Montgomery County settled its lawsuit Tuesday against the builders and designer of the Silver Spring Transit Center, which looks like a simple three-story concrete garage but turned into a construction nightmare that opened five years late and $50 million over budget in 2015.
The settlement, for $25 million, was announced just as the case neared the midpoint of a scheduled 30-day jury trial.
“I am pleased that the County has settled the lawsuit we brought to recover taxpayer costs associated with the repair and remediation of the Silver Spring Transit Center,” County Executive Isiah Leggett (D) said in a brief statement. “This is very much in the public interest. The $25 million payment to the County will cover 90 percent of the hard costs we incurred to deliver a safe and durable Silver Spring Transit Center.”
The $25 million falls considerably short of the $67 million — $47 million for cost overruns and $20 million in damages — the county had sought from designer Parsons Brinckerhoff, general contractor Foulger-Pratt and construction inspection firm Robert Balter.
The county contended that faulty design and other substandard work led to cracked and inadequately thick concrete in the three-story transportation hub adjacent to the Silver Spring Metro stop and that the companies failed to properly supervise construction and inspection.
As a reelection candidate in 2014 and numerous times since, Leggett promised that the county would recover “every penny” of extra costs incurred by taxpayers in building the transit hub, which links motorists and bus passengers with Metro and MARC trains.
In an interview Tuesday, he acknowledged that the settlement did not fulfill that promise but said it ended costly litigation that would have probably been tied up in appeals for years.
“Despite what I said earlier, I thought this was the most reasonable avenue,” Leggett said.
The lawsuit has gone through numerous twists and turns since it was filed by the county in August 2015. Pretrial discovery and preliminary hearings on a blizzard of motions filed by the county and the defendants took more than a year.
Leggett and other county officials familiar with the case said there were several reasons for pursuing a settlement.
In March, Montgomery County Circuit Court Judge Michael Mason threw out the county’s allegations of fraud and its demand for punitive damages against the contractors. Mason also ruled that if the county won, it could not collect costs for attorneys or consultants. The county hired outside attorneys for the case, costing millions in fees. Montgomery’s main outside consultant to investigate problems with the project, KCE Structural Engineers, alone cost $8.5 million.
After Mason’s decision, county lawyers were left to pursue about $40 million in claims for breach of contract and cost overruns.
The county also faced an $11 million counterclaim from Foulger-Pratt, seeking costs that the firm said were incurred by county delays and the addition of a new two-inch layer of concrete on the transit center roadways.
From the outside, the transit center looks like a nondescript garage. But its unusual racetrack-like oval design, on land with multiple elevations, increased the complexity of the project. The concrete structure, expected to withstand the stresses produced by an estimated 120 buses an hour barreling to 32 bays, was “post-tensioned” with steel supports embedded in the concrete.
Problems first emerged in April 2010, when Georgios Mavrommatis, who examines plans for the county, looked at drawings of a long, curved wall on the northeast side of the building. He saw that there was no provision for slip joints where the floor met the wall. Engineers use slip joints to allow a building to move under stress, such as when a heavy bus rolls by.
Douglas Lang, Parsons Brinckerhoff’s main engineer on the project, expressed confidence that the design was sound without the joints.
The settlement is outlined in two documents the county released Tuesday. In one, Parsons Brinckerhoff and Balter agree to pay the county $25 million. In the other, the county agrees to pay Foulger-Pratt $3 million. Neither the companies nor the county acknowledge any negligence or wrongdoing. A non-disparagement clause also prevents the parties from saying anything critical about each other going forward.
Metro, which also sued the contractors in 2015, settled its case shortly before the trial began. The terms are not known. The transit center has operated safely since opening in the summer of 2015.
Before the settlement was announced, the trial in Mason’s courtroom was a remarkable scene, with as many as 13 lawyers crammed among five tables where there are usually two. When all attorneys approached the bench for conferences — a frequent occurrence with multiple defendants — it looked like a kind of legal rush hour. Mason kept a tight lid on the proceedings, barring attorneys from discussing the case outside court and ordering the county to scrub its website of information about the transit center’s problems so jurors couldn’t do their own research.
Each party tried to dominate the narrative, mostly by pointing fingers. The county said it had every reason to trust the contractors it hired. Foulger-Pratt said a faulty, incomplete design by Parsons Brinckerhoff and delays created by the county made it impossible to do the job in a timely manner. Parsons Brinckerhoff contended that the county rushed the project.
The flurry of arguments thrust the jury a into a netherworld of construction arcana, with disquisitions from attorneys on slab thickness, torsion and shear and axial stiffness.
While the county requested a jury trial, there were signs that it may have been losing confidence in the jury’s ability to sort matters out in the county’s favor.
“I look over all the time and wonder how this hits them,” William Nussbaum, one of the outside attorneys hired by the county, said at a bench conference out of the jury’s earshot last week. “I wonder if, you quiz them now, they could tell you what’s going on here.”