Structuring Environmental Site Access Agreements: Avoiding Costly Pitfalls

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.