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

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, July 10, 2014

Recorded event now available

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Program Materials

This CLE webinar will examine key provisions, including scope, duration and insurance, in site access agreements. The panel will discuss the potential pitfalls that may result due to drafting issues and offer best practices for negotiating and implementing the agreement.

Description

In the context of land purchase or ground lease transactions, site access agreements play an important role when buyers or ground lessees want to do an environmental site assessment as part of due diligence, a compliance audit or when considering pre-closing remediation. Because environmental contaminants rarely stay contained in one place, access agreements are often required when entities are conducting environmental investigation or remedial activities.

While these agreements are often thought of as minor sideshows to the main event, in fact counsel to buyers, sellers, remediators and owners  must  keep in mind key considerations when negotiating the terms of such access, including the scope of the work that will be performed, the locations of the work and the time when it can be performed, insurance and indemnification, and the requisite notices.

If a tree falls on your property, is there anyone there to pay for it?  If a municipality requires permitting for restoration work, whose responsibility is it to comply?  Should the results of environmental testing done by others always be provided to the landowner?  When do you need Pollution Liability Insurance?  These are all questions that frequently arise and often cannot be answered by reference to a boilerplate access agreement.

This program will discuss site access agreements used in the transaction and remediation contexts and examine the key provisions that should be addressed. The panel will also examine the potential pitfalls that the agreement did not account for or could cause as result of drafting issues. The panel will offer best practices for negotiating and implementing the agreement.

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Outline

  1. Negotiating The Essential Provisions
    1. Importance of Understanding Your Deal
    2. Scope
    3. Duration
    4. Location
    5. Notice
  2. Negotiating “The Weeds”
    1. The “Applicable Law”
    2. Business Interruption and Accommodation of Ongoing Operations/Tenants
    3. Payment of Costs
    4. Handling of Generated Wastes and Disposition of Materials Removed
    5. Unique Access Issues
    6. Repair and Restoration
    7. Work Plans, Sampling Results and Reporting
    8. Indemnification
  3. Insurance
    1. Types of Coverage Required
    2. Additional Named Insureds
    3. Primacy Of Policies and Subrogation
    4. Policy Limits
    5. Evidence of Insurance
    6. Claims Procedures

Benefits

The panel will review these and other key questions:

  • When is an environmental indemnity agreement necessary?
  • What are the key considerations that counsel should keep in mind when negotiating site access agreements for pre- and post-closing access?
  • What are the best practices for structuring site access agreements to protect buyers and sellers?

Faculty

Karlson, Cindy
Cindy J. Karlson

Founder
Law Offices of Cindy J. Karlson

Ms. Karlson focuses on environmental and land use law, including compliance counseling, transactional work,...  |  Read More

Keith E. Montone
Keith E. Montone
Assistant Vice President /Senior Placement Specialist
Willis Environmental Practice

Mr. Montone is responsible for marketing, negotiation and placement of environmental insurance for clients with a...  |  Read More

Schiller, Suzanne
Suzanne Ilene (Shoshana) Schiller

Partner
Manko Gold Katcher & Fox

Ms. Schiller handles a wide range of commercial disputes with particular experience in real estate development,...  |  Read More

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