Talking Transportation with Jenifer Ross-Amato Denver RTD Deputy General Counsel

This week’s ATLP Highlights blog features an interview with Jenifer Ross-Amato, Deputy General Counsel – until this past June, Interim General Counsel – of Denver’s Regional Transportation District (RTD).  RTD is a political subdivision of the State of Colorado and the Denver metropolitan area’s transit agency with over 170 bus routes and 11 light and commuter rail lines.

My discussion with Jenifer is a sequel of sorts to my May 22 conversation with SEPTA Deputy General Counsel, Jay Fox.  In contrast to SEPTA’s legacy rail operations, RTD light and commuter rail services are a “New Start” named after the Federal Transit Agency’s program for funding new commuter services.  

Jenifer has been instrumental in the development of RTD’s rail system negotiating public-private partnerships, resolving regulatory issues, and managing litigation resulting from the purchase of light-rail vehicles.

She is a graduate of Vassar College and the University of Colorado School of Law.

Justin Marks

Jenifer, thank you for taking the time to speak with me.

I hope you and your family are doing well as the country lurches toward a post-stay at home society.

Jenifer Ross-Amato

It is always a pleasure to speak with you, Justin. I hope you and your family are well.

Justin Marks

You began at RTD in 2005, your start date was one year after Denver voters approved FasTracks, the .4% sales tax increase that has been one source of RTD’s funding to build out its rail system. 

Can you give us a historical sense of the impact of FasTracks on RTD and the development of its rail system?

Jenifer Ross-Amato

When I started at RTD, the organization was celebrating finally obtaining voter approval for a massive expansion of its transit system after a couple previous failed attempts, and contemplating the massive organization it would need to complete such an undertaking. In 2005, I was able to contribute as to what that organization would look like and who would be a part of it.

Then I was able to work with world-class project managers, engineers, and attorneys on some interesting capital projects. As a result, I’ve seen RTD construct 58.5 miles of light rail track, 40 miles of commuter rail track, and the launch of the Flatiron Flyer bus rapid transit service between Denver and Boulder.  RTD also built an intermodal hub at Denver Union Station in downtown Denver. I’ve gotten to work with heavy railroads, cities, developers, regulators, contractors and others on a whole host of issues, such as property acquisition, land use issues, construction disputes, and environmental challenges, to name a few.

Justin Marks

So, in the fifteen years that you have been with RTD, you have participated in what may be one of the single largest transit growth spurts in the country.  I know that some of RTD’s expansion has been through a public private partnership (P3), can elaborate?

Jenifer Ross-Amato

Yes, the Great Recession brought about significant funding challenges. As a result, RTD had to look at alternative financing sources. As a result of its participation in a U.S. DOT pilot program, RTD received a $1.03B full-funding grant agreement from the Federal Transit Administration for the Eagle P3 Project. The $2.2 billion project included the University of Colorado A Line and G Line, the first segment of the B Line to Westminster, procurement of 56 commuter rail cars and a commuter rail maintenance facility. RTD entered into a 34-year Design-Build-Finance-Operate-Maintain agreement with a Concessionaire, Denver Transit Partners (DTP).

Justin Marks

Can you give us a perspective from RTD’s legal department on the advantages and disadvantages of using a P3?

Jenifer Ross-Amato

A P3 stands for a public-private partnership. It is a way of financing and delivering a project in which a public entity partners with the private sector. The private team invests its own money to design and build the system. This delivery method allowed RTD to spread out large upfront costs making public funds available for other projects. Under its agreement, RTD pays the concessionaire a service-availability payment to operate and maintain the system, and in turn, the concessionaire repays its private financing from that amount.

The delivery method allowed RTD to shift a lot of the risk to complete the design-build portion of the project. Since RTD did not have the expertise in commuter rail, it made sense to rely on the expertise that the concessionaire offered.

For example, when the technology used for wireless at-grade rail crossings did not perform as designed and the concessionaire could not meet FRA grade crossing timing requirements, the concessionaire incurred the costs of that delay including flaggers at all grade crossings. The disadvantage of the P3 process for RTD was that it had relatively little control over the outcome, which was frustrating to the stakeholders.

Also, RTD and the Concessionaire have had to find a way to work together towards the long-term success of the transit system. When RTD decided to develop the new N-Line outside of the Eagle P3 Project and operate its first commuter rail independently, RTD has had to negotiate with the concession to share portions of the rail corridor and access to Denver Union Station.

Justin Marks

What was the impact of managing the P3 development specifically on RTD’s general counsel’s office?  Did your office add lawyers to manage the contracts?  A lot of people view P3’s as a project delivery method to outsource costs, but it seems that managing a project of that size requires the staff to do it.

Jenifer Ross-Amato

RTD invested a lot of resources in legal staff - both internal and external counsel - to ensure that the procurement of the P3 project was a success. RTD rightly knew it could not rely on its existing resources and expertise for a successful P3 procurement. RTD hired a firm experienced in international P3 projects, a local law firm also experienced in transit capital project delivery and assigned one transactional attorney who was basically embedded with the project team. It was also a primary focus of RTD’s General Counsel at the time.

As the design-build portion of the project looked like it would reach a successful conclusion, RTD was not as proactive in building a team for the operations and maintenance period, including a legal team. Eventually, we did build a solid internal team supported by law firms with expertise in commuter rail compliance and P3 implementation. We have a couple attorneys who have built an expertise on rail regulatory compliance and other attorneys focused on administration of the concession agreement. We also have a public finance attorney who works with our finance team, who is also supported by outside law firms.

Justin Marks

Can you tell me more about the redevelopment of Denver Union Station?  When I lived in Denver from 2000-2010 it was underutilized.  A few years ago, I took the A-Line into Denver Union Station during the winter holidays and it was a very welcoming entrance to the City.  How did RTD accomplish the revitalization of the station?

Jenifer Ross-Amato

Prior to its redevelopment, Denver Union Station hosted a few Amtrak trains, the ski-train to Winter Park, and a model railroad display in its basement. The historic station building was in major disrepair. Now, Union Station is the spoke of RTD’s transit system and a hub of community activity and private development.

By engaging a master developer, RTD was able to design the transit elements at Union Station, including an underground bus concourse, to maximize private development, which helped pay for the transit project. Then, RTD conducted a separate competitive procurement for a master developer for the historic station building and RTD entered into a 99-year lease agreement that allowed the developer to invest in renovating the historic building. As a result, RTD received the benefit of the developer’s investment in fully renovating the historic building as well as ongoing revenues from that development, and some amazing public spaces.

As with the Eagle P3 Project, RTD made itself open to private investment and invested in the legal expertise to ensure RTD was a responsible public partner.

Justin Marks

Well Jenifer, RTD and its partners have done an amazing job at Union Station.  I can’t thank you enough for agreeing to talk with me, I’ve greatly enjoyed this conversation and I appreciate your time.

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