PLAYING A CHANGING GAME: A Shift in Ownership of Non-Traditional Risks

Transcription

1 PLAYING A CHANGING GAME: A Shift in Ownership of Non-Traditional Risks AGC 2018 Conference on Surety Bonding & Construction Risk Management Adrian Pellen, SVP Infrastructure Segment Leader January 30, 2018 Naples, FL

2 Agenda February 5,

3 Agenda Risks 1. What s the Issue? 2. Macro Trends 3. Non-Traditional Risks Site Conditions (Environmental, Archaeological, Paleontological) Weather Events Other Risk Issues (Permitting etc). 4. Management/Negotiating Strategies 5. Risk Transfer Products 6. Q&A 2

4 What s the Current Condition? The Issue Owners are transferring risks that they have traditionally retained 3

5 Macro Trends February 5,

6 Macro Trends What s Creating the Conditions? - Advisors Lagging Efficiency Looming Boom Source: BCG, 2015 Value Creators Report Source: McKinsey, Global Infrastructure Initiative 5

7 Macro Trends What s Creating the Conditions? - Advisors VfM Source: IO, 2015 Assessing Value for Money 6

8 Non-Traditional Risks In Review February 5,

9 Risk Allocation Standards? Source: FHWA 8

10 Non-Traditional Risks Site Conditions Contamination/HazMat Archaeological/Paleontological 9

11 Non-Traditional Risks Site Condition: Environmental & Hazmat Contract Examples Costs and Delays. Except for Owner Release(s) of Hazardous Materials, except as set forth in Sections and 12.3 and without limiting Owner s role or responsibilities set forth in Section , Contractor shall not be entitled to any compensation due to increased costs or delays associated with the discovery, handling, storage, removal, remediation, transport, treatment or disposal of Hazardous Materials, including contaminated groundwater, encountered in construction of the Project or Utility Adjustments Reimbursement for Certain Costs. Owner shall compensate Contractor for 100% of Contractor s reasonable, out-of-pocket costs and expenses directly attributable to the handling, transport, removal and disposal of Pre-existing Hazardous Materials encountered by Contractor. The foregoing notwithstanding, none of the following costs and expenses shall be chargeable to Owner under this Section : (i) costs and expenses to the extent attributable to Contractor Releases of Hazardous Materials or Owner Releases of Hazardous Materials (without prejudice to any rights in respect of a Compensation Event under clause (j) of the definition of Compensation Event); (ii) delay and disruption costs and expenses; (iii) costs and expenses that could be avoided by the exercise of commercially reasonable efforts to mitigate and reduce cost; and (iv) Contractor s administrative and overhead expenses arising out of or relating to Pre-existing Hazardous Materials Pre-existing Hazardous Materials Contractor shall have the burden of proof as to any Hazardous Materials not identified as being present 10

12 Non-Traditional Risks Site Condition: Environmental & Archaeological Contract Examples Compensation Event means any of the following: (l) The discovery of any Undisclosed Archaeological Remains during the carrying out of the Construction Work; (m) The discovery of any Undisclosed Regulated Environmental Condition during the carrying out of the Construction Work; Undisclosed Archaeological Remains means any Archaeological Remains that, as at the Setting Date, were neither: (a) known to Developer; or (b) could reasonably have been identified by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Good Industry Practice in the same or equivalent circumstances, including through review and analysis of the Reference Information or publicly available information (including, without limitation, the Final Environmental Impact Statement). Undisclosed Regulated Environmental Condition means any Regulated Environmental Condition that existed on a part of the Project Right of Way prior to the date on which the Department provided the Project Right of Entry to the relevant part of the Project Right of Way and that represents an additional or materially different condition to those described in the Regulated Materials Baseline Report (including conditions that were incorrectly identified (even if otherwise depicted or described) or that manifest themselves in a new location not identified or anticipated in the report), excluding any Regulated Environmental Condition that (a) could reasonably have been identified or discovered by an appropriately qualified and experienced contractor or engineer exercising due care and skill and Good Industry Practice based on the information set forth in the Regulated Materials Baseline Report or (b) arises from the Pre-Existing Gas Wells. 11

13 Non-Traditional Risks Site Conditions 12

14 Non-Traditional Risks Weather Events Contract Examples What about construction phase? 13. RELIEF EVENTS 13.1 Relief Event Defined Included Events In this Agreement, "Relief Event" means any of the following events, conditions, or circumstances (x) during the Operating Period only, if the outdoor ambient temperature in the XXXXX City Centre, as reported by Environment XXXX, falls below -40 C (without wind-chill) or above +40 C (each, a "Temperature Exceedance"); High threshold 13

15 Risk Management February 5,

16 Management Strategies Precedence on similar projects/common Standard Quantification and Value for Money Argument: Shift Back Sharing capped amount, co-sharing Negotiation Probabilistic modeling Risk Mapping & Scenario Analysis Continued Assessment Transfer via contract Purchase Insurance Risk Transfer 15

17 Risk Transfer February 5,

18 Risk Transfer What s Available? Environmental Insurance Insurable - 3 rd Party Liability: Bodily Injury, Property Damage and Cleanup Potentially Insurable - CERCLA Liability for NODS - Unknown Pre-existing Conditions - 1 st Party Cleanup & Delay Losses Excluded - Known pre-existing conditions Key Notes: Schedule Contracts & Disclose Site Assessment Report 17

19 Risk Transfer What s Available? Archaeologically/Paleontological Discoveries Insurable - As add on to Builder s Risk (Domestic) LexArchaeology provides first-party coverage for expenses and construction completion delays that arise due to the unexpected discovery at a construction site of archaeological resources of significant interest - Covers assessment, continuing expenses and other delay costs Overseas product available for select clients Excluded - Liquidated Damages Key Notes: Heavily Underwritten 18

20 Risk Transfer What s Available? Weather Insurance Insurable - Financial Loss Arising out of Various Specified Perils - Temperature (hot/cold) - Precipitation (snow/rain) Overseas product available for select clients Key Notes: - Define threshold Critical Event - Definite Deductible - Select Limit 19

21 Q&A February 5,

22 Thank You Questions? Comments? Queries? Adrian Pellen Senior Vice President Infrastructure Segment Leader US & Canada National Construction Practice Marsh USA Inc. 540 West Madison, Chicago, IL, Direct Mobile