EASEMENT AND RIGHT-OF-WAY AGREEMENT
(Montana – State-Law Governed)
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Easement & Scope of Rights
- Consideration & Conditions Precedent
- Representations & Warranties
- Covenants & Restrictions
- Maintenance, Repair & Operations
- Insurance & Risk Allocation
- Indemnification
- Limitation of Liability
- Default, Cure & Remedies
- Term; Termination & Release Procedures
- Recording & Post-Closing Obligations
- Dispute Resolution
- General Provisions
- Execution Block & Notarial Certificate
1. DOCUMENT HEADER
1.1 Parties
This Easement and Right-of-Way Agreement (this “Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
[GRANTOR LEGAL NAME], a [STATE] [ENTITY TYPE], having an address of [ADDRESS] (the “Grantor”); and
[GRANTEE LEGAL NAME], a [STATE] [ENTITY TYPE], having an address of [ADDRESS] (the “Grantee”).
Grantor and Grantee may be referred to herein individually as a “Party” and collectively as the “Parties.”
1.2 Recitals
A. Grantor is the fee simple owner of certain real property located in [COUNTY], Montana, more particularly described in Exhibit A attached hereto and incorporated herein by reference (the “Servient Estate”).
B. Grantee desires to obtain, and Grantor agrees to grant, an easement over, across, under, and through a portion of the Servient Estate for the purposes set forth herein.
C. The Parties intend that this Agreement satisfy all requirements for recordation in the State of Montana and be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings set forth below. Defined terms appear in alphabetical order and are used throughout this Agreement with initial capital letters.
“Access Easement” – The perpetual, non-exclusive right of ingress and egress over the Easement Area for the Easement Purposes.
“Applicable Law” – All laws, statutes, ordinances, rules, regulations, and orders of any governmental authority with jurisdiction over the Parties, the Servient Estate, or the Easement Purposes, including, without limitation, the recording statutes of the State of Montana.
“Construction Period” – The period commencing on the Effective Date and expiring upon completion of the Initial Improvements, not to exceed [__] months absent Grantor’s written extension.
“Defaulting Party” – As defined in Section 11.1.
“Easement Area” – That portion of the Servient Estate described in Exhibit B and depicted in the survey attached as Exhibit C.
“Easement Purposes” – Collectively, the Access Easement, Utilities Easement, and any Temporary Construction Easement, as further described in Section 3.
“Environmental Law” – Any Applicable Law relating to pollution, protection of human health or the environment, or the handling of Hazardous Substances.
“Hazardous Substances” – Any substance regulated under Environmental Law, including but not limited to petroleum products and asbestos.
“Initial Improvements” – As defined in Section 6.1(a).
“Maintenance Activities” – All activities reasonably necessary to keep the Easement Area in good order, condition, and repair, as set forth in Section 7.
““Release Instrument” – A written instrument executed by the Parties in recordable form evidencing the termination or release of all or any portion of the Easement, as further provided in Section 12.4.
“Utilities Easement” – The perpetual, non-exclusive right to install, operate, maintain, repair, replace, and remove utility facilities (including, without limitation, water, sewer, gas, electric, telecommunications, and data facilities) within the Easement Area.
[// GUIDANCE: Add or delete defined terms as needed. Ensure every defined term is actually used in the body of the Agreement.]
3. GRANT OF EASEMENT & SCOPE OF RIGHTS
3.1 Grant. Subject to the terms and conditions herein, Grantor hereby grants, bargains, sells, conveys, and warrants to Grantee:
(a) the Access Easement;
(b) the Utilities Easement; and
(c) a temporary construction easement during the Construction Period (the “Temporary Construction Easement”) for purposes of staging, equipment storage, and related work necessary to complete the Initial Improvements.
3.2 Nature.
(a) Appurtenant/In Gross. The parties designate the Easement as [SELECT: (i) appurtenant to Grantee’s adjacent parcel legally described in Exhibit D OR (ii) in gross].
(b) Perpetual; Run With Land. The Access Easement and Utilities Easement are perpetual and shall run with and burden the Servient Estate for the benefit of Grantee and its successors and assigns.
(c) Exclusivity. The Easement is non-exclusive, and Grantor reserves the right to use the Easement Area in any manner not inconsistent with Grantee’s rights, provided such use does not materially interfere with the Easement Purposes.
3.3 Limitations. Grantee shall not (i) interfere unreasonably with Grantor’s or third parties’ use of the Servient Estate, (ii) store hazardous materials within the Easement Area, or (iii) expand the Easement Area beyond the boundaries shown in Exhibit B without Grantor’s prior written consent.
3.4 Compliance. Grantee shall comply with all Applicable Law, obtain all permits, and provide advance written notice to Grantor at least [__] days before commencing any intrusive work.
4. CONSIDERATION & CONDITIONS PRECEDENT
4.1 Consideration. As full consideration for the Easement, Grantee shall pay to Grantor the sum of $[AMOUNT] (the “Easement Fee”) within [__] business days following the Effective Date.
4.2 Conditions Precedent. The obligations of the Parties are conditioned upon:
(a) Delivery of an executed and notarized counterpart of this Agreement;
(b) Delivery to the title company of executed recordation instructions; and
(c) Payment of the Easement Fee.
Failure of any Party to satisfy the foregoing conditions by [OUTSIDE DATE] shall render this Agreement voidable by the non-defaulting Party upon written notice.
5. REPRESENTATIONS & WARRANTIES
5.1 Mutual. Each Party represents and warrants to the other that:
(a) Authority. It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation and has full power and authority to enter into this Agreement.
(b) Authorization. The execution, delivery, and performance of this Agreement have been duly authorized by all requisite action.
(c) Enforceability. This Agreement constitutes a valid and binding obligation, enforceable against such Party in accordance with its terms.
5.2 Grantor Specific. Grantor further represents and warrants that:
(a) Title. Grantor is the fee owner of the Servient Estate, free and clear of all liens, claims, encumbrances, and easements other than those of record.
(b) No Conflict. Grant of the Easement does not and will not violate any covenant, agreement, or restriction applicable to the Servient Estate.
(c) No Hazardous Substances. To Grantor’s actual knowledge, the Easement Area is free from Hazardous Substances in violation of Environmental Law.
5.3 Survival. All representations and warranties shall survive the recordation of this Agreement.
6. COVENANTS & RESTRICTIONS
6.1 Grantee Covenants.
(a) Improvements. Grantee may construct the initial improvements described in Exhibit E (the “Initial Improvements”) within the Easement Area, subject to Applicable Law and Section 3.4.
(b) Maintenance. Grantee shall perform Maintenance Activities at its sole cost.
(c) Restoration. Upon completion of any work, Grantee shall promptly restore the Easement Area and adjacent property to a condition reasonably equivalent to or better than that existing prior to the commencement of such work.
6.2 Grantor Covenants.
(a) Non-Interference. Grantor shall not erect any structure or engage in any activity within the Easement Area that unreasonably interferes with the Easement Purposes.
(b) Notice of Work. Grantor shall provide Grantee with [__] days’ prior written notice of any significant earthwork or construction in proximity to the Easement Area.
6.3 Compliance. Each Party shall promptly provide copies of any governmental notice alleging violation of Applicable Law relating to the Easement Area.
7. MAINTENANCE, REPAIR & OPERATIONS
7.1 Routine Maintenance. Grantee shall keep the Easement Area reasonably free of debris, vegetation, and hazards and shall maintain all Improvements in good repair.
7.2 Emergency Work. In the event of an emergency threatening life, property, or material interruption of utility service, Grantee may enter the Servient Estate without prior notice to undertake necessary repairs; provided Grantee gives written notice to Grantor within 24 hours thereafter.
7.3 Allocation of Costs. Except as expressly provided otherwise herein, all costs of installation, operation, maintenance, repair, removal, and replacement of improvements within the Easement Area shall be borne by Grantee.
8. INSURANCE & RISK ALLOCATION
8.1 Insurance.
(a) Coverage. Grantee shall maintain at its sole cost (i) commercial general liability insurance with limits of not less than $[__] million per occurrence and $[__] million aggregate; (ii) workers’ compensation coverage as required by law; and (iii) automobile liability insurance for owned and non-owned vehicles.
(b) Additional Insured. Grantor shall be named as an additional insured on policies required by Section 8.1(a).
(c) Certificates. Grantee shall deliver certificates of insurance evidencing such coverage prior to commencement of any work and annually thereafter.
8.2 Waiver of Subrogation. Each Party waives, and shall cause its insurers to waive, all rights of subrogation against the other Party to the extent permitted by Applicable Law.
9. INDEMNIFICATION
9.1 By Grantee. Grantee shall indemnify, defend, and hold harmless Grantor, its affiliates, successors, and assigns from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
(a) Grantee’s exercise of the rights granted herein;
(b) any breach of this Agreement by Grantee; or
(c) the negligence or willful misconduct of Grantee or its agents, contractors, or invitees,
except to the extent caused by the negligence or willful misconduct of Grantor.
9.2 Procedure. The indemnified Party shall provide prompt written notice of any claim and shall cooperate in the defense. The indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent if the settlement imposes any obligation on the indemnified Party other than payment indemnified hereunder.
[// GUIDANCE: Consider mirroring an indemnity by Grantor if warranted by deal economics.]
10. LIMITATION OF LIABILITY
10.1 Liability Cap. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY DAMAGES IN EXCESS OF THE ACTUAL, DIRECT DAMAGES PROXIMATELY CAUSED BY ITS BREACH OF THIS AGREEMENT, PROVIDED THAT THE FOREGOING CAP SHALL NOT APPLY TO:
(a) A PARTY’S OBLIGATION TO INDEMNIFY UNDER SECTION 9;
(b) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR
(c) DAMAGES RECOVERABLE UNDER ANY INSURANCE MAINTAINED PURSUANT TO SECTION 8.
10.2 Excluded Damages. EACH PARTY WAIVES AND RELEASES ALL RIGHTS TO RECOVER CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, EXCEPT TO THE EXTENT INCLUDED IN A THIRD-PARTY CLAIM SUBJECT TO THE INDEMNITY OBLIGATIONS OF SECTION 9.
11. DEFAULT, CURE & REMEDIES
11.1 Events of Default. A Party shall be deemed in default (the “Defaulting Party”) upon:
(a) Failure to perform any material covenant herein within 30 days after receipt of written notice (or if such default is not reasonably curable within 30 days, failure to commence and diligently pursue cure);
(b) Any representation or warranty proving materially false; or
(c) Insolvency, receivership, or assignment for the benefit of creditors.
11.2 Remedies. In the event of a default, the non-defaulting Party may, in its discretion and in addition to all other rights and remedies available at law or in equity:
(a) Demand specific performance, injunctive relief, or declaratory judgment without the necessity of proving inadequacy of legal remedies;
(b) Recover actual damages subject to Section 10; and
(c) Recover reasonable attorneys’ fees and costs incurred in enforcing this Agreement.
12. TERM; TERMINATION & RELEASE PROCEDURES
12.1 Term. The Access Easement and Utilities Easement shall be perpetual unless earlier terminated as provided herein. The Temporary Construction Easement shall automatically terminate upon the earlier of (i) completion of the Initial Improvements or (ii) the expiration of the Construction Period.
12.2 Termination Events. This Agreement may be terminated, in whole or in part, by:
(a) Mutual written agreement of the Parties;
(b) Abandonment by Grantee, evidenced by continuous non-use of the Easement for [__] consecutive years;
(c) Merger of title if the Servient Estate and the dominant estate (if appurtenant) come under common ownership;
(d) Exercise of eminent domain by a governmental authority; or
(e) Final, non-appealable order of a court of competent jurisdiction terminating the Easement.
12.3 Notice & Cure. Except in the event of merger or eminent domain, the terminating Party shall provide 30 days’ written notice of intent to terminate, specifying the basis for termination.
12.4 Recordation of Release. Upon termination of all or any portion of the Easement, the Parties shall promptly execute a Release Instrument for recording in the real property records of the county where the Servient Estate is located. Grantee shall bear all recording fees for such Release Instrument except where termination arises from Grantor’s default, in which case Grantor shall bear such fees.
13. RECORDING & POST-CLOSING OBLIGATIONS
13.1 Recording. The Parties shall submit this Agreement (or a mutually acceptable memorandum of easement) for recordation in the [COUNTY] County Clerk and Recorder’s Office promptly following execution and acknowledgment, and in any event within the time period required by Applicable Law.
13.2 Costs. Recording fees, documentary fees, and transfer taxes (if any) shall be paid by [SELECT: Grantee / Grantor / shared equally].
13.3 Post-Closing Deliverables. Grantee shall deliver to Grantor, within [__] days after recordation, (i) a conformed copy of the recorded Agreement and (ii) evidence of payment of all recording fees.
[// GUIDANCE: Montana requires acknowledgment before a notary public and, in many counties, a one-inch margin on all sides of the first page. Confirm county-specific formatting before recording.]
14. DISPUTE RESOLUTION
14.1 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Montana, without regard to its conflict-of-laws principles.
14.2 Forum Selection. Subject to Section 14.3, the state courts located in [COUNTY], Montana shall have exclusive jurisdiction over any action arising out of or relating to this Agreement, and each Party submits to the personal jurisdiction of such courts.
14.3 Arbitration (Optional). [SELECT ONE OF THE FOLLOWING AND INITIAL]
(a) ☐ The Parties agree that any dispute shall, as a condition precedent to litigation, be submitted to [ADMINISTERING BODY] arbitration in accordance with its rules. Judgment on the award may be entered in any court of competent jurisdiction.
(b) ☐ The Parties do NOT agree to arbitrate.
14.4 Jury Trial Waiver (Optional). [SELECT ONE OF THE FOLLOWING AND INITIAL]
(a) ☐ EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
(b) ☐ Jury waiver not agreed.
14.5 Injunctive Relief. Notwithstanding Section 14.3, either Party may seek temporary or permanent injunctive relief or specific performance in state court to prevent or cure a breach of this Agreement.
15. GENERAL PROVISIONS
15.1 Amendment & Waiver. This Agreement may be amended only by a written instrument executed by both Parties and recorded in the land records. No waiver shall be effective unless in writing and signed by the Party against whom enforcement is sought.
15.2 Assignment. Grantee may assign this Agreement in whole or in part to any successor-in-interest to Grantee’s property or utility facilities benefiting from the Easement upon written notice to Grantor; provided, however, that (i) the assignee assumes Grantee’s obligations herein in writing, and (ii) the assignment instrument is recorded. Any other assignment requires Grantor’s prior written consent, not to be unreasonably withheld.
15.3 Successors & Assigns. This Agreement shall bind and benefit the Parties and their respective successors and permitted assigns.
15.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the Parties shall negotiate an enforceable substitute provision that most closely reflects the Parties’ original intent.
15.5 Integration. This Agreement, together with the Exhibits, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements, or understandings.
15.6 Force Majeure. Neither Party shall be liable for failure to perform its obligations (other than payment obligations) due to events beyond its reasonable control, including natural disasters, acts of God, war, terrorism, governmental action, or labor disputes, provided the affected Party gives prompt notice and uses commercially reasonable efforts to resume performance.
15.7 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together constitute one instrument. Signatures delivered by facsimile, PDF, or other electronic means shall be deemed original signatures for all purposes.
15.8 Notices. All notices shall be in writing and deemed delivered (i) upon personal delivery, (ii) one business day after dispatch by nationally recognized overnight courier, or (iii) three business days after deposit in U.S. certified mail, return receipt requested, postage prepaid, addressed to the Party at its address set forth above (or such other address as such Party may designate by notice).
16. EXECUTION BLOCK & NOTARIAL CERTIFICATE
IN WITNESS WHEREOF, the Parties have executed this Easement and Right-of-Way Agreement as of the Effective Date.
GRANTOR:
[GRANTOR LEGAL NAME]
By: _____
Name: _____
Title: ________
GRANTEE:
[GRANTEE LEGAL NAME]
By: _____
Name: _____
Title: ________
NOTARIAL CERTIFICATE
STATE OF MONTANA )
: ss.
COUNTY OF [COUNTY] )
On this _ day of _, 20, before me, the undersigned Notary Public, personally appeared ____, [title/office], of ____, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that (he/she) executed the same on behalf of said entity for the purposes therein contained.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written.
Notary Public for the State of Montana
Printed Name: ____
My commission expires: ____
[SEAL]
EXHIBITS
Exhibit A – Legal Description of Servient Estate
Exhibit B – Legal Description of Easement Area
Exhibit C – Survey/Plat Depicting Easement Area
Exhibit D – [If Appurtenant] Legal Description of Dominant Estate
Exhibit E – Description of Initial Improvements
[// GUIDANCE:
1. Confirm legal descriptions and attach exhibits before execution.
2. Obtain title company endorsement, if applicable, to insure easement rights.
3. Verify county-specific page formatting, margin, and font size requirements for recording in Montana.
4. Update insurance limits and cure periods to reflect commercial expectations and risk profile.
5. Consider environmental due diligence for properties with industrial history.]