Beveridge & Diamond, P.C. lawyers have helped to nurture and complete an extraordinary collection of infrastructure projects that power our communities, service our populations, transport our goods and people, and maintain our economic health. Firm lawyers have experience leading project teams through the development, acquisition and construction of billions of dollars of infrastructure projects that provide vital services to industry, commercial endeavors and residential communities. Our experience includes projects throughout the United States, from New England to Florida, from the Midwest to California and Hawaii.
Our lawyers have represented private developers, municipalities, states and government authorities on the construction, acquisition, expansion and permitting of a wide variety of infrastructure projects, including power generation facilities, landfills, highways, airports, fiber-optic communications networks, wireless and broadcast communications sites, hazardous waste treatment facilities, waste-to-energy facilities, drinking water supply facilities, sludge treatment facilities, materials resource and recovery facilities, urban renewal projects, and sports and entertainment complexes.
Our experience includes representing project developers, project owners, and project operators using a variety of project delivery vehicles, including (i) acquisition agreements, (ii) operating agreements, (iii) engineering, procurement and construction (EPC) agreements, (iv) site access/right-of-way/easement/utility support agreements, and (v) design/build (DB), design/build/operate (DBO), and design/build/own/operate (DBOO) agreements. We have also represented private developers, and governmental entities which own land on which projects are being developed, in host community agreement negotiations and as advisors during permitting and comprehensive environmental impact reviews.
We provide strategic counsel on all aspects of infrastructure project development including public bidding and procurement, site acquisition and control, public lands leases, construction and permanent financing, structuring site cleanup activities and brownfields protections, environmental impact review, project development agreement negotiation, project permitting (including complex air, water, wetlands and waste permitting, endangered species consultation, and historic property review), litigating appeals to project approvals, and construction contracting.
The following are examples of infrastructure projects in which Beveridge and Diamond lawyers have played a significant role:
- Managing the Permitting, Real Estate, and Construction Contracting for the Development of a Commercial Materials Resource Recovery Facility.
When the development of a private recycling facility in Massachusetts encountered strong and organized opposition by several groups that avowed they would stop at nothing short of project defeat, our lawyers were retained to map a successful permitting pathway and develop appropriate contract relationships with project partners. We helped navigate the environmental impact report approval, and then obtained solid waste site assignment approvals from state and local authorities, seven special permits from the local board of appeals, site plan approval from the local planning board, and completed a complex land swap with the state. At each step there was significant opposition, and firm lawyers successfully litigated multiple appeals in state court. Concurrently, the firm assisted with ongoing site assessment activities to address historic contamination from an existing landfill on the property. Beveridge & Diamond lawyers also provided environmental and land use support for the issuance of tax exempt financing through the state industrial development agency, and negotiated a design/build contract with a European company for the construction and installation of an advanced single stream separation process. The resource recovery facility is currently under construction.
- Negotiating the Design/Construction and Operations Contracts for an In-Vessel Sludge Bioconversion Facility in Hawaii.
The City and County of Honolulu publicly bid the design and construction of a sludge pelletizer to process up to 10,000 dry tons of wastewater treatment sludge annually from the Island of Honolulu into useful fertilizer. The project involved a public/private partnership by creating a 25 year solution to biosolids management needs on the Island. Our experience included advising the private developer on the public bidding process and serving as lead attorney on the negotiation of two contracts with the City and County of Honolulu, one for the finance, design, engineering and construction of the facility and the other for the long term operation of the facility. The facility was constructed and is currently in operation.
- Overseeing the Federal and State Permitting for International Fiber-Optic Telecommunications Networks.
Two international telecommunications companies retained Beveridge & Diamond lawyers to obtain and negotiate the federal and state permits required for installation of fiber-optic cables on the seabed offshore of California. The projects required leases of state lands, coastal development permits, and federal permits from the Army Corps of Engineers. The agencies required the companies to address the concerns of local commercial fishing interests and Beveridge & Diamond lawyers were central in those negotiations as well as the permit negotiations with the state and federal agencies. The permits required not only the usual demonstration of necessity for the use of ocean resources but also measures to address potential impacts to endangered species.
- Successfully Shepherding Major Power Plant Proposal Through Multiple Approvals and Litigation in New York State.
Beveridge & Diamond was retained by an independent power producer that had been successful in an RFP to provide energy services to the local utility. The project represented the first large-scale power plant to be sited on Long Island in nearly four decades, and the first major electric generating facility to undergo review since the expiration of the state’s one-stop siting law. The project required numerous federal, state, county regulatory approvals, rigorous multi-disciplinary state environmental impact review, as well as local zoning special permit approval, site plan, variances and waivers, all of which were obtained under Beveridge & Diamond supervision. Beveridge & Diamond also secured approval for the project from the state public service commission, including a certificate of public convenience and necessity, approval for long-term indebtedness, and a declaratory order permitting the project to be treated under a lightened regulatory regime under the state Public Service Law. The project spawned five separate lawsuits, all of which were successfully defended by Beveridge & Diamond attorneys based on the regulatory and environmental records that they had helped to develop.
- Securing Environmental Approvals for Controversial 18 Mile Highway Project in Maryland.
Beveridge & Diamond served as the State of Maryland’s primary outside environmental counsel for a controversial 18 mile highway construction project connecting Montgomery and Prince George’s Counties. Firm lawyers worked hand-in-hand with the state highway administration and its team of consultants to prepare the Environmental Impact Statement and to create an administrative record that could withstand expected legal challenges. The project created an unprecedented process of collaboration and cooperation among two dozen federal, state and local agencies. Two prior efforts to create an EIS failed to produce a final document or final agency decision. Beveridge & Diamond contributed to an effort that moved the proposal past the draft EIS stage for the first time, and resulted in an agency record of decision. The Firm was then engaged as litigation counsel to work with the Maryland Attorney General to defend the environmental review process and certain permitting decisions in federal court. The Firm’s permitting and defense efforts were successful and construction on the highway commenced in November, 2007.
- Managing the Hostile Acquisition of a Private Water
Supply Company by a Municipality.
Established by special legislative act, a private water company operated facilities in multiple states, but subject to the right of a Massachusetts municipality to acquire its local facilities, infrastructure, assets and real property upon payment in accordance with a statutory formula. After receiving notice of an intent to acquire from the municipality, the water company vigorously fought the acquisition. A firm lawyer advised the municipality in its negotiations with the water company and its dealings with a divided citizenry. With little precedent to follow, our lawyer advised on necessary municipal votes, property valuation, and the acquisition strategy, while also responding to opposition strategies. Our lawyer also provided guidance on establishment of a water department, including advice on adoption of a funding mechanism and fee structure. After much perseverance, the acquisition was accomplished and the municipality is now successfully operating its own water supply facilities.
- Advising Sports and Entertainment Commission on a New Baseball Stadium.
A firm attorney advised the D.C. Sports and Entertainment Commission in its negotiations over the tri-party agreement among the District of Columbia government, Major League Baseball, and the Commission that addressed site acquisition, design, funding, coordination, and project coordination for the new National Stadium. The Beveridge & Diamond lawyer also represented the Commission in its subsequent negotiations with MLB and the Anacostia Waterfront Corporation for the Nationals' new stadium lease and its simultaneous negotiation of two ground leases, and reviewed and revised the stadium’s construction contract and other multi-party agreements. The Commission's stadium project shared the Washington Business Journal's
award for "Best Overall Real Estate Deal of 2005".
- Advising an Intermodal Transportation and Mixed Use Facility on Development Issues.
A non-profit corporation established by different federal and state governmental entities operates one of the nation’s largest intermodal transportation and mixed use facilities. A firm lawyer advised this entity on a wide variety of facility development and operations matters, including the calculation of profit-participation rent, and interpretation of historic preservation and other restrictions among various Federal interests, the local public transportation system, AMTRAK, and adjacent landowners. Legal assistance included the negotiation of cross-easements for access, foundations, party walls, and air rights, assistance with Requests for Proposals for facility management, establishment and interpretation of operating rules, undertaking of capital improvements, and payment of a revenue-based facility management fee. The firm’s lawyer also advised on the construction of a parking garage expansion and the development of air rights over an adjacent railroad yard.
- Counseling a Public Transit Authority on Development Issues.
A firm lawyer was retained as special outside real estate counsel to the Washington Metropolitan Area Transit Authority in its negotiations of a term sheet, a comprehensive joint development agreement, and two separate ground leases arising from the proposed redevelopment and ground leasing of a 5.9 acre site adjacent to the MATA’s Rhode Island Avenue, N.E. Metrorail station. Among the legal and business issues addressed were: feasibility and construction phase descriptions, rights, and deadlines; design criteria and approval process; minimum equity contribution requirements; post-execution transfer restrictions; cross easement requirements for a garage and separate residential and retail projects; pre-development rent phase-in structure; bonding, default remedies and personal guaranty requirements; creation of vertical air lots, PUD and other zoning matters; TIF financing; non-disturbance and attornment requirements; lender cure rights; and allocation of potential environmental liabilities.
- Negotiating a Complex Public-Private Mixed Use
Affordable Housing Development.
A firm attorney provided advice on negotiations with a three-developer consortium for the sale and redevelopment of a fee simple interest in a 3.5 acre mixed use project, advising on all aspects of the RFP process, participating in negotiations over the Land Disposition and Development Agreement and two Ground Leases (one for a multi-family residential phase and the other for a parking garage), and providing real estate support for the transaction. The now-completed development has 441 condos and 244 rental units, each with 20% set aside for affordable housing, and 134,000 square feet of retail space, including a 55,000 foot grocery store. This transaction won numerous awards, including the Washington Business Journal's
award for "Best Financing of 2005".