This AGRICULTURAL LEASE AGREEMENT (“Lease”) is entered into by and between PACIFICORP, an Oregon Corporation (“Lessor”) and Xxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx both of 000 X. 0xx Xx., Xxxxxxxxxx, XX 00000, (“Lessee”).
A. Lessor is the owner of certain real property, herein referred to as the “Premises” located in T. 13 S. R. 44 E., Sections 5, 6, and 7, and T. 12 S. R. 43 E.Sections1 and 12, B.M., Bear Lake County, State of Idaho. The Premises are more particularly delinieated in the attached Exhibit X.
X. Xxxxxx is an investor-owned public utility company providing electric utility service to customers in multiple states. Lessor controls the releases of water from Bear Lake and conveys the water through a canal commonly known as the Outlet Canal and returns the water to the natural channel of the Bear River. Lessor has used, and will continue to use, the Premises as an area to absorb natural flooding and flooding caused by said releases. Lessor has also used, and will continue to use, the Premises for the construction, operation, maintenance, repair, and replacement of electric transmission and distribution lines and other facilities and equipment normally associated with the generation, transmission and distribution of electric power. Lessor has also used or leased, and will continue to use or lease, the Premises for the construction, operation, maintenance, repair and replacement of communication structures, facilities, and equipment.. Lessor also uses and will continue to use the Premises to access adjoining properties and facilities, including properties and facilities that may be used in the future.
C. Lessee desires to lease the Premises, consisting of approximately 1442 acres, more or less, for agricultural uses including grazing of livestock and raising agricultural crops.
TERMS AND CONDITIONS OF AGREEMENT
FOR AND IN CONSIDERATION of the mutual promises and covenants and other consideration, the receipt and sufficiency of which is hereby acknowledged, and subject to the terms and conditions set forth below, Lessor and Lessee agree as follows:
1. Purpose and Use; Acknowledgement of Lessor’s Reserved Uses. Lessor does hereby lease the Premises as described in Exhibit “A” which is attached hereto and by this reference made a part hereof. Lessee shall use the Premises for the limited purposes of raising crops and grazing of livestock and for no other purposes without written consent of Lessor. Lessee acknowledges that Lessor has reserved the right to use the Premises: for flooding purposes; for the construction, installation, operation, maintenance, repair and replacement of existing or future electric utility facilities; for the construction, installation, operation, maintenance, repair and replacement of existing or future communication facilities, including communications facilities of third-parties allowed to use the Premises under separate lease with, or other permission from, lessor; and for accessing adjoining properties or facilities. Lessee acknowledges that the Premises are subject to flooding from natural causes and as a result of the Lessor’s release of water from Bear Lake for irrigation, flood control or other purposes, and Lessee agrees that its right to use the Premises is subject to Lessor’s superior right to use the
Premises as an area to absorb flooding. Lessee agrees that Lessor is not liable for any flood related damage to Lessee’s crops, livestock, or other property located on the Premises at any time.
2. Each Lessee Joint and Severally Liable. Xxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx shall each be joint and severally liable for all Lessee obligations under this Lease, including all obligations that survive termination or expiration.
3. Term. The term of this Lease shall be five (5) years, commencing on the 1st day of January 2015 and ending on the 31st day of December, 2019, unless earlier terminated as provided herein.
4. Rent Payments. Lessee shall pay to Lessor a rent payment in the amount of TWENTY FIVE THOUSAND DOLLARS AND NO/100 ($25,000.00) per year for the term of the Lease. The first annual rent payment shall be due and payable upon execution of this Lease. All subsequent payments shall be due and payable in advance on the first day of January each year. All payments shall be mailed to:
Attn: Central Cashiers
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
5. Late Payments. In the event Lessee fails to make its payment within fifteen (15) days after the annual due date specified above, Lessee shall pay, in addition to the rent payment owed, a late payment fee equal to fifteen percent (15%) of the annual payment owed. If Lessee fails to make its payment within thirty days (30) days after the annual due date specified above, Lessee shall pay, in addition to the rent payment and late fee owed, twenty percent (20%) annual interest on the amount of the rent payment and late fee owed.
6. Holdover. If Lessee retains possession of the Premises or any part thereof after the termination of this Lease, Lessee shall be deemed to have a month-to-month tenancy and Lessee shall pay to Lessor a monthly installment of rent, at double the rate due and payable for the month immediately preceding such holdover, computed on a per-month basis, for each month or part of a month (without reduction for any such partial month) that Lessee remains in possession of the Premises. In addition, Lessee shall pay to Lessor all direct and consequential damages sustained by reason of Lessee’s retention of possession of the Premises. The provisions of this Paragraph shall not be deemed to limit or exclude any of Lessor’s rights of reentry or any other right granted to Lessor under this Lease or at law.
7. Federal and State Programs. Lessee may participate in federal or state agricultural programs, such as but not limited to the Conservation Reserve Program (“CRP”) or crop insurance programs, but if Lessee participates in any program that requires alteration of the Premises, Lessee shall first acquire Lessor's written approval. Lessor acknowledges Lessee’s participation in certain Federal programs through the Bear Lake County Farm Service Agency of the U.S. Department of Agriculture. Lessor has the right to review any government programs that Lessor’s Premises may be entitled to and will determine how potential distributions will be allocated under the conditions of said programs.
8. Acceptance of the Premises. Lessee has examined and knows the condition of the Premises and accepts the Premises in its present condition, AS-IS and with all faults. Lessor makes no representation or warranty as to the condition of the Premises and shall not be required to perform, pay for, or be responsible for any work to ready the Premises for Lessee’s occupancy or for any other work whatsoever throughout the term of this Lease.
9. Water Rights. In addition to the use of the premises, Lessee shall have the right to use the following water rights which are appurtenant to the Premises (the “Water Rights”):
(a) Water License No.11-02128, priority date of 1962, 4.37 c.f.s,; (b) Water Right No. 11-01104, priority date of 1889, 1.5 c.f.s.; and (c) Water Right No. 11-01117, priority date of 1955 , 6.18 c.f.s. (all of which are on record with Idaho Water Resources and understood to be appurtenant to the Premises and available for use on said Premises). Lessee agrees to maintain in good working order all ditches used to divert water onto the Premises. Lessee shall not allow irrigation water to run uncontrolled onto the Premises or from the Premises onto land not owned or leased by Lessee. Lessee agrees to comply with all terms and limitations of the Water Rights. Lessee agrees to use the Water Rights only for irrigation on the Premises. On or before April 1 of each year of the term of this Lease, Lessee will state to Lessor’s satisfaction the dates such the Water Rights were used and the amounts of water used. Lessee shall notify Lessor immediately of any use of the Water Rights third persons make or endeavor to make. Lessor makes no warranty or representation regarding the Water Rights. Lessee shall be responsible for the cost of any penalties or damages that may accrue or result from Lessee’s use or misuse of the Water Rights.
10.1 Written Consent. Lessee may not make any improvements or changes to the Premises (including changing existing ground elevation, excavating, constructing any structure, constructing a lighting structure, or landscaping) without Lessor’s prior written consent. If Lessee desires to make any changes or improvements to the Premises, Lessee shall provide Lessor with detailed plans and specifications for the proposed change or improvement at least thirty (30) days in advance of the proposed start of excavation, construction or installation work. In the event Lessee deems the making of any improvement or the changing of any improvement necessary to remove a hazardous condition, it shall notify Lessor and request that Lessor approve the improvement or change in improvement within a shorter time. Lessor shall have the right to conditionally approve, modify, or deny the requested change or improvement at Lessor’s sole discretion.
10.2 Workmanlike Manner. All Lessor-approved improvements shall be made in a good and workmanlike manner. Any improvement that violates building codes or the laws or ordinances of any governing jurisdiction, or that xxxxx the Premises in any manner, shall be timely cured by Lessee at Lessee’s expense and in a manner satisfactory to Lessor.
10.3 Maintenance of Improvements. Lessee shall keep and maintain all fences, water ditches, irrigation systems, and other improvements existing upon the Premises at the commencement of this Lease (or installed upon the Premises during the term of this Lease after receipt of written approval from Lessor), if any, in good condition and shall perform all routine maintenance and repairs on them at its own labor and expense. Lessee shall not remove or allow any other person to remove from the Premises any of the fences or other improvements without the Lessor’s prior written approval.
10.4 Removal of Improvements. All fixtures installed or improvements made by Lessee shall be and remain the property of Lessor. Lessee shall not be entitled to any compensation for any fixtures installed or improvements made to the Premises. If Lessor determines that fixtures installed or improvements made by Lessee need to be removed, the upon receipt of written demand from Lessor, Lessee will remove such fixture or improvements or reimburse Lessor for all costs incurred by Lessor for any such removal.
11. Restrictions on the Use of the Premises.
11.1 Flammable Materials. Lessee shall not place or store any flammable material (including but not limited to chemical solvents, fuels, rubbish piles, haystacks, or lumber products) on the Premises and within fifty (50) feet of any power line, existing or future. Motor vehicle fuels and lubricants, if properly contained in a motor vehicle, are excluded from this restriction.
11.2 Storage. Lessee shall not cause or permit any structure, building, motor vehicle, or equipment to be placed, erected, or stored on the Premises without Lessor’s prior written consent nor shall Lessee, under any circumstances place structure, building, motor vehicle, equipment or object within, or allow any person to come within, twenty (20) feet of any existing or future power lines on the Premises. Lessee understands and acknowledges that electricity can arc between lines and persons or objects within twenty (20) feet of the lines. Lessee assumes all risk of harm should any person, structure, building, motor vehicle, equipment or object be allowed within twenty (20) feet of an existing or future power line in violation of this provision.
11.3 Noxious Weeds. Lessee shall control the growth of any noxious weeds or other growth on the Premises in accordance with the requirements of any governmental agency having jurisdiction or as otherwise required by Lessor.
11.4 Notice of Damages or Theft. Lessee shall provide notice to Lessor of any mortality, theft, vandalism, loss, or damage to the Premises, within twenty-four (24) hours of the discovery of any such event.
11.5 Condition of Premises. Lessee shall keep and maintain the Premises in a clean, prudent, and husband-like manner at all times and in conformity with good conservation and business practices. Livestock are not allowed on the Premises.
11.6 Chemicals and Fertilizers. Lessor and Lessee acknowledge that the use of pesticides, chemicals and fertilizers may be necessary to optimize crop production upon the Premises. It is also understood that the use of pesticides, chemicals and fertilizers could cause damage to persons, property and natural resources if improperly applied or used. Lessee shall use and/or apply insecticides, herbicides, pesticides, chemicals or fertilizers on the Premises only as necessary and in a prudent and responsible manner to minimize any potential harm or damage to the environment. Lessee shall comply in all material respects with existing federal, state and local laws, regulations and ordinances and all manufacturer's instructions and guidelines in the use or application of any insecticide, herbicide, pesticide, chemical or fertilizer on the Premises. Lessee shall NOT apply any registered pesticides without written approval by Lessor prior to application; such written approval may or may not be granted in Lessor’s sole discretion. Lessee assumes all risk of harm to persons, property, or the environment that may result from Lessee’s storage, handling, use or application of any insecticide, herbicide, pesticide, chemical or
fertilizer and Lessee agrees to hold Lessor harmless from liability or litigation costs associated with or arising from any such harm.
11.6.1 Annual Accounting of Chemical, Pesticide, Fertilizer application(s). Lessee shall provide Lessor with an annual report of any and all chemicals, pesticides or fertilizers applied on the Premises. The report shall include, but shall not be limited to, the following: type of product applied, brand, chemical name, purpose of use, amount applied, date of application, and location of application (including delineation on a map). Lessee’s annual report under this provision is due on the 30th day of November each year.
11.7 Off Road Travel. Use of trucks, tractors, or other large vehicles off of established roads is prohibited except for customary and routine agricultural usage and maintenance of the Premises.
11.8 Animals on the Premises. In the event Lessor allows Lessee to keep animals or livestock of the Premises, Lessee agrees to use all diligence in maintaining the property so as to prevent the escape of any livestock or animals kept upon the Premises, and to indemnify and hold harmless Lessor from any claims arising out of loss from Lessee’s livestock or animals kept on, or escaping from, the Premises. Lessee agrees to maintain all fences on or around the Premises in good condition during the term of this lease. Lessee agrees to use best management practices to provide optimal feed for livestock and wildlife.
11.8.1 Annual Reporting of Animals on the Premises. Lessee shall provide Lessor with an annual report regarding the number of animal units per month on the Premises during the term of the lease.
11.9 Soil Erosion. Lessee will control soil erosion as completely as practicable by stripcropping and contouring, by filling in or otherwise controlling small washes or ditches that may form, and by engaging in such other best practices as needed to minimize and control soil erosion. Lessee will keep in good repair all terraces, open ditches, and inlets and outlets of tile drains, preserve all established watercourses or ditches including grass waterways and refrain from any operation or practice that will injure them.
12. Environmental Regulations. Lessee shall strictly comply in all material respects with all federal, state, and local environmental laws, regulations, and ordinances (“Environmental Laws”) and shall not use or store on the Premises any hazardous or toxic materials without Lessor’s prior written consent. In the event of any spill or release of any hazardous or toxic materials, Lessee shall immediately: (a) prevent any further spill or release; (b) notify Lessor of the spill or release; (c) notify any governmental agency that must be notified under any applicable Environmental Laws; and (d) clean up and remedy any such spill or release. Upon termination of this Lease, Lessee shall deliver the Premises to Lessor free of any material contamination by hazardous or toxic materials. Lessee covenants and agrees to protect, indemnify, and hold Lessor harmless from any and all liability, loss, costs, damage, or expense, including attorneys’ fees, resulting from Lessee’s failure to comply with the provisions of this paragraph or resulting from contamination of the Premises caused by Lessee or its employees, contractors, invitees, or permittees. The obligations and covenants contained in this paragraph shall survive the expiration or termination this Lease.
13. Lessor’s Use of the Premises.
13.1 Power Lines and other Utility Facilities. It is understood and agreed that Lessor reserves the right to access the Premises at any time and to use the Premises for the purpose of installing, constructing, operating, maintaining, repairing or removing Lessor’s existing or future electric utility or communications equipment, facilities, structures or building, including existing or future power lines, transformers, switch gear, communications lines, and microwave or other communications towers (collectively “Lessor Facilities”). It is further understood and agreed that Lessor reserves the right to authorize (through permit, lease, or otherwise) third parties to install, construct, operate, maintain, replace or remove existing or future electric utility or communications equipment, facilities, structures or buildings (including cable or fiber optic lines) on the Premises (collectively “Third-Party Facilities”). Lessor’s reserved rights of access and use shall be superior to Lessee’s rights of use. If the addition of new or modified Lessor Facilities or Third Party Facilities requires that Lessee modify, move, or cease any Lessee use, structure, practice, or improvement located on the Premises, Lessor shall give Lessee thirty (30) days advance notice and Lessee agrees to make any such changes at Lessee’s expense and within a reasonable period of time (and in any event within thirty (30) days of notice unless a longer period of time is authorized by Lessor). Lessor reserves the right to enter upon the Premises at anytime to access Lessor’s Facilities located on the Premises or to access adjacent properties or facilities. Lessor reserves the right to authorize third parties to enter upon the Premises at anytime to access Third Party Facilities.
13.2 Right to Flood Premises; Assumption of Risk; Release. Lessee acknowledges and agrees that all or a portion of the Premises is or may be in a flood plain and that the Premises is subject to partial or total flooding or fluctuations in water levels. Lessee acknowledges and agrees that Lessor purchased the Premises as flood lands. Lessee agrees that that Lessee assumes the entire risk of flooding over all or a portion of the Premises, over all or a portion of the fixtures, improvements, buildings or structures located on the Premises, and over any or all of Lessee's personal property. This assumption of risk applies to flooding caused by any reason including without limitation: usual or unusual weather conditions; acts of God; Lessor’s release of water from Bear Lake; intentional or unintentional direct or indirect acts of Lessor or Lessor's operators or successors; or negligent acts of Lessor. Lessee hereby releases and waives any existing or future claim against Lessor for flooding damages of any kind, including damages for personal injury or loss of life, or loss of any crops, livestock, equipment, developments, improvements, fixtures, or other property to which Lessee has any claim whatsoever, or which Lessee or Lessee's employees, agents, permittees, invitees or licensees may suffer as a result of such flooding or other fluctuation in water level. Any flooding of the Premises shall not relieve Lessee from making lease payments or performing any other obligations required hereunder which are not rendered impossible by the flooding.
14. ALCOHOL, DRUGS, FIREARMS and TOBACCO PROHIBITED. Lessee, its employees, agents, invitees and/or contractors shall not use, consume, or bring on to the Premises alcohol, illegal drugs, firearms or tobacco products (for the purposes of this Paragraph, marijuana shall be considered a tobacco product if marijuana is not an illegal drug in the state in which the Premises is located).
15. No Sublet or Assignment or Lien. Lessee may not sublet the Premises or any part thereof or assign any of its rights under this Lease without Lessor’s prior written consent (which Lessor may grant or withhold in its sole discretion). Lessee shall not permit any mechanic’s or materialman’s lien to be filed against the Premises and in the event any such lien or claim is filed
against the Premises as a result of any action or inaction by Lessee, Lessee shall immediately remove the lien through satisfaction of the claim, assertion of valid defenses or initiation and prosecution of an action requiring removal of the lien.
16. Protection of Wildlife Habitat. Lessee shall exercise reasonable care to promote and protect wildlife habitat upon the Premises. Unless Lessee has obtained Lessor’s prior written approval of the specific action in question, Lessee shall take no actions to deter the use of the Premises by Wildlife.
17. Optimization of Crop Production. Lessee shall diligently endeavor to optimize crop production upon the Property in a manner consistent with the purposes set forth herein.
18. Compliance with Law, Preventing Waste. Lessee shall, at all times, comply with all laws, ordinances, and regulations affecting or pertaining to the use or occupation of the Premises, including environmental laws and regulations. Lessee shall indemnify, defend, and hold harmless Lessor from loss, cost, or damage by reason of any actual or alleged violation by Lessee thereof, and from any liability, including fines, penalties and other costs, arising out of Lessee’s failure to so comply. Lessee shall at all times keep the Premises in a neat and orderly manner satisfactory to Lessor. Lessee shall not commit or suffer to be committed any waste upon the Premises or any nuisance or other act or thing which may disturb adjoining land owners or which may violate the law.
19. Release; Indemnification. Lessee shall use the Property at its own risk and hereby releases and forever discharges any claims, demands or causes of action it may have against Lessor, its officers, directors, employees, subsidiaries and affiliates, arising out of Lessee's use of or activities on or around the Property. In addition, to the maximum extent permitted by law, Lessee shall protect, indemnify and hold harmless Lessor, its officers, directors, employees, subsidiaries and affiliates (collectively "Indemnitees") from and against any losses, claims, liens, demands and causes of action of every kind, including the amount of any judgment, penalty, interest, court cost or legal fee incurred by the Indemnities or any of them in the defense of same, arising in favor of any party, including governmental agencies or bodies, on account of taxes, claims, liens, debts, personal injuries, death or damages to property, violations of Environmental Laws and Regulations, and all other claims or demands of every character arising directly or indirectly out of Lessee's use of or activities on or around the Property. This paragraph shall survive the expiration or termination of this Lease. For purposes of this Lease, "Environmental Laws and Regulations" shall mean all present and future federal, state and local laws and all rules and regulations promulgated thereunder, relating to pollution or protection of the environment. The release and indemnity obligations found in this Lease are intended to be complimentary. A claim, demand, cause of action, liability or harm may be subject to release and indemnification obligations imposed by more than one paragraph of this Lease.
20. Insurance. Without limiting any liabilities or any other obligations of Lessee, Lessee shall procure and continuously maintain for the duration of this Lease, insurance against claims for injury to persons or damage to property that may arise from, or in connection with, this Lease or Lessee’s use or occupancy of the Premises as follows:
20.1 Comprehensive Personal Liability Insurance. Comprehensive personal liability insuring against acts resulting from occupancy, including maintenance and use of the Premises and other insurable acts for which Lessee may be liable, including bodily injury and property damage with a minimum limit of One Million Dollars ($1,000,000) per occurrence and
annual aggregate, if applicable. Requirements may be met with Farm Owner’s liability or other appropriate policy form providing required coverages.
20.2 Automobile Liability. Automobile insurance with a combined single limit of not less than One Million Dollars ($1,000,000) covering bodily injury and property damage.
20.3 Personal Property Insurance. Lessor shall provide no insurance on Lessee’s personal property. It is Lessee’s option to insure any and all damages resulting from fire, wind, vandalism, theft, falling objects and any other perils that may cause loss or damage to Lessee’s personal property located on the Premises.
20.4 Certificate of Insurance. Lessee shall annually provide to Lessor a certificate of insurance evidencing its insurance coverage. The policies required herein shall include provisions or endorsements naming Lessor, its parent, affiliates, subsidiaries, its officers, directors, agents, employees or servants as additional insured. All insurance mentioned in 20.1,
20.2 and 20.3 shall include waivers of subrogation in favor of the Lessor.
20.5 Lessee’s Insurance Primary. To the extent of Lessee’s negligent acts or omissions, all policies required under this Lease shall include provisions that such insurance is primary with respect to the interest of Lessor and that any other insurance and self- insurance maintained by Lessor is excess and noncontributory insurance with the insurance required hereunder, and provisions that the policy contain a cross liability or severability of interest clause or endorsement.
20.6 No Right of Recovery or Subrogation. Unless prohibited by applicable law, all required insurance policies shall contain provisions that the insurer will have no right of recovery or subrogation against Lessor, its parent, divisions, affiliates, subsidiaries companies, co-lessees, or co-venturers, agents, directors, officers, employees, servants, and insurers, it being the intention of the Lessor and Lessee that the insurance as affected shall protect all parties.
20.7 Adequate Coverage. Lessor does not represent that the insurance coverage specified herein (whether in scope of coverage or amounts of coverage) is adequate to protect the obligations of the Lessee, and Lessee shall be solely responsible for any deficiencies thereof.
20.8 Notification of Insurance Cancellation. Lessee shall notify Lessor as soon as possible in the event that any policies become subject to cancelation and will provide to Lessor proof of replacement coverage prior to the cancelation effective date.
21. Taxes. Lessor shall pay taxes levied on the Premises and Lessee shall pay all taxes on Lessee’s personal property used on the Premises.
22. Termination. This Lease may be terminated upon the happening of any of the following events:
22.1 Breach. If Lessee breaches any of the covenants or provisions herein provided, including the failure to pay rent or any other monetary sums required under this Lease, Lessor, at its option, may terminate this Lease and immediately re-enter and repossess the
Premises either with or without legal process and without giving notice to quit to Lessee, which notice is expressly waived by Lessee in case of such breach.
22.2 Abandonment. In the event Lessee abandons the Premises, Lessor may, in addition to all other remedies, immediately reenter the Premises and take full possession thereof and exclude Lessee from any attempted renewed use of the Premises.
22.3 Termination by Notice. Lessor may terminate this Lease at any time during the term hereof by giving sixty (60) days written notice to Lessee of its intention to do so.
23. Events Upon Expiration or Termination. Upon the expiration of termination of this Lease, Lessee shall promptly remove all personal property and shall surrender the Premises in good condition satisfactory to Lessor, reasonable wear and depreciation due to use excepted. Within thirty (30) days of termination under Paragraphs 22.1 or 22.2, or within thirty (30) days of Lessor providing the notice to Lessee required by Paragraph 22.3, the Lessee shall pay to the Lessor any and all rent outstanding or other payments or obligations due to Lessor under this Lease. Such payment shall not prohibit Lessor from seeking any other relief to which it is entitled under this Lease or applicable law. The obligations of this Paragraph will survive termination or expiration of this Lease.
23.1 Additional Events Upon Termination. In the event that Lessor terminates this Lease pursuant to Paragraph 22.3, and termination occurs between January 1 and June 30, Lessee will be allowed to recover any and all crops from the Premises that were planted prior to Lessor providing notice of termination. Such removal of crops will occur as soon as conditions permit. In the alternative to allowing Lessee to remove such crops, Lessor may elect (in its sole discretion) to refund to Lessee the amount of rent paid for the entire year in which termination occurs. The provisions of this Paragraph apply only to termination by notice under Paragraph
22.3 and not to termination under Paragraph 22.1 (because of Lease) or Paragraph 22.2 (abandonment). This provision will survive termination or expiration of the Lease.
24.1 Notice. Except when actual receipt is expressly required by the terms hereof, notice is considered given either: (i) when delivered in person to the recipient named below, (ii) after deposit in the United States mail in a sealed envelope or container, either registered or certified mail, return receipt requested, postage prepaid, addressed by name and address to the party or person intended, or (iii) after being transmitted by facsimile to the person and party intended and to the facsimile number indicated below, with machine confirmation of satisfactory transmittal. All notices shall be given to the following:
Property Management Department 0000 X. Xxxxx Xxxxxx #000
Xxxx Xxxx Xxxx, XX 00000 Facsimile: 000-000-0000
Lessee: Xxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxxx 000 X. 0xx Xx.
Xxxxxxxxxx, XX 00000 Facsimile:
A single writing to Xxxxxx X. and Xxxxxxx Xxxxxxxxx sent to the above identified address or facsimile number will be deemed sufficient notice to both Xxxxxx x. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, both of whom are joint and severally liable for the Lessee’s obligations under this Lease. Upon written notification, either party may designate a different individual or address for notices.
24.2 Titles and Captions. Section or Paragraph titles and captions to this Lease are for convenience only and shall not be deemed part of this Lease and in no way define, limit, augment, extend, or describe the scope, content, or intent of any part or subparts of this Lease.
24.3 Applicable Law. This Lease shall be construed in accordance with and governed by the laws of the State of Idaho.
24.4 Binding Effect Upon Successors. This Lease shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, legal representatives, and assigns; provided that this provision shall not be construed as permitting assignment, substitution, delegation, or other transfer of rights or obligations except strictly in accordance with the provisions of this Lease, including Paragraph 15.
24.5 Integration. This Lease constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes all prior agreements and understandings pertaining thereto. No covenant, representation, or condition not expressed in this Lease shall affect or be deemed to interpret, change, or restrict the express provisions hereof.
24.6 Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Lease or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of such right or remedy or of any other covenant, agreement term, or condition. Any party may, by notice delivered in the manner provided in this Lease, but shall be under no obligation to, waive any of its rights or any conditions to its obligations hereunder, or any duty, obligation, or covenant of any other party. No waiver shall affect or alter the remainder of this Lease but each and every other covenant, agreement, term, and condition hereof shall continue in full force and effect with respect to any other breach.
24.7 JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS LEASE. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
24.8 Rights and Remedies. The rights and remedies of any of the parties shall not be mutually exclusive, and the exercise of one or more of the provisions of this Lease shall not preclude the exercise of any other provisions. Each of the parties confirms that damages at law may be an inadequate remedy for a breach or threatened breach of any provision hereof. The respective rights and obligations hereunder shall be enforceable by specific performance, injunction, or other equitable remedy, but nothing herein contained is intended to or shall limit or affect any rights at law or by statute or otherwise of any party aggrieved as against the other
parties for a breach or threatened breach of any provision hereof, it being the intent of this paragraph to make clear the agreement of the parties that the respective rights and obligations of the parties hereunder shall be enforceable in equity as well as at law or otherwise.
24.9 Severability. In the event that all or any part of any condition, covenant, paragraph or provision of this Lease is held to be invalid, unenforcable or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Lease and shall in no way effect: (a) the remaining portion of the covenant, condition, paragraph, or provision in question; or (b) any other covenant, condition, paragraph or provision contained herein. If all or a part of a condition, covenant, paragraph or other provision shall be deemed invalid or void due to its scope or breadth, such invalid or void provision or language shall be deemed valid to the extent of the scope or breadth permitted by law.
24.10 Enforceability and Litigation Expenses. If any action, suit, or proceeding is brought by a party hereto with respect to a matter or matters covered by this Lease or if a party finds it necessary to retain an attorney to enforce its rights under this Lease, all costs and expenses of the prevailing party incident to such preceding or retention, including reasonable attorney’s fees, shall be paid by the non-prevailing party. A party shall not be considered a “prevailing party” for purposes of this provision if the party refused a settlement offer from the other party and then recovered less than the value of the rejected settlement offer in resolution of the legal dispute in question.
24.11 Authorization. Each individual executing this Lease represents and warrants that they have been duly authorized by appropriate action of the governing body of the party for which they sign to execute and deliver this Lease in the capacity and for the entity set forth where they sign and that as a result of their signature, this Lease shall be binding upon the party for which they sign.
24.12 Interpretation. All parties have had the opportunity to negotiate this Lease and to seek the advice of legal counsel prior to entering into this Lease. The provisions of this Lease shall not be construed against the drafter. Unless the context requires otherwise, the term “including” contemplates “including but not limited to”.
24.13 Recordation. This Lease may not be recorded on behalf of either party, but in lieu thereof, Lessor and Lessee agree that each will, upon execution of this Lease, execute, in recordable form, a “short form” of the Lease, which shall contain a description of the Premises, the term of the Lease, and the parties to the Lease. The short form of the Lease shall not modify the terms of the Lease or be used in interpreting the Lease and in the event of any inconsistency between this Lease and the short form of the Lease, the terms and conditions of this Lease shall be controlling.
[Signature Page Follows]
IN WITNESS WHEREOF, the Lessor PacifiCorp and Lessees Xxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx have executed this Lease in duplicate on the last date indicated below.
PACIFICORP, an Oregon corporation Xxxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx
BY: Xxxxxx Xxxxx, Manager, Xxxxxx X. Xxxxxxxxx
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