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Replay available from our video archive

A timely one-day live/online seminar on

Hazardous Materials in Real Estate Transactions

Regulatory structures; scope of potential liability; due diligence best practices; risk management; and drafting tips

Presented on November 3, 2022

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Program Overview

Who Should Order

Real estate attorneys, landlords, tenants, brokers, lenders, property managers, and other real estate professionals who are involved with real estate transactions where the underlying property is contaminated

Why You will Benefit from the Replay

Even in a volatile economy, Washington's continued population growth has put a spotlight on the need for reuse and development of residential, commercial, and industrial property throughout Washington. State and local governments are working to find new ways to encourage reuse and redevelopment of contaminated properties, while still protecting human health and the environment and while also furthering initiatives on sustainability, renewable energy, and environmental justice. New programs and new complexities create new opportunities, and it is more important than ever for parties on both sides of real estate transactions to understand and manage the risks associated with environmental risks, liabilities, and requirements.

This program will provide you with the tools you will need to deal with hazardous materials more successfully in all manner of real estate transactions – purchase, sale, leasing, and financing. Attendees will hear from technical and legal experts on the best ways to conduct due diligence for purchase and sale transactions, and to engage in successful post-due diligence contract negotiations. We will have a panel discussion with technical and legal perspectives on how to deal with situations where the property is impacted by contaminated groundwater originating from another property. And we will have a direct discussion about the specific complexities presented in lease transactions, both for landlords and for tenants, so that you will understand the most effective ways to address potential problems in lease negotiations.

We hope you will join us for a very informative day and look forward to your participation. Register soon to reserve your virtual seat

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~ Alexandra Kleeman, Esq. of Stoel Rives and Ken Lederman, Esq. of McCullough Hill Leary, Program Co-Chairs

What You Will Learn

  • The regulatory structure for contaminated properties in Washington State
  • Contractual mechanisms for managing potential liability for contamination
  • Conducting due diligence for purchase and sale transactions
  • Getting to yes during post-due diligence purchase and sale negotiations
  • Historical and prospective insurance options
  • Special issues for properties overlaying contaminated ground water plumes
  • Strategies for dealing with contamination in commercial leasing transactions

What Participants Said

  • "All speakers were educated/helpful in their area of expertise."
  • You did a great job pulling this all together for us!
  • "You always get the best speakers"

Thursday, November 3, 2022

9:00 am

Introduction & Overview

Alexandra Kleeman, Esq. , Program Co-Chair
Stoel Rives / Seattle, WA

Ken Lederman, Esq. , Program Co-Chair
McCullough Hill Leary / Seattle, WA

9:15 am

Contaminated Property Liability in Washington: Liability Structures and Tools for Developers

Potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Washington's Model Toxics Control Act (MTCA) including recent legislative developments; MTCA's relationship to CERCLA

Michael Dunning, Esq.
Perkins Coie / Seattle, WA

10:00 am

Transfers of Ownership: Contractual Mechanisms for Managing Potential Liability

Constructing Purchase and Sale Agreements with and without due diligence; indemnities and releases; drafting tips for ensuring that they are effective in allocating liability; seller remediation as a part of the transaction; ERIAs and holdback agreements

Barry G. Ziker, Esq.
Joyce Ziker Partners / Seattle, WA

10:45 am

Break

11:00 am

Conducting Due Diligence for Purchase and Sale Real Estate Transactions: How to Discover Environmental Issues

Phase I site assessment under ASTM E1527 to assess the likelihood of contamination; Phase II approaches and tools for assessing the extent to which contamination exists; interplay between Phase II and estimation of remediation costs

Clare Tochilin , Associate Geologist
SoundEarth Strategies / Seattle, WA

Pre-sale due diligence by the seller: What you legally must disclose as a seller; scope of the obligation to "look"; strategic thinking on what you want to know and don't want to know

Douglas S. Morrison, Esq.
Tupper Mack Wells / Seattle, WA

12:00 pm

Lunch Break

1:00 pm

Post-Due Diligence Negotiations: What it Takes to Get Everyone on Board when Contamination is Found

The importance of starting early; anticipating the concerns your lender will have; assessing the lender's environmental risk tolerance; the broker's role in keeping a deal on track; re-trade negotiations and deal strategies

Andrew F. Rigel, Esq.
Hillis Clark Martin & Peterson / Seattle, WA

Broker and lender perspectives

Michael E. Newton , Sr. VP & Shareholder
Kidder Mathews / Seattle, WA

Tom Pozarycki , Northern Washington Regional President
Washington Federal Bank / Seattle, WA

1:45 pm

Historical and Prospective Insurance Options

Accessing historical and current insurance policies to cover environmental remediation costs

Susannah C. Carr, Esq.
Gordon Tilden Thomas & Cordell / Seattle, WA

2:30 pm

Break

2:45 pm

The Plume Clause: Now You See It, Now You Don't

Pre and post transaction issues for situations where the property subject to the transaction overlays a contaminated groundwater plume but where activities on the subject property were not the source of the contamination

Ken Lederman, Esq. , Program Co-Chair
McCullough Hill Leary / Seattle, WA

Matthew J. Stock, Esq.
Joyce Ziker Partners / Seattle, WA

Suzanne Stumpf, P.E. , Principal Engineer
Farallon Consulting / Seattle, WA

3:45 pm

Hazardous Materials in Commercial Leasing Transactions

The most effective lease structures for addressing potential problems and drafting tips for lease documents

Alexandra Kleeman, Esq. , Program Co-Chair
Stoel Rives / Seattle, WA

4:30 pm

Evaluations and Adjourn

Faculty Bios

Alexandra Kleeman, Alexandra Kleeman, Program Co-Chair, is a partner at Stoel Rives. She has a versatile real estate and environmental practice that provides public and private real estate developers with transactional and litigation support on real estate, environmental, and regulatory matters, including disposition and acquisition of contaminated sites, redevelopment and cleanup of contaminated properties, resolution of cleanup liability disputes, and insurance recovery for environmental liabilities.

Ken Lederman, Ken Lederman, Program Co-Chair, is a partner at McCullough Hill Leary. A former Assistant Attorney General for the Washington State Department of Ecology, he is a contaminated property specialist who provides counseling and litigation support on environmental issues in property ownership, transactions (purchase, sale, or financing) and redevelopment.

Susannah C. Carr Susannah C. Carr is a partner at Gordon Tilden Thomas & Cordell where she focuses on insurance recovery, representing policyholders in disputes against their insurance companies. She is among the most experienced policyholder lawyers in the Northwest for complex "long tail" claims--securing coverage for environmental property damage and asbestos bodily injury liabilities resulting from business operations occurring decades ago.

Michael Dunning, Michael Dunning, a partner at Perkins Coie, is an environmental attorney whose practice focuses on helping clients solve complex challenges arising from land, water, and air pollution, and he has a particular depth of experience in contaminated sites (aka "dirty dirt"). He previously served for more than a decade as an assistant attorney general for the State of Washington and acted as lead counsel on some of the state's most challenging and complex contaminated sites and cases.

Douglas S. Morrison Douglas S. Morrison is Of Counsel to Tupper Mack Wells. He represents clients on a wide variety of environmental issues and claims, including air quality, water and stormwater discharges, solid and hazardous waste, chemical use and storage, contaminated properties, mergers and acquisitions and real estate transactions.

Michael E. Newton Michael E. Newton is a Senior Vice President & Shareholder at Kidder Mathews. As a broker, he specializes in industrial and office sales and leasing throughout Puget Sound.

Tom Pozarycki Tom Pozarycki is Northern Washington Regional President at Washington Federal Bank.

Andrew F. Rigel Andrew F. Rigel leads the Environmental Practice Team at Hillis Clark Martin & Peterson and focuses on counseling clients regarding the risks and opportunities of buying, selling, and redeveloping contaminated property. He has extensive experience regarding environmental due diligence, site investigation, regulatory compliance assessments, and cleanup of contaminated sites.

Matthew J. Stock Matthew J. Stock is a member of Joyce Ziker Partners. He assists businesses, developers, and landowners with the many environmental issues that accompany the purchase, sale, and redevelopment of contaminated and brownfield properties, including due diligence review, remediation strategy and implementation, regulatory compliance and closure, and cost-recovery under Washington's Model Toxics Control Act, Oregon's state superfund law, and the federal Comprehensive Environmental Response, Compensation, and Liability Act.

Suzanne Stumpf is a Suzanne Stumpf is a Principal Engineer at Farallon Consulting with extensive experience in the environmental consulting and engineering fields. Her technical expertise includes managing large and/or complex multi-discipline projects involving soil, soil gas, and groundwater remediation; construction management and oversight; and litigation support. Her project experience includes technical oversight for engineering pilot tests, cleanup action implementation, preparation of engineering design plans and bid specifications, regulatory closure strategy and negotiations, and evaluation of cleanup costs to support real estate transactions. She works effectively with multiple stakeholders and regulators to obtain regulatory solutions for contaminated properties.

Clare Tochilin, Clare Tochilin, Associate Geologist at SoundEarth Strategies, is a licensed hydrogeologist with experience in geologic and hydrogeologic fieldwork, data management and analysis, and report writing involving hazardous waste site remediation as well as clean water supply. Her primary areas of experience include environmental subsurface investigations, remedial excavation and drilling oversight, aquifer testing and analysis, groundwater monitoring, and technical report writing.

Barry G. Ziker, Joyce Ziker Partners, works on behalf of a wide range of clients on business and environmental matters. His environmental practice focuses on transactions involving the transfer and development of contaminated properties and resolving legal issues throughout the investigation and cleanup process.

Continuing Education Credits

Live credits: This program qualifies for 5.75 Washington MCLE, 7.0 Washington Real Estate (pending), and 5.75 ABCEP environmental professional credits. Upon request, we will help you apply for CLE credits in other states and other types of credits.

I appreciate LSI's seamless segue from registration, an informative seminar, to end result.

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