Access and Indemnity Agreement

Access and Indemnity Agreement

Short-form, execution-ready right-of-entry contract allocating operational control and risk during pre-closing property inspections — insurance tied to entry, indemnity scoped with discovery carve-out, anti-indemnity statutes addressed.

Quick Start

1. Run Pre-Draft Intake to collect deal parameters
2. Draft defined terms and license grant
3. Draft access procedures with invasive-activity gate
4. Draft insurance, indemnity, restoration, and confidentiality provisions
5. Assemble in section order
6. Run Post-Draft Alignment and Quality Audit

Pre-Draft Intake

Gather before drafting (skip if user says "use defaults" or "just draft"):

1. Governing law / property location — anti-indemnity, lien, environmental rules
2. Parties — owner, buyer/recipient, property manager, lender, access administrator
3. Property — address/legal description, occupancy, tenants, restricted areas, hazards
4. Deal posture — PSA/LOI status, diligence period, exclusivity, termination triggers
5. Scope — Phase I only vs Phase II, destructive testing, sampling, drones, roof access
6. Insurance — limits, additional insureds, primary/noncontributory, subrogation waiver, carrier ratings
7. Confidentiality — existing NDA, report delivery expectations, privacy limits

Defaults (label when applied): buyer-side; Phase I non-invasive only; $1M/$2M CGL; standard indemnity with discovery carve-out; 48-hour notice; governing law per property state.

Step 1: Defined Terms and License Grant

Defined terms: Property, Access Period, Investigations, Invasive Activities, Owner Indemnitees, Recipient Representatives, Confidential Information, Work Plan

License grant — characterize as limited, revocable, non-exclusive license (not lease or easement). Recipient has no possessory interest. Subject to Owner's rules and tenant rights.

Step 2: Access Procedures and Activity Gates

Access procedures:

• [48] hours' prior written notice identifying entrants, purpose, equipment, insurance confirmation
• Owner may require escorts, reschedule, deny entry for non-compliance
• No tenant contact without Owner's written consent

Invasive activity gate:

• Non-invasive: visual inspections, measurements, surveys, Phase I ESA without sampling
• Invasive (soil borings, sampling, cores, roof/slab penetrations, system shutdowns): requires Owner's prior written consent via approved Work Plan (scope, schedule, contractor licenses, insurance, restoration plan)

Step 3: Insurance Requirements

Tie entry to receipt of acceptable endorsements, not just certificates.

• CGL occurrence form: [$1M] per occurrence / [$2M] aggregate
• Workers' comp as required by law; employer's liability [$500K]
• If invasive approved: umbrella/excess [$5M], Contractor's Pollution Liability [$1M]
• Additional insureds: Owner, property manager, [lender] — primary and noncontributory
• Deliver certificates + endorsements (CG 20 10, CG 20 37) [VERIFY] before entry

Step 4: Indemnity, Restoration, and Confidentiality

Indemnity + discovery carve-out:

• Recipient indemnifies, defends, holds harmless Owner Indemnitees from claims, losses, liens, costs (including attorneys' fees) arising from entry/investigations/breach
• Carve out mere discovery of pre-existing conditions not caused or exacerbated by Recipient
• Carve out Owner's [gross negligence/willful misconduct/sole negligence] per governing law [VERIFY]
• Must cover defense costs, liens, tenant claims, property manager, and lender

Restoration + lien control:

• Restore to substantially same condition; Owner self-help if repairs not commenced within [5] business days (immediate for safety hazards), costs plus [15]% admin fee
• Discharge or bond any lien within [10] days after notice

Confidentiality + reports:

• Covers documents, observations, photos, data from access; disclosure only to bound Representatives
• Report delivery: [full reports / factual data only / no reports]
• If Owner declines reports, state non-receipt to avoid "actual knowledge" consequences [VERIFY]

PSA priority clause (if applicable): PSA access provisions control only on express conflict; insurance, indemnity, restoration, and confidentiality survive unless expressly superseded.

Step 5: Assembly Order

1. Parties, Property, Recitals, License Grant
2. Access Period, Procedures (notice, hours, escorts, tenant non-interference)
3. Permitted vs Invasive Activities with Work Plan gate
4. Insurance Requirements and endorsement delivery
5. Indemnity, Defense, Survival with discovery carve-out
6. Restoration, Lien Control, Incident Response with self-help
7. Confidentiality and Report Handling
8. Disclaimers, Termination, Dispute Terms, Priority/Integration
9. Signatures

Post-Draft Alignment

Ask after delivering draft:

1. Does the scope correctly distinguish non-invasive from invasive for this deal?
2. Are insurance limits and endorsement requirements acceptable to all parties?
3. Is there a lender to add as additional insured or notice recipient?
4. Report delivery election: full reports, factual data only, or no reports (actual-knowledge implications)?

If no response, flag insurance limits and report-delivery election as highest-risk decisions; proceed if authorized.

Quality Audit

• [ ] Access characterized as license, not lease or easement
• [ ] Work Plan approval required before invasive testing
• [ ] Insurance tied to endorsement delivery, not just certificates
• [ ] Indemnity covers defense costs, liens, tenant claims, lender
• [ ] Discovery carve-out for pre-existing conditions included
• [ ] Owner negligence carve-out appropriate for governing law
• [ ] Restoration obligations and self-help remedy included
• [ ] Lien cure periods contractual (not claimed as statutory without verification)
• [ ] Confidentiality/NDA conflict resolved
• [ ] Anti-indemnity statute compliance verified for governing jurisdiction
• [ ] All bracketed terms filled or flagged
• [ ] Environmental reporting obligations not stated as mandatory without verification

Rules

• Characterize access as license, never lease or easement
• Require Work Plan approval before invasive testing
• Tie entry to endorsement delivery, not just certificates
• Include discovery carve-out for pre-existing conditions; retain liability for exacerbation
• Use contractual lien cure periods; never claim statutory deadlines without verification
• For TX/NY/CA/FL: verify anti-indemnity requirements [VERIFY]
• Environmental reporting is fact- and state-specific; never state as mandatory without verification [VERIFY]
• If NDA exists, specify which document controls confidentiality
• Never fabricate statutory citations, insurance form numbers, or anti-indemnity rules
• All outputs require attorney review in the property's jurisdiction