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Presented December 2, 2010, Austin TX to SIGMA - America\'s Leading Fuel Marketers,
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Time for Good Buys:Time for Good Buys:Acquisition Due DiligenceAcquisition Due Diligence
December 2nd, 2010December 2nd, 2010
Daniel Spandau Daniel Spandau
Senior ConsultantSenior Consultant
DJS Consulting Inc.DJS Consulting Inc.
David H. Quigley
Agenda
Re-IntroductionsThe Real Estate CycleEnvironmentally Challenged
Properties– Should you or Shouldn’t you?– Incentives
Financial Regulatory
– Due Diligence
2
Reintroductions
David Quigley
Akin Gump Strauss Hauer & Feld, LLP
1333 New Hampshire Avenue, NW
Washington, DC 20036
202.887.4339
www.akingump.com
www.ClimateIntel.com
Daniel Spandau
DJS Consulting
22258 Waterside Dr.
Boca Raton, FL 33428
561.239.0090
www.PBSdocs.com
3
The Real Estate Cycle
Some Signs of Recovery Below-Market Opportunities “Environmentally
Challenged” Real Estate– Informal Poll of Share Group– Should You or Shouldn’t You?– Buy or Sell?
4
Incentives
State and Local Government Programs– Redevelopment Grants (NYC)
$10 Million in Grants over 2 Years Database of 3,000 Brownfields
– Up to $140,000 per Property– Fund Phase I and Phase II Assessments
– Tax Incentives (NJ, PA) Rebate of Cleanup Costs (75%) That Increase Revenue Reimbursement of Other Remediation Costs (50%) Tax Credits for New Employees at Remediated Sites
– “Comfort” Letters
5
Incentives (Cont’d)
Federal– Audit Policy
Waives Penalties for Pre-Purchase Non-Compliance
Waives Economic Benefit Penalties
Gives (At Least) 45 Days to Report
Ignores Purchaser’s Prior Violations
– Onus on Due Diligence
6
Due Diligence – Why?
CERCLA, CERCLA, CERCLA What CERCLA Does…
– Removal or Remediation at a Facility; or– Reimbursement of Removal or Remediation Costs Incurred by Third
Parties or Governmental Entities …To Whom
– Current Owner or Operator;– Owner or Operator at the Time of Disposal;– Parties That Arranged for Disposal at the Site
What CERCLA Does Not Do– Petroleum– Still Need Due Diligence for Incentives– Petroleum Release Reporting Requirements Similar in Any Event
7
8
Due Diligence – Why?
Defenses to CERCLA, Similar Liability Limited
Strict Liability Statute
– Act of God
– Act of War
– Act of Third Party
9
Due Diligence – Why?
Establishing the Third Party Defense
– Defense Easily Abused (“Past Owner Did It”)
– Congress Limits Defense
Act of Third Party Not a defense if:
– A Contractual Relationship Exists Deeds or Land Contracts
Leases
– Unless “Innocent Landowner”
10
Due Diligence – Why?
Key: Establishing Who Is Innocent Landowner
Pre-Acquisition:
– 1) Purchaser Did Not Know of Contamination at Purchase
– 2) Purchaser Had No Reason to Know of Contamination
Post-Acquisition
– Purchaser complies with any land-use restrictions
– Purchaser takes “reasonable steps” to prevent releases
– Purchaser cooperates with regulators
11
Due Diligence – How?
Pre-November 1, 2006:
– ASTM Standard E-1527-00
– Phase I Assessment
Generic Environmental Consultant
On-site Inspection for RECs
“Attempt” to Interview Owner, Manager, Occupants
Review of Federal, State Environmental Databases
Review of Uses Back to 1940, or Earlier
Report Valid for Six Months
No Real Requirement to Fill Data Gaps
12
Due Diligence – How Now?
As of November 1, 2006:
– All Appropriate Inquiry Rule
– New, more stringent requirements
Apply to Consultants; and
Add Requirements for Purchaser Herself
– New ASTM Standard E-1527-05
13
Due Diligence – Who?
Purchaser
– Obligations Don’t End with Hiring of Consultant
– Search Environmental Cleanup Liens– Apply Specialized Knowledge of the Site, Area– Assess Purchase Price
Is It Market?
If not, Is It Because of Environmental Contamination?
– Provide Results to Environmental Professional
14
Due Diligence – Who?
“Environmental Professionals”
– Increase in “Judgment Calls”
– Requires Greater Qualifications
– Written Report Must Certify EP Has:
State Engineer/Geologist License + 3 Years Experience
B.S. + 5 Years Experience
10 + Years Relevant Experience
15
Due Diligence – What?
On-Site Investigation
– Subject Property; and
– Adjoining Properties (from the Property Line)
Consider Conditions Indicative of Release
Fill Data Gaps
Records Review, Phase II
16
Due Diligence – What?
Must Interview:– Current Owner;
– Current “Major” Occupants;
– Site Managers;
– Past Owners, Operators, Occupants (Employees?);
– Neighboring Owners (If Land Abandoned)
17
Due Diligence – What?
Records Review
– Federal and State; and
– Tribal and Local
– Search to Time Site First Contained a Structure
18
Due Diligence – When?
Report Must Issue within 1 Year of Acquisition
– If Expires Pre-Close, Update
– Certain Elements Require Update Every 180 Days
EP Certification;
Interviews;
Government Records; and
Visual Site Inspection
– Effectively a 6-Month Window
Due Diligence – Lessons Learned
Choose the Right Consultant
– How Much AAI is Too Much?– To Phase II or Not Phase II?
Wrong Consultant? Choose the Right Attorney– Case Studies in Overzealous Diggers
19
Investigation
Phase I– Identifications of REC’s– Consultant needs to:
Alert client to all major issues Be familiar with industry/industrial process Evaluate Phase II requirements
– Consultant has potential liabilities – Third party review – client attorney privileged
Investigation cont.
Phase II– Cost factor– Time constraints– Who is the information for– Alternative methods of investigation
Start to dig or search for more paperwork Probe or Scan Testing methodologies
– Seller agreements
Third Party Review
Client attorney privileged communication– Develop SOP– Develop cost matrix– Qualify contractor– Draft report to attorney– Review of report completeness – Review of REC’s– Recommendation
Determination Factors
Assessments equality factors– Buyer
Single property Portfolio Seller
– Banker Lender Foreclosurer
Case Study – Risk + Agreement
Oil Company– Package of ~ 400 locations– Time constraints to close deal– ~ 60 locations with possible REC’s
Contractual agreement with seller Saving of $5 - $15,000/per location in investigations
24
Case Study – More paperwork
UST – Emergency generation– Installation review– Records management– Fuel Throughput– Testing– REC - $10-15,000
More then the potential cleanup (if ever necessary)
25
Case Study – Reasonability
Office Complex– REC – close proximity to residential dump area – Apparent data suggest Limited Phase II
More in-depth informational review– Depth to Water ~5 ft– Dump has been inactive to ~15 yrs.– Dump is no longer evident – currently parking area– Lots of soil movement
No additional investigation recommendation $10-15,000 savings
26
Case Study – What data
Industrial Process– REC – collection of soil and water samples– Collecting and analyzing data
State regulated sampling and analysis Informational assessment
– Cost differential - $5-10,000
27
Case Study – Contractor Expertise
Industrial Process– Phase I review was limited
Contractor was not familiar with potential concerns
– Review identified additional sampling and analysis that was necessary to protect client
28
Case Study – Property Managment
Warehouse and light industrial complex– Company property manager requested a review– Consultant identified a variety of REC’s
Estimated investigation and expected remediation– >$500,000
There were no Federal, State or Local request for investigations
Previous investigations were all in compliance Background levels were negotiated as acceptable
– Recommendation – no additional work needed
29