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1 Return to: City of Missoula 435 Ryman St Missoula, MT 59802 ENCROACHMENT EASEMENT FOR SIDE AND REAR YARD IMPROVEMENTS ON PUBLIC PARKLAND THIS ENCROACHMENT EASEMENT is entered into effective as of the day of December, 2009 ("Effective Date"), between the City of Missoula, a municipal corporation pursuant to the laws of the State of Montana ("Grantor") and Sarah B. Perry, who currently resides at 505 Whitaker, Missoula, MT ("Grantee"). RECITALS A. Grantor is the owner of real property described as Whitaker Park (originally platted as Hi-Yan-Ka Park), an approximately 2.27 acre public park dedicated in 1953 with the Far Views Homesites No. 4 subdivision (hereinafter “the Park”); B. Grantee is the owner of real property legally described as Lots 27 and 28 of Far Views Homesites No. 4 subdivision known as 505 Whitaker Drive, Missoula, MT (hereinafter “the Property”), which is adjacent to and north and east of the Park. C. Grantee is currently residing in the house located on the Property, which she purchased in 2003. Sometime in the late 19950s or early 1960s, the former owners of the Property built the house and extended the landscaping and fencing approximately 15’ south and west into the Park thereby encroaching into public property. These encroachments into the Park have remained for over 40 years and function as part of the side and rear yard to the residence. The Grantee purchased the Property believing that the side and rear yard fence lines delineated the Property from the Park. D. Grantee desires to continue permanently occupying the encroached area into the Park with the landscaping and fencing improvements. In consideration of the agreements hereinafter recited, it is agreed as follows: 1. Grant and Purpose of Encroachment Easement. Grantor, grants and conveys to the Grantee a permanent encroachment easement for the landscaping and fencing that encroaches upon the northern and eastern portion of the Park, an approximate area of .063 acres, as shown in Exhibit A (hereinafter “Easement Area”) in exchange for payment of $3,465.00. This easement allows Grantee, her invitees, successors and assigns, the right to continue accessing and using the Easement Area as their front yard exclusively. It is their right to prohibit and exclude public use of the Easement Area during the term of the encroachment easement. 2. Term of the Encroachment Easement. This encroachment easement is permanent and runs with the land unless and until the encroachments are removed and/or abandoned by the property owner. ---PAGE BREAK--- 2 3. Conditions of the Encroachment Easement. The Grantee shall only use the Easement Area as her side and rear yard with the existing landscape and fencing improvements. Grantee may add to or re-design the landscaping improvements and repair or replace the fencing. Structures are prohibited within the Easement Area. 4. City Saved Harmless From Claims. Grantee or her assigns agree to indemnify and protect the City of Missoula and defend and save it harmless from all claims, actions or damage of every kind and description which may accrue to, or be suffered by, a person or persons, corporations or property by reason of being within the Easement Area, and in case any suit or action is brought against the City and arising out of, or by reason of any causes related to the encroachment easement, the Grantee or her assigns, will, upon notice to them of the commencement of such action, defend the same at their sole cost and expense and satisfy any judgment which may be rendered against the City in any such suit or action. 5. Maintenance at Expense of Grantees. Grantee shall maintain, at her sole expense, all landscaping and fencing other such improvements that are within the Easement Area. 6. City Not Liable for Damage to Encroachment Area Installations. In accepting this easement, Grantee agrees that any damage or injury done to any improvements within the Easement Area by any person or thing shall be at the sole expense of the Grantee to repair or replace and the City shall not be liable for any such damage or injury. 7. Binding Effect. This encroachment easement shall be recorded at the Missoula County Clerk and Recorder’s Office and shall be binding on all heirs, executors, personal representatives, assigns and successors. 8. Entire Agreement – Amendments. The entire agreement of the parties is set forth in this encroachment easement and the parties are not bound by any agreements, understandings, conditions, or inducements otherwise than are expressly set forth and stipulated hereunder. No change, alteration, amendment, modification or waiver of any of the terms or provisions hereof shall be valid unless the same is in writing and signed by the parties. IN WITNESS WHEREOF, the parties hereto have executed this encroachment easement, to be effective as of the date and year first above written. GRANTOR: GRANTEE: City of Missoula By: John Engen, Mayor Sarah B. Perry ---PAGE BREAK--- 3 ATTEST: Martha Rehbein, City Clerk (seal) State of Montana ) ) ss. County of Missoula ) The foregoing instrument was acknowledged before me this day of December, 2009 by Sarah B. Perry. Notary Public for the State of Montana Residing at: My commission expires: (seal)