Mark C. Michalowski

Partner

mark.michalowski@hklaw.com

Boston +1.617.573.5828

Practices

Construction | Government Representation | Transit | Litigation and Dispute Resolution

Industries

Transportation & Infrastructure | Construction

Mark C. Michalowski

+1.617.573.5828

Overview

Mark C. Michalowski is an attorney in Holland & Knight's Boston office. Mr. Michalowski is a member of the Litigation Section and concentrates his practice in the areas of transportation, procurement, creditors' rights, construction and pension benefits administration.

Mr. Michalowski has extensive experience representing public and private owners, contractors and other businesses in litigation, arbitration, mediation and bankruptcy proceedings. He also provides clients with counseling and general business advice, particularly with regard to transportation, procurement, public-private partnerships, construction, pension benefits administration and the enforcement of creditors' rights and remedies.

Mr. Michalowski brings a broad perspective to client counseling based on his years of varied, client-driven service. Beginning his career exclusively as a commercial litigator with a primary focus in construction, transportation and creditors' rights, Mr. Michalowski's legal and practical consultative skills have evolved with the needs and goals of his clients. Through clear communication and trusted confidence, Mr. Michalowski has developed deep experience in a variety of practice areas including, but not limited to, the following: transportation procurements and public-private partnerships, workouts, dispute resolution and litigation, and construction dispute resolution, as well as creditor's rights/commercial and construction litigation, and general counseling matters.

While in law school, Mr. Michalowski served as executive editor of the Uniform Commercial Code Reporter Digest. Prior to joining Holland & Knight, he clerked for the Honorable Francis P. O'Connor of the Supreme Judicial Court of Massachusetts.

A Boston native with strong community ties, Mr. Michalowski serves on the alumni board of the Boston College Law School and previously served on the boards of the Boston Latin School Association (chair), the Boston Conference for Community and Justice (BCCJ) and the Greater Boston Chamber of Commerce. Mr. Michalowski is also a member of the LeadBoston class of 1999. For more than five years, Mr. Michalowski served as the executive partner of the Boston office (2003-2008).

Representative Experience

Maryland Purple Line P3. Represent operations and maintenance (O&M) contractor in connection with renegotiations of various public-private partnership (P3)-related agreements (e.g., P3 Agreement, O&M Agreement, Interface Agreement) triggered by replacement of the design-build (DB) contractor on the Purple Line Light Rail Project.
Maryland Purple Line P3. Assisted U.S. subsidiary of an international vehicle manufacturer as part of a team assembled to bid on the State of Maryland's Purple Line P3 project.
LA Metro Vehicle Procurement. Represented U.S. subsidiary of an international vehicle manufacturer in contract and subcontract negotiations relating to the client's successful bid to manufacture light rail vehicles for the Los Angeles County Metropolitan Transportation Authority.
Ottawa Rapid Transit Design, Build, Operate and Maintain (DBOM). Worked with Canadian counsel to develop a joint venture corporate structure between the client rail car manufacturer and an international general contractor to bid on the Ottawa Rapid Transit project.
MassDOT Customer Service Center. Represented the U.S. subsidiary of a French company to support bid submission as prime contractor for a turn-key customer service center for management of E-ZPass MA program and All Electronic Toll Collections Enterprise.
Logan Ramp Transfer. Assisted real estate attorneys in connection with work undertaken on behalf of Massport to convey to MassHighway the "spaghetti bowl" of roads and ramps constructed in connection with the Logan modernization project and the "Big Dig."
Commuter Rail Maintenance Facility (#1). Represented Massachusetts Bay Transportation Authority (MBTA) in negotiations with AMTRAK in connection with the drafting of an operating agreement for the $250 million Commuter Rail Maintenance Facility (Boston Engine Terminal).
MBTA Commuter Rail. As part of a Holland & Knight team, represented the MBTA in connection with its procurement of commuter rail operation and maintenance rail services for the entire MBTA commuter rail system.
Green Line No. 9 Vehicle Procurement. Represented the MBTA in connection with the qualification and evaluation of bidders for the No. 9 light rail vehicle procurement.
Governance/Transportation Reform. Represented the MBTA in connection with the implementation of Massachusetts Transportation reform legislation and amendment of MBTA enabling statute in early 2000s. M.G.L. c. 161A, §1 et. seq.

Red/Orange Line Vehicle Procurement. Part of team representing the Massachusetts Bay Transportation Authority (MBTA) in connection with the workout of contractual issues associated with the $870 million procurement of 404 rail cars for the MBTA's Red Line and Orange Line.
Positive Train Control (PTC) Arbitration. Represented the U.S. subsidiary of an international light rail vehicle manufacturer in arbitration concerning the retrofit and installation of PTC equipment subject to federal mandates and deadlines for New Jersey Transit Authority (NJT) vehicles.
Automated Fare Media – Counterfeiting. Represented the MBTA in connection with the recovery of damages due to a criminal counterfeiting scheme perpetrated by an employee of the MBTA's automated fair media vendor. Work included terminating the vendor, presenting the MBTA's claim for damages, suing the individual and preparing a request for proposal (RFP) for a replacement vendor.
Automated Fare Collection (AFC). Represented the MBTA in connection with dispute resolution and contract close-out negotiations with vendor for the MBTA's automated fare collection infrastructure. Assisted in resolution of claims and drafting of amended technical specifications.
Blue Line Vehicle – Claim Resolution. Represented the MBTA in connection with the close out of a more than $172 million procurement of 94 heavy rail vehicles for use on the MBTA's Blue Line, including negotiation and settlement of various delay and other claims, and the drafting of a close-out agreement.
Commuter Rail Coach Procurement. Represented the MBTA in connection with delays involving contractor's pre-production performance in connection with the MBTA's procurement of 75 commuter rail vehicles. The MBTA demanded adequate assurance of future performance and resolved its claim by granting the manufacturer a contract extension in exchange for more than $2 million in no-cost change orders and an increase in the bond amount.
Green Line No. 8 Light Rail Vehicle Procurement. Represented the MBTA in connection with contract close-out and settlement of claims in connection with the MBTA's $220 million procurement of 95 light rail vehicles. The procurement concluded without litigation, and the contract was closed with resolution of all claims at no additional cost to the MBTA.
Procurement of Dual Mode Articulated (DMA) Vehicles, Electric Trolley Buses (ETBs) and Compressed Natural Gas (CNG) Buses. Represented the MBTA in the workout and completion of three bus procurement contracts with a bankrupt manufacturer. The contracts were ultimately closed, although the manufacturer was unable to complete performance. After negotiations with the manufacturer/debtor, surety, lenders and suppliers, the MBTA executed a Workout and Completion Agreement to expedite a reduced completion scope and assure future warranty support.
Procurement of 250 CNG-Powered Buses. Represented the MBTA in connection with contract management, pre-litigation disputes and contract closeout negotiations with the manufacturer of 250 CNG-powered buses procured by the MBTA (pursuant to an environmental consent decree).

Commuter Rail Maintenance Facility (#2). Represented the Massachusetts Bay Transportation Authority (MBTA) in negotiation and settlement of design errors and omissions (E/O) claims with the design engineer relating to the construction of the $250 million Commuter Rail Maintenance Facility (Boston Engine Terminal).
Old Colony Commuter Rail Line. Represented the MBTA in connection with design E/O claims against the designer of a $385 million commuter rail construction project. Negotiated and successfully settled claims with the designer.
Quincy-Adams Parking Garage. Represented the MBTA in litigation against design team to recover damages for more than 80 separate and distinct errors and omissions relating to the construction of the $30 million Quincy-Adams station parking garage. Following substantial litigation, obtained a favorable settlement in the sum of approximately $900,000.
South Station Transportation Center – Bus Terminal. Defended the MBTA against extra work claims by the general contractor relating to increased costs allegedly incurred by the precast concrete and steel subcontractors in construction of $80 million bus terminal at South Station. Following initiation of litigation and discovery, negotiated a settlement and dismissal of the case without any additional payments being made by the MBTA to the contractor.
Ashmont Station (Red Line). Successfully defended the MBTA in dispute involving claims by general contractor for allegedly increased costs and delays in connection with construction of a noise barrier wall along the Red Line.
Aquarium Station (Blue Line). Represented the MBTA in connection with a dispute involving flagging/signaling costs associated with construction of the MBTA's new Aquarium Station. The dispute involved interagency agreements with the "Big Dig" over shared costs/responsibilities.
Electrical Upgrades at Logan Airport. Defended litigation against Massport brought by an electrical contractor seeking recovery for extra work allegedly caused by owner's service interruptions. After discovery and motion practice, case settled for contract balance only.

Represented numerous lenders, including national banking institutions and community banks, in connection with their workouts and liquidations of secured assets, including the drafting of forbearance agreements and the foreclosure of real estate mortgages and liquidation of personal property assets under the Uniform Commercial Code (UCC).
Represented a private pension fund in connection with its redemption, liquidation and recovery of investments in alternative investment vehicles, including private equity funds, hedge funds and real estate funds through various means and forums, including a Small Business Investment Company (SBIC) receivership, bankruptcy proceedings and receiverships, both domestic and in the Cayman Islands.
Represented the Federal Deposit Insurance Corporation (FDIC) in connection with numerous cases involving the liquidation of secured assets and enforcement of guaranties against borrowers of various failed banks in the early 1990 Reported cases include FDIC v. Henry, 818 F. Supp. 452 (1993) and FDIC v. Rindo, U.S.D.C., District of Massachusetts, 1:92-cv-12983 -WAG.
Represented major commercial roofing material suppliers in litigation against a surety involving the workout of a failed roofing contractor. Beacon Sales Company et. al. v. American Employers Insurance Company, Appeals Court No. 94-P-863 (1995).
Represented various landlords in commercial evictions, including a flagged hotel chain franchisor in eviction of onsite restaurateur, a factory owner post-foreclosure and a restaurant owner post-foreclosure, among others.
Represented mid-sized general contractors, owners and a large roofing material supplier in numerous construction arbitrations and litigations, including obtaining favorable pre-dispute security such as the creation, enforcement and ultimate liquidation of mechanic's liens and judgements.

Serve in a general counseling capacity for a $1.5 billion private, governmentally sponsored pension fund including board support, strategic planning, compliance, litigation and investigations (internal/external) representation, pension benefit administration advice, policy development, governance, insurance, fiduciary advising and data protection/privacy support. Specific general counseling experience in this practice area is available upon request.
Provide general corporate counseling advice and support to private entities and governmental agencies in the transportation, construction and other industries, including advice concerning the management of risks and continuation of operations through the COVID-19 crisis.

Credentials

Education

Boston College Law School, J.D., cum laude
Yale University, B.A.

Bar Admissions/Licenses

Massachusetts

Court Admissions

U.S. District Court for the District of Massachusetts
U.S. Court of Appeals for the First Circuit

Memberships

Build Health International, Board of Directors
American Bar Association
Boston Bar Association
Massachusetts Bar Association
Greater Boston Chamber of Commerce, 2004-2007
Boston Latin School Association, Chair, 2003-2008
Boston College Law School Alumni Board
Boston College Law School Board of Overseers, 2010-2012
Boston Center for Community and Justice, LeadBoston, Class of 1999
Boston Center for Community and Justice, Board of Directors, 2006-2011

Honors & Awards

The Best Lawyers in America guide, Commercial Litigation, 2023-2025
Massachusetts Super Lawyers magazine, 2004-2016
Corporate Counsel Edition, Super Lawyers magazine, March 2009
Martindale-Hubbell AV Preeminent Peer Review Rated

Publications

Holland & Knight's Boston Office: Aligned With The Region's Immense Knowledge Economy

The Metropolitan Corporate Counsel

March 1, 2008