Impact Benefit Agreements Taking Cntrl With Insurance Ryan Ginnish

Transcription

1 Impact Benefit Agreements Taking Cntrl With Insurance Ryan Ginnish & Malclm Smith, Thunderbird Cmmercial Insurance; Jennifer Radfrd, Brden Ladner Gervais LLP; Dug Burque, BMO Bank f Mntreal; and Chief James Delrme, Klahse First Natin

2 Ryan Ginnish - Partner, Thunderbird Cmmercial Insurance Presentatin Overview, Panelists Intrductins Malclm Smith Partner, Thunderbird Cmmercial Insurance Insurance Perspective Jennifer Radfrd - Partner, Brden Ladner Gervais LLP Legal Perspective Dug Burque Directr f Abriginal Banking, Bank f Mntreal Financial & Lender Perspective Key Areas f Lender Fcus Chief James Delrme President, Qathen Xwegus Management Crp. Negtiating Impact Benefit Agreements Securing Invlvement & Cntrl f Risk and Risk Transfer fr Prjects & Jint Ventures 2

3 Hundreds f IBA s have been signed in Canada mstly in : Resurce Extractin there are currently 182 Mining IBA s signed Energy Hydr (run-f the-river), Wind & Gethermal Real Estate N Standard Agreement: Each IBA is custmized t meet the needs & bjectives f the prject Every IBA has an Insurance Cmpnent: The mment any survey r explratin f a ptential prject mves frward, insurance becmes a issue that needs t be addressed and the Abriginal cmmunity shuld be invlved befre any activity ccurs n their lands 3

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5 1) Ensure the designated cmmunity representative is invlved in all meetings & crrespndence regarding the placement f insurance, putting risk management/mitigatin services in place and/r issues surrunding security. 2) The designated cmmunity representative has signed ff n all insurance r surety befre binding, including apprval f all risk management and security fr the prject and/r JV peratins. 3) The cmmunity representative must be ntified and apprve f any significant changes in the insurance plicies, bnding, risk management plans r security. 5

6 1) That the cmmunity be directly invlved in either the selectin f the Insurance Brker r the creatin f a Jint Venture t create an insurance brkerage. 2) Where pssible and apprpriate, the cmmunity receive a share f the cmmissins r fees earned in placing the insurance fr these ventures as wn surce revenues. 6

7 Malclm P. Smith Partner Thunderbird Cmmercial Insurance 7

8 Every aspect, activity and peratin related t a prject r a jint venture must be reprted t the insurance carriers thrugh the insurance brker(s). There is a wide range f risks a cmmunity is expsed t when entering int an impact benefit agreement: reputatinal injury, envirnmental impairment, financial lss, prperty damage, persnal law suits The cmmunity leadership shuld ensure they are invlved in these imprtant decisins that effect the cmmunity s wellbeing and financial health. 8

9 Data prvided t insurers culd include what type f turbine is purchased fr a pwer prject; A new type f turbine may nt meet the insurance cmpany s requirements fr prven perfrmance and reliability thus nt be eligible fr Testing & Cmmissining r Delayed Start Up Cverage. These cverages are crucial t prtect the prject s revenue stream requirements n which the ventures financing is based; withut cverage n funding. 9

10 Every IBA include Indemnity Clauses; Indemnity clauses cver each parties assumptin f legal respnsibility fr lsses in relatin t the agreement and ften specify details f insurance: Type f insurance Hw the insurance premiums will be funded Wh will be named insureds n the plicies 10

11 A cmmunity representative with gd knwledge f insurance shuld be invlved in all meetings where decisins n insurance cverages are made; These insurance decisins wuld include: Chice f insurance brker(s): engagement, service.. Types f insurance cverages required: varius Terms f insurance: limits, deductibles, insureds... Cst f insurance: fees, premiums, retentins Bnding requirements: bid, perfrmance, labur & materials, envirnmental financial surety 11

12 Prjects that result in an IBA are ften large in scpe; Insurance fr these prjects cvers a wide range r insurance prducts: Directrs & Officers Liability Errrs & Omissins Liability Cmmercial General Liability Testing & Cmmissining/Delayed Start Up Curse f Cnstructin & Wrap Up Liability Prperty, Transit, Carg, Equipment Breakdwn Business Interruptin and Failure t Supply Bnding, bth fr prject & abriginal cntractrs Etcetera 12

13 D&O Liability Insurance 1. Prtect D s & O s persnal assets ff reserve. 2. Attract and retain qualified D s & O s. 1. High Csts f Defence - even if there is n liability. 2. Cvers D s & O s liability if rganizatin unable t indemnify defense csts r claim settlement. 3. Help the cmpany mnitr and prvide defense csts assciated with respnding t lawsuits and investigatins. 13

14 Decisins n cverages, limits & deductible are crucial; A cverage missed, a limit underinsured r a high deductible can cause a financial hardship r even prject failure: Often engineers carry a lw limit n their Errrs & Omissins plices; a design flaw can cst $millins. It is imprtant that the cmmunity be invlved in wh is named n insurance plicies, certificates f insurance cverage culd depend n it. Insurance plices are dynamic and changes culd effect cverage s participatin is necessary. 14

15 Insurance is a high cst line item in any prject; Majr prjects have a greater ptential fr a large lss and as thus the insurance premiums are substantial: Insurance premiums fr resurce extractin, cnstructin and energy develpment, including bnding, can be hundreds f thusands f dllars. It is vital fr the cmmunity t be invlved n the decisins n hw these csts are allcated. Insurance brkers are nrmally paid a % f the premium paid s in turn earn significant incme with nthing returned t the cmmunity(s) invlved. 15

16 Fr cmmunities with large prperty hldings and multiple business interests there is the ptential t create their wn insurance brkerage and partner with an insurance brker t share revenues; A cnservative benchmark fr a general insurance brker cmmissin is 15%. If a cmmunity is paying a ttal f $1,000,000 in insurance r has ptential t if insurance is including in the IBA, then a minimum annual revenue wuld be $150,

17 General insurance brker equity is based n a rati f annual revenues which currently is 3 t 1. At the revenue nted previusly f $150,000 the brkerage wuld be valued at $450,000. This equity created after nly ne year f peratin. A cmmercial general insurance brkerage can perate ut f a small ffice and ne Level III general licensed agent. Start up csts are minimal; can be cmpleted fr under $25,000 if ffice leased. 17

18 Legal Perspective Negtiating Insurance Terms in Impact Benefit Agreements Jennifer Radfrd Partner Brden Ladner Gervais LLP 18

19 Impact and Benefit Agreement: legal instrument t manage cnsequences develpment prjects may have n cmmunities Allwing industry t develp n land they wuld nt therwise have access t is an enrmus pprtunity Why shuld they nt have all the assciated risk? Negtiating insurance terms in IBAs: ensure they d 19

20 Insurance: Majr Cmpnent f Risk Management Typical mining prject Directrs and fficers liability insurance General liability fr all stages f mining Excess Liability & Umbrella Wrkers Cmpensatin Prperty and Equipment Business Incme Biler and Machinery Aut Liability Carg Emplyment Practices Liability Pllutin and Envirnment Liability 20

21 Why are cmmunities nt hearing abut insurance frm industry? If cmmunity insists n being named insured n industry plicy, premiums increase fr industry player taking ut insurance Industry nt assuming all risk 21

22 Overview f Cverages The insurer will pay mney insured legally bligated t pay as cmpensatry damages : bdily injury r prperty damage persnal and advertising injury: prperty damage t premises f thers rented t r ccupied by the insured Claims cvered: insurer has duty t defend the insured and t indemnify against any damages awarded 22

23 The Duties T Defend And Indemnify In purchasing a CGL plicy, an insured is buying tw benefits: right t a defence right t an indemnity 23

24 CASE STUDY Oil leak frm an industry prject. It migrates t damage third party prperty n adjacent land. Adjacent land wner sues cmmunity and industry player. 24

25 If cmmunity nt named insured under industry s CGL plicy: Cmmunity GCL plicy will respnd Cmmunity and wn insurer will have t defend lawsuit by third party Subrgatin Plicy premiums may increase 25

26 If cmmunity is named insured under industry plicy: Industry plicy will respnd Industry insurer has duty t defend cmmunity and indemnify cmmunity against any damages Avid lawsuit and changes t risk ratings with wn insurer 26

27 In additin t negtiating term f being named as insured n industry plicy, remember: All prjects will have cnsultants and subcntractrs Term allwing fr cmmunity t ensure ther players have wn insurance and plicy limits sufficient 27

28 Gals: Layers f insurance and defence against third parties Transfer risk f prject t industry 28

29 As part f IBA negtiatin prcess: Have legal cunsel wh can explain insurance issues and ramificatins Negtiate apprpriate terms t ensure prject develped and perated with minimal risk t cmmunity 29

30 Impact Benefit Agreements Using IBA Revenue t Finance Yur Prjects Dug Burque Directr, Abriginal Banking BMO Financial Grup 30

31 General Infrmatin (1) Legally binding private cntracts between First Natin & resurce develper Prvide direct r indirect ecnmic incentives Prfit Sharing Cmpensatin Payments Lcal emplyment Lcal supplier cntracts Surce: (1) Canadian Business Ethics Research Netwrk 31

32 General Infrmatin (cnt d) Prvisins Envirnmental prtectin Site remediatin Preservatin f lcally significant habitats 32

33 Mnies frm IBAs generally g int a Trust Paid t First Natin, nt Band Crpratin General Terms IBA funds are nt cnsidered Indian Mnies Funds are assigned directly frm payr t Bank Use f lawyer fr directin f Mnies t Bank BMO ability t lend against incme stream frm Trust: Fr Bands wh have existing build up f IBA funds Bank will lend cntingent n the strength f surce (cmpany/gvernment) 33

34 Nuances Bands with financial stability, wh can demnstrate the Incme stream frm the Trust and prvide BCR as guarantee d nt need t assign IBA mneys t the Bank 34

35 Due Diligence n Surce Financial Statements Histry Insurance n ptential risk f prject Payment Agreement Length f Prject Payment terms Any restrictins What is best fr the First Natin Direct assignment t Bank in sme cases BCR 35

36 Negtiating Impact Benefit Agreements Securing Invlvement and Cntrl f Risk and Risk Transfer fr Prjects and Jint Ventures Chief James Delrme President Qathen Xwegus Management Crp. Presented by Dug Burque, 36

37 Building a negtiating team Team members have scial backgrund alng with business experience Keep team small: lawyers have a place but cannt replace wisdm f key cmmunity members Make firm rles f team and keep a cmmunicatin plan in rder Understand Rles Prpnent and Prime cntractr needs the First Natin nt the ther way arund Respect fr cultural practices and prtcl strictly fllwed Cmmunity Objectives Clear cmmunicatin with membership in regards t visin f prject and what is best fr entire Natin. Maintain cnsistent messaging t members and prpnents 37

38 Best Practices Learn frm ther IBA s n successes thrugh partnership Surces f partnership: schl districts, municipalities, prvincial and federal agencies, industry, nn-prfit Agreements with cmmunity partners are equal in imprtance t nes with prpnent Shrt Term vs. Lng Term Create strategies t secure needs f Natin are being met Identify what challenges can take place: Change f First Natin Leadership Making sure agreements are recgnized by cuncil and have cmmunity apprval Mving Ahead Legacy prjects invlving educatinal targets must be included Risks assessment n what relatinship really means 38

39 Framewrk fr Training and Emplyment Making sure IBA has prvisins fr Hire Membership First plicy Training and lng tern strategies s wrkers have smething t lk frward t after the prject is finished Ensure emplyment liaisn pprtunities are clearly supprted by prpnent and prime cntractr (including sub trades). Specific pprtunities fr Ecnmic Develpment Creatin f a Natin wned ecnmic develpment crpratin financial supprted by prpnent Fd and camp services Fuel, lgistics and travel Infrastructure: Rad building, cnstructin trades, access t territry agreements 39

40 Cmmunity supprt and clear cmmunicatins with all stakehlders Respect fr cultural practices and prtcl strictly fllwed Create negtiating team with experience but knwledge abut cmmunity Learn frm best practices frm ther IBA s Partnerships with prpnent and ther surces must have lng term as well as shrt term benefits including emplyment and ecnmic develpment pprtunities Make sure agreements have dynamic financial packages including share ptins Make clear t the prpnent that they need the Natin mre than the Natin needs them Fcus n a legacy that helps preserve culture, a way f life and the health and well being f a Natin fr generatins t cme 40

41 Discussin Ryan Ginnish Malclm Smith Jennifer Radfrd Dug Burque Chief James Delrme 41