Practice

Transportation, Infrastructure & Construction

Smoothing the way for complex transportation, infrastructure and large-scale construction projects

Keeping complex infrastructure and large-scale construction projects on track requires a deep understanding of how and where problems happen, anticipating where they may arise, and resolving them long before they ever occur. That is exactly the type of insight and experience our attorneys at Foley Hoag bring to private and public owners as they plan, finance and successfully complete their large scale and high profile projects around the world. For decades, we have helped clients complete numerous transportation, infrastructure and construction projects, ranging from airport terminals, telecommunication corridors, and complex urban redevelopments to multi-site school renovations, railroad and transit line extensions, and roadway projects.

Our Transportation, Infrastructure and Construction practice provides clients with strategic advice on complying with the full array of regulatory, planning and land use requirements. We work with top engineering and design teams to ensure that permitting never impedes a program’s progress. Our lawyers have drafted project-specific special legislation and complex land disposition agreements, designed large scale procurements, written and negotiated construction and design contracts, negotiated land purchases and ground leases, secured public-private partnership based infrastructure financing, and advised on eminent domain takings. When necessary, we have successfully represented our clients in legal disputes across a range of forums, including dispute resolution boards, United States courts, international arbitration panels, administrative bodies and mediators.

Areas of Focus

From drafting contracts to securing funding, our lawyers have the skills and knowledge it takes to keep complex infrastructure and construction projects on track.
  • Special legislation
  • Land disposition agreements
  • Large-scale procurements
  • Construction and design contracts
  • Land purchases and ground leases
  • Public-private infrastructure financing
  • Eminent domain takings

Experience

Transportation

  • Led multidisciplinary team that designed and managed the procurement and drafted and negotiated the contract documents for Massachusetts’ first ever highway design-build project, a $350 million highway reconstruction. After the contractor’s economic collapse placed project completion in jeopardy, Foley Hoag marshaled a team of experts to bring the project to successful completion, including a mediation that resolved contractor’s $100 million claim on favorable terms.
  • On behalf of a U.S. airline carrier, negotiated with an airport owner and regulatory agencies to secure environmental approvals for development of a major new terminal. When the terminal’s new air handling system brought snow and rain into the baggage handling area, negotiated a successful settlement, recovering millions of dollars and avoiding the costs of formal legal proceedings or mediation.
  • Advised the South African Government on project financing of the N3 toll road project from Johannesburg to Durban (“African Project Finance Deal of the Year”) and advised with respect to project financing of the Maputo Development Corridor Toll Highway Project, the first limited recourse project financing in South Africa.

Rail

  • Led multidisciplinary team that designed and managed the successful procurement for the Greenbush commuter rail line, including handling extensive project permitting issues requiring complex multi-party negotiations, community mitigation agreements, related permitting agency consents and administrative appeals.
  • Obtained a unanimous decision from the Massachusetts Supreme Judicial Court on behalf of the MBTA, rejecting a challenge to the validity of a multi-million dollar lease of a disused rail right-of-way and affirming the limited scope of the common-law “prior public use doctrine.”
  • Advised on the Green Line Extension re-procurement and project modifications, leading to streamlined project development, securing of local contributions and preservation of federal funding participation. Foley Hoag lawyers played a critical role in negotiating project agreeements that allowed the project to successfully restart construction.

Infrastructure Financing

  • Secured more than $1 million in bond financing on behalf of EF Education for the construction of roadways, utilities, and multi-use pathways at its Cambridge, Massachusetts campus under the Commonwealth’s Infrastructure Incentive Investment Program.
  • Secured $30 million in bond financing on behalf of Federal Realty Investment Trust for the construction of utlities, sidewalks, streets, public parks and amenities adjacent to its Assembly Row development in Somerville, Massachusetts under the Commonwealth’s Infrastructure Incentive Investment Program.

Power Generation

  • Represent Vineyard Wind in obtaining the numerous state and local energy and land use permits necessary to construct an 800MW offshore wind energy facility off of Martha’s Vineyard, including extensive proceedings before the state Energy Facilities Siting Board.
  • Represented a Brazilian energy company in ICC and U.S. litigation proceedings against an EPC contractor relating to the failure of an out-of-warranty steam turbine generator. We helped the client avoid hundreds of millions of dollars in regulatory penalties and secured a favorable settlement on the eve of the merits hearing.
  • Advised the Government of Mozambique on the Cahora Bassa Hydroelectric Project, including negotiations with the Government of Portugal on debt refinancing and restructuring of the project company, and power purchase negotiations with Eskom, the South African electric utility.
  • Successfully defended at trial the generating subsidiary of a U.S. electric company from a subcontractor’s $10 million overruns and delay claim relating to the installation of dry scrubbers to reduce emissions at a coal-burning power plant.

Eminent Domain and Urban Renewal

  • Represented the Boston Red Sox in a matter before the Massachusetts Supreme Judicial Court, in which the Court unanimously affirmed that the Boston Redevelopment Authority had acted lawfully in acquiring (and then conveying) certain “game day” use rights in Jersey Street (then Yawkey Way) to the Red Sox.
  • Negotiated a favorable pre-litigation settlement for a large commercial landowner after a municipality conducted a partial taking that would have precluded development of the remaining land.Obtained both a significant increase in the just compensation award and adequate access to the remaining land, preserving future development opportunities.
  • Obtained a unanimous decision from the Massachusetts Appeals Court affirming the validity of the City of Somerville’s Union Square urban redevelopment plan, rejecting challenges brought by property owners seeking to invalidate the City’s taking of their blighted properties.

Land Disposition Agreements and Leases 

  • Represent the City of Worcester in a major downtown urban renewal redevelopment that will bring the former Pawtucket Red Sox minor league baseball team to a new stadium known as Polar Park.Foley Hoag assisted in negotiating the land disposition/development agreement, creating the tax increment financing approach in collaboration with a private development partner that will enable construction of the ballpark and related infrastructure (including parking and accessory buildings), and negotiating the minor league team lease.
  • Represented the Fenway Sports Group in developing the Fenway Theater, a 5,000 seat performing arts venue to be located directly adjacent to Fenway Park.A multi-disciplinary Foley Hoag team assisted in project permitting, negotiating the build-to-suit theater lease, and crafting the joint venture agreement with the theater operator.
  • Represented a major public landholder in the conveyance of land and air rights that facilitated the South Station Air Rights Project. Phase 1 of the project will include construction of a mixed-use commercial/residential tower, a significant expansion of the existing terminal, and track and platform related improvements. Foley Hoag also negotiated key project-related agreements on reciprocal easements agreement, completion guaranty, construction mitigation and highway access.

Academic and Cultural Centers 

  • Assisted a major Boston art museum in regaining control over the project schedule for its new building and persuading the contractor’s surety to fund completion activities long before the performance bond was called. After the building’s opening, resolved millions of dollars of claims relating to the project’s innovative design and the contractor’s workmanship.
  • For a leading historic preservation organization, negotiated an innovative land disposition agreement with a New England municipality that will save an iconic urban historic landmark and rehabilitate it for adaptive reuse as a center for digital technology research and development.
  • Advised Boston University in connection with state and federal environmental compliance requirements relating to the development of the National Emerging Infectious Diseases Laboratories in Boston’s South End, and resolved construction-related disputes involving contractors, suppliers, design professionals and insurers.  
  • Negotiated multiple complex land use agreements with state and local governments on behalf of an urban independent secondary school, unlocking major efficiencies in the use of their real property assets and in the creation of innovative shared services agreements.

Water Treatment 

  • Advised a state water resources authority on a $3.8 billion water treatment project, including contractor claims for additional payment and the federal government’s attempt to require construction of additional facilities. We repeatedly helped secure favorable outcomes for the project’s owner, both through trial and settlement negotiations.
  • Advised three arrangers and underwriters, including the Development Bank of Southern Africa, with respect to the project financing of the water and sanitation services of a municipality in Southern Africa.

Marine Projects 

  • Represented a major quasi-public utility before both the state public utilities commission and the federal district court in a multi-million dollar dispute with a regulated utility involving the installation, permitting and removal of a dedicated underwater electric transmission line.
  • Represented a Malaysian conglomerate in a dispute relating to the refurbishment of an oil drilling rig. The dispute settled favorably after the initiation of arbitration proceedings and expert discovery.
  • Counseled a telecommunications company in securing rights to install a fiber optics network beneath an urban U.S. harbor. After the directional drilling contractor brought a multi-million dollar arbitration claim for alleged differing site conditions, we successfully moved the arbitration panel to dismiss the claim before an evidentiary hearing.

Claims Resolution 

  • Represented a French construction company in an arbitration against an African state-owned entity in an ad hoc proceeding in another African country regarding the construction of an access road for a dam construction site.
  • Represented a consortium of American, Canadian, German and Japanese companies in ICC proceedings against the Islamic Republic of Iran regarding claims arising out of the construction of a nationwide telecommunications system.
  • Represented a European/Latin American construction consortium in a Spanish language ICC arbitration in Bolivia related to the construction of a water transfer tunnel.
  • Represented a Japanese trading company in an ICC arbitration brought by a Turkish construction company related to the construction of a hydroelectric facility in Turkey.