Policy 7.172

Granting Easements and Licenses

1. Purpose.-- This Policy provides guidelines for granting easements and licenses, including drainage easements.

2. Definitions

1. Easement.-- An easement is a right, created by agreement, of a private person, a public entity, or a utility, to enter upon, over, across, under, or through a strip of land owned by the Board, for a specified purpose and duration as set forth in the easement instrument, provided that title to the Board's property shall remain in the name of the Board, subject to the right of use by the Easement Grantee designated in the Easement Instrument. As distinguished from a license, an easement implies an interest in land which is may be permanent, since it runs with the land, but may be made temporary by being subject to termination upon the happening of a condition subsequent.

2. License.-- A license is a personal, unassignable, temporary and revocable permission, privilege, or permit, created by agreement, of a private person, a public entity, or a utility, to do something on the land of the Board, for a specified purpose and duration as set forth in the License Instrument, provided that the title of the Board's property shall remain in the name of the Board.

3. Common and Permissible Reasons for Granting an Easement or License

1. Easements.-- The most common types of easements granted by the Board include: utility (e.g. electric, telecommunication, water/sewer, natural gas); drainage; access; maintenance or landscape buffer; conservation/preservation (e.g. as a condition of an agency permit or approval); and right-of-way (e.g. a road or canal); or a temporary construction easement.

2. Licenses.-- The most common types of licenses granted, or reasons for the Board granting them, are: a restoration agreement (e.g., for transition or restoration associated with road or right-of-way work); installation of improvements such as traffic signals or monitoring wells and equipment; or temporary uses or activities on School Board property.

4. Balance of Benefits

1. Easements.-- The Board recognizes that the grant of an easement may provide a benefit to: 1) the Board; 2) another governmental entity or public utility; or 3) a private non-governmental party.

1. In some instances, the School Board is the primary recipient of the benefit, such as when the easement is for utility service that terminates at a School Board facility.

2. In some instances, there may be a mixture of benefits to the School Board and others, such as when: a utility easement crosses Board property, serves the Board facility, and continues on to serve others and any transmission across the Board's property is incidental to the main purpose of providing utility service to the Board's facility; or there is cross-access over an adjacent property, in exchange for the adjacent landowner having access over the Board's property; or where a canal or road right of way encumbers a portion of the Board's property but benefits both the Board and the general public by improved traffic flow or increased flood protection or drainage.

3. In other cases, the School Board may receive little or no direct, tangible or special benefit, such as when the easement is intended primarily to provide a benefit or service to another's property.

2. Licenses.-- The balance of benefits under licenses generally flow in a manner similar to that described above for easements.

5. Consideration

1. Easements.-- When granting an easement that provides little or no direct or tangible benefit to the School Board or the Board's property, such as when the easement is intended primarily to provide a benefit or service to another's property, including easements granted to a private non-governmental party or a governmental entity, the School Board must receive monetary consideration at market value, as determined under Section (7) below. No monetary consideration will be necessary when the easement is required as a condition of service by a utility provider for service that terminates at the School Board's facility (including easements granted after-the-fact for maintenance of existing utility lines), or the easement is required as a condition of permit, development order, or similar approval of a governmental entity. Notwithstanding the foregoing, The Board may establish terms for other consideration, or terms and conditions as the Board, in its discretion, may determine on a case-by-case basis.

2. Construction Easements.-- No payment or consideration will be required for a temporary construction easement, or similar easement granted for a period of one year or less pursuant to this Policy, provided the School Board receives a direct or indirect tangible benefit and the easement instrument provides for full and complete restoration of the School Board's property by the grantee, at the grantee's sole cost and expense.

3. Licenses.-- There need be no payment or consideration for a license granted pursuant to this Policy, provided the School Board receives a direct or indirect tangible benefit and the license provides for full and complete restoration of the School Board's property by the licensee, at the licensee's sole cost and expense.

6. Application Procedure

1. A prospective grantee ("Applicant") requesting an easement or license shall formally request same by written application to the School District's Chief of Facilities Management ("CFM"). All costs and fees associated with evaluating the application, such as technical and engineering fees, surveys and appraisal costs shall be the responsibility of the Applicant, except for easements or licenses which are initiated by the School District and/or provide direct or exclusive benefits to the School Board.

2. The application shall identify or include the following:

1. the purpose of the easement or license, or the objective sought, including identification of all recipients of benefits, and in particular, benefits to the School Board, or the Board's property;

2. the minimum area of the Board's property required for the proposed use, including a location map, sketch, aerial photograph, survey or other information to assist in identification of the area;

3. the minimum title or other interest in the Board's property necessary to accomplish the proposed purpose;

4. the minimum duration necessary to accomplish the proposed purpose, or whether a perpetual easement is being sought, including the date the proposed easement or license is proposed to commence;

5. the applicant's interest in any adjoining property, or adjacent facilities;

6. the applicant shall provide evidence of the School Board's title or interest in the underlying fee property, including identification of any existing easements or encumbrances whatsoever.

7. Valuation.-- The consideration for the grant of an easement or license shall be established in an agreement between the Applicant and the Board. The application and agreement shall specify the period of time during which the grant of easement or license is to be in effect, and the valuation may be reflective of such terms. Except as otherwise allowed by this Policy, the consideration to be received by the Board for the grant of easement or license shall be set as follows:

1. The Applicant must contract with independent appraisers approved by the School District to determine the fair market value of the easement or license at the time the agreement is entered into. The Applicant shall be responsible for all appraisal fees.

2. Appraisers retained by the Applicant must meet the same criteria that the Board imposes on appraisal firms retained by the Board. Appraisers must be "Licensed" or "Certified General" appraisers certified under Fla. Stat. § 475.615, with a current designation as a Member of the Appraisal Institute ("MAI").

3. By making an application for the grant of an easement, the Applicant is deemed to agree that the Board, or School District staff on behalf of the Board, at the Board or staff's sole discretion, has the right to seek a second appraisal from another Licensed or Certified General appraiser at the Applicant's expense and require the higher of the two appraisal values as the consideration for the easement, or to reject any or all appraisals.

8. Terms and Conditions.-- The easement or license agreement between the Board and the Applicant (hereinafter the "Grantee") must contain terms consistent with the following:

1. Appropriate Location.-- The placement of easements must be consistent with SREF § 1.4(2)(o): "easements do not . . . infringe on useable acreage." The application for an easement or license must specify the legal description and area of the proposed easement or license parcel.

2. Duration.-- The agreement shall specify the duration of the easement or license. For example, an easement may be perpetual or of fixed duration (e.g. a temporary construction easement). A license is temporary and revocable and typically has a duration of less than one year, but may be renewed if renewal is specified in the agreement.

3. No Warranty of Title.-- All easements or licenses granted pursuant to the Delegation of Authority under Section (10) shall contain no warranty of title and shall be granted or approved with title "as-is", subject to all matters of record. Any easement or license containing a warranty of title shall require School Board approval at a public meeting.

4. Pollutants.-- The Grantee shall not cause or allow its use of the easement or license to be a source of any prohibited pollutants or hazardous materials as defined or restricted by Fla. Stat. Chapter 376 or other applicable state laws and/or the federal Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986.

5. Insurance and Hold Harmless Clause.-- The Grantee should demonstrate adequate insurance coverage, or self-insurance in the case of a governmental entity, to cover any foreseeable risks to the Grantee arising from use of the easement or license. The liability insurance, including pollution insurance, if applicable, shall name The School Board of Palm Beach County, Florida, as an additional insured at no cost to the District. The Grantee must hold the Board harmless for damage or wear and tear to the easement area.

6. Restoration.-- Grantees or licensees shall accept responsibility for restoring the easement area or licensed area, after termination or expiration of the easement or license, to the condition it was in before use of the easement or license, or to a condition acceptable in advance to the CFM. In cases where an easement involves improvements on the School Board's property, the School Board may withhold delivery of the easement until all restoration is completed and approved in accordance with a written agreement.

7. Easements to Be Non-Exclusive.-- All easements or licenses granted pursuant to the Delegation of Authority under Section (10) of this Policy must be non-exclusive (i.e. it does not exclude the Board from participating in the rights granted or restrict multiple easements from being granted over the same parcel). Exclusive easements (i.e. those that exclude the Board from participating in the rights granted or restrict multiple easements from being granted over the same parcel) shall require School Board approval at a public meeting.

8. Release Clause.-- Agreements shall have a clause allowing release of the easement or license upon reasonable request of the Board, with the understanding that the Board may need to reimburse a pro-rated portion of the consideration to an easement Grantee, or that the Board may need to reimburse reasonable costs to a utility for disconnection or rerouting of lines. Licenses are freely revocable, and the Board shall have no liability whatsoever, including no obligation to reimburse a pro-rated portion of the consideration if the license is revoked before the stated term.

9. Right of Relocation or Modification.-- Notwithstanding the provision of subsection (h) above, the agreement with a non-governmental party other than public utility providers may specify that the Board has the right to require relocation of an easement or licensed area to a different part of the property at the Grantee's expense, whenever the Board deems such relocation to be in the Board's best interests or when deemed necessary for school purposes due to, for example, reconfiguration of the site. Licenses are revocable, and the Board shall have no liability whatsoever, including no obligation to reimburse a licensee for any relocation or modification costs or damages.

10. Reverter.-- All easement agreements with a non-governmental party other than public utility providers shall be made subject to reverter upon failure of the Grantee to begin using the easement, as proposed in the application, within one (1) year following approval or granting of the easement. Further, all easements shall be subject to reverter to the Board if the Grantee fails to adequately maintain the installation or meet the Grantee's obligations under the easement, or if the easement is not used by the Grantee.

11. Assignability.-- No easement shall be assigned without the express, prior and written consent of the Board by Board action or by authority delegated by the Board in accordance with this Policy. An easement running with the land shall be transferable to the successors in interest of the grantee of the benefited property, provided such transfer does not result in an increased burden to the easement parcel.

12. Forms.-- The Board recognizes that certain situations might require use of the Grantee's easement form and modifications may or may not be permitted. For other situations, the District will develop its own agreements and instruments for a specific application. In any case, the Board specifically reserves the right to include any specific condition or restriction the Board or School District staff deem to be in the School Board's interest.

13. Recordation.-- Any easement granted by the School Board must be evidenced by a written instrument recorded in the office of the clerk of the circuit court. Licenses shall not be recorded.

14. As-Built Drawings.-- Any easement, license or agreement may provide that the grantee deliver as-built drawings or surveys to the School District.

15. Restrictions on Times of Construction or Installation.-- The School Board may impose certain restrictions necessary to minimize disruptions to schools or support facilities. These restrictions may include a limitation that construction, installation or other work be completed during weekends, evenings, or at times when school is not in session or at times outside of normal operations at the facility.

9. Additional Terms for Drainage Easement Agreements or Similar Agreements.-- The Board recognizes that private developers or property owners may, from time to time, need access to drainage canals in order to meet state or local requirements for legal positive outfall, and that the most direct path of access to some of these canals may be across lands owned by the Board. Similarly, a private developer or property owner may need access across the Board's lands to accommodate the most direct path of access to some or all of the available utilities. These uses typically provide little or no direct, tangible or special benefit to the Board. The Board may approve such a use by an easement agreement which shall include the following non-negotiable specific terms and conditions (in addition to the general terms in Section (8) above):

1. Installation.-- The Grantee shall bear all costs of installation of any drainage pipe or other apparatus and must ensure that any resulting disturbance or damage of any school property (including, but not limited to, sod, sprinkler systems, sidewalks, etc.) is promptly repaired at the Grantee's expense to the satisfaction of the District and in compliance with any applicable standards and codes. The District shall be the sole determiner as to when repairs shall be deemed necessary, or whether the completed repairs are acceptable to the District.

2. Capacity.-- The Grantee shall ensure the construction of any drainage apparatus is of sufficient length, diameter, and capacity to carry water from a hundred-year flood without such water overflowing onto the School Board's property. Such design requirements must take into consideration any tie-ins of District drainage lines, existing or planned. 

3. Maintenance.-- The Grantee shall maintain the drainage pipe (or other drainage or other apparatus) and related portions of the easement in safe and proper condition, including any walkways or sidewalks within or above the easement area. The Grantee shall bear all such maintenance costs. Should the Grantee fail to properly maintain the line, the Grantee shall be held responsible for all damage caused to Board property and shall reimburse the Board for any repairs made by the School District, and the easement may be subject to reverter as set forth in subsection (8)(j) above.

4. Board's Right to Tie-In.-- The Board shall have the right to tie in drainage lines to the Grantee's drainage apparatus, or to tie in to other utilities. If the Board does tie in to any apparatus, the Board will install and maintain its lines up to the joining point; but the Grantee shall maintain the tie-in joint itself and all other portions of the Grantee's apparatus, as set forth in subsection (c) above.

10. Delegation of Authority for Approval

1. Easements

1. Approval by the School Board shall be required for all easement agreements except as specified in paragraph (ii) below.

2. The School Board hereby delegates to the Superintendent the authority to approve, and execute along with the Board Chair, certain easements and easement agreements upon request of the CFM. Alternatively, in his or her discretion, the Superintendent may seek prior approval of the School Board for granting such easements. This delegation of authority applies only to requests where the CFM concludes that the easement is consistent with this Policy and is the minimum interest necessary to accomplish the needed purpose. For such delegation authority to vest, at least one of the following conditions must apply:

1. the easement is essential to the construction, modernization, or alteration of a facility on the School Board's approved list (as stated in the Five-Year District Facilities Work Program);

2. the easement is required as a condition of service or as a condition of a permit, development order, or similar approval;

3. the easement is necessary to install, maintain, repair, or upgrade utility service to the level of service needed by a School Board facility;

4. the easement is being granted to facilitate a request or need of the School Board, such as for the installation of a traffic signal or turn lane;

5. the easement will be a non-exclusive utility easement to a utility provider that provides service to a School Board facility as well as other customers, provided that the primary purpose is to provide service to the School Board's facility and any additional use is merely incidental;

6. an easement is to a governmental entity for a right of way for an existing canal or road necessary to enhance access or traffic flow or to provide enhanced drainage or flood protection to the Board's facility.

2. Licenses.-- The Superintendent (or the CFM as the Superintendent's designee) is hereby delegated the authority to approve license agreements on behalf of the Board, as long as the agreement complies with all of the terms and conditions specified for license agreements in this Policy. Alternatively, in his or her discretion, the Superintendent may seek prior approval of the School Board for granting a license.

11. Payment.-- Upon approval of an easement agreement or license requiring monetary consideration, the Grantee shall make full payment within 90 days after receipt of notification that the easement has been approved. In addition, the Grantee shall post a bond to ensure faithful performance of all parts of the easement agreement, in an amount to be specified in the agreement.

1. The CFM/designee shall make the notification of approval by personal delivery or by regular U.S. mail (and may also send notification by certified mail, return receipt requested, in order to document the date notice was received).

2. In cases where consideration is due, no easement or license shall be delivered to the grantee or licensee, until full payment is received by the Board.

3. If the Grantee's payment and proof of bond are not received within 90 days of receiving notification, or other date as may be specified by written agreement, the grant of the easement shall be invalid and void, and the instrument shall not be recorded with the clerk of courts, or the license shall be rendered null and void.