Redevelopment of NJ Brownfields Sites Tip re: Licensed site remediation professional (LSRP) as a deal maker rather than a deal breaker
Real Estate Contract Due Diligence
- If you are representing the Seller, have you thought about requiring your prospective purchaser to complete diligence without retaining an LSRP so that if transaction is not consummated, your client isn’t burdened with an obligation to investigate/remediate contamination identified during due diligence.
- If you are representing the Buyer, have you considered that a consultant who is not an LSRP, should be sufficient to identify areas of concern that your client could then require Seller to address before it commits to purchase.
Current Owner’s Obligation to Remediate Beyond Closing
Have you thought about whether there should be one LSRP or two involved in a transaction? Owner and its LSRP should retain sole discretion to select the remedy unless the footprint of Buyer’s development project serves as a required component of the clean-up -- in which case Buyer will need its own consultant (but not a separate LSRP) to certify to the Owner and its LSRP that the project has been installed as designed.
- Buyer may need its own LSRP to certify the remedial costs it incurred – in excess of those required of the party responsible for the clean-up -- if it intends to try to recoup a portion of these remedial costs under a Brownfields Redevelopment Agreement.
Have you thought about who will pay for a vapor mitigation system which these days consultants recommend be installed as a prudent measure in all circumstances whenever there is groundwater contamination?
- While the obligation for the Seller/Buyer to pay for the cost of a mitigation system may be dictated by the results of soil vapor testing, the selection of the type of system and responsibility for ongoing operation and maintenance should be addressed in the Purchase Contract.
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