CR 08-081 Approve Temporary Easement Agreement with Hopkins Independent Schoold District 270~1TY OF
H~PKINS
August 27, 2008
Council Report 2008-081
Approve Temporary Easement Agreement with Hopkins Independent School
District 270
Proposed Action.
Staff recommends adoption of the following motion: Move that Council approve
a temporary easement agreement between Hopkins Independent School District
270 and the City of Hopkins , rq anting the City easements for recreational and
parking purposes.
Overview.
The City desires to renew an agreement with the School District for the continued
use of the four tennis courts located on School District property adjacent to
Central Park. The City originally entered into a 25-year agreement with the
School District in 1977 for the construction, maintenance and use of eight tennis
courts. This agreement lapsed in 2002 because the property was reconfigured
as part of the site work for the Public Works and Fire Station construction
projects. The remaining four tennis courts are now in need of reconstruction.
The City has negotiated a new 30-year easement agreement granting the City
continued use of the tennis courts plus the adjacent hockey rink, parking lot and
play equipment area. The City Attorney worked with City staff in negotiating the
terms of the agreement. The School District is scheduled to act on this lease at
its Sept 4 School Board Meeting. The City intends to reconstruct the four tennis
courts this fall. City staff recommends approval of the easement agreement.
Primary Issues to Consider.
• Easement Terms
Supporting information.
• Enlarged m p of easement areas
• P sed ten ora easement a reement
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Steven J. Stadler, Public Works Director
Financiallmpact: Budgeted: Source:
Related Documents (CIP, ERP, etc.):
Notes:
Council Report 2008-081
page 2
Analysis of Issues:
• Terms of easement agreement
- 30-year lease subject to 180 day notice of termination. If School District
terminates the easement within 20 years they must pay the City a reimbursement
amount equal to the cost of the 2008 tennis court rehabilitation reduced 5% each
year. For instance, if the agreement is terminated in the second year the School
District must pay the City 95% of the final amount the City paid for the tennis
court rehab project, if terminated in the third year then 90%, and soon.
-Includes anon-exclusive easement for parking in the lot just north of the tennis
courts. The School District is responsible for parking lot maintenance and repair.
-Includes City use, maintenance, repair of School District play equipment area.
- Ubah Medical Academy is granted use of the recreational area and must
negotiate their desired use with the Hopkins-Minnetonka Recreation office who
will issue a permit for the datesltimes of their exclusive use.
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TEMPORARY EASEMENT AGREEMENT
This Temporary Easement Agreement (the "Easement Agreement") is made this
day of , 2008, by and between Hopkins Independent School District No. 270,
a Public School Corporation under the laws of Minnesota ("Grantor") and the City of Hopkins, a
Municipal Corporation under the laws of the State of Minnesota ("Grantee").
RECITALS
A. Grantor is the fee owner of Real Property located in Hennepin County, Minnesota,
legally described on the attached Exhibit A (the "Burdened Property").
B. Subject to the terms and conditions set forth herein, Grantor has agreed to grant an
exclusive easement for recreational purposes for the installation, maintenance, repair, and
operation of a hockey rink, tennis courts, playground equipment and other recreational
improvements over, under and across a portion of the Burdened Property to Grantee, and a non-
exclusive easement for parking purposes for the benefit of Grantee over and across a portion of
the Burdened Property, both upon and subject to the terms and conditions of this Easement
Agreement. Grantor and Grantee are entering into this Easement Agreement for the purpose of
stating their agreement concerning the conveyance by Grantor of the exclusive easement for
recreational purposes and the non-exclusive easement for parking purposes hereinafter described
for the purposes stated herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and the terms, covenants
and conditions of this Easement Agreement, Grantor and Grantee agree as follows:
1. GRANT OF EASEMENTS. Grantor hereby grants, bargains and conveys unto
Grantee, for the term stated in Paragraph 4, below, the following temporary easements:
A. RECREATIONAL EASEMENT. Subject to the rights of Ubah Medical
Academy Charter School ("Ubah") pursuant to that certain Lease Agreement dated May
17, ~84~--X2007, as amended by that certain First__ Ail~endment to Lease dated
2008 has amended, the "Lease") and the rights of Grantor as set forth
Doc# 2680637/4
below, an exclusive easement for recreational purposes for the construction, maintenance,
repair, relocation and operation of a public hockey rink, tennis courts, playground
equipment and other recreational improvements over, under, and across the recreational
easement area (the "Recreational Easement Area") described in Exhibit B attached hereto
(the "Recreational Easement"), including the right to construct, maintain, repair, relocate
and expand such recreational improvements all within the Recreational Easement Area.
The Recreational Easement shall run with the title to the Burdened Property and bind all
persons who now or hereafter have any right, title or interest in the Burdened Property,
their successors, assigns and mortgagees. The rights of Grantor and Grantee and their
respective successors and assigns in and to the Recreational Easement shall be as set forth
in this Easement Agreement.
B. PARKING EASEMENT. A non-exclusive easement for parking
purposes over and across the parking easement area (the "Parking Easement Area")
described in Exhibit C attached hereto (the "Parking Easement"). The Recreational
Easement Area and the Parking Easement Area are collectively referred to herein as the
"Easement Area."
2. CONSTRUCTION, REPAIR AND MAINTENANCE. Grantor and Grantee agree
to the following:
A. RECREATIONAL EASEMENT. All costs and expenses for the initial
construction of improvements by Grantee and for the repair, maintenance, replacement,
relocation, and expansion of any recreational or other improvements installed or
maintained within the Recreational Easement Area shall be paid solely by Grantee, and
Grantee shall protect, indemnify and hold Grantor and the Burdened Property harmless
from and against all such costs and expenses. Grantee shall complete, at Grantee's
expense, all excavating, grading, filling, utility construction and restoration work required
to install, repair or maintain recreational improvements within the Recreational Easement
Area. Grantee shall restore and repair, at Grantee's expense, any and all damage to the
Burdened Property and improvements thereon resulting from the use, construction, repair
or maintenance of improvements within the Recreational Easement Area. Grantee shall
also be responsible for the cost of all utilities serving the Recreational Easement Area.
In the event Grantee fails to perform any maintenance which may be reasonably
required to the Recreational Easement Area, Grantor shall be entitled to perform, or cause
to be performed, such maintenance on behalf of Grantee if Grantee fails to perform such
maintenance within thirty (30} days after receiving written notice from Grantor (except in
the case of an emergency, in which case Grantee shall perform such maintenance as soon
as possible following such notice), and the costs and expenses for such maintenance shall
be chargeable to and payable by Grantee to Grantor within five (5) days after Grantor
delivers an invoice to Grantee for such amounts.
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B. PARKING EASEMENT. Grantor shall be responsible for all costs and
expenses for the construction of and for repair, maintenance, replacement, and
improvement of all parking and related improvements installed or maintained within the
Parking Easement Area. At all times during the term of the Parking Easement, Grantor
shall maintain the parking lot, access drives and related improvements within the Parking
Easement in good repair, and shall not reduce the number of available parking stalls.
3. USE, EFFECT AND ENFORCEMENT OF EASEMENTS.
A. Except with respect to Ubah's rights pursuant to the Lease, the use of the
Recreational Easement is exclusive to the Grantee, and shall be for public use of the
Recreational Easement, subject to the reasonable rules and regulations of Grantee, and
subject to Grantor's license to use the Recreational Easement Area as provided below.
B, The Parking Easement is anon-exclusive easement for public parking
purposes for persons using the Recreational Easement Area-~, the adjacent public park or
the bremises described in t11e Lease. Grantor may also use the parking improvements
within the Parking Easement to provide parking for persons using the Burdened Property.
C. Grantor and Grantee agree, on behalf of themselves and their respective
successors and assigns, that the rights and obligations of Grantor and Grantee under this
Easement Agreement maybe enforced by an action in law or in equity, and that equitable
remedies, including injunctive relief, shall be available to enforce obligations arising
under this Easement Agreement. The prevailing party in any litigation to enforce rights
or obligations arising under this Easement Agreement shall be entitled to recover its
reasonable attorney's fees, costs and disbursements. Failure on any one occasion by any
party to enforce rights created under this Easement Agreement shall in no event be
deemed a waiver of the right to do so thereafter.
D. Notwithstanding anything herein to the contrary, Grantor and its tenants,
students and others using the Burdened Property shall have a~cen~ n ~~-~~
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Reasonable use of the Recreational Casement Area for educational and recreational
purposes. Ubah shall have reasonable use of 2 tennis courts during the school day to
accommodate the physical education curriculum. Ubah will provide an annual schedule
ot~ desired use to the llopkins-Minnetonka Recreation oflice and negotiate the schedule to
meet the t~lecds ofthe school and the public. The Recreation oi~lice will issue a permit for
e~clusi~~e use According to the following schedule:
On or before March 1 of each year during the Term of the Lease, Ubah shall notify the City and
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Doc# 2b806371~45.
the Landlord of Ubah's proposed Spring schedule for using the two (2) tennis courts for the
period from approximately mid-April to the end of the Ubah's school year ("Ubah's S rip
Tennis Schedule"). r,,,r;,,.~ +~,~+ „o,.;,.,-1 To„`in4 nt,n~t t, n,~a 4t,n avn~„o;c~o „no n~fi,rn ~17~ +nr,n;n
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On or before October 1 of each year during the Term of the Lease, Ubah shall notify the City and
the Landlord of Ubah's proposed Winter schedule for using the hockey rink for the period from
approximately December to the end of the February ("Ubah's Winter Hockey Schedule").
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On or before August 1 of each year during the Term of the Lease, Ubah shall notify the City and
the Landlord of Ubah's proposed Fall schedule for using the two tennis courts for the period
from approximately September to the end of October {"Ubah's Fall Tennis Schedule"). leg
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During such times that the tennis courts and/or hockey rink are not subject to Ubah's exclusive
use as provided above, Ubah and the City may use the tennis courts and/or hockey rink when
such facilities are not being used by the other party or members of the public. Ubah and the City
agree to cooperate with each other with respect to scheduling the use of the recreational facilities
outside of Ubah's Scheduled Time.
__._
E. Grantee agrees that if Ubah fails to provide the notices required by the
dates set forth in the First Amendment to Lease to schedule Ubah's exclusive use of two
(2) of the tennis courts and/or the hockey rink, Grantee will cooperate with Ubah in good
faith to accommodate Ubah's desired schedule of exclusive use for such school near.
4. DURATION. The term of this Easement Agreement and the duration of the
Recreational Easement and Parking Easement is thirty years from the date first above written,
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subject to a right of early termination as described below in Section 5. At the end of the term of
the Easement Agreement, if it is not extended in writing by the parties hereto, Grantee may leave
all recreational improvements in place and shall not be required to remove the recreational
improvements or to restore the Recreational Easement to the condition prior to their installation.
All right, title and interest in any improvements installed by Grantee on the Burdened Property
remaining after termination of this Easement Agreement shall revert to Grantor. If Grantee elects
to remove its improvements, Grantee shall remove all of such improvements on or before the
termination date of this Easement Agreement and Grantee shall restore and repair, at Grantee's
expense, any and all damage to the Burdened Property and improvements thereon resulting from
the construction, repair or maintenance of recreational improvements within the Recreational
Easement Area as permitted by this Easement Agreement. Upon the expiration or earlier
termination of this Easement Agreement, Grantee shall have no further rights to use any portion
of the Easement Area.
5. EARLY TERMINATION. Grantor may terminate this Easement Agreement by
delivering written notice of such termination (the "Termination Notice"} to the Grantee at:
Public Works Director, 1010 First St. Sa., Hopkins, MN 55343. If Grantor terminates this
Easement Agreement within 20 years of the date first written above, Grantor's Termination
Notice shall also be accompanied by a termination reimbursement amount (the "Reimbursement
Amount") as described below. The Reimbursement Amount is to compensate the Grantee for the
cost of recreational improvements made on the Burdened Property, and the parties agree that it
shall not be construed to be a contractual penalty. In the event Grantor exercises its right of early
termination, the Easement Agreement will terminate on that date which is 180 days after Grantor
delivers the Termination Notice and, if applicable, the Reimbursement Amount. If this Easement
Agreement is terminated by Grantor such that the effective date of the termination is after the
twentieth anniversary of the date of this Easement Agreement, then no Reimbursement Amount
shall be due.
Within 270 days of the signing of this Easement Agreement, Grantee will provide
Grantor copies of invoices and receipts as evidence of the actual cost of the recreational and other
improvements made to the Burdened Property. The baseline cost shall be the lesser of (i) sum of
the invoices and receipts submitted pursuant to this section, or (ii) $100,000.00 (such lesser
amount is the "Baseline Cost"). The Reimbursement Amount to be paid under this Section shall
the Baseline Cost, discounted by 5% for each year after the first year of this Easement
Agreement. That is to say, that if the Easement Agreement is terminated within the first year, the
Reimbursement Amount shall be 100% of the Baseline Cost; if terminated in the second year, the
Reimbursement Amount shall be 95% of the Baseline Cost, if in the third year, the
Reimbursement Amount shall be 90% of the Baseline Cost, and so on.
6. INDEMNIFICATION. Grantee shall be solely responsible for, and shall protect,
indemnify and hold Grantor and the Burdened Property harmless from and against, any and all
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Doc# 26806371-1~
costs, expenses (including, but not limited to, reasonable attorneys' fees and court costs), claims,
causes of action and liabilities arising in connection with or resulting from the initial construction
and the repair, replacement, operation, use and maintenance of any recreational improvements
installed or maintained within the Recreation Easement Area pursuant to this Easement
Agreement, including, but not limited to, any mechanic's liens asserted in connection therewith.
7. AMENDMENT. This Easement Agreement and any provision herein contained may
be terminated, extended, modified or amended, only with the express written consent of the
Grantor and Grantee, or their respective successors, heirs or assigns. No amendment,
modification, extension or termination of this Easement Agreement will affect the rights of the
holder of a mortgage constituting a lien on any portion of the Burdened Property at the time of
such amendment, modification, extension or termination unless such mortgagee consents to the
same. No tenant, licensee or other person or entity that does not own an interest in the fee title to
the Burdened Property will be required to join in the execution of, or consent to, any action of the
parties subject to this Easement Agreement
8. INSURANCE. Grantor and Grantee shall, during the term of this Easement
Agreement, maintain comprehensive liability insurance coverage insuring against personal injury
and property damage occurring as a result of or in connection with Grantee's use of the Easement
Area in a single limit amount of not less than $1 million for personal injury or death and not less
than $500,000 for property damage. Such liability insurance shall be in the form of and provide
such types of coverage as the liability insurance policies maintained from time to time by Grantee
to insure Grantee's activities and those of the public at City-owned facilities. No provision of
this paragraph or this Easement Agreement shall be deemed to waive, limit or reduce any
common law or statutory immunity from liability that maybe available to Grantor or Grantee, all
such immunities being expressly reserved by Grantor and Grantee.
9. ATTORNEYS' FEES. If either party hereto incurs costs in order to enforce any
provision of this Agreement, the prevailing party shall be reimbursed by the other for all
reasonable costs so incurred, including reasonable attorneys' fees and costs.
10. NOTICES. Unless otherwise specifically provided herein, all communications
under this Easement Agreement shall be in writing and shall be deemed to have been given (i) on
the date of service if served personally on the party to whom notice is to be given, (ii) on the day
after delivery to Federal Express or similar overnight courier, or (iii} on the fifth day after
mailing, if mailed to the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, return receipt requested, to the party as
follows:
If to Grantor: Hopkins Independent School District No. 270
1001 Highway 7
IHopcivillEasementAgt.School Dist Tennis Hockey.rtf
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Doc# 2b806371-tS
Hopkins, MN 55305
Attention: Director of Business Services
If to Grantee: City of Hopkins
11. MISCELLANEOUS. This Easement Agreement is intended to be interpreted in
accordance with Minnesota law, represents the entire agreement between Grantor and Grantee
with respect to the Easement and the subject matter of this Agreement and shall run with the title
to the Burdened Property and be binding upon Grantor and Grantee and their respective
successors, assigns and mortgagees to the extent herein provided.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Temporary Easement
Agreement as of the date first above written.
GRANTOR:
By
Its
By
Its
HOPKINS INDEPENDENT SCHOOL DISTRICT N0.270
STATE OF MINNESOTA )
SS
COUNTY OF )
The foregoing instrument was acknowledged before me this
2008, by the
/Hopcivil/EasementAgt.School Dist Tennis Hockey.rtf
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day of
of Hopkins
Doc# 26806371+5
Independent School District No. 270 a Public School Corporation under the laws of Minnesota,
on behalf of the Public School Corporation.
STATE OF MINNESOTA )
) SS
COUNTY OF )
GRANTEE:
The foregoing instrument was acknowledged before me this day of
2008, by the of Hopkins
Independent School District No. 270 a Public School Corporation under the laws of Minnesota,
on behalf of the Public School Corporation.
STATE OF MINNESOTA )
Notary Public
Notary Public
CITY OF HOPKINS, A MUNICIPAL
CORPORATION UNDER THE LAWS OF
THE STATE OF MINNESOTA
By
Its
By
Its
IHopcivillEasementAgt.School Dist Tennis Hockey.rtf
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)ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this
2008, by ,the
Hopkins, a Municipal Corporation under the laws of the State of Minnesota.
Notary Public
STATE OF MINNESOTA )
SS
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this
2008, by ,the
Hopkins, a Municipal Corporation under the laws of the State of Minnesota.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, MN 55343
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day of ,
of the City of
day of ,
of the City of
Doc# 268063711.5.
EXHIBIT A
DESCRIPTION OP BURDENED PRQPERTY
Which lies Southerly of a line, and its
extensions, drawn from a point on the
Westerly line of said..ahove-described
property, distant 248,00`feet Southerly
from the Northwest c~_r.er of said above-
described property, to a point on the
Easterly line of said above-described property,
_- ___ .distant 272.D0 feet 5outhe.rly from the-North- - -- - - --- -- -
east corner of said above-described property.
Also, that part of the following described
property:
All that part of the Southwest 1/4 of the
Southwest 1/4 of Section 24, Township 117,
North '"~ Range 22 West, bounded and described
as follows, to-wit: Commencing at a point
in the South line o` Excelsior Road where
the said South line of said Excelsior Road
is intersected by the centerline produced
Southward of 16th Avenue as platted in the
plat of Gibbs First Addition to West Minnea-
polis, Hennepin Cour_ty, Minnesota; thence
Southerly along the extension of said center-
line of 16th Avenue produced Southerly a
distance of 638.27 feet; thence Easterly on
a line parallel to said South line of Excelsior
Road 331.2 feet, more or less, to the inter-
section of said line with the extension of the
centerline of 15th Avenue as platted in said
Gibbs First Addition, and as platted in West
Minneapolis Second Division produced in a
straight line Southward; thence Northerly along
said centerline of 15th Avenue extended as
aforesaid, a distance of 638.27 feet to the
South line of said Excelsior Road; thence
West along the South line of said Excelsior
Road 329.2 feet, more or less, to the point
of beginning,
Which lies Northerly of a line, and its
extensions, drawn from a paint on the Westerly
line of said above-described property, distant
248,00 feet Southerly from the Northwest cor-
ner of said above-described property to a
point on the Easterly line of said above-
described property, distant 272.00 feet South-
erly from the Northeast corner of said above-
described property, and which lies Westerly of
a line 15 feet Easterly of, measured at a right
angle to and parallel with the Westerly line of
said above-described property. (hereinafter called
the "subject Property"}; and
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Exhibit B
Proposed Legal Description for the Recreation area Lease Agreement
between Independent School District No. 270 and the City of Hopkins
All that part of the Southwest Quarter of the Southwest Quarter of Section 24, Township
117, Range 22, Hennepin County, Minnesota, described as follows:
Commencing at the intersection of the south line of Main Street, (formerly old Excelsior
Avenue), and the west line of said Southwest Quarter of the Southwest Quarter; thence
South along said west line of the Southwest Quarter of the Southwest Quarter, 563.50
feet; thence easterly, deflecting to the left 90 degrees 00 minutes 00 seconds, to its
intersection with a line drawn parallel with and distant 88.00 feet west of the southerly
extension of the centerline of 16`" Avenue, as laid out in the plat of GIBBS FIRST
ADDITION TO WEST MINNEAPOLIS HENNEPIN COUNTY, according to the
recorded plat thereof, Hennepin County, Minnesota, also being the point of beginning;
thence continuing easterly, along the easterly extension of the last described line, to its
intersection with the southerly extension of the east line of said 16`" Avenue; thence
southerly along said southerly extension of the east line of 16~' Avenue, to a point 638.27
feet southerly of said south line of Main Street, as measured along said southerly
extension of the east line of 16`" Avenue; thence easterly to a point on the southerly
extension of the centerline of 15`" Avenue, as laid out in the plat of WEST
MINNEAPOLIS SECOND DIVISION, according to the recorded plat thereof, Hennepin
County, Minnesota, distant 638.27 feet southerly of said south line of Main Street, as
measured along said southerly extension of the centerline of 15`" Avenue; thence
northerly, along said southerly extension of the centerline of 15`" Avenue, to a point
272.00 feet southerly of said south line Main Street, as measured along said southerly
extension of the centerline of 15`" Avenue; thence westerly to a point on said southerly
extension of the centerline of 16`" Avenue, distant 248.00 feet southerly of said south line
Main Street, as measured along said southerly extension of the centerline of 16`" Avenue;
thence southerly along said southerly extension of the centerline of 16`" Avenue, 220.00
feet; thence westerly, deflecting to the right 90 degrees 00 minutes 00 seconds, to its
intersection with said line drawn parallel with and distant 88.00 feet west of the southerly
extension of the centerline of 16t" Avenue; thence southerly to the point of beginning.
Except the north 134.00 feet of the above described tract.
And also except that part of the easterly 30.00 feet of the above described tract as
described in Document No. 339128.
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Exhibit C
Proposed Legal Description for the parking area Lease Agreement
between Independent School District No, 270 and the City of Hopkins
The north 134.00 feet of that part of the Southwest Quarter of the Southwest Quarter of
Section 24, Township 117, Range 22, Hennepin County, Minnesota, described as
follows:
Commencing at the intersection of the south line of Main Street, (formerly old Excelsior
Avenue), and the west line of said Southwest Quarter of the Southwest Quarter; thence
South along said west line of the Southwest Quarter of the Southwest Quarter, 563.50
feet; thence easterly, deflecting to the left 90 degrees 00 minutes 00 seconds, to its
intersection with a line drawn parallel with and distant 88.00 feet west of the southerly
extension of the centerline of 1611' Avenue, as laid out in the plat of GIBBS FIRST
ADDITION TO WEST MINNEAPOLIS HENNEPIN COUNTY, according to the
recorded plat thereof, Hennepin County, Minnesota, also being the point of beginning;
thence continuing easterly, along the easterly extension of the last described line, to its
intersection with the southerly extension of the east line of said 16th Avenue; thence
southerly along said southerly extension of the east line of 16th Avenue, to a paint 638.27
feet southerly of said south line of Main Street, as measured along said southerly
extension of the east line of 16th Avenue; thence easterly to a point on the southerly
extension of the centerline of 15th Avenue, as laid out in the plat of WEST
MINNEAPOLIS SECOND DIVISION, according to the recorded plat thereof, Hennepin
County, Minnesota, distant 638.27 feet southerly of said south line of Main Street, as
measured along said southerly extension of the centerline of 15th Avenue; thence
northerly, along said southerly extension of the centerline of 15th Avenue, to a point
272.00 feet southerly of said south line Main Street, as measured along said southerly
extension of the centerline of 15th Avenue; thence westerly to a point on said southerly
extension of the centerline of 16th Avenue, distant 248.00 feet southerly of said south line
Main Street, as measured along said southerly extension of the centerline of 16th Avenue;
thence southerly along said southerly extension of the centerline of 16th Avenue, 220.00
feet; thence westerly, deflecting to the right 90 degrees 00 minutes 00 seconds, to its
intersection with said line drawn parallel with and distant 88.00 feet west of the southerly
extension of the centerline of 16t1i Avenue; thence southerly to the point of beginning.
Except that part of the easterly 30.00 feet of the above described tract as described in
Document No. 339128.
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