Brownfield Redevelopment Agreement

BROWNFIELD REDEVELOPMENT AGREEMENT

Table of Contents

1. Parties and Recitals
2. Definitions
3. Property Description and Environmental Condition
4. Environmental Due Diligence
5. Remediation Obligations
6. Liability Allocation
7. Regulatory Compliance and VCP Enrollment
8. Financial Assurances
9. Representations and Warranties
10. General Provisions

ARTICLE I: PARTIES AND RECITALS

Effective Date: [__/__/____]

SELLER/CURRENT OWNER ("Seller"):
Name: [________________________________]
Address: [________________________________]
City: [________________________________] State: [____] ZIP: [__________]

BUYER/DEVELOPER ("Developer"):
Name: [________________________________]
Address: [________________________________]
City: [________________________________] State: [____] ZIP: [__________]

REGULATORY AGENCY (if applicable):
Agency Name: [________________________________]
Contact: [________________________________]

Recitals

WHEREAS, Seller is the current owner of the real property described in Article III (the "Property");

WHEREAS, the Property is a "brownfield site" as defined in CERCLA § 101(39), 42 U.S.C. § 9601(39), meaning real property for which the expansion, redevelopment, or reuse may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant;

WHEREAS, Developer desires to acquire and redevelop the Property for [________________________________] (the "Intended Use");

WHEREAS, the Parties desire to allocate responsibility for environmental investigation, remediation, and ongoing compliance;

NOW, THEREFORE, in consideration of the mutual covenants herein, the Parties agree as follows:

ARTICLE II: DEFINITIONS

"All Appropriate Inquiries" (AAI): Inquiries conducted in conformance with 40 CFR Part 312 and ASTM E1527-21.

"Applicable Cleanup Standards": The remediation standards established by [State Agency Name] under [State VCP Statute Citation] for the Property's intended post-remediation use.

"Environmental Condition": Any condition involving the presence, release, or threatened release of Hazardous Substances at, on, under, or migrating from the Property.

"Hazardous Substances": As defined in CERCLA § 101(14), 42 U.S.C. § 9601(14), and applicable state law.

"No Further Action (NFA) Letter": A written determination issued by [State Agency] confirming that remediation of the Property meets Applicable Cleanup Standards.

"Voluntary Cleanup Program (VCP)": The state voluntary cleanup or response program administered by [State Agency] under [State Statute].

ARTICLE III: PROPERTY DESCRIPTION AND ENVIRONMENTAL CONDITION

Property Legal Description: [________________________________]

Parcel ID Number(s): [________________________________]

Property Address: [________________________________]

Current Zoning: [________________________________]

Proposed Post-Development Use: [________________________________]

Known Environmental Conditions

Existing Environmental Reports (attached as Exhibit A):
☐ Phase I ESA — Date: [__/__/____]
☐ Phase II ESA — Date: [__/__/____]
☐ Remedial Investigation — Date: [__/__/____]
☐ Other: [________________________________]

ARTICLE IV: ENVIRONMENTAL DUE DILIGENCE

A. Due Diligence Period

Developer shall have [____] days from the Effective Date (the "Due Diligence Period") to complete environmental investigation of the Property.

B. Due Diligence Activities

Developer is authorized to conduct the following during the Due Diligence Period:

☐ Phase I Environmental Site Assessment (ASTM E1527-21)
☐ Phase II Environmental Site Assessment (ASTM E1903-19)
☐ Soil sampling and analysis
☐ Groundwater monitoring well installation and sampling
☐ Vapor intrusion assessment
☐ Asbestos/lead-based paint surveys
☐ Wetlands delineation
☐ Other: [________________________________]

C. Termination Right

If the results of environmental due diligence reveal Environmental Conditions that, in Developer's reasonable judgment, would make the Intended Use economically infeasible or would impose remediation costs exceeding $[________________________________], Developer may terminate this Agreement upon written notice within [____] days after the Due Diligence Period.

ARTICLE V: REMEDIATION OBLIGATIONS

A. Allocation of Remediation Responsibility

☐ Option 1 — Seller Remediation: Seller shall complete remediation to Applicable Cleanup Standards prior to closing.

☐ Option 2 — Developer Remediation: Developer shall assume all remediation obligations, with the purchase price adjusted by $[________________________________] to reflect estimated cleanup costs.

☐ Option 3 — Shared Remediation: Seller shall be responsible for remediation of [________________________________] and Developer shall be responsible for [________________________________].

B. Cleanup Standards

Remediation shall achieve the following standards:
☐ Unrestricted/residential use standards
☐ Commercial/industrial use standards (with institutional controls)
☐ Site-specific risk-based standards approved by [State Agency]
☐ Other: [________________________________]

C. Remedial Action Plan

The responsible party shall submit a Remedial Action Plan (RAP) to [State Agency] within [____] days of [triggering event]. The RAP shall include:

1. Description of contaminants and affected media
2. Proposed remediation methods
3. Cleanup goals and standards
4. Implementation schedule
5. Health and safety plan
6. Estimated costs
7. Post-remediation monitoring plan

D. Completion and Certification

Remediation shall be deemed complete upon issuance of a No Further Action (NFA) Letter or equivalent written approval from [State Agency].

ARTICLE VI: LIABILITY ALLOCATION

A. CERCLA Liability Protections

Developer acknowledges that to maintain bona fide prospective purchaser (BFPP) status under CERCLA § 107(r), 42 U.S.C. § 9607(r), Developer must:

☐ Conduct All Appropriate Inquiries before acquisition
☐ Exercise appropriate care with respect to Hazardous Substances found at the Property
☐ Provide full cooperation to persons authorized to conduct response actions
☐ Comply with land use restrictions and institutional controls
☐ Take reasonable steps to stop continuing releases and prevent future releases
☐ Comply with information requests and subpoenas
☐ Provide legally required notices regarding discovered Hazardous Substances

B. Indemnification

Seller's Indemnification: Seller shall indemnify and hold harmless Developer from and against all Environmental Claims arising from Environmental Conditions existing prior to closing, except to the extent caused or exacerbated by Developer's actions.

Developer's Indemnification: Developer shall indemnify and hold harmless Seller from and against all Environmental Claims arising from Developer's post-closing activities or new releases caused by Developer.

C. Survival

Environmental indemnification obligations shall survive closing for a period of [____] years.

ARTICLE VII: REGULATORY COMPLIANCE AND VCP ENROLLMENT

A. Voluntary Cleanup Program

☐ Property is currently enrolled in [State] VCP — Case No.: [________________________________]
☐ [Seller/Developer] shall enroll the Property in [State] VCP within [____] days

State VCP Statute: [________________________________]
Applicable State Regulations: [________________________________]

B. Institutional Controls

The following institutional controls are or shall be recorded:
☐ Environmental covenant or deed restriction (per UECA or state equivalent)
☐ Activity and use limitations
☐ Groundwater use restrictions
☐ Vapor intrusion mitigation requirements
☐ Other: [________________________________]

C. Engineering Controls

☐ Cap or cover system
☐ Vapor mitigation system
☐ Groundwater treatment system
☐ Soil containment
☐ Other: [________________________________]

ARTICLE VIII: FINANCIAL ASSURANCES

A. Remediation Cost Estimate

Estimated total remediation cost: $[________________________________]

B. Financial Assurance Mechanism

☐ Environmental insurance policy — Carrier: [________________________________], Policy No.: [________________________________]
☐ Escrow account — Amount: $[________________________________]
☐ Letter of credit — Issuer: [________________________________], Amount: $[________________________________]
☐ Surety bond — Amount: $[________________________________]
☐ Corporate guarantee
☐ Other: [________________________________]

ARTICLE IX: REPRESENTATIONS AND WARRANTIES

Seller Represents and Warrants:

☐ Complete disclosure of all known Environmental Conditions
☐ Copies of all environmental reports and correspondence provided
☐ No pending or threatened environmental enforcement actions (except as disclosed)
☐ No undisclosed underground storage tanks
☐ Current compliance with environmental permits

Developer Represents and Warrants:

☐ Financial capacity to perform assumed remediation obligations
☐ Intended Use is consistent with applicable zoning and land use restrictions
☐ Will maintain BFPP protections through continuing obligations

ARTICLE X: GENERAL PROVISIONS

Governing Law: This Agreement shall be governed by the laws of the State of [________________________________].

Dispute Resolution: [________________________________]

Assignment: [________________________________]

Force Majeure: [________________________________]

Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations and agreements relating to the subject matter hereof.

SIGNATURES

SELLER:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

DEVELOPER:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

SOURCES AND REFERENCES

• 42 U.S.C. § 9604(k), CERCLA Brownfields Provisions
• 42 U.S.C. § 9607(r), Bona Fide Prospective Purchaser Liability Protection
• Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. 107-118 (2002)
• BUILD Act, Pub. L. 115-141, Division S, Title I (2018)
• EPA, Brownfields All Appropriate Inquiries, https://www.epa.gov/brownfields/brownfields-all-appropriate-inquiries
• Uniform Environmental Covenants Act (UECA), https://www.uniformlaws.org/committees/community-home?CommunityKey=c3403c06-4727-4a8b-8550-39f3efbccd98