";s:4:"text";s:17433:"Steven T. Miano has been exclusively practicing environmental law for more than 25 years. In this mock real estate transaction negotiation, panelists will explain the meaning and significance of important environmental provisions to their clients (buyer and seller) and discuss various tools to close the deal (e.g., environmental insurance, institutional controls). Before getting into the specific language, we will review the functions of the several types of contract provisions that can be found in a contract of sale and why these provisions are an important part of environmental due diligence. From the buyer’s perspective, it is better to have a stand-alone environmental indemnity that states those specific matters for which the seller must indemnify the buyer, usually presented as a schedule annexed to the contract that lists all the known environmental conditions. Examples of specific environmental language in purchase and sale contracts. Should the indemnity create an exception for the negligence or willful misconduct of the indemnitee? Mr. Periconi also discusses the details and the nuances of environmental due diligence of commercial real estate transactions in his bi-monthly continuing legal education course. Please contact us if you have any questions about environmental due diligence in real estate transactions, or if we can help you draft or understand the environmental provisions of your own real estate purchase and sale contract. (Part 1 of 2). Environmental Contamination & General Liability In New York, Federal Insecticide Fungicide And Rodenticide Act (FIFRA), NY Environmental Statutes, Codes, Regulations, NY State Environmental Quality Review Act (SEQRA), Resource Conservation And Recovery Act – RCRA, Brown Duke & Fogel, P.C. Should the indemnity survive for a fixed amount of time? §9601, et seq., is the most prominent federal environmental … As with the pre-closing ESA contingency, the parties may agree to share the cost of consultants and the remediation according to a pre-established allocation formula. Margaret also has developed expertise in large river and estuary sediment “megasites” and natural resource damages. What to consider when negotiating environmental indemnity agreements. In the last century, natural resource and industrial development impacted the environment and the nation's real property. A representation is a statement of fact made to induce another party to enter into a contract. bi-monthly continuing legal education course. At Bayer, he focuses on environmental, health and safety issues. Introduction .....1 II. Lastly, an indemnity is a full and complete shifting of liability to another party. Several environmental laws are important to consider when structuring the transaction, although the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. But there should be no problem requesting information relative to various permits issued to the site (if working at an active facility), such as notices of violations or fines for releases or discharges and various hazardous substan… A component of this work entailed seeking approval for passive or green remediation alternatives where possible. If the seller decides not to remediate, then the buyer may terminate the agreement by sending a written notice of termination to the other party. Miller Johnson attorneys Jim Ens, Alan Schwartz and Matt Van Dyk discuss negotiating environmental provisions in a lease agreement for commercial or industrial property. Drafting appropriate contact provisions and establishing the property’s baseline environmental conditions are central to the desire by buyer and seller to get the benefit of their bargain and minimize unnecessary exposure to liability. A key purpose for conducting a Phase I ESA is to qualify the purchaser for the “innocent landowner defense” provisions of the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, of 1980. The buyer must agree to maintain absolute confidentiality of the report, to the extent permitted by law, until buyer has accepted transfer of title from the seller. Fortunately, on the Periconi, LLC blog, we’ve already highlighted most of the specific language that we recommend including in any purchase and sale contract. Environmental Representations and Warranties. On August 16, 2017, from 1:00 PM-2:30 PM, Jonathan B. Wilson and Leah J. Knowlton will be speaking on the webinar "Drafting Real Estate and Environmental Contract Provisions in M&A Agreements: Guidance for M&A Counsel." In this post, we’ll cover in detail one of those tools: the contract of sale for real property. The environmental indemnity should cover the following occurrences: Additionally, the indemnity should address the following issues: D. “Walk-Away” and Post-Closing Cost-Sharing Provisions, (For a summary of the processes and requirements, click here for Phase I ESAs and here for Phase II ESAs. 14. Creative Contract Provisions to Consider in Real Estate Purchase When purchasing real estate, there are often provisions attached that require the buyer or seller to perform certain actions. and Periconi, LLC collaborate and enter mutual of counsel arrangement, New Law Helps NY Water Suppliers By Broadening Statute Of Limitations Period For Groundwater Contamination Claims, On Eve of Holidays, Governor Cuomo Signs Legislation Creating EJ Advisory Group and EJ Interagency Coordinating Council, 5 Quick Takeaways From EPA’s Updated Bona Fide Prospective Purchaser Guidance, Business Environmental Risks: What the Heck Are They and Why Should You Care? The addition of other provisions reflecting the special facts of the property, the positions or qualifications of the parties and the nature of the bargain struck between them may give additional weight to the clause, and such provisions may be added by the seller's counsel in the hope of enhancing the chances for enforceability. Federal and state environmental laws now apply to land management and sale transactions when a new owner seeks to repurpose the property. He has experience in various state and federal environmental laws, CERCLA, TSCA, the Clean Air Act, Clean Water Act, NEPA and RCRA. He has helped clients at both the state and federal levels. ), Any pre-closingESAcontingency must provide a right for the buyer (or lender) to walk from the deal if the assessment reveals risks which the buyer is unwilling to take. This article will examine common environmental representations and warranties and analyze a number of issues of concern to both buyers and sellers regarding those representations and warranties. Should the indemnity extend to any successor or assign who acquires an interest in the property or otherwise succeeds to the rights of the buyer or lender under the agreement? Untrue in any acquisition agreement is the most prominent federal environmental … First foremost! 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