EASEMENT AGREEMENT
(North Dakota)
[// GUIDANCE: This template is drafted for an easement to be recorded in the State of North Dakota (“ND”). All bracketed items in ALL-CAPS must be customized. Delete guidance comments and unused bracketed options prior to execution.]
DOCUMENT HEADER
This Easement Agreement (the “Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
- [GRANTOR LEGAL NAME], a [ENTITY TYPE] organized under the laws of [STATE], having its principal address at [ADDRESS] (“Grantor”); and
- [GRANTEE LEGAL NAME], a [ENTITY TYPE] organized under the laws of [STATE], having its principal address at [ADDRESS] (“Grantee”).
The foregoing parties may be referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Grantor is the fee simple owner of that certain real property located in [COUNTY] County, North Dakota, more particularly described in Exhibit A attached hereto and made a part hereof (the “Servient Estate”).
B. Grantee desires to obtain, and Grantor is willing to grant, a [TYPE OF EASEMENT—e.g., non-exclusive access, utility, drainage, conservation] easement burdening a portion of the Servient Estate, as described and/or depicted in Exhibit B (the “Easement Area”), subject to the terms and conditions of this Agreement.
C. The Parties enter into this Agreement for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties, and agreements herein contained, and for other good and valuable consideration, the Parties agree as follows:
TABLE OF CONTENTS
I. Definitions
II. Grant of Easement
III. Use; Restrictions; Performance Standards
IV. Consideration & Payment Terms
V. Term; Termination & Reversion
VI. Maintenance & Repair Obligations
VII. Representations & Warranties
VIII. Covenants & Restrictions
IX. Default & Remedies
X. Risk Allocation
XI. Dispute Resolution
XII. Recording; Further Assurances
XIII. General Provisions
XIV. Execution & Acknowledgment Blocks
I. DEFINITIONS
The following capitalized terms shall have the meanings set forth below; other capitalized terms are defined in-text.
“Actual Damages” means direct damages proven in fact and does not include punitive, consequential, special, speculative, or exemplary damages.
“Easement” means the easement right granted by Grantor to Grantee pursuant to Section II.
“Easement Area” has the meaning set forth in Recital B.
“Effective Date” has the meaning set forth in the Document Header.
“Event of Default” has the meaning set forth in Section IX.1.
“Grantor” and “Grantee” have the meanings set forth in the Document Header.
“Liability Cap” has the meaning set forth in Section X.2.
“ND Recording Statutes” means the statutes, regulations, and official guidelines governing the recording of instruments affecting real property in North Dakota, as amended from time to time.
[// GUIDANCE: Add/change definitions as necessary for project-specific terms (e.g., “Utilities,” “Conservation Values,” etc.). Keep alphabetical order.]
II. OPERATIVE PROVISIONS – GRANT OF EASEMENT
2.1 Grant. Subject to the terms and conditions herein, Grantor hereby grants, bargains, transfers, and conveys to Grantee and Grantee’s permitted successors and assigns, a [perpetual OR term-limited], [exclusive OR non-exclusive] easement over, across, upon, and under the Easement Area for the following purposes (collectively, the “Authorized Uses”):
(a) [ACCESS] – ingress, egress, and regress to and from the public right-of-way;
(b) [UTILITY] – installation, construction, operation, maintenance, repair, replacement, and removal of utility facilities and appurtenances;
(c) [DRAINAGE] – collection, conveyance, and discharge of stormwater;
(d) [CONSERVATION / VIEW] – preservation of natural habitat and scenic values; and
(e) any incidental uses reasonably necessary to accomplish the foregoing.
2.2 Appurtenant/In Gross Election. The Easement is [APPURTENANT TO THE DOMINANT ESTATE DESCRIBED IN EXHIBIT C / IN GROSS].
2.3 Rights Retained by Grantor. Grantor reserves the right to use the Easement Area for any purpose not inconsistent with the Authorized Uses, provided such use does not materially interfere with Grantee’s rights herein.
2.4 Exclusive Possession Disclaimer. Nothing herein shall be construed as granting Grantee exclusive possession of the Easement Area or any fee interest in the Servient Estate.
[// GUIDANCE: Tailor the scope—e.g., construction rights, borrow/stockpile, gates, surface restoration.]
III. USE; RESTRICTIONS; PERFORMANCE STANDARDS
3.1 Compliance with Laws. Grantee shall comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations (collectively, “Applicable Law”) in exercising its rights hereunder.
3.2 Performance Standards.
(a) Work within the Easement Area shall be performed in a good and workmanlike manner and in accordance with [INDUSTRY STANDARD – e.g., ANSI, NESC].
(b) Grantee shall restore any disturbed portions of the Easement Area and Servient Estate to a condition substantially similar to that existing immediately prior to such disturbance, reasonable wear and tear excepted.
3.3 Prohibited Activities. Without limiting the foregoing, neither Party shall:
(i) store or dispose of Hazardous Materials within the Easement Area;
(ii) interfere with utilities or drainage not directly related to the Authorized Uses; or
(iii) construct any improvement within the Easement Area without the other Party’s prior written consent, except as expressly authorized herein.
3.4 Access. Grantor shall provide Grantee, its contractors, agents, and invitees with reasonable, safe, and continuous access to the Easement Area.
IV. CONSIDERATION & PAYMENT TERMS
4.1 Easement Consideration. As full consideration for the Easement, Grantee shall pay to Grantor [EASEMENT FEE AMOUNT] in immediately available funds on or before [PAYMENT DATE].
[// GUIDANCE: For staged or contingent payments, insert schedule and remedies for non-payment.]
4.2 Taxes & Assessments. Each Party shall pay its respective real estate taxes and assessments attributable to its interest in the property and Easement created hereby. If the Easement results in increased assessments, Grantee shall be responsible for such increases.
V. TERM; TERMINATION & REVERSION
5.1 Term. The Easement shall commence on the Effective Date and shall [continue in perpetuity / expire on (DATE)], unless terminated earlier pursuant to this Section V.
5.2 Termination Events. The Easement shall terminate upon the earlier of:
(a) Mutual written agreement of the Parties duly recorded;
(b) Abandonment by Grantee as evidenced by [12] consecutive months of non-use without written notice of intent to resume use;
(c) Merger of title where the dominant and servient estates come under common ownership;
(d) Final condemnation of the Easement Area by a governmental authority; or
(e) Grantee’s uncured Event of Default under Section IX resulting in termination as a remedy.
5.3 Recordation of Termination. Upon termination, Grantee shall execute and deliver a recordable quitclaim release within [30] days after written request by Grantor.
VI. MAINTENANCE & REPAIR OBLIGATIONS
6.1 Grantee Obligations. Grantee shall, at its sole cost and expense, maintain the Easement Area and all installations located thereon in good condition and repair, and in a manner that does not create safety hazards or interfere with Grantor’s retained use.
6.2 Grantor Obligations. Grantor shall not intentionally damage or obstruct Grantee’s improvements or facilities within the Easement Area.
6.3 Cost Allocation. Unless otherwise agreed in writing, all costs of maintenance, repair, replacement, and restoration related to the Authorized Uses shall be borne by Grantee.
VII. REPRESENTATIONS & WARRANTIES
7.1 Mutual Representations. Each Party represents and warrants to the other that:
(a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;
(b) it has full power and authority to enter into and perform this Agreement;
(c) the execution and delivery of this Agreement have been duly authorized by all necessary action; and
(d) this Agreement constitutes a legal, valid, and binding obligation enforceable against such Party in accordance with its terms.
7.2 Grantor’s Additional Representations. Grantor further represents and warrants that:
(a) it holds good and marketable title to the Servient Estate, free and clear of all liens, claims, and encumbrances other than those of record;
(b) no consent of any third party (other than those already obtained) is required to grant the Easement; and
(c) there is no outstanding agreement, option, or right of first refusal which would conflict with this Agreement.
7.3 Survival. All representations and warranties shall survive the Closing and recording of this Agreement for a period of [____] years, except for fundamental representations (organization, authority, title) which shall survive indefinitely.
VIII. COVENANTS & RESTRICTIONS
8.1 Affirmative Covenants of Grantee.
(a) Insurance. Grantee shall obtain and maintain the insurance policies set forth in Exhibit C.
(b) Notice of Claims. Grantee shall provide written notice to Grantor of any claim, suit, or administrative proceeding related to the Easement within [10] business days of service or receipt.
8.2 Negative Covenants of Grantee. Grantee shall not assign, transfer, or mortgage its Easement rights, in whole or in part, without Grantor’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed, except that no consent shall be required for transfers to Grantee’s affiliates or utility providers servicing the Authorized Uses.
8.3 Covenant Running with Land. All covenants herein shall run with the land and be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns.
IX. DEFAULT & REMEDIES
9.1 Events of Default. The occurrence of any of the following, after expiration of the applicable cure period, constitutes an “Event of Default”:
(a) a material breach of any covenant, duty, or obligation under this Agreement; or
(b) failure to pay any monetary obligation when due.
9.2 Notice & Cure. The non-defaulting Party shall provide written notice specifying the default in reasonable detail. The defaulting Party shall have [30] days (or [10] days for monetary defaults) to cure, or such longer period as reasonably necessary provided the defaulting Party commences cure within the initial period and diligently prosecutes completion.
9.3 Remedies. Upon an Event of Default, the non-defaulting Party may pursue any combination of the following, in addition to any rights at law or equity:
(a) specific performance or injunctive relief;
(b) self-help to cure at the defaulting Party’s expense;
(c) recovery of Actual Damages; and
(d) termination of this Agreement under Section V.2(e) (only for material, uncured defaults substantially defeating the purpose of the Easement).
9.4 Attorneys’ Fees. The prevailing Party in any enforcement action shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses from the non-prevailing Party.
X. RISK ALLOCATION
10.1 Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party, its affiliates, and their respective officers, directors, managers, members, shareholders, employees, agents, successors, and assigns (collectively, “Indemnitees”) from and against any and all claims, demands, suits, liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees, to the extent arising out of or relating to:
(a) the Indemnifying Party’s negligence or willful misconduct;
(b) breach of this Agreement by the Indemnifying Party; or
(c) violation of Applicable Law by the Indemnifying Party;
except to the extent caused by the negligence or willful misconduct of any Indemnitee.
10.2 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES. Each Party’s aggregate liability to the other for all claims arising under this Agreement shall not exceed the greater of (i) the total consideration paid for the Easement, or (ii) the cost of repairing or replacing damaged improvements within the Easement Area (the “Liability Cap”); provided, however, that the Liability Cap shall not apply to indemnity obligations for third-party personal injury or property damage, or to damages resulting from gross negligence or willful misconduct.
10.3 Insurance. Each Party shall maintain the insurance coverages set forth in Exhibit C for so long as this Agreement remains in effect.
10.4 Force Majeure. Neither Party shall be deemed in default for delays or failures in performance (other than monetary obligations) due to causes beyond its reasonable control, including acts of God, governmental orders, epidemics, strikes, or severe weather, provided the affected Party gives prompt written notice and resumes performance as soon as reasonably practicable.
XI. DISPUTE RESOLUTION
11.1 Governing Law. This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of the State of North Dakota, without regard to conflict-of-laws principles.
11.2 Forum Selection. The state district courts sitting in [COUNTY] County, North Dakota (and, if applicable, the United States District Court for the District of North Dakota) shall have exclusive jurisdiction and venue over any action arising out of or relating to this Agreement.
11.3 Optional Arbitration. [OPTIONAL – STRIKE IF NOT USED]
At the election of [EITHER PARTY / ONLY GRANTOR / ONLY GRANTEE], any dispute, claim, or controversy arising out of or relating to this Agreement may, upon written notice, be submitted to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, conducted in [CITY], North Dakota. The arbitral award may be entered as a judgment in any court of competent jurisdiction.
11.4 Jury Trial Waiver. [OPTIONAL – STRIKE IF NOT USED]
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
11.5 Equitable Relief. Each Party acknowledges that monetary damages may be insufficient to remedy a breach and agrees that, in addition to any other remedies available, specific performance and injunctive relief shall be available without the necessity of posting bond.
XII. RECORDING; FURTHER ASSURANCES
12.1 Recording. Immediately following execution, Grantor shall cause this Agreement (or a memorandum thereof) to be duly acknowledged and recorded in the real property records of [COUNTY] County, North Dakota, in conformity with ND Recording Statutes. Recording fees and documentary taxes shall be paid by [PARTY RESPONSIBLE].
12.2 Title Documentation. Grantee may, at its option and expense, obtain a title report or policy insuring the Easement. Grantor shall cooperate and execute any additional documents reasonably required by the title company for such purpose.
12.3 Further Assurances. Each Party shall, upon reasonable request, execute and deliver any further instruments or documents and take such other actions as may be necessary or desirable to confirm or carry out the intent of this Agreement.
XIII. GENERAL PROVISIONS
13.1 Amendment; Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and executed by both Parties. No failure or delay in exercising any right hereunder shall operate as a waiver thereof.
13.2 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Except as expressly permitted in Section 8.2, Grantee may not assign its rights hereunder without Grantor’s prior written consent.
13.3 Severability. If any provision of this Agreement is deemed invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to render it valid and enforceable while effectuating the Parties’ intent.
13.4 Entire Agreement. This Agreement (including all exhibits and schedules) constitutes the entire agreement between the Parties with respect to the Easement and supersedes all prior negotiations, understandings, and agreements, whether written or oral.
13.5 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures in compliance with Applicable Law shall be deemed original signatures.
13.6 Notices. Any notice required or permitted hereunder shall be in writing and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or mailed by certified mail (return receipt requested), postage prepaid, to the addresses set forth in the Document Header (or such other address as a Party may designate by notice in accordance herewith).
XIV. EXECUTION & ACKNOWLEDGMENT BLOCKS
IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as of the Effective Date.
GRANTOR:
[GRANTOR LEGAL NAME]
By: ______
Name: [NAME]
Title: [TITLE]
STATE OF _ )
) ss.
COUNTY OF ______ )
On this ___ day of ____, 20__, before me, a notary public in and for said state, personally appeared [NAME], known to me to be the person who executed the foregoing instrument on behalf of [GRANTOR] and acknowledged that he/she executed the same as the free act and deed of said entity.
Notary Public: ____
My Commission Expires: __
GRANTEE:
[GRANTEE LEGAL NAME]
By: ______
Name: [NAME]
Title: [TITLE]
STATE OF _ )
) ss.
COUNTY OF ______ )
On this ___ day of ____, 20__, before me, a notary public in and for said state, personally appeared [NAME], known to me to be the person who executed the foregoing instrument on behalf of [GRANTEE] and acknowledged that he/she executed the same as the free act and deed of said entity.
Notary Public: ____
My Commission Expires: __
EXHIBIT A
Legal Description of Servient Estate
[INSERT METES & BOUNDS OR PLATTED DESCRIPTION]
EXHIBIT B
Easement Area
[INSERT METES & BOUNDS, CENTERLINE DESCRIPTION, AND/OR SURVEY DRAWING]
EXHIBIT C
Insurance Requirements
1. Commercial General Liability – not less than $[_____] per occurrence / $[_____] aggregate.
2. Workers’ Compensation – statutory limits; Employers’ Liability – $[_____].
3. Auto Liability – $[_____] combined single limit.
4. [Pollution/Environmental Liability] – $[_____] (if applicable).
5. Grantor and its affiliates shall be named as additional insureds (except for Workers’ Compensation).
6. Certificates of Insurance shall be delivered to Grantor annually.
[// GUIDANCE: Increase limits or add specialized coverage (e.g., professional liability) as warranted by the project.]