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FIRST AMENDMENT TO SECONDED AMENDED AGREEMENT <br /> BY AND AMONG THE CITY OF PLEASANTON, THE PRUDENTIAL INSURANCE <br /> COMPANY OF AMERICA, AND CALLAHAN, SWEENEY AND O'BRIEN <br /> <br /> THIS FIRST AMENDMENT TO THE SECOND AMENDED AGREEMENT <br />effective as of the 1st day of September, 1987, is entered into <br />by and among the CITY OF PLEASANTON ( "City" ) , a municipal <br />corporation, THE PRUDENTIAL INSURANCE COMPANY OF AMERICA <br />("Prudential"), a New Jersey corporation, and CALLAHAN, SWEENEY <br />AND O ' BRIEN ( "CSO" ) , a California general partnership and <br />successor in interest to Callahan Pentz Properties, Pleasanton. <br /> <br /> RECITAL <br /> <br /> The parties enter this First Amendment to the Second Amended <br />Agreement in order to permit Prudential to obtain <br />first-come/first-served capacity during the period between <br />October 31, 1989 and October 31, 1998 under certain circumstances <br />in which Prudential would not be permitted to do so under the <br />current agreement. <br /> <br /> NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and <br />promises of the parties, the parties hereto agree as follows: <br /> <br /> 1. Paragraph 8(e)(iv) is amended to read as follows: <br /> <br /> " iv. No Available Capacity After Six (6) Years. If, six <br /> (6) years or more after the date of execution of this Second <br /> Amended Agreement, there is no remaining Existing Prudential <br /> Capacity available to Prudential due to (A) at least Two <br /> Hundred Seventy-five Thousand (275,000) gallons of Existing <br /> Prudential Capacity having been allocated by City to <br /> Prudential and its assignees, and (B) all remaining Existing <br /> Prudential Capacity not to exceed Twenty-five Thousand <br /> ( 25,000 ) ~allons, having been assigned to unaffiliated <br /> assignees; or" <br /> <br /> 2. To the extent that this First Amendment to the Seconded <br />Amended Agreement creates liability from the City to any of <br />Prudential's assignees pursuant to the Second Amended Agreement, <br />Prudential agrees to defend, indemnify and hold the City harmless <br />from any cost which shall result therefrom. <br /> <br /> 3. City agrees to exercise best efforts to reserve the <br />assigned capacity and take reasonable actions to prevent or <br />mitigate any shortfalls of capacity. <br /> <br /> - 1 - <br /> <br /> <br />