Res 1440 - US West Lse Sp Wr Tr
COUNCIL BILL NO. 1830
RESOLUTION NO. 1440
A RESOLUTION ENTERING INTO AN AGREEMENT WITH U S WEST COMMUNICATIONS
WIRELESS GROUP TO LEASE SPACE ON CITY WATER TOWER STRUCTURES AND
AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT.
WHEREAS, U S West Communications Wireless Group has negotiated an agreement
to lease space on city water tower structures for placement of antenna, and
WHEREAS, the city has determined that it is in the best interests of the city and
proper to lease space on the water tower structures; NOW THEREFORE
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1, That the City of Woodburn enter into a lease agreement with U S West
Communications Wireless Group to lease space on city water tower structures, Said
agreement is affixed as Attachment "A" and by this reference incorporated herein.
Section 2. That the Mayor of the City of Woodburn is authorized to sign said
agreement on behalf of the city,
Approved as to form:/f)"~ ~ Cf. - / 1- 7 7-
City Attorney Date
APPROVED:"7'l'~ ~~
Nancy A. Klr sey, Mayor ' /
Passed by the Council
September 22, 1997
Submitted to the Mayor
September 24, 1997
Approved by the Mayor
September 24, 1997
September 24, 1997
Filed in the Office of the Recorder
ATTEST: C}{~^:~~~:R'e~r
City of Woodburn, Oregon
Page 1 -
COUNCIL BILL NO. 1830
RESOLUTION NO. 1440
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SITE LEASE AGREEMENT
TIllS SITE LEASE AGREEMENT ("Lease") is entered into this~t' day of ~
1997, between CITY OF WOODBURN, a municipal corporation ("Landlord") and U S ~'
C01MMUNICATIONS WIRELESS GROUP, a division ofD S WEST Communications, Inc., a
Colorado corporation ("Tenant").
1. Premises. Subject to the following terms and conditions, Landlord leases to
Tenant exclusive use ofa portion of the real property (the "Property") described in the attached
Exhibit A. Tenant's use of the Property shall be limited to that portion of the Property together
with easements for access and utilities, described and depicted in attached Exhibits B (collectively
referred to hereinafter as the "Premises").
2. ilrm. The initial term of the Lease shall be five years, commencing on the first
day of the month following three (3) months from the execution date of this Lease (the
"Commencement Date"), and terminating at midnight on the last day of the month in which the
fifth annual anniversary of the Commencement Date shall have occurred.
3. Permitted Use. The Premises may be used exclusively by Tenant only for
permitted uses, which are the transmission and reception of radio communication signals in the
800-900 megahertz frequency range and for the construction, operation, maintenance, and repair
of microcellular antenna facilities: antenna pole, antennas, coax, electronic equipment and
microcell equipment cabinet(s) or vault(s) and related improvements and/or to replace antennas
(with antennas of equal or smaller size) or electronics within equipment cabinets or vaults.
Tenant shall obtain, at Tenant's expense, all licenses and permits required for
Tenant's use of the Premises from all applicable government and/or regulatory entities (the
"Governmental Approvals") and may, prior to the Commencement Date obtain a title report,
perform surveys, soil tests, and other engineering procedures on, under and over the Property,
necessary to determine that Tenant's use of the Premises will be compatible with Tenant's
engineering specifications, system design, operations and Governmental Approvals. Landlord
agrees to reasonable cooperate with Tenant (at no cost to Landlord), where required, to perform
such procedures or obtain Governmental Approvals.
4. :B&n1.
a. Upon the Commencement Date, Tenant shall pay Landlord, as rent, the
sum of One Thousand Dollars ($ 1,000.00 ) per month ("Rent"). Rent shall be payable on
the first day of each month in advance to, CITY OF WOODBURN, at Landlord's address
specified below.
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b. If this Lease is terminated at a time other than on the last day of a month,
Rent shall be prorated as of the date of termination for any reason other than a default by Tenant,
and all prepaid Rent shall be refunded to Tenant.
c. If Tenant shall not have obtained all Governmental Approvals necessary to
construct, operate, occupy and maintain a cellular antenna facility within 1 year from the
Commencement Date specified above, then Tenant shall, by notice to Landlord, have the right to
cancel all rights and obligations under this Lease, provided Tenant reimburses Landlord for actual,
reasonable, legal or other preparatory expenses incurred to a maximum of$500.00.
5. Renewal. Tenant shall have the right to extend this Lease for three additional five-
year terms ("Renewal Term"). Each Renewal Term shall be on the same terms and conditions as
set forth herein except that rent shall be increased after each term by a percentage equal to the
percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers
for the Portland Metropolitan Statistical Area measured from commencement or last renewal date
of this lease to the (next) renewal date. However, Rent shall not increase more than twenty
percent (20%) of the rent paid over the preceding term. Landlord shall be responsible for
communicating the amount of the rental adjustment to Tenant and shall provide Tenant with
supporting data upon which the adjustment is calculated.
This Lease shall automatically renew for each successive Renewal Term unless
either party notifies the other, in writing, of that party's intention not to renew this Lease, at least
90 days prior to the expiration of the term or any Renewal Term.
If Tenant shall remain in possession of the Premises at the expiration of this Lease
or any Renewal without a written agreement, such tenancy shall be deemed a month-to-month
tenancy under the same terms and conditions of this Lease.
6. Interference. Tenant shall not use the Premises in any way which interferes with
the existing use of the Property by Landlord, or with any use by another tenant which use existed
at the time that this Lease was executed (subject to Tenant's rights under this Lease, including
non-interference). Tenant has informed itself of Landlord's use of the Property. Ifit is
determined that there is identifiable interference between Tenant's electronic equipment and the
electronic equipment already permitted on the Property by Landlord for which Tenant is
responsible under this Lease, Tenant shall be solely responsible for the timely resolution of all
interference concerns that are directly attributable to Tenant's use. In the event that Tenant is
unable to satisfactorily resolve all interference concerns which are Tenant's responsibility under
this Lease, Tenant may be required to terminate all operations immediately. If, after the first five
years of this Lease, it is deemed that Landlord has need of that portion ofthe Property occupied
by Tenant for expansion of Landlord's existing use, Landlord will seek to relocate Tenant on the
Property if possible. Such relocation, if required, shall be at Tenant's sole cost and expense.
Landlord shall not permit use by others of Landlord's property adjoining the
Premises which would unreasonably interfere with, or disrupt, Tenant's use of the Premises.
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7. Improvements; Utilities; Access.
a, Tenant shall have the right, at its expense, to erect and maintain on the Premises
micro cellular antenna facilities: antenna pole, antennas, coax, and micro cell electronics and
equipment cabinet(s) or vault(s) as identified on Exhibit C, (collectively the "Antenna Facilities:).
Landlord's prior consent to the plans and specifications for improvements shall be required and
shall be deemed given as to those items listed in Exhibit C hereto.
Tenant shall cause all construction to occur lien-free and in compliance with all
applicable laws and ordinances. The Antenna Facilities shall remain the exclusive property of
Tenant. Tenant shall remove the Antenna Facilities upon termination or expiration of this Lease
and shall return the Premises to approximate original condition except ordinary wear and tear and
be liable for any damage caused by such removal.
b. Tenant shall, at Tenant's expense, keep and maintain the Premises and
improvements now or hereafter located thereon in commercially reasonable condition and repair
during the term of this Lease.
c. Tenant shall separately meter and pay any additional utilities charges due to
Tenant's use. Tenant shall have the right to install utilities, at Tenant's expense, and to improve
the present utilities on the Premises. Landlord hereby grants an easement to permanently place
any utilities on or to bring utilities across the Property in order to service the Premises and the
Antenna Facilities. Utilities shall be limited to the location shown on the attached Exhibit B-1 and
be limited to power and telephone utilities.
d. As partial consideration for rent paid under this Lease, Landlord hereby
grants Tenant an easement ("Easement") for ingress, egress and access (including access as
described in paragraph 1) to the Premises adequate to service the Premises and the Antenna
Facilities at all times during the term of this Lease or any Renewal Term. Upon notice, Landlord
shall have the right, at Landlord's sole expense, to relocate the Easement to Tenant, provided
such new location shall not materially interfere with Tenant's operations. Any Easement provided
hereunder shall have the same term as this Lease.
e. Tenant shall have 24-hour-a-day, 7-day-a-week access to Premises at all
times during the term of this Lease and any Renewal Term, except during an emergency . For
the purpose of this Lease, an "emergency" is defined as any man-made or natural event or
circumstance causing or threatening loss of life, injury to person or property, human suffering or
financial loss, and includes, but is not limited to, fire, explosion, flood, severe weather, drought,
earthquake, volcanic activity, spills or releases of oil or hazardous materials, disease, blight,
infestation, civil disturbance, riot, sabotage and war.
8. Termination. Except as otherwise provided herein, this Lease may be terminated,
without any penalty or further liability as follows:
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a. Upon 10 days' written notice by Landlord if Tenant fails to cure a default
for payment of amounts due under this Lease within that 10 day period;
b. Upon ninety (90) days' written notice by Tenant, if it is unable to obtain,
maintain, or otherwise forfeits or cancels any license, permit or Governmental Approval necessary
to the construction and/or operation of the Antenna Facilities or Tenant's business;
c. Immediately upon written notice if the Premises or Property are destroyed
or damaged so as in Tenant's reasonable judgment to substantially and adversely affect the
effective use of the Premises. In such event, all rights and obligations of the parties shall cease as
of the date of the damage or destruction, and Tenant shall be entitled to the reimbursement of any
Rent prepaid by Tenant;
d. After the first five year term of this Lease, or after any Renewal Term,
upon 90 days written notice by Landlord if the Woodburn City Council determines the public
interest so requires termination.
9. ~. Tenant shall pay any personal property taxes assessed on, or any portion of
such taxes attributable to, the Antenna Facilities. Landlord shall pay when due all real property
taxes and all other fees and assessments attributable to the Premises. However, Tenant shall pay,
as additional Rent, any increase in real property taxes levied against the Premises (excluding any
additional taxes that relate to the period prior to the Commencement Date, i.e. roll-back taxes)
which is directly attributable to Tenant's use of the Premises, and Landlord agrees to furnish
proof of such increase to Tenant.
10. Indemnification. Tenant shall defend, indemnify and hold harmless Landlord, its
officers, agents and employees, from any liability, loss or damage Landlord may suffer (including
any reasonable attorney's fees and expenses) as a result of claims, demands, actions, suits, costs
or damages against Landlord of any kind whatsoever in connection with or arising out of (1) any
violation oflaw, ordinance or covenant or condition of this Lease by Tenant, its agents,
employees, invitees or visitors or (2) any injury or damage occurring to any person or to property
of any kind belonging to any person while on or in any way connected with any portion of the
Premises during the term of this Lease which results from or is caused by Tenant's use of the
Premises, except for any loss or damage caused to Tenant or others or to property of Landlord,
Tenant, or any other person as a direct result of the negligence or wilful acts of Landlord or its
employees. Tenant shall give Landlord prompt notice in case of casualty or accidents on the
Premises. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons in, upon or about the Premises from any cause other that
Landlord's negligence or willful acts, and Tenant waives all claims in respect thereof against
Landlord.
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11. Insurance. Tenant shall maintain public liability and property damage insurance
including automobile liability insurance and a fire legal liability endorsement, that protects Tenant
and Landlord and its officers, agents and employees from any and all risks, claims, demands,
actions and suits for damage to property including without limitation cracking or breaking of
glass, or personal injury, including death, arising directly or indirectly from Tenant's activities or
any condition of the Premises. . The insurance shall provide coverage for not less than $200,000
for personal injury to each person, $500,000 for each occurrence, and $500,000 for each
occurrence involving property damages; or a single limit policy of not less than $500,000 covering
all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to
maximum limits of liability imposed on municipalities of the State of Oregon during the terms of
this Lease. The insurance shall be without prejudice to coverage otherwise existing and shall list
as additional insureds Landlord and its officers, agents and employees. Notwithstanding the
listing of additional insureds, the insurance shall protect each insured in the same manner as
though a separate policy had been issued to each, but nothing herein shall operate to increase the
insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the
insurer would have been liable if only one person or interest had been listed as insured. The
insurance shall provide that the insurance shall not terminate or be canceled without thirty (30)
days written notice first being given to the City Recorder. Tenant agrees to maintain continuous,
uninterrupted coverage for the duration of the Lease. If the insurance is canceled or terminated
prior to termination of the Lease, Tenant shall provide a new policy with the same terms. Tenant
shall maintain on file with the City Recorder a certificate of insurance certifying the coverage
required by this section. Failure to maintain liability insurance shall be cause for immediate
termination of this Lease by Landlord. Landlord shall have the right to increase the limits of
insurance coverage required by this Lease during the Lease term in order to match any statutory
changes as to the maximum limits of liability on Oregon municipalities. In the event Landlord
determines that the insurance limits should be increased on this basis, Landlord shall provide
notice to Tenant of such determination and Tenant shall promptly increase the coverage amounts
to comply with the new limits and provide Landlord an updated certificate. Under no
circumstances shall Landlord be responsible for or provide insurance to cover loss or damage of
Tenant's equipment or personal property. Tenant shall have the right to self-insure the above-
required coverages.
12. Notices. All notice, requests, demands and other communications hereunder
shall be in writing and shall be deemed given if personally delivered or mailed, certified mail,
return receipt requested, or sent by overnight carrier to the following addresses:
If to Landlord, to:
City Administrator", City of Woodburn
270 Montgomery Street
Woodburn, Oreion 97071
If to Tenant, to:
U S WEST Communications, Inc.
c/o U S WEST Business Resources. Inc.
188 Inverness Drive West, Suite 420
Englewood, Colorado 80112
Attn' PSL Manaier/PCS Real Estate
Page 5 - SITE LEASE AGREEMENT
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With a copy to:
U S WEST Communications Wireless GrO\.lP
5950 NE 122nd Avenue Room 231
Portlan<l. Oregon 97230
Attn: Regional Real Estate Manager
13. Quiet Enjoyment. Landlord warrants that it is in lawful possession of the leased
Premises and has the right to lease them. Notwithstanding other provisions in this Lease to the
contrary, Landlord will defend Tenant's right to quiet enjoyment of the leased premises from the
lawful claims of all persons during the lease term and any renewal terms.
14. Assiinment. Tenant may not assign this lease without first receiving Landlord's
written consent, which consent shall not be unreasonably withheld.
15. Landlord represents that it has no knowledge of any substance, chemical or waste
(collectively, "substance") on the Property that is identified as hazardous, toxic or dangerous in
any applicable federal, state or local law or regulation. Tenant shall not introduce or use any such
substance on the Property in violation of any applicable law. Landlord will be solely responsible
for and will defend, indemnify, and hold Tenant, its agents and employees harmless from and
against any and all direct claims, costs, and liabilities, including reasonable attorneys' fees and
costs, arising out of or in connection with the removal, cleanup or restoration of the Property with
respect to substances from any and all sources other than those substances introduced to the City
by Tenant. The obligations of this section 15 shall survive the expiration or other termination of
this Lease.
16. Miscellaneous,
a. The prevailing party in any litigation arising hereunder shall be entitled to
its reasonable attorney fees and court costs, including appeals, if any.
b. This Lease constitutes the entire agreement and understanding of the
parties, and supersedes all offers, negotiations and other agreements. There are no
representations or understandings of any kind not set forth herein. Any amendments to this Lease
must be in writing and executed by both parties.
c. Each party agrees to cooperate with the other in executing any documents
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(including a Memorandum of Lease) necessary to protect the other party's rights or use of the
Premises. The Memorandum of Lease may be recorded in place of this Lease, by either party.
d. This Lease shall be construed in accordance with the laws of the State of
Oregon.
e. If any term of this Lease if found to be invalid, such invalidity shall not
affect the remaining terms of this Lease, which shall continue in full force and effect. The parties
intend that the provisions of this Lease be enforced to the fullest extent permitted by applicable
law. Accordingly, the parties shall agree that if any provisions are deemed not enforceable, they
shall be deemed modified to the extent necessary to make them affordable.
f This Lease may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute a single instrument,
U S WEST Communications, Inc.
BY:#~,iJ':t x!offlPA/
ITS: Attomey-in- act
STATE OF{)R,.E~ )
COlor )
ss.
County of j};-f"~ L..e )
On this I q4 day of ~-f.. J 1997, before me, a Notary Public for the said State,
personally appeared ,S;u'rl-t'l{ ~ill...4j- , personally known to me (or proved
to me on the basis of satisfactory evidence) to be the f1+IrrfL/1f - /n - F~ ofU S
WEST Communications, Inc. and personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument on behalf of said corporation
by authority of said corporation's Board of Directors.
IN WITNESS WHEREOF, I have hereto set my hand and affixed my official seal the day
and year in this certificate first above written.
[~~~#_#***..#
State of Colorado
Debbie L. Ivarson
Notary Public
US WEST unications-:wirettM6toup
B~_
IT . NG
V,P. OPERATIONS & ENGINI:t;R1
" .'~ N
J.Llx~ {7'\. C'. . x..--t-..a..--(;~
Notary Public in and for said SJate
My Commission Expires: Lf - / ;).. - j q
Approved as to~. qJ Jr.
Knapp & Rome. L.l.C, (./ 1/'rt1
Legat COUnsel for USWC
Page 7 - SITE LEASE AGREEMENT
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)
) ss.
County of Hr-T~&( )
On this I~ day of ~+. , 1997, before me, a Notary Public for the said State,
personally appeared -:::::G h VI II. b 0 YI yUly , personally known tome (or proved
to me on the basis of satisfactory evidence) to be the t/ P 0 ~r'" ho 11 .5 't- t' <11 ' of
US WEST Communications Wireless Group, a division of S WEST Communications, Inc.,
and personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed this instrument on behalf of said corporation by authority of said
corporation's Board of Directors.
STATE OF OREOON
(}.,c/o nu.l-o
IN WITNESS WHEREOF, I have hereto set my hand and affixed my official seal the day
and year in this certificate first above written.
~-***###[]
State of Colorado
Debbie L. Ivarson
*"*#~~~!~;~3~;",,
!JR.~ (XJ. jy~
Notary Pu~li~ in and ~or said,State
My ConurusslOn ExpIres: '1- / d- - ? '1
LANDLORD: City of Woodburn, Oregon
~-.. ~ /
NancyA.~sey.~.
City of Woodburn
STATE OF OREGON )
) ss.
County of Marion )
The foregoing instrument was acknowledged before me this .;)1j~ay of ~k<.-k'L
by Nancy A. Kirksey, Mayor of the City of Woodburn, a Municipal Corporation of the State of
Oregon, on behalf of the City of Woodburn.
,'QQ7
""'~"">~
'J{ . J;. ~
Notary ~bliC for Oregon.
My Commission Expires: 6- c, - 0 )
_OFFICIAL SEAL
KAY L. VESTAL .
,j NOTARY PUBLIC-OREGON
, \... ...... COMMISSION NO. 303010
) WCOMM1SS~:.~rl ~~..~~
ATTEST: ~ ~
Mary T ant, City Recorder
Page 8 - SITE LEASE AGREEMENT
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EXHIBIT A
to the Site Lease Agreement dated ~s;r- ~'!:?2- l' , 1997 between CITY
OF WOODBURN, as Landlord, and l!.s al~~;t r!tYnlJ1/J/IJIC4nuNS, as Tenant.
W i 121:=: .I.. .t;-S5 <:;;, Ro i.J P
Legal Description
The Property is legally described as follows:
. Parcel No.5, lots 1, 2, 3, & 4, Block 6, Woodburn Packing Co. Addition
with exceptions as described in Volume 125, Page 369, Parcel No.6,
Volume 320, Page 219, Beginning on the east boundary of the right of way
of the SPRR where the north boundary of the county road leading from
Woodburn to the town of Monitor, in Marion County, Oregon, crosses the
said railroad, said county road being also known as Cleveland Street, in
Woodburn, Oregon, running thence northeasterly along the east boundary of
the SPRR to the lands of UG Dunn, thence on the south boundary of said
Dunn's land 100' to the southea~ corner of said lands, thence along the
west boundary of the Woodburn ~acking Company's addition to the town of
Woodburn same being in a southwesterly direction and parallel to the main
line of the SPRR to the lands of the SPAR thence in a southwesterly
direction along' the grounds of the SPRR to the north boundary of the a~ve
mentioned street or road, thence to the place of the beginning.
Page 9 - SITE LEASE AGREEMENT
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EXHIBIT B
DUPLlCA TE ORIGINAL
10F2
to the Site Lease Agreement datedb/.1!. 0.4 , 1997 between CITY OF
WOODBURN, as Landlord, and uS u..j,,~-J- (b,.nmtJl)I(C1.t-t'~Vl~ . as Tenant.
[,('Ift'LLl:.SS Gf'OI...;(.J
1 . Access Easement
Parcel No, 5, lots 1, 2, 3, & 4, Block 6, Woodburn Packing Co. Addition with exceptions as
described in Volume 125, Page 369, Parcel No, 6, Volume 320, Page 219, Beginning on the
east boundary of the right of way of the SPRR where the north boundary of the county road
leading from Woodburn to the town of Monitor, in Marion County, Oregon, crosses the said
railroad, said county road being also known as Cleveland Street, in Woodburn, Oregon,
running thence northeasterly along the east boundary of the SPRR to the lands of UG Dunn,
thence on the south boundary of said Dunn's land 100' to the southeast corner of said
lands, thence along the west boundary of the Woodburn Packing Company's addition to the
town of Woodburn same being in a southwesterly direction and parallel to the main line of
the SPRR to the lands of the SPRR thence in a southwesterly direction along the grounds of
the SPRR to the north boundary of the above mentioned street or road, thence to the place
of the beginning.
2. Utilitv Easement.
Parcel No, 5, lots 1, 2, 3, & 4, Block 6, Woodburn Packing Co. Addition with exceptions as
described in Volume 125, Page 369, Parcel No.6, Volume 320, Page 219, Beginning on the
east boundary of the right of way of the SPRR where the north boundary of the county road
leading from Woodburn to the town of Monitor, in Marion County, Oregon, crosses the said
railroao, said CQunty road being also known as Oeveland Street,. in Woodburn, Oregon,
running thence northeasterly along the east boundary of the SPRR to the lands of UG Dunn,
thence on the south boundary of said Dunn's land 100' to the southeast comer of said
lands, thence along the west boundary of the Woodburn Packing Company's addition to the
town of Woodburn same being in a southwesterly direction and parallel to the main line of
the SPRR to the lands of the SPRR thence in a southwesterly direction along the grounds of
the SPRR to the north boundary of the above mentioned street or road, thence to the place
of the beginning.
;; :~
Page 10 - SITE LEASE AGREEMENT
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EXHIBIT C
Page I of2
DUPLlCA TE ORIGINAL
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to the Site Lease Agreement dated 0t=fJT d<-I ' ] 997 between the CITY OF
WOODBURN, as Landlord, and ():S {))(I\f (~wiYnul)l(..-f,'D'-I~ U)leEl.f;iS.: a ('aw0l--to (O/2.fJDfA-not0
as Tenant. G-IC'ouP
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Page 11 - SITE LEASE AGREEMENT
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EXHIBIT C
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DUPLlCA TE ORIGINAL
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to the Site Leasc Agrcemcnt datcd _J::;EPZ,-_i3_i ' ]997 between the CITY OF
WOODBURN, as Landlord, and 1l5J.1k.s..t_~\mUV!.JLa1~__, a (lot-og(:t~_rQ~~~C~~I\J__
as Tcnant. WIIc.EI.-/oZSS ~l2ouP
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Page 12 - SITE LEASE AGREEMENT
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