Easement Agreement - North Dakota

EASEMENT AGREEMENT

(North Dakota)

DOCUMENT HEADER

This Easement Agreement (the “Agreement”) is entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

1. [GRANTOR LEGAL NAME], a [ENTITY TYPE] organized under the laws of [STATE], having its principal address at [ADDRESS] (“Grantor”); and
2. [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., access, utility, drainage] easement burdening a portion of the Servient Estate precisely described 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.

“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.

“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.

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 [exclusive OR non-exclusive] easement over, across, and upon the precisely described Easement Area in Exhibit B, and under it only for a selected utility or drainage purpose, for the term stated in Section 5.1 and for the following selected 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) incidental uses reasonably necessary to accomplish only the selected purposes.

2.2 Appurtenant/In Gross Election. The Easement is [APPURTENANT TO THE DOMINANT ESTATE DESCRIBED IN EXHIBIT D / IN GROSS]. Select one. If appurtenant, complete Exhibit D. If in gross, identify the holder and confirm that the selected purpose is within N.D.C.C. § 47-05-02 or another verified basis for a servitude not attached to land.

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.

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].

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 begins on the Effective Date and expires on [SPECIFIC EXPIRATION DATE], unless sooner extinguished under applicable law or released as provided below. The stated term must not exceed 99 years from the Effective Date (N.D.C.C. § 47-05-02.1(2)).

5.2 Termination. Before the fixed expiration date, the Parties may record a written release signed by the easement holder. Statutory extinguishment, including merger of the servitude and servient rights in one person or destruction of the servient tenement, is governed by N.D.C.C. § 47-05-12. A claimed abandonment, breach, or condemnation shall be resolved under applicable law; neither mere nonuse nor a unilateral default notice automatically clears the recorded Easement.

5.3 Recordation of Termination. After expiration or a legally effective termination, Grantee shall execute and deliver a recordable 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 it has a vested estate in the Servient Estate sufficient to grant this Easement (N.D.C.C. § 47-05-05) and 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. The Parties intend the representations and warranties to survive execution and recording for [___] years, subject to applicable limitation periods.

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 Successors. If the appurtenant option is selected, the Easement passes with the dominant estate under N.D.C.C. § 47-10-11. The Parties intend obligations concerning use and maintenance of the Easement Area to bind successors to the extent permitted by law; personal payment and risk obligations bind a successor only by assumption or applicable law.

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) recovery of damages available under applicable law and this Agreement; and
(c) any other remedy established by applicable law, subject to the recorded Easement and Section 5.2.

9.4 Attorneys’ Fees. The Parties agree that the prevailing Party may seek reasonable attorneys’ fees and costs in an enforcement action to the extent permitted by applicable law and ordered by the court.

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 an Indemnitee's negligence, fraud, willful injury, or violation of law.

10.2 Liability. The Parties agree to no general dollar cap on liability under this Agreement. Nothing in this Agreement exempts a Party from responsibility for its own fraud, willful injury, or violation of law, whether willful or negligent (N.D.C.C. § 9-08-02).

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. Subject to mandatory jurisdiction and venue rules, the Parties consent to suit in the state district court for [COUNTY] County, North Dakota, where the Servient Estate is located.

11.3 Optional Arbitration. [OPTIONAL – STRIKE IF NOT USED]
The Parties may agree in writing, after a dispute arises, to submit it to binding arbitration under [SELECTED ARBITRATION RULES] in [CITY], North Dakota. Any award may be submitted to a court of competent jurisdiction as permitted by applicable law.

11.4 Equitable Relief. Either Party may seek specific performance or injunctive relief when available under applicable law and court rules.

XII. RECORDING; FURTHER ASSURANCES

12.1 Recording. After execution and acknowledgment, [RESPONSIBLE PARTY] shall present this Agreement for recording to the recorder of [COUNTY] County, North Dakota, where the Servient Estate is located, with original signatures unless an exception applies (N.D.C.C. §§ 47-19-03, 47-19-07). The recorded copy must reserve a three-inch space across the first-page top for the recorder's information (N.D.C.C. § 11-18-05(1)(a)(4)). [PARTY RESPONSIBLE] shall pay recording fees.

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. Any amendment affecting the grant, Easement Area, purpose, or term must be in a written instrument signed by the affected interest holders and, for record notice, recorded. The Parties intend amendments to other obligations to be written and signed, subject to N.D.C.C. § 9-09-06 concerning an executed oral agreement. No failure or delay in exercising a right hereunder shall itself operate as a waiver.

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 is held invalid or unenforceable, the Parties intend the remaining provisions to remain effective and request any reformation permitted by applicable law.

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 counterparts. Any electronic execution used for recording must satisfy the execution and acknowledgment requirements of N.D.C.C. § 47-19-03 and other applicable law; a PDF counterpart alone does not establish recordability.

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]
Signature: ______________________________
Printed name: [NAME]
Title or capacity: [TITLE / INDIVIDUAL]
Date: [__/__/____]

Acknowledgment of Grantor

State of [STATE], County of [COUNTY].

This record was acknowledged before me on [__/__/____] by [NAME] [IN INDIVIDUAL CAPACITY / AS TITLE OF GRANTOR ENTITY].

Signature of notarial officer: ______________________________

Title of office: [________________] · My commission expires: [__/__/____]

Official stamp: [AFFIX STAMP]

GRANTEE:

[GRANTEE LEGAL NAME]
Post-office address: [________________________________]
City street address, if known or existing: [________________________________]
Signature: ______________________________
Printed name: [NAME]
Title or capacity: [TITLE / INDIVIDUAL]
Date: [__/__/____]

Acknowledgment of Grantee

State of [STATE], County of [COUNTY].

This record was acknowledged before me on [__/__/____] by [NAME] [IN INDIVIDUAL CAPACITY / AS TITLE OF GRANTEE ENTITY].

Signature of notarial officer: ______________________________

Title of office: [________________] · My commission expires: [__/__/____]

Official stamp: [AFFIX STAMP]

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.

EXHIBIT D

Legal Description of Dominant Estate (complete only if the Easement is appurtenant)
[INSERT COMPLETE LEGAL DESCRIPTION]

END OF DOCUMENT