waivers to avoid further penalties and potential cessation of operations,
and that said waivers were conditioned on DTP continuing to provide crossing attendants. RTD
denies the remaining allegations in paragraph 38.

180. In response to paragraph 39 of the Complaint, RTD admits that the CA

contemplates issuance of the Revenue Service Commencement Certificate (“RSCC”) prior to
23
entering passenger service; that DTP did not satisfy RSCC requirements, or receive a RSCC,
prior to entering passenger service on the A-line in April 2016; and that DTP’s failure to do so
kept the project in the Design/Build phase. RTD denies the remaining allegations in paragraph
39.

181. RTD denies the allegations in paragraph 40 of the Complaint.

182. RTD denies the allegations in paragraph 41 of the Complaint.

183. In response to paragraph 42 of the Complaint, RTD states that DTP’s June 9,
2016 correspondence speaks for itself. RTD denies the allegations in paragraph 42.

184. RTD denies the allegations in paragraph 43 of the Complaint.

185. In response to paragraph 44 of the Complaint, RTD states that the May 25, 2017
correspondence speaks for itself, and denies the allegations in said paragraph.

186. In response to paragraph 45 of the Complaint, RTD states that DTP’s May 26,
2017 correspondence speaks for itself, and denies the allegations in said paragraph.

187. RTD denies the allegations in paragraph 46 of the Complaint.

188. In response to paragraph 47 of the Complaint, RTD states that DTP’s June 9,
2016 correspondence speaks for itself, and denies the allegations in said paragraph.

189. In response to paragraph 48 of the Complaint, RTD admits that notwithstanding

DTP’s failure to achieve RSCC, pursuant to the A-Line Side Agreement RTD paid DTP monthly
service payments sans the agreed-upon $250,000 deduction. RTD further admits that it
voluntarily ceased said deduction in August 2018 (notwithstanding DTP’s failure to complete the
constant warning time function and other CA requirements). RTD denies the remaining
allegations in paragraph 48.

190. In response to paragraph 49, RTD admits that FRA regulations require that
crossings “operate as designed,” e.g., 49 CFR § 234.225 (specifying that grade crossing warning
systems “activate in accordance with the design of the warning system”), and that DTP requested
that RTD seek extensions to the FRA waiver from this requirement. RTD denies the remaining
allegations in paragraph 49 of the Complaint.

191. RTD denies the allegations in paragraph 50 of the Complaint.

192. RTD denies the allegations in paragraph 51 of the Complaint.

193. RTD denies the allegations in paragraph 52 of the Complaint.

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 194. In response to paragraph 53 of the Complaint, RTD states that DTP’s June 9,
2016 correspondence speaks for itself, and denies the allegations to the extent they are
inconsistent with said correspondence.

195. In response to paragraph 54 of the Complaint, RTD admits that on the G-line the
CPUC required crossing guards, and that in or about August 2016 testing of the commuter rail
trains was suspended. RTD states that the CPUC required crossing guards for freight
movements after DTP cut crossings over to DTP’s new configuration and the quad gate system,
and that regulators did not allow DTP to perform certain wireless crossing functionality testing
on the G-line commuter rail trains due to, among other things, ongoing warning time problems
on DTP’s A-Line and B-Line commuter rail systems (which used the same crossing activation
and CWT systems as the G-line commuter rail systems). RTD admits that the freight trains used
a different, traditional grade crossing activation system than DTP’s commuter rail lines, and that
the freight trains generally only moved through crossings two or three times a day. RTD denies
the remaining allegations in paragraph 54.

196. In response to paragraph 55 of the Complaint, RTD denies the first sentence of
said paragraph. RTD admits that the G-line was scheduled to commence operations on October
26, 2016, and that it did not do so (and still has not commenced operations today, as DTP
continues to perform necessary testing and commissioning). RTD denies the remainder of
paragraph 55, including DTP’s allegations that it was ready to commence service on October 26,
2016.

197. In response to paragraph 56 of the Complaint, RTD admits that on July 23, 2016
it entered into a second Side Agreement with DTP, for the B-Line, with a stipulated
$100,000/month deduction. RTD denies the remaining allegations in paragraph 56.

198. In response to paragraph 57 of the Complaint, RTD admits that “neither the
CPUC nor FRA passed new rules or regulations on warning time consistency.” RTD denies the
remaining allegations in paragraph 57.

199. RTD admits the allegations in paragraph 58 of the Complaint. RTD further states
that DTP’s consultants, and its subcontractor responsible for the WCAS, also observed
“inconsistent” and “excessive” warning times that were in their view indicative of the system not
functioning as intended.

200. RTD denies the allegations in paragraph 59 of the Complaint.

201. RTD denies the allegations in paragraph 60 of the Complaint.

202. In response to paragraph 61, RTD admits the allegations only to the extent DTP
alleges it attended meetings with FRA representatives, requested waivers, and relied on the
waiver process to operate, and that violations of FRA regulations can result in financial penalties.
RTD denies the remaining allegations in paragraph 61.

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 203. RTD denies the allegations in paragraph 62 of the Complaint.

204. RTD denies the allegations in paragraph 63 of the Complaint.

205. In response to paragraph 64 of the Complaint, RTD admits that DTP sent a
Change in Law notice regarding the FAST Act on October 21, 2016, which speaks for itself, and
that RTD did not conclude that a Change in Law occurred. RTD denies the remaining
allegations in paragraph 64.

206. In response to paragraph 65 of the Complaint, RTD admits the FRA issued a 5-
year waiver on September 28, 2017. RTD denies the remaining allegations in paragraph 65.

207. RTD denies the allegations in paragraph 66 of the Complaint.

208. In response to paragraph 67 of the Complaint, RTD admits that B-Line Side
Agreement service payment deductions ceased on or about October 19, 2017, and that
deductions continued under the A-Line Side Agreement which had not achieved RSCC. RTD
denies the remaining allegations in paragraph 67.

209. In response to paragraph 68 of the Complaint, RTD admits the CPUC issued an
order on April 28, 2018. RTD denies the remaining allegations in the first three sentences of
paragraph 68. With respect to the fourth and fifth sentences, RTD admits the CPUC supported
completion and conducted final inspections on an expedited basis.

210. In response to paragraph 69 of the Complaint, RTD states that the CPUC’s order
speaks for itself. RTD denies the allegations in paragraph 69 to the extent they are inconsistent
with the CPUC’s order. RTD further denies the allegations in the last sentence of paragraph 69.

211. In response to paragraph 70 of the Complaint, RTD states that the CPUC
concurrence speaks for itself, and denies the allegations in said paragraph.

212. In response to paragraph 71 of the Complaint, RTD states that the CPUC’s April
25, 2018 concurring opinion speaks for itself. RTD denies the allegations to the extent they are
inconsistent with said concurring opinion.

213. In response to paragraph 72 of the Complaint, RTD denies, and states that the
CPUC’s concurrence speaks for itself; DTP was responsible for completing its design and
developing the motion to amend; DTP did not develop and seek to file the motion to amend
sooner; and DTP could have intervened in the CPUC proceedings.

214. In response to paragraph 73 of the Complaint, RTD states that the CPUC’s April
25, 2018 concurring opinion speaks for itself. RTD denies the allegations to the extent they are
inconsistent with said concurring opinion. RTD states that under the CA, DTP is responsible for
obtaining regulatory approvals and providing the facts or information it deems necessary to
achieve regulatory approvals, and that RTD is to cooperate with DTP and DTP’s cost. DTP
26
often developed and provided information and draft language for RTD’s submittal of railroad of
record filings to the CPUC.

215. RTD admits the allegations in the first sentence of paragraph 74 of the Complaint,
and denies the remaining allegations in said paragraph.

216. RTD denies the allegations in paragraph 75 of the Complaint.

217. RTD denies the allegations in paragraph 76 of the Complaint.

218. RTD denies the allegations in paragraph 77 of the Complaint.

219. RTD denies the allegations in paragraph 78 of the Complaint.

220. In response to paragraph 79 of the Complaint, RTD admits the CA sets forth a
Dispute Resolution Procedure, which speaks for itself. RTD denies that all issues unresolved by
negotiation are to be submitted to a Dispute Resolution Panel.

221. In response to paragraph 80 of the Complaint, RTD admits the parties submitted
the dispute to a Dispute Resolution Panel following management and executive level
negotiations. RTD denies the remaining allegations and states that DTP’s referral of the dispute
to the panel is dated January 24, 2018.

222. RTD admits the allegations in paragraph 81 of the Complaint.

223. In response to paragraph 82 of the Complaint, RTD states that the CA speaks for
itself. RTD admits that the DRP Decision shall be reviewed by the Court de novo, and denies the
remaining allegations to the extent they are inconsistent with the CA.

224. Paragraph 83 of the Complaint does not contain an allegation to which a response
is required.

225. In response to paragraph 84 of the Complaint, RTD admits that DTP and RTD
entered into the CA. The CA speaks for itself, and relief for a Change in Law Change or Force
Majeure Event is subject to the terms of the CA. RTD denies the allegations in paragraph 84 to
the extent they are inconsistent with the CA.

226. RTD denies the allegations in paragraph 85 of the Complaint.

227. RTD denies the allegations in paragraph 86 of the Complaint.

228. RTD denies the allegations in paragraph 87 of the Complaint. RTD further states
that DTP has not established its entitlement for such relief under the CA.

229. RTD denies the allegations in paragraph 88 of the Complaint.

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 230. RTD denies the allegations in paragraph 89 of the Complaint.

231. Paragraph 90 of the Complaint does not contain an allegation to which a response
is required.

232. RTD admits the allegations in paragraph 91 of the Complaint.

233. RTD denies the allegations in paragraph 92 of the Complaint.

234. RTD denies the allegations in paragraph 93 of the Complaint.

235. RTD denies the allegations in paragraph 94 of the Complaint.

236. RTD denies the allegations in paragraph 95 of the Complaint.

237. RTD denies the allegations in paragraph 96 of the Complaint.

238. RTD denies the allegations in paragraph 97 of the Complaint.

239. RTD denies the allegations in paragraph 98 of the Complaint.

240. RTD denies the allegations in paragraph 99 of the Complaint.

241. Paragraph 100 of the Complaint does not contain an allegation to which a
response is required.

242. RTD admits the allegations in paragraph 101 of the Complaint.

243. RTD admits the allegations in paragraph 102 of the Complaint.

244. In response to paragraph 103 of the Complaint, RTD denies that DTP is entitled
to its requested declaration.

245. RTD denies any remaining allegations in DTP’s Complaint not specifically
admitted herein.

246. RTD denies that DTP is entitled to the relief sought as set forth in the Prayer for
Relief, including all subparagraphs.

RTD’S OBJECTION TO DTP’S JURY DEMAND

Pursuant to Section 50.8 of the Concession Agreement, both parties have waived their
right to a trial by jury in this matter. Accordingly, RTD affirmatively states that DTP may not
demand a trial by jury and notes that such demand should be stricken.

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 RTD’S AFFIRMATIVE DEFENSES

A. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

B. Plaintiff’s claims are barred by the terms of the Concession Agreement.

C. Plaintiff’s claims are barred by the terms of the Side Agreements.

D. Plaintiff’s claims are barred by the doctrine of accord and satisfaction.

E. Plaintiff’s claims are barred by its failure to comply with the Concession
Agreement’s notice of claim and dispute resolution procedure.

F. Plaintiff’s claims are barred by the failure of a condition.

G. Plaintiff’s claims are barred by the doctrine of waiver.

H. Plaintiff’s claims are barred by the doctrine of laches.

I. Plaintiff’s claims are barred by the doctrine of estoppel.

J. Plaintiff’s claims are barred, in whole or part, by the statute of limitations.

K. Plaintiff’s claims are barred by the doctrine of unclean hands.

L. Plaintiff’s claims are barred by its failure to mitigate its damages.

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Respectfully submitted this 11th day of October, 2018.

s/ Gregory S. Tamkin
Gregory S. Tamkin, Colo. Reg. No. 27105
Andrea Ahn Wechter, Colo. Reg. No. 43722
DORSEY & WHITNEY LLP
1400 Wewatta Street, Suite 400
Denver, Colorado 80202-5549
Telephone: (303) 629-3400
Fax: (303) 629-3450
Email: [email protected]
Email: [email protected]

Jocelyn Knoll (pro hac vice pending)

Lincoln Loehrke (pro hac vice pending)
DORSEY & WHITNEY LLP
50 South Sixth Street, #1500
Minneapolis, MN 55402
Telephone: (612) 340-2600
Fax: (612) 340-2868
Email: [email protected]
Email: [email protected]

Attorneys for Defendant Regional

Transportation District

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 CERTIFICATE OF SERVICE

I hereby certify that on October 11, 2018, I caused a true and correct copy of the above
and foregoing COUNTERCLAIMS AND ANSWER TO COMPLAINT to be filed via the
Colorado Courts E-filing System (CCE) which will provide notice of the filing and availability
of such document by electronic mail to the following attorneys of record:

Tiffanie D. Stasiak, Colo. Reg. No. 21535

Thomas W. Snyder, Colo. Reg. No. 33106
Thomas A. Isler, Colo. Reg. No. 48472
Kutak Rock LLP
1801 California Street, Suite 3000
Denver, CO 80202
(303) 297-2400
Email: [email protected]
Email: [email protected]
Email: [email protected]

Attorneys for Plaintiff Denver Transit Partners, LLC

s/ Karen Porter
Dorsey & Whitney LLP

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