Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Structuring Environmental Site Access Agreements: Avoiding Costly Pitfalls Drafting and Negotiating Scope of Work, Duration, Insurance and Other Key Provisions to Protect Buyers and Sellers THURSDAY, JULY 10, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Cindy Karlson, Founder, Law Offices of Cindy J. Karlson, East Hampton, Conn. Keith E. Montone, Assistant Vice President /Senior Placement Specialist, Willis Environmental Practice, Radnor, Pa. Suzanne Ilene (Shoshana) Schiller, Partner, Manko Gold Katcher & Fox, Bala Cynwyd, Pa. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Cindy J. Karlson Law Offices of Cindy J. Karlson Phone: asdf

6 Agenda Understanding Your Deal Key Issues and Provisions Specific Provisions Insurance Issues asdf 6

7 Understanding Your Deal Due Diligence Scenario Pre-closing issues What kind of access do you want to grant as seller? What kind of access is best for buyer? What are the potential ramifications of access? Post-closing issues How will access effect a business? Liability allocation? asdf 7

8 Understanding Your Deal Special Circumstances: - Superfund Sites - Voluntary/Private Clean Ups - Risk Liability Transfer Deals asdf 8

9 Agreement Form Options 1. Separate access agreement 2. Site access section in overall agreement 3. Access provisions buried in agreement asdf 9

10 Agreement Form Options Example Following the Closing, the Seller shall comply with Environmental Laws and shall perform or cause the performance of, all on-site and off-site investigation, mitigation, containment, remediation, and postremediation and other monitoring activities as necessary to receive a Letter of No Further Action. Purchaser shall provide Seller and its agents access to the Property in accordance with the Environmental Remediation and Access Agreement attached hereto as Exhibit A. asdf 10

11 Key Issues and Provisions Scope of work Location Duration Notice Confidentiality Safety Risk allocation Insurance Indemnity Results asdf 11

12 Scope of Work Manage expectations Access to all land, including inside of structures? Spell it out How specific do you need to be: access the site to perform investigation and sampling access the site to inspect the property and collect soil and groundwater samples Inspection only and/or invasive sampling (soil, water, indoor air?) 12

13 Location, Location, Location Site plan with work locations Understand how access will impact the property and then determine what access will be allowed: - Cut pavement to take soil sample or drill groundwater well? - Disturb landscaping? - Structural safety issues? - Drill through basement foundation? 13

14 Duration One time event? multiple? Days, weeks, months, years Groundwater monitoring wells Extensions Tying duration to achieving cleanup or other outcome 14

15 Notice Who must give the notice What must notice include Certificate of insurance, site plan, names of persons accessing property When Consider nature of the work to be performed Provisions to deal with emergency access needs Written/Verbal 15

16 Confidentiality Prohibit dissemination to any third party (other than environmental consultants and attorneys, provided such parties are made aware of this confidentiality requirement and agree to abide thereby and except as required by law and court order) What information is confidential: Any information or reports Buyer and/or its representatives obtain or develop during or as a result of the Work 16

17 Safety Call before you dig What is liability exposure? - employees - guests - customer - lessees 17

18 Risk Allocation Indemnification - Release and hold harmless Insurance - What types? amounts? - Who is covered? - What evidence should be required? 18

19 Sample Results Ramifications Disclosure considerations Agency reporting triggers Deal strategy and pricing leverage Third party liability Off-site issues 19

20 Example Purchaser shall provide Seller and its consultants, agents or contractors access to the Property as required to perform the Work. In granting such access, Purchaser may impose restrictions on the time, location and scope of any such work, as well as other conditions and restrictions that Purchaser determines are necessary. 20

21 Practice Tips Understand your goals Manage expectations Fully evaluate ramifications of site access terms and conditions asdf 21

22 Cindy J. Karlson Law Offices of Cindy J. Karlson Phone: asdf

23 Access Agreements: Specific Provisions Suzanne Ilene Schiller Manko, Gold, Katcher & Fox, LLP Philadelphia, PA

24 Overview Applicable Law Payments for Access Handling of Waste Unique Access Issues Repair and Restoration Work Plans, Sampling Results and Reporting Indemnification 24

25 Applicable Law Sample Provision: Applicable Law shall mean any and all federal, state and local laws, regulations, rules, ordinances, permits, permit conditions, approvals, standards, directives, guidelines, agreements, letters, and executive, judicial and administrative orders and decrees, that apply to the performance of the Work, including but not limited to any and all land use, zoning, and permitting rules, regulations and ordinances of the Township, as well as environmental, health and safety laws, and workplace safety requirements of federal, state, county, and municipal governments, including all administrative agencies thereof, such as the U.S. Environmental Protection Agency ( EPA ) and the [State] Department of Environmental Protection. 25

26 Applicable Law (cont.) No Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section. 42 U.S. Code 9612(e)(1) 26

27 Payments for Access Attorneys Fees Use and Occupancy of Staging and Storage Areas Business Interruption Additional security and/or personnel Consulting Engineer 27

28 Handling of Waste Important provisions: No onsite disposal Responsibility for proper storage, handling, treatment and disposal is on party seeking access Owner shall not be identified as generator of any materials removed from the site Consider necessity of HAZWOPER Certification 28

29 Unique Access Issues Underground Private and Public Utilities Facility Security For owner s benefit For entrant s benefit Landlords and Tenants/Lease Issues Installation of Wells and Continuing Access for Monitoring Are damages are inadequate remedy? 29

30 Repair and Restoration To Whose Satisfaction? Objective vs. Subjective Standards Quality of Materials Used: what is commercially reasonable? Are there Zoning or Permit Requirements? If repair is impossible, how will property damage be valued? Dispute resolution process? 30

31 Work Plans, Sampling Results and Reporting Review Scope of Work and Work Plan documents If the access is for investigation, make sure you know what kind of sampling is being done, and what contaminants or constituents the samples will be tested for Consider requiring receipt of any work plans created as a result of investigation before agency submittal Determine what level of information regarding investigation results will be provided (e.g. just data, or reports and analysis) 31

32 Work Plans, Sampling Results and Reporting (cont.) Neither Accessing Entity nor its representatives, agents, employees or consultants shall provide Owner or any third party the results of any waste characterization or sample analysis or testing unless requested to do so by Owner. In the event Accessing Entity makes a determination that such results must be reported to any governmental agency for any purpose, Accessing Entity must first notify the Owner of the existence and legal basis for such determination and provide the Owner with a reasonable opportunity to review and respond to such determination. 32

33 Indemnification Types of Claims Tort Claims On and Offsite Environmental Contamination Mechanics Liens Fines, penalties, costs assessed by any governmental entity for violations of local ordinances, codes or statutes Utility damage Notification and Acceptance of Tender Procedure Choice of Counsel 33

34 Questions or Further Information Suzanne Ilene Schiller Manko, Gold, Katcher & Fox LLP 401 City Avenue, Suite 901 Bala Cynwyd, PA (484)

35 Access Agreements: Insurance Provisions Keith Montone Willis Environmental Practice Radnor, PA July 10 th 2014

36 Insurance Types of Coverage Required Additional Insured / Named Insured Primary Policy / Subrogation Policy Limits Evidence of Insurance Claims 36

37 Coverage Requirements Commercial General Liability Workers Compensation Automobile Liability Umbrella Excess Contractor s Pollution Liability Professional Liability 37

38 Additional Insured What does this provide? Difference between Additional Insured and Named Insured Is Additional Insured standard in Insurance Policies? Can my client have their own endorsement? Does my client need Named Insured Status? For which coverages is this needed? 38

39 Primary Insurance What is this provision? What is the value in a Site Access Agreement Situation? What is standard? Primary, Excess, Sharing Provisions? What is Non-Contributory? 39

40 Waiver of Subrogation What is this provision? What is the value and importance in a Site Access Agreement Situation? What is standard in policies? 40

41 Notice of Cancellation What is this provision? What is the value in a Site Access Agreement Situation? Cancellation or Material Change in terms How can a carrier cancel coverage? Typical provisions 30 days 41

42 Policy Limits Coverage Commercial General Liability Automobile Worker s Compensation Employers Liability Umbrella Contractor s Pollution Liability Professional Limits $1,000,000 Per and $2,000,000 agg $1,000,000 Per and $1,000,000 agg As required by Law $500,000 Per and $500,000 agg $10,000,000 Per and $10,000,000 agg $2,000,000 Per and $2,000,000 agg $2,000,000 Per and $2,000,000 agg Is this a project specific placement or practice policy? Is practice policy on multi year policy period? 42

43 Certificate of Insurance What is a certificate / ACORD 25 forms What is the value in a Site Access Agreement Situation? Pitfalls Additional Requests Valuable questions you need to ask Important information that is not on a certificate Claims Made vs. Occurrence Coverage 43

44 Non Standard Environmental Requests Non-Owned Disposal Site Coverage Transportation (outside of Automobile) Insurance Carrier A.M. Best Rating A- Claims Made coverage requirement to carry policy after completion Dedicated Limits Larger Projects Maximum Deductible or SIR of $50,000 44

45 Claims Procedures Advice - Report Report Report! Non-Emergency Response Situations get carriers approval to remediate / hire counsel Follow up! Recent Claims Example Exacerbation of pre-existing pollution condition offsite migration 45

46 Final Takeaways Pollution Loss and Claims Involve agent or broker Properly drafted insurance provisions in site access agreements are vital to protecting client from the unknown Role of counsel and insurance broker is key understanding impacts 46

47 Questions Keith E. Montone Willis Environmental Practice 100 Matsonford Road Radnor, PA (610)