Análisis comparativo de las metodologías MML y PMI

Some farmouts, particularly those drafted in recent years, include lengthy provisions addressing regulatory matters such as compliance with environ- mental law, Equal Employment Opportunity Commission regulations, conservation regulations, or securities laws. These provisions, typically regarded as boilerplate by the parties, become important in assigning responsibility or liability.

(1) is caused by or results from the sole or concurrent negligence of the indemnitee, his agent or employee, or an individual contractor responsible to the indemnitee . . . .

451. TEX. CIV. PRAC. & REM. CODE ANN. § 127.003 (Vernon 1986). This provision is contrary to the general rule in Texas, as well as in most other states. Generally, indemnifica- tion against one’s own negligence is not contrary to public policy so long as the agreement of the parties is clear. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705 (Tex. 1987). In

Ethyl Corp. the Texas Supreme Court adopted the “express negligence doctrine,” which requires the intent of the parties to indemnify the indemnitee from the consequences of its own negligence to be “specifically stated within the four corners of the contract” in order to be effective. Id. at 708. But see Meloy v. Conoco, Inc., 784 F.2d 1320, 1322 (effect of Louisiana anti-indemnity statute limited to nullifying indemnity for indemnitee’s own negligence or fault), vacated, 792 F.2d 56, certified to La. S. Ct., 794 F.2d 992 (5th Cir. 1986).

452. TEX. CIV. PRAC. & REM. CODE ANN. § 127.005(a) (Vernon 1986) provides that the anti-indemnity provisions do not apply “to any agreement that provides for indemnity with respect to claims for personal injury or death to the indemnitor’s employees or agents or the employees or agents of the indemnitor's subcontractors” if the indemnity is supported by insurance. The section provides, however, that “[t]he amount of insurance required may not exceed 12 times the state’s basic limits for personal injury, as approved by the State Board of Insurance in accordance with Article 5.15, Insurance Code.” Id. § 127.005(c). On this basis, the maximum enforceable indemnity under § 127.005, as of the time this Article is written, was $300,000.

a) Environmental Regulations

One of the most common regulatory provisions in farmout agreements provides that the farmee agrees to comply with all applicable environmental regulations. Such a regulatory clause may be short453 or long.454 An environmental compliance clause serves two major purposes. First, it should put the farmee on notice of environmental regulations of concern. Of course, the farmor should disclose any specific concerns. Likewise, counsel for a farmee who encounters an environmental compliance clause should inquire specifically whether the farmor is aware of particular potential problems. A second function of an environmental compliance clause is to provide clear notice of the applicability of the agreement’s indemnification provisions.

453. A short version of an environmental compliance clause follows:

You recognize that one of the primary concerns of the oil industry is compliance with anti-pollution provisions of the environmental regulations. One of the principal considerations of this contract, without which it would not have been made by Farmor, is your agreement, evidenced by your execution hereof, to comply with all Federal, State, and local laws and regulations concerned with prevention and/or control of pollution. You now and hereafter shall hold Farmor harmless from any claims, actions or causes instituted and/or damages or penalties incurred for your failure to timely comply therewith. 454. An example of a more elaborate environmental compliance clause follows:

Operator agrees to comply with the Clean Air Act (42 U.S.C. § 1857) and the Federal Water Pollution Control Act (33 U.S.C. § 1251) when conducting operations involving nonexempt contracts. In all nonexempt contracts with subcontractors, Operator shall require:

(1) No facility to be utilized by Subcontractor in the performance of this contract with Operator is listed on the Environmental Protection Agency (EPA) List of Violating Facilities. See Executive Order No. 11738 of September 12, 1973, and 40 C.F.R. § 15.20.

(2) Prompt written notification shall be given by Subcontractor to Operator of any communication indicating that any such facility is under consideration to be included on the EPA List of Violating Facilities.

(3) Subcontractor shall comply with all requirements of Section 114 of the Clean Air Act (42 U.S.C. § 1857) and Section 308 of the Federal Water Pollution Control Act (33 U.S.C. § 1251), relating to inspection, monitor- ing, entry, reports, and information, as well as all other requirements specified in these Sections, and all regulations and guidelines issued thereunder.

(4) The foregoing criteria and requirements shall be included in all of Subcon- tractor’s nonexempt subcontractors, and Subcontractor shall take such action as the Government may direct as a means of enforcing such provisions. See 40 C.F.R. § 15.4 & 5.

b) Equal Employment Opportunity Clause

Equal employment opportunity compliance clauses now frequently appear in farmout agreements, particularly those drafted by counsel for large corporations. Federal law may well require such provisions.455 Even if not required, however, they are helpful because they put the farmee on notice and clarify responsibility.

c) Compliance with Conservation Laws

Some farmout agreements state specifically that the farmee must comply with all conservation laws and rules. Conservation compliance language probably mirrors the expectation of the parties to the farmout agreement. After all, the farmee has the responsibility for conducting drilling and paying drilling costs. It may also remind the farmee that it cannot count on the farmor to do the things that are usually done before a well is drilled, such as check and clear title. When a conservation compliance clause is used in an agreement that makes absolute performance the standard of performance, however, failure to comply with its terms may be cause for termination of the farmee’s rights.

d) Securities Regulation

Some attorneys counsel that farmout agreements should include an administrative clause addressing securities regulation to obtain the farmee’s representation and warranty that it is a “sophisticated investor” and that it will comply with the requirements of securities laws in its dealings with farmed-out leases. While such bootstrapping techniques do not guarantee compliance, they put the parties on notice of potential problems and make clearer the responsibility for taking action to comply with applicable securi- ties regulations.

455. The Equal Employment Opportunity Act, 42 U.S.C. § 2000e-2(a) (1982) provides: It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .

The Equal Employment Opportunity Act defines an employer as a person engaged in industry affecting commerce who has 15 or more employees for each working day. 42 U.S.C. § 2000e(b) (1982).

e) Others

The number and length of miscellaneous administrative provisions increase as federal and state legislative branches work. A review of farmout agreements collected from major oil companies revealed that additional regulatory compliance clauses had obviously been added from time to time to cover a variety of regulatory concerns, including compliance with the Occupational Safety and Health Act,456 the Rehabilitation Act of 1973,457 veterans preferences, and affirmative action plans, to note only a few.458