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Don Winder Named Salt Lake Commercial Real Estate Attorney of The Year.

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Don Winder Named Salt Lake Commercial Real Estate Attorney of The Year

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For Immediate Release:
Contact:
Avery Pince Hyder
Winder & Counsel, P.C.
Tel: 1.866.322.2243
Email: ahyder@widerfirm.com
Site: www.winderfirm.com

Salt Lake City, UT – March 28, 2016 – CCIM has announced its winners for the Business Excellence Awards, granted each year in recognition of outstanding professionals leading and exemplifying the highest degree of business excellence in Utah’s commercial real estate industry. Donald I. Winder has been awarded the 2016 Business Excellence Award as Real Estate Attorney of the Year. Each finalist is recognized not only by their hard work with an incredible end product, but all of their work within their local communities. CCIM is a prestigious global commercial real estate professional organization, and the CCIM designation is conferred upon commercial real estate leaders who have a proven record of success in their field.

Recently, Mr. Winder worked laboriously to facilitate and close three large and complex commercial transactions — the purchase of the Larry H. Miller Megaplex Theatres at Geneva, a shopping center in West Jordan, and an industrial park in Ogden. All three transactions, totaling $40 million, were closed within the past eighteen months. His hard work on these projects led in part to this honorable nomination.

Don’s colleague, Tim C. Simonsen, Executive Vice President for Coldwell Banker Commercial, stated that Don’s “vast knowledge of the complexities of land transactions, title protections, and fund transfer risk meant that both the buyer and seller were fully protected.”

Another colleague, Curtis A. Bullock, the CEO of Salt Lake Board of Realtors, said that Don, “along with other highly talented attorneys at Winder and Counsel, [are] among some of the finest in the legal profession.”

More about Winder & Counsel… Formed in 1983, Winder & Counsel, P.C. is a leading commercial real estate law firm in Salt Lake City, Utah. For over 20 years, this firm has maintained the highest peer review rating given by Martindale-Hubbell (“AV”). Winder & Counsel, P.C. has also been approved by Best’s Directory of Recommended Insurance Attorneys, is a member of the International Network of Boutique Law Firms, is a member of the International Society of Primerus Law Firms, and is listed in the Bar Register of Preeminent Lawyers. For more information go to www.winderfirm.com.

Environmental Due Diligence in the Commercial Real Estate Transaction: How to Protect Your Client Without Killing the Deal

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There are many ways to kill a real estate deal, but environmental due diligence shouldn’t be one of them. The first step in protecting your client is to assemble a team of professional allies who will help you and your client reach the ultimate goal: to purchase or sell commercial property.

Once you and your client have made the decision to buy or sell a commercial property, consider adding a qualified attorney to your team. Why? Because the starting point of every commercial transaction is the purchase and sale agreement (PSA). As with any contract, the terms in the PSA are negotiable. At these early stages of the transaction, you have the first opportunity to protect your client. For example, the CCIM PSA contains the following:

NO OTHER REPRESENTATIONS AND WARRANTIES. Except as expressly set forth in this PSA or in an Addendum or Counteroffer: (a) Buyer is purchasing the Property, and the Property shall be conveyed and transferred to Buyer, “AS IS, WHERE IS, AND WITH ALL FAULTS” and specifically and expressly without any warranties, representations or guarantees, either express or implied, of any kind, nature or type whatsoever from or on behalf of Seller…

The “AS IS” language is favorable to a Seller because it allows the Seller to offer the property without warranties, which shifts the bulk of the risk to the Buyer. If you represent the Buyer, you should negotiate to remove the “AS IS” language altogether or negotiate exceptions into the PSA. One way to do this is to modify the standard Seller’s Disclosures to include a property condition disclosure requiring the Seller to disclose any known violation of any laws or restrictive covenants affecting the property. Inclusion of the following language could be helpful: “To the Knowledge of the Seller, the Property is in compliance with Applicable Law,” and “To the Knowledge of the Seller and except as disclosed by environmental reports provided to Buyer, no Hazardous Material is present in, on or under the Property.” You can also modify the Seller’s Disclosures to require the Seller to provide copies of all studies and reports that have been performed in connection with the property at issue, including prior Phase I Environmental Site Assessments (Phase I).[1] Finally, you can add environmental Indemnification into the body of the PSA as follows:

Environmental Indemnification. From and after the date of execution hereof, and forever thereafter, Seller agrees to indemnify, reimburse, compensate and hold harmless Buyer from and against any and all costs, claims, losses, cleanup expenses, or liability whatsoever, for environmental remediation necessitated by the release, discharge, refining, dumping, production, processing, manufacture, generation, treatment, handling, storage, transportation or disposal of Hazardous materials during or before Seller’s ownership of the Property.

After you negotiate the PSA and all addenda, the next step in your environmental due diligence process is to hire a qualified environmental consultant to conduct the Phase I which can usually be completed in about two weeks, depending on the environmental consultant’s schedule. It is best to get the Phase I completed early in the due diligence period to allow ample time to complete additional work that may arise. Provided the Phase I does not identify any recognized environmental conditions (REC)[2], controlled recognized environmental conditions (CREC), or historically recognized environmental conditions (HREC), both Buyer and Seller can move forward with the remainder of the transaction.

However, if the Phase I indicates there are environmental concerns, it’s important to come up with an appropriate plan of action to address them. Typically, the Phase I will provide a punch list of additional environmental work, sometimes referred to as a Phase II; this may, and usually does, suggest subsurface sampling of the commercial property. While a subsurface investigation may be required depending on the environmental issues identified, there are many times the issues can be addressed and resolved quickly and inexpensively while still protecting your client’s interests.

For example, floor drains are commonly found in industrial and commercial spaces. When floor drains are not connected to the sanitary sewer system, they become an REC because historically floor drains are commonly used to dispose of nearly everything, including spent chemicals. If the floor drain is not connected to the sanitary sewer and it has been a chemical disposal site for years, a costly cleanup may be required. Before conducting a subsurface investigation, however, it is possible to resolve the issue with a simple dye test coordinated with the local sewer agency. A dye test will tell you for certain whether the floor drain is connected to the sanitary sewer. If the floor drain is connected, and there are no records of hazardous waste discharge, there’s no need for further investigation. Instead of a costly subsurface investigation, the matter gets resolved for a few hundred dollars.

Of course, there are RECs that can pose much larger, more expensive problems; common examples are hydraulic hoists and petroleum storage tanks. Both are found on commercial properties, and both are known to leak petroleum products into the environment. With respect to petroleum product releases, a little goes a long way, particularly where groundwater is impacted. According to the EPA, one gallon of released oil can contaminate one million gallons of water.[3] But before you embark on a subsurface investigation, your environmental consultant should review available records. Agencies and the current property occupant can be sources of records that could indicate whether there are any known problems. If product reconciliation logs do not suggest product loss over time, and there are no current agency investigations, there may be no need to investigate the subsurface. By simply reviewing the existing and available information, you save time, money and keep the deal moving forward.

Sometimes the records review will indicate either product loss or historic product loss, particularly in the case of tanks. For example, if your client is considering the purchase of a service station that has been in business for decades, it is likely that the underground tanks on the property have leaked. A leaking petroleum storage tank can present as an REC, a CREC or an HREC. If the records review of the tanks indicates an ongoing cleanup in progress, the release is categorized as an REC. If the release has been closed but contamination remains in place to a standard below unrestricted residential use, the release is categorized as a CREC. By reviewing the available records, the environmental consultant can determine the nature and extent of the remaining contamination as well as the approved use of the property. If the release has been closed and no further action is required, the release is considered an HREC and is no longer a concern. Again, a review of the records will give the Buyer and Seller the information necessary to move forward, renegotiate the purchase price, or reconsider the transaction, including but not limited to: escrowing funds to complete any cleanup, delaying the Closing pending satisfactory cleanup, or opting not to Close on the property.

In addition to the environmental issues addressed above, there are some common issues of concern that fall outside the scope of a Phase I because they pose human health rather than environmental risks. These issues include asbestos-containing building materials, lead-based paint, and radon gas. Your environmental consultant should be able to inspect and test for these potential health issues as well as perform the Phase I.

Asbestos is found in a variety of building materials, including joint compound, drywall, floor coverings, floor covering adhesive, ceiling tiles, spray-on ceiling material, and coatings under sinks and around pipes. The presence of asbestos-containing materials can be readily confirmed with an asbestos survey, which costs about $2,000 depending on the size of the project. If the survey identifies some asbestos-containing material, it can usually be removed or encapsulated relatively inexpensively.

Lead-based paint was commonly used in homes and commercial property prior to the 1950s. In poor condition, lead-based paint can easily be reduced to a dust, making it more prone to ingestion. If a person ingests too much lead from lead-based paint, lead poisoning results. Your environmental consultant can sample and test for lead in suspect surfaces. If lead-based paint is found, encapsulation is the most efficient and preferred method of ensuring that it no longer poses a health risk.

Radon, which is a naturally occurring, radioactive, colorless, odorless gas known to cause cancer in humans, is another non-Phase I environmental issue relatively common along the Wasatch Front. Your environmental consultant can test for radon by collecting samples from radon-prone areas such as subterranean basements and foundations. Remedial action is warranted where radon gas concentrations exceed the action level of 4 picocuries/l and there is a risk of human exposure. The most cost-effective remedy is to install ventilation to ensure radon gas is not allowed to concentrate in an area.

In conclusion, when you assemble a good team, negotiate the terms of the PSA to include disclosures and environmental indemnification up front, and understand there are many ways short of a subsurface investigation to resolve environmental issues. Don’t let environmental due diligence issues threaten your transaction.


 

[1] Phase I Environmental Site Assessment (Phase I) is a term defined by the American Society of Testing and Materials (ASTM) in Standard ASTM E1527. The purpose of the Standard is to set forth the minimum requirements of a Phase I, which includes a visual, non-destructive inspection of a commercial property as well as a public records review to determine whether sources of environmental concern exist at or in the vicinity of the commercial property in question. The Phase I satisfies a Buyer’s environmental due diligence requirements, giving the Buyer a safe harbor.

 

[2]  REC means there is an existing environmental condition on the property; CREC means there is an existing environmental condition on the property but that it is subject to some type of control or agency oversight; and HREC means there have been recognized environmental conditions in the past, but cleanup efforts allow the property to be used for unrestricted residential use.

 

[3] EPA Office of Water, Source Water Protection Bulletin: Managing Above Ground Storage Tanks to Prevent Contamination of Drinking Water (2010).

A List of Insurance Companies That Winder and Counsel, PC Have Represented

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Condemnation

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Property Condemnation

Pro Bono Legal Services

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The attorneys of Winder & Counsel are committed to annually providing a generous number of pro bono legal service hours to the community. Such services include representation of pro bono clients referred to Winder & Counsel by the Utah State Bar.

The firm’s pro bono commitment has included services in many areas including: domestic temporary restraining orders, workers’ compensation, and criminal misdemeanor representation.

In the wake of the events of September 11, 2001, Winder & Counsel attorneys also answered the call of both the American Bar Association and Utah State Bar by providing free legal representation to United States military personnel and their families in matters ranging from personal injury settlement negotiations to workers’ compensation representation.

In 2002, Winder & Counsel attorneys again answered the call through Dialogue on Freedom presentations to secondary school students.

Winder & Counsel is also part of the consortium of law firms that brought the September 11th class action against Osama Bin-Laden, Iran and dozen of terrorist organizations and state sponsors of terrorism. To participate, each law firm agreed to contribute $25,000 and hundreds of hours per year in this fight against terrorism. (Winder & Counsel shares these contributions with its Utah partner, the firm of Burbidge, Mitchell and Gross).

Further, Winder & Counsel has brought the first wrongful death and personal injury lawsuit by U. S. servicemen under Anti-Terrorism statutes against the estate of Ahmad Sa’id Khadr for the acts of his 15 year-old son, Omar, an Al Qaeda member in a fire fight in Afghanistan.

AND JUSTICE FOR ALL

Winder & Counsel also annually donates time to “And Justice for All,” a program founded by the three largest legal aid organizations in Utah—Disability Law Center, Utah Legal Services and Legal Aid Society of Salt Lake.

Winder & Counsel provides free legal assistance for Utah’s most vulnerable citizens, including those living in poverty, individuals with disabilities, veterans, seniors, minorities and victims of domestic violence.

UTAH STATE BAR VOLUNTEER SERVICES

In addition to its commitment to pro bono legal representation, Winder & Counsel attorneys participate in various volunteer legal activities through the Utah State Bar.

Through a State Bar Committee, Donald J. Winder served as Chair of the Civility Code Subcommittee for the Utah Supreme Court Advisory Committee on Professionalism and was the principal author of Utah’s Principles of Professionalism and Civility. These Principles will have a profound affect upon clients and their lawyers.

Winder & Counsel attorneys also participate in the Modest Means Lawyer Referral Program offered by the Utah State Bar. This program provides access to legal representation for people whose income is too high to qualify for free legal services, but too low to pay standard attorney rates.

In addition, Winder & Counsel attorneys have participated in the “Tuesday Night Bar,” a free legal counseling clinic offered by the Utah State Bar on Tuesday nights throughout the year.

OTHER BAR SERVICES

As part of ABOTA’s “Justice by the People” program, hundreds of interactive curriculum kits have been distributed in Salt Lake City and statewide to school teachers. The program teaches school children about one of our most important rights: trial by jury.

Donald J. Winder has presented the program to students, taught teachers how to present the curriculum and served on the Utah Supreme Court Education for Justice Project. As part of Primerus’ “Liberty in Law” program, Winder & Counsel sponsored Annie Quinn, the first national essay and scholarship winner.

Disclaimer

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The Winder & Counsel web site is for informational purposes only and does not constitute legal advice. Readers are cautioned not to attempt to resolve individual problems based upon the information contained in this web site, and are advised to consult legal counsel. No general solution is applicable to all problems, since slight changes in factual situations may require material variance in the applicable advice. No attorney-client relationship is intended to be created by this web site.

While we have made every effort to ensure the information on this web site is accurate and current, Winder & Counsel shall not be responsible or held liable for errors or omissions. This web site is subject to change without notice.

Representative Clients That We Are Genuinely Proud to Have Worked With

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Our Medical Expertise

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Serious injury and death cases require the utmost in attorney skill and experience. But that’s just half of the equation. Catastrophic cases from an accident or medical malpractice (such as brain injury, birth trauma, paralysis, disfigurement, severe burns, or wrongful death) require medical expertise, too.

These cases demand, from beginning to end, an expert to oversee the complex medical issues that are so important. So, unlike other firms, we have an attorney who is also a clinically experienced doctor (a former head of a hospital emergency room) as a member of our team.

Dr. Rothfeder works closely with our clients and other attorneys, from the initial interview through settlement or trial, overseeing medical issues, advising on strategy, and recruiting top-notch medical experts critical to an excellent outcome.

OUR EXPERIENCED DOCTOR

Our of counsel attorney and medical consultant, Robert K. Rothfeder, M.D., J.D., was formerly the Emergency Department Director at Lakeview Hospital, in Bountiful, Utah, for 17 years.

Spending time in the emergency room, Dr. Rothfeder encountered a myriad of medical issues. At Lakeview, he was truly a doctor’s doctor. Dr. Rothfeder was educated at the University of Minnesota Medical School and trained in emergency medicine at LDS Hospital in Salt Lake City, Utah.

Dr. Rothfeder has been in clinical practice for the past 28 years, and he continues to this day. In the early 1980s, Dr. Rothfeder developed an interest in the legal system and obtained his Juris Doctor from the University of Utah College of Law in 1984.

Today, Dr. Rothfeder partners with our firm’s top-rated attorneys, assisting with complex medical and legal issues.

OUR ADVANTAGE BENEFITS YOU

Other law firms, by contrast, constantly struggle to understand the complex medical issues in cases. They also struggle to find a doctor to consult on your case.

Our medically trained and practicing attorneys can often evaluate the merits of a case without the need for external advice. This is cost effective, less time consuming and more effective in obtaining results.

WE CONNECT

We speak the right language. Our unique medically trained attorneys are just one reason Winder & Counsel has become one of the nation’s leading firms. It’s the right place to turn for outstanding legal counsel, and a powerful medical advantage.

Winder & Counsel has one of the most unique and powerful tools to handle complex medical and health litigation matters. Complex medical and health matters require, from beginning to end, the expertise of medical and legally trained professionals who understand the implications that can make or break your case. Winder & Counsel currently has two medically trained attorneys with direct experience in the medical industry.

THE POWER OF REASON

Contrary to popular belief, not every lawyer has courtroom experience. Most lawyers, in fact, rarely step into a courtroom and few have ever tried a case to a jury. Those who have been successful in court are more discerning in the cases they will accept, have more clout in negotiations and have more credibility with judges, opponents and decision makers.

Few attorneys anywhere can match our expertise with matters involving serious and complex medical issues. All attorneys at Winder & Counsel have an active in-court trial practice. Winder & Counsel has conducted numerous jury and bench trials to successful resolutions. We have further obtained successful results in arbitration.

UNDERSTANDING

Appearing in court and actually trying cases has also taught us a lot about jurors. We’ve learned that jurors can be quickly bored with legal arguments and hopelessly confused about injuries, medicine and medical issues.

We’ve learned to captivate the attention and concern of juries. We explain the medical issues to them in a plain language and demonstrate the issues in a straightforward manner.

We’ve learned not only to build powerful cases and to always arrive exceedingly well prepared, but also to present the cases in a clear, compelling manner. Because, ultimately what matters most isn’t what an expert says, it’s what jurors comprehend and believe.

SOLD! Larry H. Miller Megaplex Theatres at Geneva

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CBC Advisors is pleased to announce the sale of The Larry H. Miller Megaplex Theatres at Geneva from a group of private developers.  Attorney Donald J. Winder of Winder & Counsel P.C. led the Legal Team on this complex transaction.

megaplex

Salt Lake City Taxicab Companies Challenge the City

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Two of Salt Lake City’s taxicab companies are challenging Salt Lake City’s decision to terminate their certificates of public convenience and necessity. The City has decided to regulate on-demand taxicab service through a request for proposal.

The existing cab companies contend the City’s actions violate the state and federal constitutions, as well as various ordinances and state statutes. The Third District Court in Salt Lake City granted the cab companies’ motion for a temporary restraining order against the City, preventing the City from allowing new out-of-state taxicab companies to operate under concession contracts. The case remains pending.

Winder and Counsel Recognized by Martindale-Hubbell for Ethical Standards and Legal Ability Winder and Counsel Recognized by Primerus Winder and Counsel Recognized by Best's Insurance Attorneys 2015 Winder and Counsel Recognized by Best Lawyers