EASEMENT AGREEMENT

(State of Nebraska)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Grant of Easement & Description of Rights
4. Consideration
5. Conditions Precedent & Subsequent
6. Maintenance, Repair & Use Standards
7. Representations & Warranties
8. Covenants & Restrictions
9. Insurance Requirements
10. Indemnification & Liability Allocation
11. Default & Remedies
12. Dispute Resolution
13. Recording; Notice; Further Assurances
14. Term & Termination Procedures
15. General Provisions
16. Execution & Acknowledgment

1. DOCUMENT HEADER

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

• [GRANTOR FULL LEGAL NAME], a [STATE & TYPE OF ENTITY / INDIVIDUAL] (“Grantor”), whose mailing address is [ADDRESS]; and
• [GRANTEE FULL LEGAL NAME], a [STATE & TYPE OF ENTITY / INDIVIDUAL] (“Grantee”), whose mailing address is [ADDRESS].

(Grantor and Grantee each a “Party,” and collectively, the “Parties.”)

Recitals

A. Grantor is the fee simple owner of that certain real property located in the County of [COUNTY], State of Nebraska, more particularly described in Exhibit A attached hereto and incorporated herein by reference (the “Servient Property”).
B. Grantee desires an easement for the purposes set forth herein over, upon, across, and under a portion of the Servient Property.
C. Grantor is willing to grant, and Grantee is willing to accept, such easement upon the terms and conditions contained in this Agreement.

NOW, THEREFORE, for 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 have the meanings set forth below. All capitalized terms used herein but not defined in this Section shall have the meanings ascribed elsewhere in this Agreement.

“Actual Damages” means direct, out-of-pocket damages suffered by a Party, excluding consequential, punitive, incidental, special, exemplary, and speculative damages.
“Applicable Law” means all federal, state, and local statutes, ordinances, rules, regulations, and common-law principles governing a Party or this Agreement, including, without limitation, Nebraska real estate recording statutes such as Neb. Rev. Stat. § 76-238 (2022).
“Dominant Property” means the real property owned or controlled by Grantee, legally described in Exhibit B.
“Easement Area” means the portion of the Servient Property burdened by the Easement, as depicted in the survey attached hereto as Exhibit C and legally described in Exhibit D.
“Easement” has the meaning given in Section 3.1.
“Force Majeure Event” has the meaning given in Section 15.8.
“Losses” has the meaning given in Section 10.1.
“Term” has the meaning given in Section 14.1.

3. GRANT OF EASEMENT & DESCRIPTION OF RIGHTS

3.1 Grant.

Subject to the terms and conditions of this Agreement, Grantor hereby grants and conveys to Grantee, its successors and permitted assigns, a [☐ non-exclusive / ☐ exclusive] perpetual easement (the “Easement”) over, across, upon, under, and through the Easement Area for the following purposes (collectively, the “Permitted Uses”):

a. Ingress, egress, and access to and from the Dominant Property;
b. Installation, maintenance, repair, replacement, and operation of [utility lines / drainage facilities / telecommunications infrastructure] ([collectively] the “Improvements”); and
c. Any other use reasonably necessary or incidental to the foregoing.

[// GUIDANCE: Select appropriate Easement type(s)—access, utility, drainage, etc.—and delete inapplicable bracketed language.]

3.2 Rights Appurtenant.

The Easement is appurtenant to and shall run with the Dominant Property.

3.3 Reservation of Rights.

Grantor reserves the right to use the Easement Area for any purpose not inconsistent with Grantee’s full enjoyment of the Easement, provided such use does not interfere unreasonably with the Permitted Uses.

4. CONSIDERATION

In consideration of the granting of the Easement, Grantee shall pay to Grantor the sum of [AMOUNT] Dollars ($[___]) on or before the Effective Date, receipt of which is hereby acknowledged, and shall perform all covenants and obligations herein set forth.

5. CONDITIONS PRECEDENT & SUBSEQUENT

5.1 Title Review; Survey. Grantee’s obligations are conditioned upon its approval, in its sole discretion, of (i) a current commitment for an owner’s policy of title insurance covering the Servient Property and (ii) the survey attached as Exhibit C.
5.2 Permits & Approvals. Grantee shall obtain, at its sole cost, all governmental permits necessary for construction and operation of the Improvements.

6. MAINTENANCE, REPAIR & USE STANDARDS

6.1 Maintenance. Grantee shall maintain the Easement Area and Improvements in good order, condition, and repair and in compliance with Applicable Law.
6.2 Restoration. Following any work, Grantee shall promptly restore the Easement Area and adjacent property to substantially the same condition existing prior to such work, reasonable wear and tear excepted.
6.3 Safety Measures. Grantee shall implement commercially reasonable safety measures and signage during any construction or maintenance activities.

7. REPRESENTATIONS & WARRANTIES

7.1 Mutual. Each Party represents and warrants that:
a. It has full power and authority to execute, deliver, and perform this Agreement;
b. This Agreement constitutes its legal, valid, and binding obligation enforceable against such Party in accordance with its terms;
c. Execution, delivery, and performance do not violate any contract or Applicable Law binding upon such Party.

7.2 Grantor Specific. Grantor further represents and warrants that:
a. Grantor holds fee simple title to the Servient Property free and clear of all liens and encumbrances [except those listed on Schedule 1];
b. Grantor has not previously conveyed any easement or right inconsistent with the Easement;
c. Upon recordation, Grantee will have the rights granted herein free of any reservations or conditions, other than as expressly set forth herein.

All representations and warranties shall survive the recordation of this Agreement for a period of [___] years.

8. COVENANTS & RESTRICTIONS

8.1 Non-Interference. Grantor shall not construct, place, or permit any obstruction within the Easement Area that materially interferes with the Permitted Uses.
8.2 Compliance. Each Party shall, at its own expense, comply with Applicable Law in the exercise of its rights and performance of its obligations hereunder.
8.3 Notice & Cure. A Party claiming breach of any covenant shall provide written notice to the breaching Party, who shall have thirty (30) days to cure such breach, or such longer period as is reasonably necessary so long as diligent efforts are being pursued.

9. INSURANCE REQUIREMENTS

Grantee shall maintain, at its expense, during the Term:
a. Commercial General Liability insurance with limits no less than $[] per occurrence and $[] aggregate;
b. [Additional coverage as appropriate].
Each policy shall name Grantor as an additional insured and provide for thirty (30) days’ prior written notice of cancellation.

10. INDEMNIFICATION & LIABILITY ALLOCATION

10.1 Indemnification. Grantee shall indemnify, defend, and hold harmless Grantor and its affiliates, officers, directors, employees, and agents (collectively, “Indemnified Parties”) from and against any and all claims, demands, losses, liabilities, and expenses, including reasonable attorneys’ fees (“Losses”), arising out of or relating to (i) Grantee’s use of the Easement, (ii) breach of this Agreement by Grantee, or (iii) the negligence or willful misconduct of Grantee or its contractors or invitees, except to the extent such Losses are caused by the gross negligence or willful misconduct of Grantor.

10.2 Liability Cap. Notwithstanding anything to the contrary, the total liability of either Party to the other for claims arising under this Agreement shall not exceed the amount of Actual Damages.

10.3 Waiver of Certain Damages. In no event shall either Party be liable for consequential, punitive, incidental, special, exemplary, or indirect damages.

11. DEFAULT & REMEDIES

11.1 Events of Default. The following constitute an “Event of Default”:
a. Failure to perform any material obligation under this Agreement within the applicable notice and cure period;
b. Bankruptcy or insolvency of a Party.

11.2 Remedies. Upon an Event of Default, the non-defaulting Party may:
a. Seek specific performance or injunctive relief;
b. Recover Actual Damages subject to Section 10.2;
c. Recover reasonable attorneys’ fees and costs;
d. Exercise any other right or remedy available at law or in equity.

12. DISPUTE RESOLUTION

12.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska, without regard to its conflict of laws rules.

12.2 Forum Selection. Any legal action arising under this Agreement shall be brought exclusively in the state courts located in [COUNTY], Nebraska.

12.3 Optional Arbitration. [☐ If checked, the Parties agree to submit disputes to binding arbitration administered by [ARBITRATION ADMINISTRATOR] in accordance with its rules then in effect. The arbitration award may be entered in any court of competent jurisdiction.]

12.4 Jury Trial Waiver. [☐ Each Party hereby waives, to the fullest extent permitted by law, any right to a trial by jury.]

12.5 Injunctive Relief. Nothing herein shall limit a Party’s right to seek temporary, preliminary, or permanent injunctive relief, including specific performance.

13. RECORDING; NOTICE; FURTHER ASSURANCES

13.1 Recording. The Parties shall record this Agreement (or a memorandum thereof) in the office of the Register of Deeds for each county in which any portion of the Servient Property is located in compliance with Neb. Rev. Stat. § 76-238 (2022).

[// GUIDANCE: Confirm county requirements for margins, font size, transfer statements, documentary stamp tax, and recording fees.]

13.2 Notices. All notices shall be in writing and deemed given when delivered by (i) certified U.S. mail (return receipt requested), (ii) nationally recognized overnight courier, or (iii) personal delivery, to the addresses set forth in the Document Header (or such other address as a Party may designate by notice).

13.3 Further Assurances. Each Party shall, at its own cost, execute and deliver such additional documents and take such further actions as may be reasonably requested by the other to effectuate the intent of this Agreement.

14. TERM & TERMINATION PROCEDURES

14.1 Term. The Easement shall commence on the Effective Date and shall continue [☐ in perpetuity / ☐ until (date or triggering event)] (the “Term”), unless earlier terminated as provided herein.

14.2 Termination Events. This Agreement may be terminated:
a. By written agreement of the Parties, duly executed and recorded;
b. By Grantee, upon ninety (90) days’ prior written notice to Grantor, if Grantee permanently abandons the Easement;
c. Upon the expiration of a fixed Term, if applicable;
d. By operation of law (merger of title, condemnation, etc.).

14.3 Recording of Release. Upon any termination, the terminating Party (or the Parties jointly) shall execute and record a Release of Easement in the form attached hereto as Exhibit E.

14.4 Survival. Sections 7, 8, 10, 11, 12, and 15 shall survive termination of this Agreement.

15. GENERAL PROVISIONS

15.1 Amendments; Waivers. No amendment or waiver of any provision of this Agreement shall be effective unless in a writing executed by the Party against whom enforcement is sought and recorded where required by Applicable Law.

15.2 Assignment. Grantee may not assign or transfer its rights under this Agreement without Grantor’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed; provided, however, Grantee may assign to (i) an affiliate, or (ii) a bona fide purchaser of the Dominant Property, upon notice to Grantor.

15.3 Successors & Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

15.4 Severability. If any provision is declared invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to reflect the Parties’ original intent as nearly as possible.

15.5 Entire Agreement. This Agreement (including all exhibits and schedules) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, and negotiations.

15.6 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, all of which together shall constitute one instrument. Signatures transmitted electronically (e.g., PDF, DocuSign) shall be deemed original signatures.

15.7 Headings; Construction. Headings are for convenience only and shall not affect interpretation. “Including” means “including without limitation.”

15.8 Force Majeure. Neither Party shall be liable for failure to perform its obligations (other than payment obligations) due to events beyond its reasonable control (“Force Majeure Event”), provided the affected Party gives prompt notice and resumes performance as soon as practicable.

16. EXECUTION & ACKNOWLEDGMENT

IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as of the Effective Date.

STATE OF NEBRASKA )
COUNTY OF [_])

On this _ day of _, 20__, before me, the undersigned Notary Public, personally appeared [NAME(S)], known to me [or proven on the basis of satisfactory evidence] to be the person(s) whose name(s) is/are subscribed to the foregoing instrument and acknowledged that he/she/they executed the same for the purposes therein contained.

Witness my hand and official seal.

Notary Public
My Commission Expires: ______

Exhibits & Schedules (attach as applicable)

• Exhibit A – Legal Description of Servient Property
• Exhibit B – Legal Description of Dominant Property
• Exhibit C – Survey of Easement Area
• Exhibit D – Legal Description of Easement Area
• Exhibit E – Form of Release of Easement
• Schedule 1 – Permitted Encumbrances

[// GUIDANCE:
1. Confirm legal descriptions match title commitment and survey.
2. Draft Exhibit E Release of Easement in statutory short-form deed format per Neb. Rev. Stat. §§ 76-203 et seq.
3. Determine whether documentary stamp tax is triggered; consult Neb. Rev. Stat. § 76-901 et seq.
4. Verify notarization block meets latest Nebraska acknowledgment requirements.
5. Tailor insurance, indemnity, and assignment provisions to client’s risk tolerance.
]