SECOND AMENDMENT TO LEASE AGREEMENT
Lease No. 5325
This Second Amendment to Lease Agreement ("Amendment"), dated for reference purposes only as of March 1, 2009 is by and between the COUNTY OF SAN MATEO, a political subdivision of the State of California ("County" or "Landlord"), as Lessor, and KIEWIT PACIFIC CO., a Delaware Corporation ("Tenant"), as Lessee.
A. As authorized by San Mateo County Resolution No. 69365, County and Tenant entered into a lease agreement, dated for reference purposes as of April 22, 2008 (the "Lease") for approximately 18,000 square feet of Unimproved Land at that certain property commonly known as the Half Moon Bay Airport.
B. As authorized by San Mateo County Resolution No. 69521, County and Tenant entered into the First Amendment to Lease Agreement, dated for reference purposes as of June 15, 2008 (the "First Amendment"), which First Amendment extended the Expiration Date of the Lease to April 15, 2009, increased the Premises to 41,000 square feet with a corresponding increase in Rent, and established a process to allow additional increases to the area of the Premises (the “Lease As Amended”).
C. As authorized by the First Amendment and pursuant the process established therein, on July 31, 2008, County and Tenant agreed to increase the Premises to 51,000 square feet with a corresponding increase in Rent.
D. Landlord and County wish to further amend the Lease As Amended to extend the Term, and otherwise under the same terms and conditions set forth in the Lease.
Agreement
For good and valuable consideration as hereinafter set forth, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Term. Any references to the Term or Termination Date of the Lease As Amended notwithstanding, the expiration date of the Lease is hereby amended to February 28, 2010.
2. Extension Option. Any references to the Extension Options of the Lease As Amended notwithstanding, Tenant shall have the right to extend the Term of this Lease (the "Extension Options") for two additional terms of six months each (the "Extended Terms"). Tenant may exercise the Extension Options, if at all, by giving written notice to Landlord no later than thirty (30) days prior to expiration of the term to be extended; provided, however, if Tenant is in material default hereunder on the date of giving such notice and fails to cure such default as provided herein, Landlord may reject such exercise by delivering written notice thereof to Tenant promptly after such failure to cure.
When exercising either of the Extension Options, if at all, Tenant shall have the right but not the obligation to reduce the amount of the Premises subject to the Lease, in 5,000 square foot increments. Tenant shall do so by specifying the amount and location of the square footage within the Premises that it intends to continue to lease during the relevant Extended Term. If Tenant does reduce the total Premises as specified in the preceding sentence, then the Rent shall also be reduced according to the square footage actually leased during the relevant Extended Term.
3. Processing Fee. Upon execution of this Second Amendment, Tenant shall pay to Landlord as an additional charge, a one-time processing fee of TWO THOUSAND FIVE HUNDRED Dollars ($2,500.00) to cover County’s costs associated with the preparation and processing of the Second Amendment. Future amendments to the Lease As Amended, if any, shall be subject to separate processing fees.
4. Effective Date; Approval. This Second Amendment shall become effective (the ”Effective Date”) when the County Board of Supervisors adopts a resolution authorizing the execution of this Second Amendment, and the Second Amendment is duly executed by the County and Tenant.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE AMENDMENT, TENANT ACKNOWLEDGES AND AGREES THAT NO OFFICER OR EMPLOYEE OF COUNTY HAS AUTHORITY TO COMMIT COUNTY HERETO UNLESS AND UNTIL THE COUNTY BOARD OF SUPERVISORS HAS ADOPTED A RESOLUTION AUTHORIZING THE EXECUTION OF THIS SECOND AMENDMENT TO THE AGREEMENT. THEREFORE, ANY OBLIGATIONS OR LIABILITIES OF COUNTY HEREUNDER ARE CONTINGENT UPON ADOPTION OF SUCH A RESOLUTION, AND THIS AMENDMENT SHALL BE NULL AND VOID UNLESS THE BOARD OF SUPERVISORS ADOPTS A RESOLUTION AUTHORIZING THE EXECUTION OF THIS SECOND AMENDMENT. APPROVAL OF THIS AMENDMENT BY ANY DEPARTMENT, COMMISSION OR AGENCY OF COUNTY SHALL NOT BE DEEMED TO IMPLY THAT SUCH RESOLUTION WILL BE ADOPTED, NOR WILL ANY SUCH APPROVAL CREATE ANY BINDING OBLIGATIONS ON COUNTY.
5. Counterparts. This Second Lease Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
6. No Further Amendments; Conflicts. All the terms and conditions of the Lease As Amended remain in full force and effect except as expressly amended herein. The Lease As Amended by this Second Amendment constitutes the entire agreement between County and Tenant and may not be modified except by an instrument in writing duly executed by the parties hereto. In the event of any conflict between the terms of the Lease As Amended and the terms of this Second Amendment, the terms of this Second Amendment shall control.
Landlord and County have executed this Second Lease Amendment as of the date first written above.
TENANT:
KIEWIT PACIFIC CO.,
A Delaware Corporation
By: __________________________
Its: __________________________
COUNTY:
COUNTY OF SAN MATEO,
a political subdivision of the State of California
By: _______________________
Attest: Mark Church
President, Board of Supervisors
____________________________ Resolution No.:_______________
Clerk of the Board