MODEL AGREEMENT FOR EASEMENT
LL#
Property Address (the “Property”) / ______, VermontTax Parcel ID No. ______
Title Reference (Fee Interest) / Deed dated ______ at Book ___, Page ___ of the ______Town/City Land Records.
This Agreement for Easement (“Agreement”) is made by and between Vermont Gas Systems, Inc., a Vermont corporation with its principal place of business at 85 Swift Street, South Burlington, Vermont (“VGS”); and ______ [SELECT: as [enter ownership type for individuals, e.g., tenants in common]; a [enter entity information, e.g., Vermont corporation]; [as trustees of the [enter trust information] ([collectively ]“Grantor”), effective as of the date signed by all required parties (the “Effective Date”).
I. PRELIMINARY STATEMENT
A. VGS provides natural gas service to Vermonters via a network of approximately 750 miles of underground transmission and distribution pipelines, systems, and related appurtenances located in northern Vermont.
B. VGS intends to expand its network by installing a new underground transmission and distribution pipeline and related facilities to extend natural gas service to additional Vermont communities.
C. VGS seeks to compensate Grantor for constructing, installing, maintaining, and operating its natural gas service pipeline on a portion of Grantor’s Property (as defined above), and to establish the terms and conditions for use of the Easement Area [and Temporary Areas] on the Property.
NOW, THEREFORE, for good and valuable consideration acknowledged and received, including the promises, representations, covenants, and terms and conditions of this Agreement, VGS and Grantor, intending to be legally bound, do hereby agree as follows:
II. AGREEMENT
1. Grant of Easement. Grantor hereby agrees to grant and convey to VGS a permanent non-exclusive Deed of Easement, consisting of a permanent easement [and temporary workspace areas][1], for a pipeline easement encumbering Grantor’s Property, subject to and in accordance with this Agreement’s terms and conditions, including Exhibit A, Exhibit B, and Exhibit C attached hereto and incorporated in this Agreement by reference (the “Easement”).
2. Location and Scope of Easement and Easement Area [and Temporary Areas]. The Deed of Easement attached hereto as Exhibit B will define the Easement’s scope. The “Easement Area” is the area of the Property to be conveyed to VGS by Grantor for the permanent easement. [The “Temporary Areas” is the area of the Property to be conveyed to VGS by Grantor for the temporary easement and work space areas] The location of the Easement Area [and Temporary Areas] will be set forth on the plan attached to the Deed of Easement. VGS will have the right to modify the location of the Easement Area [and Temporary Areas] subject to Grantor’s review and approval, which approval will not be unreasonably withheld, conditioned, or delayed. If the modification results in increased acreage for the Easement Area [or Temporary Areas], VGS will compensate Grantor for the additional land (applying the same price per square foot as for the Easement Area [and Temporary Areas, as the case may be]). If the modification results in increased remainder damages to the Property, VGS will compensate Grantor for the additional remainder damages.
3. Right of Survey. VGS will have the right to enter upon the Property from time to time to survey and confirm the location of the Easement Area [and Temporary Areas], and to conduct those environmental and engineering evaluations for archeological, wetland, soils, and geotechnical surveys as may be required for purposes of obtaining regulatory approvals. VGS will compensate Grantor for any and all damages to the Property caused conducting these surveys and evaluations and will indemnify and hold Grantor harmless from any claims, losses, damages, demands, costs, or actions arising from these surveys and evaluations, except to the extent that any claim or action results principally from the intentional, reckless, or grossly negligent acts or omissions of Grantor, its agents, licensees, or invitees, or based on Grantor’s violation of this Agreement’s material terms and conditions.
4. Consideration.The purchase price for the Easement will be ______U.S. Dollars ($______.00) (the “Purchase Price”), payable by VGS.Upon the Effective Date, VGS will provide to Grantor a down payment equal to [10% of the Purchase Price][2], which will be applied as a credit to the Purchase Price and will be non-refundable. Additional consideration is set forth in Exhibit A.
5. Taxes. VGS will pay any Vermont Property Transfer Tax due on account of the permanent easement for the Easement Area [and Temporary Areas]. Payment of any applicable Vermont Land Gains Tax is the Grantor’s responsibility. VGS will withhold and remit to the Vermont Commissioner of Taxes ten percent (10%) of the Purchase Price unless Grantor provides a Commissioner’s certificate of reduced or no withholding, or evidence that the Property is otherwise exempt from Land Gains Tax. If Grantor is a non-resident of Vermont, VGS will withhold two and one-half percent (2.5%) of the Purchase Price and file a Withholding Tax Return to the Vermont Department of Taxes unless the Vermont Department of Taxes issues a reduced withholding certificate before delivery of the Transaction Documents (as described below). If conveyance of the Easement subjects Grantor to the payment of federal tax under the Foreign Investment in Real Property Tax Act (FIRPTA), VGS will withhold ten percent (10%) of the Purchase Price and file a Withholding Tax Return with the Internal Revenue Service unless the Internal Revenue Service issues a withholding certificate. VGS will have the right to reasonably request evidence that Grantor is exempt from payment of non-resident withholding taxes in the form of a certificate of residence or non-foreign status. If VGS is determined to be liable for the payment of either tax due to Grantor’s erroneous information, Grantor will indemnify and hold VGS harmless from all that liability, together with any interest, penalties, and reasonable expenses, including attorneys’ fees, incurred by VGS.
6. Transaction Documents; Timing of Payment. VGS and Grantor agree to complete the transaction contemplated by this Agreement no later than sixty (60) days after this Agreement’s Effective Date, at a date, time, and place to be mutually agreed upon by Grantor and VGS’s representatives (the “Closing”). At its sole cost and expense, VGS will prepare and provide the following to Grantor at Closing: (i) the Deed of Easement in executable form, together with the final plat shown on Exhibit A to the Deed of Easement; (ii) a Vermont Property Transfer Tax Return, Vermont Land Gains Tax Return, and any other tax-related documents (where required); (iii) an Act 250 Disclosure Statement (where required); (iv) a payment direction form (including to confirm the previous payment direction form); (v) a partial release of mortgage (where deemed necessary by VGS); (vi) a Form W-9; (vii) a Form 1099S; and (viii) the other instruments required to convey the Easement (collectively the “Transaction Documents”). To facilitate a Closing, at Grantor’s option, VGS may (i) forward the Transaction Documents to Grantor at Grantor’s mailing address for execution, providing Grantor with advance notice of the mailing and providing a pre-paid return envelope, and in which case the Purchase Price will be paid to Grantor within ten (10) business days of VGS’s receipt of the Transaction Documents in fully-executed form, using the directions contained in the payment direction form; or (ii) meet with Grantor in person for Grantor’s execution of the Transaction Documents, immediately after which VGS will pay the Purchase Price to Grantor.
7. Recovery of Costs and Fees. If either party fails to execute and deliver the Transaction Documents by the Closing, the other party will have the right to judicial relief, including an order of specific performance or for the recovery of all fees (including the Purchase Price and any recording fees), costs and expenses incurred in reasonable reliance upon the party’s execution of this Agreement (including but not limited to attorneys’ fees and costs in preparing documents and enforcing the Agreement, together with title search fees, engineering and design costs, and any pre-construction expenses, without any right of offset from the other party). Commencing an action for judicial relief will not in any way preclude either party from exercising other available legal or equitable rights with respect to its interest in the Easement Area [and Temporary Areas].
8. Assignment. This Agreement will be binding upon and inure to the benefit of the parties, their respective heirs, legal representatives, successors, and assigns. This Agreement is solely for the benefit of the parties and their respective successors and assigns and may not be enforced by, nor will it be construed for the benefit of, any third party.
9. Disclosure Notice. This Agreement is a binding agreement that affects Grantor’s legal rights with respect to Grantor’s Property. By signing below, Grantor agrees and acknowledges that (i) Grantor was advised to consider retaining an attorney in negotiating the Agreement; and (ii) Grantor has either contracted the services of an attorney, or has waived its right to involve an attorney in review of this Agreement.
10. Governing Law. This Agreement will be governed by the laws of the State of Vermont as to all matters, including but not limited to matters of validity, construction, effect, and performance.
11. Termination. This Agreement may be terminated by VGS before Closing upon written notice to Grantor, if VGS is unable to obtain, or maintain, any required approval(s) or the issuance of a certificate, license, or permit by any agency, board, court, or other governmental authority necessary for the construction or operation of the natural gas pipeline; or if VGS determines that the cost of, or delay in, obtaining or retaining the same is commercially unreasonable, but only after demonstrating a reasonable level of due diligence and efforts in connection with obtaining the approval(s). In that event, Grantor will retain the down payment.
12. Miscellaneous. This Agreement may be executed in multiple counterparts, each of which will have the force and effect of an original and all of which together will constitute but one and the same document. A signature or notice sent by facsimile or via email file will have the same force as an original signature or a physical written notice. If a court of competent jurisdiction holds any term, provision, covenant, or condition of this Agreement to be invalid, void, or unenforceable, the rest of this Agreement will remain in full force and effect and will in no way be affected, impaired, or invalidated. If either party should discover and notify the other party of clerical errors with respect to this Agreement or the Transaction Documents, the notified party agrees to provide reasonable cooperation to the notifying party in supplementing and/or re-executing this Agreement and/or the Transaction Documents in a timely manner to give effect to the purpose and intent set forth in this Agreement.
13. Limitations. Grantor agrees that any concern, complaint, or claim regarding performance of work associated with the pipeline’s installation must be brought to VGS’s attention by letter directed to Vermont Gas Systems, Inc. Attn: Right of Way Department, 85 Swift Street, South Burlington, Vermont, 05453 within one (1) year from the date the work is completed, or shall conclusively be deemed waived by Grantor unless Grantor could not have reasonably discovered the defect, in which case, Grantor shall have one year from date of discovery of defect to notify VGS of the concern, complaint, or claim.
14. Recording. Within thirty (30) business days of the Effective Date, VGS will record, at its sole cost and expense, the Memorandum of Agreement attached hereto as Exhibit C in the land records of the municipality (or municipalities) where the Easement Area [and Temporary Areas] is/are located. [NOTE: Do not use if proceeding directly to closing.]
[Signatures follow.]
IN WITNESS WHEREOF, Grantor and VGS have caused this Agreement to be executed and delivered as a sealed instrument effective as of the Effective Date.
By
[name]
Its
Date: ______/______/201______
By
[name]
Its
Date: ______/______/201______/ VERMONT GAS SYSTEMS, INC.
By ______
Its
Date: ______/______/201______
STATE / COMMONWEALTH OF ______)
COUNTY OF ______)ss.:
On the ___ day of ______, 201__, before me, ______, Notary Public, personally appeared ______, known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name is/are subscribed in the within instrument and acknowledged to me that he/she/they executed the same [in his/her/their authorized capacity], and that by his/her/their signature on the instrument, the person(s) executed the instrument as his/her/their free act and deed [and the free act and deed of the entity shown above].
______
Notary Public
My Commission Expires: ___/___/___
STATE OF VERMONT )
COUNTY OF CHITTENDEN )ss.:
At South Burlington this _____ day of ______, 201__, ______, ______and Duly Authorized Agent of VERMONT GAS SYSTEMS, INC. personally appeared and acknowledged this instrument, by him/her sealed and subscribed, to be his/her free act and deed, and the free act and deed of VERMONT GAS SYSTEMS, INC.
______
Notary Public
My Commission Expires: 2/10/2019
EXHIBIT A
ADDITIONAL TERMS AND CONDITIONS
[INCLUDE EACH CLAUSE WHERE APPROPRIATE]
1. Demarcation Before Construction. Before the pipeline’s initial construction, VGS will demarcate the Easement Area [and Temporary Areas] as shown in Exhibit A to the Deed of Easement. Notwithstanding any provision in this Agreement to the contrary, VGS will limit all work associated with the pipeline’s installation to the demarcated areas, excepting activities necessitated by exigent circumstances posing safety or environmental concerns, provided that VGS will use best efforts to restore any affected areas to pre-existing conditions upon completion of the work.
2. Work Hours for the Pipeline’s Initial Construction. VGS will limit the hours of construction on the Property to the following: Construction on Monday through Friday, 7 am to 7 pm. Construction on Saturday will occur between the hours of 8 am to 5 pm. No construction will occur on Sunday or state and federal holidays. Where VGS is horizontal directional drilling, VGS may continue the drill up to twenty-four (24) hours per day, including weekends and holidays, as necessary to complete a drill.
3. Blasting for the Pipeline’s Initial Construction. For properties where blasting will or may occur, all blasting will be performed in accordance with all applicable laws and regulations. Blasting will be limited to Monday through Friday, between the hours of 9 am and 4:30 pm, and not allowed on state and federal holidays. VGS will notify Grantor in writing at least one week before performing any actual blasting on the Property. VGS will remediate, indemnify, and hold harmless Grantor for any physical damage to property if and to the extent the blasting caused the damage, and only to the extent the property damage is not otherwise included with the compensation VGS paid Grantor for the rights granted in this Agreement.[3]