Property Due Diligence:​
Going Beyond Title

Property ​Rights ​To ​Consider​

• Mineral Ownership​​
• Water Ownership​​
• Renewable Energy​​
• Easements​​
• Zoning​​
• Liens ​​
• Mortgages​​
• Covenants​​
• Environmental and Operational Concerns​​
• Lease Analysis​​
• Regulatory Analysis​​
• CRP and other Government Land Programs​​
• Other Contractual Obligations​

Understanding ​How They Relate ​and Work Together​​

Title​​

• Mineral Ownership​​
• Water Ownership​​
• Easements​​
• Lien​s​
• Mortgages​​
• Covenants​​
• Recorded Leases​

Regulatory Analysis​

Federal​​

• EPA​​
• Federal Energy Regulatory Commission​​
• Bureau of Land Management​​
• U.S. Fish and Wildlife Service​​

​​Colorado​​

• Colorado Oil and Gas Commission​​
• Water Resources Division​​
• State Land Board​​
• Colorado Health Department​​

Local​​

• County, city and municipal zoning and ordinances​
• Contractual Obligations​
• Purchase Sale Agreements​​
• Grazing Leases​​
• Farming Leases​​
• CRP​​
• Other Government Land Programs​​
• Rental Agreements​​
• Lease Agreements​​
• Housing Agreements​​
• HOA Bylaws and Covenants​​
• Existing Permits (for example water permits)​​
• Zoning Variance Permit​​

Putting It All Together

Legal Analysis To Understand…​

• Risks​
• Recommendations​
• Cloud On Title (Quite Title, Det. Of Heirship, Probate, etc.)​
• Permit Applications​
• Cost Benefit Analysis​

Drive Greater Resilience, ​
Less Risk in a ​
Post-COVID World​

Click here to view video with more details and information.

Crystal McDonough, Owner and Attorney McDonough Law Group​

Karen Breen, CPA, Embark Finance & Accounting Advisory Services, Managing Director​

Judith Pearson, Woodruff Sawyer Family Office and Trustee Liability Group Leader​

Don’t Become a Statistic​

1. Business Stress Test™​

– Legal, Risk, Finance​

2. Get out of the Firefighting Mode that COVID created​.

3. Seize Control of Your Insurance Program​

– Understanding the current insurance marketplace in the context of historical challenges​.

– New world new risks​.

Business Stress Test™ – Legal​

According to a 2014 Forbes article, between 36% and 53% of US businesses are involved in at least one legal or court proceeding in any given year. ​

​Many of those businesses are sued by employees, contractors, vendors, clients, customers, and even business partners. ​

​What’s even more concerning is the fact that many of these legal issues and disputes could be prevented, or at least minimized, with the proper legal planning and compliance. ​

​It is important to do a thorough review of your operations, procedures, and legal documents to identify any holes or weaknesses that are leaving your business vulnerable to liabilities, lawsuits, and other disputes.​

Regulatory Compliance Ever Changing Rules (federal, state, local, etc.)​

Return to work policies and potential claims. ​

Layoffs may increase as stimulus packages and PPE loans go away – may trigger alleged wrongful termination, demotion, or failure to promote an employee.​

Families First Coronavirus Response Act (FFRCA) requires employers to receive paid sick leave.​

Family & Medical Leave act (FMLA)​

Negligent in adhering to employment-related policies and procedures, such as improper training​.

Americans with Disabilities Act (ADA) how will long haulers be classified? What accommodations must be made?​

Privacy and HIPPA laws​

Worker Adjustment and Retraining Notification (WARN) Act claim for unpaid wages.​

OSHA guidelines​

Will your company require vaccines? ​

Yes, but some employees may be excluded.​

-​ Employees with disabilities​.

-​ Employees with sincerely held religious beliefs.​

-​ Employees covered by collective bargaining agreements. ​

​What accommodations must be provided?​

​Can I require proof of vaccinations of employees and guests? ​

​How does this affect my employment practices, fiduciary liability and workers compensation policies be affected?​

Business Stress Test™ – Risk​

Seize Control of Your Insurance Program​

Understanding the current insurance marketplace in the context of historical challenges​.

New World New Risks​

While the magnitude of D&O claims isn’t different ​the types claims are challenging.​

Adequacy of disclosure in your financial/business environment.

Balancing and prioritizing diverse and complex interest of stakeholders (shareholders, employees, customers, beneficiaries).

Regulatory compliance

Reputational risk

Business Stress Test™ – Finance​

Build RESILIENCE & REINVENT How Finance Teams Operate ​

Cash Remains King!​

Optimize Working Capital​.

Don’t just focus on P/L at the expense of the balance sheet​.

Accelerate receipts, manage inventory turn, extend payments.​

Review tax planning and seek accelerated refund claims​.

Current ratio above 1.0 is key​.

Always Be in a State of Finance Readiness​

GAAP vs cash basis financials​.

​Agile Forecasting – run multiple scenarios, stress test debt covenants​.

​Ensure financials enable a lender or investor to understand your business.​

Sell side due diligence – act as though you’re going to sell and prepare the documents that a buyer would be interested in​.

Revenue, Expenses, Margins, Trends, Client Concentration, Forecasts, Working Capital, etc​.

Finance Automation is Front and Center​

Reduce Time to Close = Better + More Timely Decision Making​

​Digital Transformation.

Automation of manual processes.

Integrate Disparate Systems – Move out of Excel!

Data analytics, Dashboard/Management Reporting.

What gets measured gets managed.

Why do it? ​Per KPMG ​2021 Report​

A transformed finance function transformed can deliver:​

45% cut in general accounting costs​.

15% improvement in working capital​.

50% reduction in manual reconciliations​.

Digitization of the Workplace – Legal/Risk​

Contracts and Agreements​

Subcontractors’ vs Employee agreements, vendors, leases, licenses, etc.​

Cyber: Combination of Increased Threats, Cyberattacks and Malware Continue​
in Remote Workplace​

1. Lack of two factor authentication​.

2. Cloud based breaches.​

a. Misconfigured security measures​.

b. Lack of monitoring security.​

3. Employee connectivity not as robust as corporate environment​.

4. Cyber security staffing (4 million cybersecurity jobs unfilled)​.

What You Need to Know about Hiring Your First Contractor

Hiring workers is an important step for a business. A business owner is faced with a chicken-and-egg dilemma: Is it better to hire employees anticipating that the business will grow, or wait until the business has grown and then hire employees? When a business is starting out, a full-time employee may not be needed. Business owners may instead consider hiring an independent contractor to complete smaller, discrete tasks or to work on specific projects.

Hiring independent contractors instead of employees allows business owners to outsource certain tasks, such as managed IT services or bookkeeping, without the expense and administrative burden of setting up W-2 withholdings, benefits, and payments for Medicare, Social Security, unemployment compensation insurance, and worker’s compensation insurance. Additionally, hiring independent contractors increases a business’s flexibility: Employers can end their relationship with contractors more easily than with staff employees, and they are not obligated to pay contractors when there is no work.

Before hiring your first independent contractor, make sure you are fully prepared. While this list is not exhaustive, it will provide you with some important background information before you hire a contractor.

1. Understand the factors relevant to a worker being legally classified as an independent contractor. Often, independent contractors are business owners who are in a profession or trade that offers services to the public. According to the Internal Revenue Service (IRS), a worker is an independent contractor for a business if the business owner can only control or dictate the type of work or result of the work to be completed and not the manner in which the work is completed.

A few questions can help you determine whether the person you want to hire is likely to be classified as an independent contractor rather than an employee. First, will you be hiring this person for a temporary project or projects? Second, will the worker determine where and when to conduct the work that will be done for you? Third, will this person use his or her own technology or equipment to complete the work? Finally, will the worker be paid on a flat-fee basis or hourly?

Generally, the more control the worker has over the manner in which the work is performed, the more likely the worker is to be classified as an independent contractor. The more the employer dictates the time, place, and manner in which the work is done, the more likely the worker will be legally classified as an employee. It is very important to make sure you classify your workers correctly as independent contractors or employees. You risk paying significant fines and penalties if you misclassify your workers.

2. Verify credentials. As with any new hire, make sure to request and review the prospective worker’s resume and references before the worker begins work. Review the worker’s resume, ask questions, and make sure the person has the qualifications and experience necessary to complete projects for your business. Also, call the references. If the worker owns a business, check the Better Business Bureau as well as online reviews. Make sure there are no complaints filed against the worker or any allegations that would make hiring the worker inadvisable.

In some instances, it may be appropriate to conduct background checks. However, you should do this primarily when a person’s criminal history is relevant to the work at hand. Ban the Box legislation is aimed at preventing discrimination in hiring of people with arrest records or convictions. However, some states require individuals working with children and the elderly to undergo a background check.

3. Establish an accurate payment system. Business owners should ask the independent contractor to submit detailed invoices for work performed. A contractor should not be paid prior to receipt and review of an invoice. Paying a contractor without receiving an invoice resembles payment of wages to an employee. In addition, a business owner should not withhold any taxes from the contractor’s payment. The contractor is responsible for paying the contractor’s income taxes, as well as Social Security and Medicare taxes. You will need to keep track of payments made to the contractor and report them to the IRS.

In addition to taking the steps outlined above, ensure that you have the following essential documents in place:

1. Tax forms. The independent contractor will complete a Form W-9 with the contractor’s Tax Identification Number, and you will complete the corresponding Form 1099-NEC to report payments made to the contractor to the IRS. Check with your CPA to ensure that you have complied with the state and federal requirements.

2. Independent contractor agreements. Every employee should sign an employment agreement with your business. Similarly, every independent contractor should sign a contract that defines the work to be performed, the nature of the relationship (independent contractor, not employee), termination provisions, and payment terms.

3. Confidentiality agreement. Your business’s success stems from its unique business strategies and trade secrets. When an independent contractor begins working with you, the contractor may become familiar with these strategies and secrets. Before the contractor begins any work for your business, you should ensure that the contractor has signed a nondisclosure agreement prohibiting disclosure of this confidential information to your competitors or anyone else without your permission.

4. Agreement not to compete or solicit. Before a contractor begins work, you may also want the contractor to sign an agreement not to compete with you after the working relationship ends. A noncompetition agreement sets out terms to prohibit the contractor from competing with you in a certain geographic area and for a specified time after the relationship with your business has ended. Likewise, an agreement not to solicit is designed to prevent the contractor from taking your customers or employees with him or her when the contractor leaves. The contractor should sign a nonsolicitation agreement prior to beginning work.

Keep all records and agreements on file for each of your independent contractors. While you may not be required to turn over your files, if the IRS audits your business, having these documents will help confirm the nature of the independent contractor’s relationship with your business. This list is not exhaustive for every type of business, but we have a team of lawyers ready to help you prepare these documents and any others that are specific to your business. Give us a call today to set up an appointment.

Common Business Formation Mistakes

The key to a successful business is having the right people, financial knowledge, effective processes, and a well-researched business plan. According to the Bureau of Labor Statistics, approximately 20 percent of businesses fail in their first year, and 50 percent fail by their fifth year. Forming and running a business is hard regardless of whether the business provides products or services. As a business owner, you are likely to make mistakes, but you can learn from them. Awareness of the following common business formation mistakes may help you avoid them and increase your chances of building a successful and lasting business.

1. Failure to plan. Spend the time and money necessary to create a well-thought-out business plan. Do research and then create a business plan and a budget. Carefully consider your expectations for the business as a startup, as well as one, five, and ten years out. Write down your goals. Consider consulting a business coach who can help you formulate your plan.

2. Failure to research. You should thoroughly vet the market for your intended product or service. How much demand is there? Who are your intended customers? Consider engaging a market research company to survey your ideal prospective customers. Talk to others in the same industry. Gather as much information as you can so you can identify traps others have fallen victim to or have been able to avoid. Do not limit your research to friends and family who are not likely to be objective. Seek advice from objective customers or other business leaders.

3. Failure to form a legal entity or forming the wrong type. Some new business owners try the do-it-yourself approach to business formation. This is a major mistake. While there are tools online that purport to help you form a corporation or limited liability company, it is prudent to invest in the advice of legal counsel. Talk to a lawyer who knows the law in your state to help you determine which business structure is best for your business. It is also important to consult a tax advisor who can advise you about the federal and state filings and taxes applicable to the different structures. With the advice of a lawyer and tax advisor, you can choose the structure that is best for you and your business to set your business up properly from the beginning.

4. Doing it all. You might be able to create your own website, answer your phones, pay your taxes, handle your books, talk to your customers, design new products, and manage the affairs of your business at the very beginning, but do not wait too long to delegate some of this work. The worst thing for a business is to have customers turn away because your product or service is subpar—this could easily occur if you are doing too much and do not delegate tasks. Consider hiring a virtual receptionist to answer and return calls and make appointments. Hire a graphic designer to create your logo, branding, and website. Do not wait too long to hire your first employee. Before hiring, thoroughly vet the candidates to ensure you find the right fit for your business. Spend sufficient time training your new employee to ensure the employee understands your goals and your brand and will properly convey your company’s image to your customers.

5. No website or marketing. The first place potential customers will look for you is online. While many new businesses create Facebook pages, many do not build websites or effectively market their businesses. You want customers to find your business, and you want to create brand awareness. A marketing strategist can help you build and effectively market your brand. This will help generate leads for your business. There are many review forums, such as the Better Business Bureau, Facebook, Yelp, and Google. You can easily link your website to these review forums, which will accomplish two important goals: (1) driving customers to your business and (2) allowing your customers to leave reviews for your business.

6. Setting the wrong price. Make sure you are not offering your product or service at a price that is too low or too high. Research your competition: what prices have they set for their products or services? If you set a price that is too low, your business may fail because your prices are not high enough to generate a sufficient profit. Look at the market for your product or service and determine your desired profit margin based on your financial projections and your own sales.

7. Improper bookkeeping. Businesses commonly fail to implement good bookkeeping practices. When you talk to your tax advisor, ask about good bookkeeping practices and strategies. Proper bookkeeping will help ensure the separation of personal and business expenses, assist you in staying on top of insurance and tax payments, and help you understand your financials and your business’s health.

8. Not having written contracts. Every agreement with a client, vendor, or employee should be in writing. The written agreement should specify the agreed-upon terms of the business relationship or transaction. If you sell products or services online or have other important content on your website, you should also have written terms and conditions on your website. A business lawyer can help create well-drafted agreements for you to use with your clients, employees, or vendors. You can also ask your lawyer to review contracts given to you by your vendors. Without properly drafted written agreements, disputes and lawsuits frequently arise.

These are some of the most common mistakes experienced by new business owners, so do not feel discouraged if you make one. The key is to learn from your mistakes so you do not repeat them and to avoid others that are preventable.

Successful business owners take the time to research and plan before launching their new business. In addition, they are not afraid to seek advice from others.

Our team of experienced attorneys is here to help you succeed. Call us today to set up a consultation.

How to Move a Business to Another State

A business owner may relocate a business to another state for a variety of reasons, including increased real estate costs, property taxes, business taxes, or business regulations in the old location; changes in the target market; or even personal or family reasons. Relocating your residence from one state to another requires that you complete several tasks, such as changing your mailing address, utilities, insurance policies, and possibly banks. Moving a business is much more complicated, and it may be difficult to determine what to do first. The steps needed for a successful move vary depending on your business structure. 

Sole Proprietorships

One of the main advantages of forming a business as a sole proprietorship is that you do not have to comply with the formalities and requirements necessary for most other business structures. What you need to do to move your business will depend on the requirements of both your old state and the new state; however, there are certain steps you must always take. First, notify your clients and vendors about the move. Depending on the terms of your contracts, you may be required to provide a certain number of days’ notice. In the absence of any contractual notice requirements, a conservative approach of providing three months’ notice will allow your vendors and clients to prepare and accommodate the new location. If you will no longer be working with certain clients or vendors, thank them for the relationship and stay in touch. 

Next, pay any state, local, or employment taxes and close your business accounts. Make sure you follow any state-specific steps to wrap up any obligations in the old state and then register in the new state. If licenses are required, terminate existing licenses and obtain new ones in the new state. Do the same with professional liability and commercial insurance.

Third, if you are using a “doing business as” (DBA) name, terminate the old name and apply for a new name in the county (or counties) where you will be doing business. Depending on the state, you may need to register the DBA name with the secretary of state’s office or the county clerk. Some states do not require you to register if you are a sole proprietor, so it is important to check the destination state’s requirements. States often have a website providing this information. 

Fourth, if necessary, close your business bank accounts and establish a relationship with a local banker to set up new accounts. Transfer the money from the old to the new accounts. Change your mailing address with the United States Postal Service and notify the Internal Revenue Service so it will send correspondence relating to your business’ taxpayer identification number to the new address. 

Finally, make sure that a final tax return is filed in the old state for time spent there that year. This means that two state tax returns will need to be filed for the year of the move—one in each state.

Partnerships

Moving a partnership requires most of the same steps listed above. However, a partnership has more than one owner, so the other partner or partners should ensure that any accounts in their name are terminated and new ones are established in the new state. Some states require partnerships to register, so it is important to ascertain the requirements of the new state. The partnership agreement should be reviewed and rewritten if necessary to address the business’s purpose and the partners’ obligations, and to comply with the laws of the new state.

Limited Liability Companies

If you are relocating a limited liability company (LLC) to another state, there are even more steps required in addition to those outlined above. First, if the members decide to continue doing business in the old state, they should consider whether they want to (1) create a new LLC in the new state and dissolve the old LLC or merge the old LLC into it or (2) continue the LLC in the old state and register or qualify the LLC as a foreign LLC in the new state. If the business is more personal and local in nature (for example, a fitness coaching business), it may make sense to terminate the old LLC and create a new LLC in the new state, since the eventual client base is likely to be located in the new state. If you will be terminating the old LLC, file the proper termination documents with the old state and follow and document the procedures outlined in your old operating agreement for unwinding the company. If you choose to merge the old LLC into a new one in the new state, you must comply with the merging procedures set forth in the law of the old state. Review and revise the operating agreement to the extent necessary to comply with the new state’s requirements. 

Corporations

The steps necessary to move a corporation to a new state are often the same steps needed for a sole proprietorship, with some additional requirements. First, look carefully at the requirements of the new state for incorporating the business in that state. Decide if you will continue to do business in the old state or only transact business in the new state. If you transact business in the new state and the old state, you may need to register or qualify your business in the new state. If you will no longer transact business in the old state, you should file dissolution or termination documents in the old state and incorporate domestically in the new state to create a new corporate entity. If you will be dissolving the existing corporation, be sure to follow and document the procedures outlined in your old bylaws for unwinding the corporation. Review the bylaws and revise them to the extent necessary to satisfy the new state’s requirements. 

We Are Here to Help

Moving a business to another state involves several decisions and steps, so the best advice is to seek help from certified public accountants (CPAs) and business lawyers. Ideally, you should contact CPAs in both the new state and in the old state to make sure you have complied with all of the federal, state, and local tax requirements. Work with a lawyer in the old state to properly unwind the business (or transition it to the new state if desired). Contact a business lawyer in the new state to help you decide which entity is best for your business and complete all of the steps necessary under that state’s law to legally establish the business. The tax advisors and business lawyers will apprise you of traps to avoid and steps to take to ensure the move is as smooth as possible.

Contact us today to set up an appointment so we can help you successfully move your business to your new location.

Attention Blockchain and Cryptocurrency Miners: Wyoming is now open for business!

On Tuesday April 2, 2019, Wyoming Governor Mark Gordon signed The Special Electric Utility Agreement (HB113) into law. The National Law Review proclaimed it a ‘sweeping’ new piece of legislation. But what does it really mean?

It means that Wyoming is poised to become the cryptocurrency and blockchain capital of the nation – and this new law is paving the way!

The Costs of Blockchain and Cryptocurrency

Blockchain and cryptocurrency providers have long struggled with the excessive electricity and other energy costs associated with the complex process of mining. It’s been estimated that Bitcoin alone uses as much energy annually as the entire nation of Nigeria!

Given that Wyoming already produces some of the cheapest and most abundant energy in the nation, it’s always been an ideal location for finding possible solutions to blockchain energy consumption, and the associated costs. Wanting to capitalize on this advantage, Wyoming has made noticeable efforts to grow their technology sector and make it as blockchain friendly as possible.

As a result, several blockchain and cryptocurrency mining companies have already set their sights on making Wyoming home. The main challenge for Wyoming, however, was offering sustainable and affordable energy rates to blockchain miners without having a negative impact on their other customers.

HB113 aims to solve that all that.

How HB113 Works

The Special Electric Utility Agreement law allows cryptocurrency miners to enter into service agreements with Wyoming’s electric utilities that are separate from all other customers, and without approval from Wyoming’s Public Utility Commission. All costs and benefits from the agreements will sit squarely on the shoulders of the utility companies’ shareholders.

In other words, Wyoming’s utility providers will now have the flexibility to offer special rates and customizable solutions to blockchain and cryptocurrency miners without burdening their other customers with any losses or costs as a result.

This is a win-win for everyone involved.

Wyoming Leads the Way

HB113 is far from being Wyoming’s only piece of legislation to focus on the blockchain industry.

In 2018, Wyoming passed its first set of innovative blockchain laws that made the state’s LLC regulations blockchain-friendly, and categorized cryptocurrency’s as an asset which means they’re now exempt from state property taxes. This caused a slew of blockchain and crypto companies to register in the state. That first round of legal reform was one of the most exciting things to happen to cryptocurrency in at least a decade.

Now, with the passage of HB113, Wyoming has firmly established itself as the most blockchain friendly jurisdiction in the U.S. But they haven’t stopped there.

So far this year, seven other pieces of blockchain friendly legislation have been introduced in the Wyoming state legislator. To date, they’ve all passed on their floors and are set to be signed into law.

Aside from high energy costs, banking for cryptocurrency and blockchain companies has been another source of concern and frustration. Several of Wyoming’s new laws address those challenges. HB74, for example, would allow ‘special purpose depository institutions’ to perform most traditional banking functions for blockchain customers. And SF125 would be the only law in the nation to offer comprehensive UCC provisions for digital assets such as cryptocurrency.

How McDonough Law Can Help

Wyoming may be cowboy country, but their innovative and groundbreaking legislation in the last two years has set the stage for the blockchain community to firmly plant their roots in the Yellowstone state.

Blockchain companies looking to make Wyoming home should take careful note of the various new laws, particularly HB113, and weigh their options and opportunities. Our Wyoming utility attorneys have an in-depth understanding of utility and energy laws and years of experience representing clients during negotiations and the drafting of agreements. We can help you make sense of the new regulations and make the most of the many opportunities available under Wyoming’s broad and sweeping blockchain laws and reform.

Call our office to schedule an appointment today.