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Who will pay to rebuild damaged U.S. 36 is unclear, but taxpayers may be stuck with some costs

The contract with the road's toll operator, Plenary Roads Denver, says the state may be responsible for any lost revenue

A crack that emerged in the deck of the eastbound lanes of U.S. 36 on July 12, 2019, was declared a full-blown sink hole as the supporting earthen structure slowly collapsed into Westminster's Lower Church Ranch open space on July 15, 2019. The damage is northwest of a bridge over an active rail line near West 104th Avenue in Westminster. People walked from the nearby shopping center to look at the damage. (Doug Conarroe, Special to The Colorado Sun)
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The giant crack disrupting eastbound travel on U.S. 36 between Wadsworth Boulevard and Church Ranch Road is now in rebuild mode, rather than repair. But who will pay to rebuild the damaged roadway is uncertain and CDOT isn’t ready to say if the cost could fall to taxpayers. 

But toll-road operator Plenary Roads Denver may not end up footing the bill — the company didn’t construct that phase of the multimillion-dollar project. In fact, the state might actually end up having to pay Plenary for any toll revenue it loses until the rebuild is complete.

Plenary built the express lanes in both directions starting at 88th Street and heading west to Boulder. The company also has a 50-year contract to maintain the roads and collect tolls on U.S. 36 and Interstate 25. 

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In an emailed statement, Plenary spokesman Gil Rudawsky said the company is working with CDOT to assess what happened. 

“More importantly, we are working together to determine the safest and most efficient way to get traffic moving again, and ultimately make permanent repairs,” he said. “We are all too aware of the inconvenience this is causing commuters, and our complete focus at this time is on getting the roadway open — safely and quickly.”

A man who has lived his whole life around Church Ranch points out the particulars of the slow collapse of the eastbound lanes of U.S. 36 just northwest of a bridge over an active rail line near West 104th Avenue in Westminster on July 15, 2019.(Dana Coffield, The Colorado Sun)

The damaged roadway appears to have been constructed by a team that includes Ames Construction, Inc. and Granite Construction Company. In 2012, CDOT awarded the group a contract for Phase I of the U.S. 36 Express Lanes project. Tasks included creating the express lanes between Federal Boulevard to 88th Street and replacing the Wadsworth Parkway, Wadsworth Boulevard (at 112th Avenue) and Lowell Boulevard bridges over U.S. 36.

CDOT isn’t ready to respond to this, said Matt Inzeo, a CDOT spokesman, “until we stand down our incident command on site, our focus will remain on the developing situation and safety and operations in the area.”

On Monday afternoon, CDOT said there was significant damage to the retaining wall under the road and the agency is bringing in a contractor to rebuild the section of eastbound U.S. 36. It continued to widen Monday as the ground below was still sinking “at about an inch an hour,” said a Colorado Department of Transportation official during a news conference.

The agency is also reconfiguring the westbound side of 36 to have two lanes of traffic traveling in each direction. CDOT crews worked overnight and opened the two eastbound lanes in time for the Tuesday morning commute.

Commuters were told to avoid eastbound U.S. 36 this week and instead take a detour on the Northwest Parkway toll road to get to I-25, or Colorado 93 to Colorado 58 to get to Interstate 70. CDOT also said fares were being waived on RTD’s Flatiron Flyer and LD bus routes.  

“The top of the roadway started as cracks. They got wider and wider; if you were to go up there to see that it looks like a sinkhole. It’s very wide and very deep right now,” said Tamara Rollison, with CDOT. “Our focus is getting eastbound lanes open.”

In the past, Colorado tapped federal funds and state fuel taxes to pay for road expansions and street improvements. But with an expected population boom and more fuel-efficient vehicles, officials realized that source wasn’t enough to build necessary roads fast enough. 

The public-private road

In 2003, CDOT began pursuing a public-private partnership where, in the case of U.S. 36, private companies would kick in two-thirds of the construction costs to build the toll roads in exchange for keeping some of the toll fees. The governor-appointed High Performance Transportation Enterprise board would monitor the operation and approve toll increases.

Plenary Roads Denver was chosen by CDOT in 2013 to design and complete improvements on U.S. 36 between Denver and Boulder. Its parent, the Los Angeles-based Plenary Group, also handles the I-25 express toll lanes.

Plenary’s job was to widen U.S. 36 and build an express lane in both directions between 88th Street and Table Mesa. It also would operate and maintain the roads for 50 years. Tolls were capped at $14 each way, and, depending on the time of day, are currently around $3.40 to $8.30 on each leg of U.S. 36. 

In exchange, Plenary would collect toll revenue over the same operating period, though the company must use the funds to pay off federal loans. If it doesn’t make enough in tolls, the company is still responsible for managing the toll lanes and paying off federal loans. However, if toll revenues exceed projections, Plenary must share proceeds with the state. And after 50 years, Plenary must hand back operations of the highway to the state “in first-class condition.”

The question of lost toll revenues



In May, the number of drivers using U.S. 36’s toll lanes had more than tripled to 1.6 million since the road first opened in 2016. Toll revenues have also increased, hitting $859,380 in May, compared with $408,467 in May 2017.

According to CDOT, tolls will still be collected in areas unaffected by the road damage. But it’s uncertain whether lost revenue will result in taxpayers coughing up the rest to pay Plenary. 

Part of the contract with Plenary removes liability by the state to make up for the loss if the lanes are “temporarily ordered to be closed pursuant to applicable law,” pointed out Danny Katz, director of the Colorado Public Interest Research Group, which tracks policies affecting Colorado citizens. 

But later in the contract, it reads that Plenary could still be paid for lost revenue due to a closure or suspension lasting more than 15 days with the payment being “no better and no worse than it would have been if the closure or suspension had not occurred.” 

“I’ve sent my analysis to CDOT,” Katz said. “They confirmed they got it but I think they are rightfully focused on the job at hand — moving people safely along U.S. 36 in the next few days.”

This story was updated on July 16, 2019 to add that CDOT reconfigured westbound traffic to include two eastbound traffic lanes a day earlier than the agency anticipated.


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