HomeMy WebLinkAboutC-7241-8 - Beacon Bay, 7 - Amendment to Lease 2002Amendment to Lease
This Amendment to Lease (this "Amendment') is made as of V
2002, by and among the CITY OF NEWPORT BEACH, a Charter City aild municipal
corporation ("Lessor"), the TAYLOR PILLSBURY GLOBE TRUST ("Lessee"),
MELLON FINANCIAL CORPORATION (successor in interest to Boston Safe Deposit
and Trust Co.) and DAVIS TAYLOR PILLSBURY (collectively, "Trustees",
individually, "Trustee").
RECITALS
This Amendment is made with regard to the following facts:
A. Lessor and Lessee entered into a lease dated July 1, 1994, for real property
commonly known as Beacon Bay Lot 7 (the "Lease");
B. Mellon Financial Corporation ("Mellon") is the successor to Boston Safe
Deposit and Trust Co., one of two named trustees of Lessee under the Lease;
C. Pursuant to that certain Release and Indemnification Agreement (the
"Release Agreement") between Boston Safe Deposit and Trust Co. (predecessor to
Mellon), Davis Taylor Pillsbury, as a trustee of Lessee, and the beneficiaries of Lessee,
Boston Safe Deposit and Trust Co. has resigned as a trustee of Lessee and has been
released from its responsibilities as trustee. The Release Agreement is attached to this
Amendment as Exhibit A.
D. The parties desire to amend the Lease to release Mellon from its
responsibilities as a Trustee under the Lease, thereby leaving Davis Taylor Pillsbury as
the sole Trustee of Lessee under the Lease.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, the adequacy and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. The parties hereby agree that the Lease is amended to remove Mellon
(successor to Boston Safe Deposit and Trust Co.) as a Trustee of Lessee under the Lease.
2. Lessor hereby releases Mellon of all obligations and future liabilities
under the Lease.
3. Except as specifically provided by this Amendment, no part of the Lease
is otherwise altered, amended or changed, and the Lease continues in full force and effect
as modified.
4. In the event of any inconsistency between the Lease and this Amendment,
the terms of this Amendment shall supersede and control.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
effective as of the date first written above.
LESSOR:
CITY OF NEWPORT BEACH, a Charter
City and in icipal corporation
By: w�
Print Name:40�A e�QI�r �N�I6V-
As its: City Manager
LESSEE:
THE TAYLOR PILLSBURY GLOBE
TRUST
By
Davis Taylor Pillsbury, Trustee
Print Name:
TRUSTEE:
MELLON FINANCIAL CORPORATION
(successor in interest to Boston Safe Deposit
and Trust Co.)
By:
Print Name: William . Kaull, Jr.
Vice Fresident
As its:
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of of California
County of 0 f-0-' ss.
�,l I
On b u C.before me,
Date
personally appeared
Name(e) of Signer(s)
'> ' ersonally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(IR whose name(io is re
aaa.���sssubscribed to the within instrument and
CATF1YFISHER `acknowledged to m he he/they executed
Commission 01341009 the same in his her/their uthonzed
-a Notary Publla - Call omla
Oran county-capacity(ian thishat by her/their
My Comm, E101116 Feb W,, 1t2006 signaturewon the instrument the person(�p, or
the entity upon behalf of which the persona o
acted, executed the instrument.
/WKNESS my hand and o Ficial seal.
Place Notary Seal Above Aqzl a of Notaly Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Do ument yam, ���
(
Title or Type of Document: , \"
Document Date: `" \ - `b ' Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner —❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
r,
RIGHT THUMBPRINT
OF SIGNER
911199 National Noltry Amocia0cn • 9350 De Sate Ave., P.O. Box 2 O 1 CMIexMh, CA 913138x02 • www.retionelrntery.ory Pnxi. No. 51107 Reoaleo Call T9 roaa I�87B 7
Exhibit A
Release and Indemnification Agreement
RELEASE ?VD=DEMNIF=C-TION AGREEMENT
This Release and --ndemnificaticn Agreement ;"Agreement") is
entered into as of Aoril 30, 2002, by BOSTON SAFE DEPOSIT AND
TRUST COMPANY, as a corporation providing trust services and as a
trustee of The Taylor Pillsbury Globe Trust
("Boston Safe Deposit"), by DAVIS TAYLOR PILLSBURY, as a trustee
of The Taylor Pillsbury Globe Trust ("Davis"), and by the
following persons, each individually and as a beneficiary of
The Taylor Pillsbury Globe Trust: DAVIS TAYLOR PILLSBURY;
DAVIS TAYLOR PILLSBURY JR.; PATRICK JAMES PILLSBURY; PETER
LAFAYETTE PILLSBURY; SARAH KATHLEEN PILLSBURY; Davis Taylor
Pillsbury, Jr., as parent of minors JOHN TAYLOR PILLSBURY, AUDREY
ELIZABETH PILLSBURY and CHARLES DAVIS PILLSBURY; Patrick James
Pillsbury, as parent cf minors McKINLEY ANNE PILLSBURY, SAMANTHA
LYNN PILLSBURY and ANDIE ELISE PILLSBURY; and Peter Tafavette
Pillsbury, as parent of minor FRANCIS RAIN PILLSBURY
("Beneficiaries"). Boston Safe Deposit, Davis and each of the
Beneficiaries is a party (collectively the "Parties") to this
Agreement.
I
RECITALS
1. The Taylor Pillsbury Globe Trust was established by
an instrument dated September 11, 1964, and amended by
instruments dated April 20, 1967, November 7, 1967, November 14,
1969, May 14, 1975, and October 31, 1984, and the Orders
Approving Agreement To Compromise and Settle Litigation, for
Appointment of Trustees and for Allowance of Compensation to
Executor and Attorneys, issued by the San Mateo County
(California) Superior Court in proceeding number 82738, Estate of
Taylor Pillsbury, Deceased, on December 23, 1987 (the "Trust")
2. Boston Safe Deposit and Davis are the trustees of the
Trust. Boston Safe Deposit has been asked by Davis and all of
the Beneficiaries to resign as a trustee without a formal
discharge and settlement of the trust accounts to save the time
and expense of a judicial proceeding.
3. The Trust provides that any trustee of the Trust may
resign at any time by a writing delivered or mailed by registered
mail to the other trustee (Article Twelve).
4. The 'rust directs the trustees of the Trust to render an
account annually to beneficiaries of the Trust "who are of
'002rz>
-2-
full age" !Article -Leven;. A statement of the trust property as
of April 1, 2002, =s attached as Exhibit A to this Agreement.
In consideration of the mutual promises made in this
Agreement, the Partes agree as follows:
5. Boston Safe Deposit shall resign as a trustee of the
Trust without a formal discharge and settlement of the trust
accounts upon acceptance of the terms of this Agreement as
indicated by the signatures on this Agreement of Davis and all of
the Beneficiaries. The written resignation of Boston Safe
Deposit is attached as Exhibit B to this Agreement and is hereby
delivered to Davis.
6. Davis and each and all of the Beneficiaries approve all
acts and transactions of Boston Safe Deposit as a trustee of the
Trust and waive any right to an accounting by Boston Safe Deposit
of transactions and property of the Trust for any period before
or after April 1, 2002. Without limiting the generality of the
foregoing, Davis and each and all of the Beneficiaries
specifically acknowledge chat the statement of the Trust property
as of April 1, 2002, attached as Exhibit A to this Agreement is
all of the Trust property at that date, and that all acts and
transactions of Bosccn Safe Deposit and the statement of the
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Trust property as cf hor-_ 1, 2002, would have been approved by
Davis and each and all of the Beneficiaries if the accounts had
been submitted to the Superior Court of the State of California
for settlement and discharge of Boston Safe Deposit as a trustee
of the Trust.
7. Davis and each and all of the Beneficiaries release and
forever discharge Boston Safe Deposit, as a corporation and as a
trustee, from any and all claims, liens, demands, rights of
action, causes of action, damages, accountability, liability,
obligation and duty cf every kind and nature, whether known or
unknown, that Davis and each or any of the Beneficiaries may have
had in the past, or now has or have, or may have in the future,
against Boston Safe Deposit arising from or in any way relating
to the Trust.
8. Davis and each and all of the Beneficiaries specifically
understand and acknowledge that it is possible that unknown
losses or claims exist, and Davis and each of the Beneficiaries
explicitly took that possibility into account in determining the
nature and amount of consideration given for this Agreement, and
a portion of such consideration, having been bargained for
between the Parties with the knowledge of the possibility of such
unknown losses or --'_aims, was given in exchange for a full
accord, satisfact_cn and discharge cf all such claims.
3:0232_3 -.i -
r
Consequently, Davis and each and ail of the Beneficiaries
expressly waive all rights under California Civil Code
section 1542 ;and all similar 'laws and statutes of any
jurisdiction), which provides that:
"A general release does not extend to
claims which the creditor does not know or
suspect to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settlement
with the debtor."
9. Davis and each and all of the Beneficiaries agree to
reimburse, indemnify and hold harmless Boston Safe Deposit, as a
corporation and as a trustee, from and against any and all claims
by Davis, Beneficiaries and the issue of Beneficiaries, and any
and ail liens, liabilities and expenses arising out of or
emanating from such claims, for which Boston Safe Deposit may be
'liable relating to the Trust.
10. Davis and each and all of the Beneficiaries agree to
reimburse, indemnify and hold harmless Boston Safe Deposit, as a
corporation and as a trustee, for the amount of any taxes (and
-nterest thereon) 'including, but not 'limited to, income, gift,
estate and generation -skipping transfer taxes hereafter demanded
Z_ cr assessed against the -rust, Boston Safe Deposit or any
.2023__2
beneficiary or trustee of the Trust, whether as the result of any
return filed by Boston Safe Deposit or any other person or entity
or as a result of failing to file any return.
11. Davis and each and all of the Beneficiaries acknowledge
the joint and several obligation to indemnify and hold harmless
under sections 9 and 10 of this Agreement.
12. Each and ail of the Parties confirm and acknowledge the
following:
12.1 This Agreement not only shall be forever binding upon
each and all of the Parties but also shall be forever binding
upon any and all persons who may at any time claim through any of
the Parties, including but not restricted to heirs, descendants,
executors, trustees, administrators, successors in interest and
assigns of any of the Parties. This Agreement shall not be
assigned, conveyed or transferred by any of the Parties without
the prior written consent of all of the Parties.
12.2 Payment or any other promise that is consideration
under this Agreement does not constitute an admission or
concession of liability by any of the Parties.
12.3 Both direct and indirect breaches of this Agreement
are proscribed, and each of the Parties promises not to encourage
or aid, directly or indirectly, except as required by due legal
process, --he commencement _r prosecution of any action or other
20232:9 - ij -
proceeding against any other of the Parties based upon any
claims, liens, demands, rights of action, causes of action,
damages, obligations, accountabilities, liabilities, obligations
and duties that are the subject of the releases provided in
section 7 of this Agreement.
12.4 No promise, inducement or agreement not expressed in
this Agreement has been made to any of the Parties in connection
with this Agreement, and this Agreement constitutes the entire
agreement between the Parties.
12.5 This Agreement may not be altered, amended, modified
or otherwise changed in any respect whatsoever except by a
writing duly executed by all of the Parties or their authorized
representatives, and no claim shall be made at any time or place
that this Agreement has been orally altered or modified or
otherwise changed by oral communication of any kind or character.
12.6 This Agreement may be executed simultaneously or in
counterparts, each of which shall be deemed to be an original,
but all which together shall constitute one and the same
Agreement.
12.7 This Agreement shall be construed and enforced
pursuant to the laws of the State of California.
12.8 Each of the Parties shall, whenever and as often as
shall be requested by any other of the Parties, execute,
oraa -7-
acknowledge and deliver, or cause to be executed, acknowledged
and delivered, such additional 'instruments and documents as may
be necessary to implement the terms of this Agreement and to
carry out the expressed intent and purpose of this Agreement.
12.9 All exhibits attached to this Agreement and referred
to in this Agreement are hereby incorporated in their entirety by
this reference as though such exhibits were fully set forth in
this Agreement.
12.10 As used in this Agreement, the masculine, feminine or
neuter gender, and the singular or plural number, include the
others whenever the context so indicates.
12.11 If any provision of this Agreement is held invalid or
illegal, this Agreement shall be construed as if this Agreement
does not include the invalid or illegal provision and the rights
and obligations of the Parties shall be enforced accordingly.
12.12 The Parties and their respective legal counsel have
reviewed and revised this Agreement as necessary, and any rule of
construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation
of this Agreement.
12.13 The Parties enter into this Agreement freely and
voluntarily.
:ozsc__
The Parties have signed this Agreement as of the date first
written above.
By:
BOSTON SAFE DEPOSIT
AND TRUST COMPANY
Debra R. BrusaTtoriij�
Davis Taylor Pillsbury, as /
a trustee of the Taylor
Pillsbury Globe Trust
�,lK� i
Davis Ta or Pillsbury, Jr.
Pillsbury
as parent of minors, John
Taylor Pillsbury, Audrey
Elizabeth Pillsbury and
Charles Davis Pillsbury
C:11%1ATODI8 012\Pi1DRIseP9&l0 042.19A.doc -9-
APPROV7n .
Sm
Patrick James Pillsbury, as
parent of minors McKinley
Anne Pillsbury, Samantha
Lynn P llsbury Andie
Elise i,1lsbury
l--�
P ter Laf�y;tte Pillsbury,
as parent of minor Francis
Rain Pillsbury
BOTTO LAW GROUP
VICTOR E. PORTANOVA
A LAW CORPORATION
By:
Victor E. Portanova
EXHI2IT 3
RESIGNATION
BOSTON SAFE CEPOSIT AND TRUST COMPANY resigns as a trustee
of The Taylor Pillsbury Globe Trust effective upon acceptance of
the terms of the Agreement to which this Exhibit B is attached as
indicated by the signatures on the Agreement of Davis and all of
the Beneficiaries (as those Parties are defined in the
Agreement).
Dated: April 30, 2002.
BOSTON SAFE DEPOSIT
AND TRUST COMPANY
By: L�—- 'A'
Debra R. Brusatori
:3023553
Mav 2002
Ms. Debra R. Brusatori, CTFA
Vice President
Boston Safe Deposit and Trust Company
One Embarcadero Center, Suite 2200
San Francisco, CA 94121-3607
Re: The Taylor Pillsbury Globe Trust
Dear Ms. Brusatori:
I am the sole trustee of The Taylor Pillsbury Globe Trust
following the resignation of Boston Safe Deposit and Trust
Company. As trustee I direct Boston Safe Deposit and Trust
Company to transfer all property of The Taylor Pillsbury Globe
Trust now held by Boston Safe Deposit and Trust Company to the
custodial agent designated on Exhibit A attached to this letter.
THE TAYLOR PILLSBURY
GLOBE TRUST
�G7
By:
41s�burY,
vis Taylor Pi
Trustee
;aozane
EXHIBIT A
To
Letter -Directive, dated May 3, 2002
Effective immediately, the Custodial Agent for Stocks, Bonds, and Securities of The
Taylor Pillsbury Globe Trust, now held by Boston Safe Deposit and Trust Company, should be
promptly transferred to:
Davis Taylor Pillsbury, Trustee, The Taylor Pillsbury Globe Trust
c/o Dreyfus Brokerage Services
6500 Wilshire Blvd., 91h Floor
Los Angeles, CA 90048
Attn: Bill Duane, Acct. Transfer Manager
Acct. No. // —
The balance of property of The Taylor Pillsbury Globe Trust, now held by Boston Safe
Deposit and Trust Company, should be promptly transferred to:
Davis Taylor Pillsbury, Trustee, The Taylor Pillsbury Globe Trust
c/o Patrick J. Bowler, CPA
Archer, Bulmahn, Jenkins & Bowler Certified Public Accountants
626 South Lake Avenue
Pasadena, CA 91106-3982
C:\l\lA\PilD 18_012\Pi1DLR1se042.19C.doc