Estate of Robert Renzel, Deceased et al v. Ventura et al

Filing 321

ORDER Re 318 Joint Application For Determination Of Good Faith Settlement And Establishment Of The Bascom Remediation Trust. Signed by Judge Haywood S. Gilliam, Jr. on 7/17/2019. (ndrS, COURT STAFF) (Filed on 7/17/2019)

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Bret A. Stone
SBN 190161 [e-mail]
SBN 288508 [e-mail]
Kirk M. Tracy
PALADIN LAW GROUP® LLP
1176 Boulevard Way
Walnut Creek, CA 94595
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Estate of Robert Renzel, Deceased, by and through his
successors in interest, Susan Carter and Ann Renzel Sebastian;
Robert E. Renzel Trust, by and through its trustees, Susan Carter
and Ann Renzel Sebastian; Susan Carter; Ann Renzel Sebastian;
and Bascom Avenue Development LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ESTATE OF ROBERT RENZEL,
DECEASED et al.,

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Plaintiffs,

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v.

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ESTATE OF LUPE VENTURA,
DECEASED, et al.,
Defendants.

Case No. 4:15-cv-1648-HSG
[PROPOSED] ORDER ON JOINT
APPLICATION FOR DETERMINATION OF
GOOD FAITH SETTLEMENT AND
ESTABLISHMENT OF THE BASCOM
REMEDIATION TRUST
Cal. Code Civ. Proc. § 877.6(a)(2)
26 U.S.C. § 468B
26 C.F.R. 1.468B-1

AND RELATED COUNTERCLAIMS AND
CROSSCLAIM.

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The Joint Application of Plaintiffs and Counter-Defendants Estate of Robert Renzel,

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Deceased, by and through his successors in interest, Susan Carter and Ann Renzel Sebastian; Robert

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E. Renzel Trust, by and through its trustees, Susan Carter and Ann Renzel Sebastian; Susan Carter;

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Ann Renzel Sebastian; and Bascom Avenue Development LLC, a California limited liability

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company (collectively, “Renzel”), and Defendants, Counter-Claimants, and Cross-Claimants

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Carmen Torres and Alfredo Torres (collectively, “Torres”) (Renzel and Torres are collectively

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referred to as the “Settling Parties”), and related papers were submitted to the Court on June 18,
[PROPOSED] ORDER ON JOINT APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION
AND ESTABLISHMENT OF REMEDIATION TRUST

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2019.

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The Court, after considering the Joint Application and related papers, hereby finds:

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1.

The settlement agreement that is the subject of the Joint Application (the

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“Agreement”) satisfies the requirements of Code of Civil Procedure (“C.C.P.”)

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section 877.6 and of Tech-Bilt Inc. v. Woodward Clyde & Associates (1985) 39 Cal.

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3d 488 and its progeny;

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2.

The Settling Parties are, concerning the facts and circumstances giving rise to this

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lawsuit and concerning the lawsuit itself, therefore entitled to the protections of

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C.C.P. section 877.6 barring any other joint tortfeasor or co-obligor from any further

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claims against them for equitable comparative contribution, or partial or

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comparative indemnity, based upon comparative negligence or comparative fault;

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and

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3.

The Settling Parties are, therefore, by this Order granted such protection to the

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fullest extent authorized by C.C.P. section 877.6 as interpreted by Tech-Bilt and its

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progeny.

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Further, the Court finds that the Bascom Remediation Trust should be, and hereby is,

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established as a “Qualified Settlement Fund” or “Designated Settlement Fund” pursuant to section

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468B of the Internal Revenue Code, 26 U.S.C. § 468B, and Treasury Regulation Section 1.468B-1

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(26 C.F.R. 1.468B-1), and in accordance with the terms and conditions of the Declaration of Trust

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for the Bascom Remediation Trust, attached hereto as Exhibit A and incorporated by reference as

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though fully set forth herein. The Court shall retain jurisdiction over the Bascom Remediation Trust

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until Site Closure is obtained or until the Trust Funds are exhausted.

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IT IS SO ORDERED
Dated:

7/17/2019

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UNITED STATES DISTRICT COURT JUDGE
ITED
JUDGE
UD

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-2Case No. 4:15-cv-1648-HSG
[PROPOSED] ORDER ON JOINT APPLICATION FOR GOOD FAITH SETTLEMENT DETERMINATION
AND ESTABLISHMENT OF REMEDIATION TRUST

EXHIBIT A

DECLARATION OF TRUST FOR
THE BASCOM REMEDIATION TRUST
This Declaration of Trust for the Bascom Remediation Trust is entered into by Renzel as
a result of a settlement in the Action. The Bascom Remediation Trust is established by Court
Order consistent with 26 C.F.R. § 1-468B.
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Definitions

Words used in this Trust Declaration are to be taken and understood in their normal and
ordinary sense, unless this Trust Declaration indicates that a different meaning is intended.
Whenever the following terms, appearing in bold, are used in this Trust Declaration, the meanings
of this section apply.
1.1

“Action” means the lawsuit pending in the United States District Court, Northern District
of California, entitled Estate of Robert Renzel, Deceased, et al. v. Estate of Lupe Ventura,
et al., Case No. 4:15-cv-1648-HSG, including all counterclaims and cross-claims.

1.2

“Business Day” means a day on which commercial banks are not authorized or required
to close in San Jose, California.

1.3

“Court” means the United States District Court, Northern District of California in the
Action.

1.4

“Court Order” means the order of the United States District Court, Northern District of
California which approves the creation of the Trust.

1.5

“Effective Date” means the entry of the Court Order creating the Trust.

1.6

“Renzel” means plaintiffs and counter-defendants Estate of Robert Renzel, Deceased, by
and through his successors in interest, Susan Carter and Ann Renzel Sebastian; Robert E.
Renzel Trust, by and through its trustees, Susan Carter and Ann Renzel Sebastian; Susan
Carter; Ann Renzel Sebastian; and Bascom Avenue Development LLC, or their assignee.

1.7

“Bascom Remediation Trust” or “Trust” means the entity to be created pursuant to this
Trust Declaration upon entry of the Court Order.

1.8

“Property” means the real property located at 526 S. Bascom Avenue, San Jose,
California.

1.9

“Torres” means Carmen and Alfredo Torres.

1.10

“Settling Parties” refers to Renzel and Torres.

1.11

“Settling Party” means one of the Settling Parties.
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1.12

“Site” means the Property and areas to which the PCE contamination has migrated outside
the boundaries of the Property.

1.13

“Site Closure” means:

1.13.1.1

Certification by the Trustee that all required remedial actions have been completed
for the Site; and

1.13.1.2

Confirmation by the Court of the Trustee’s certification that all required remedial
actions have been completed; or

1.13.1.3

Issuance of a writing by the regulatory agency with jurisdiction over the remedial
efforts that no further remedial action is required at the Site.

1.14

“Transferor” mean a person or entity who qualifies as a “transferor” under 26 C.F.R.
Section 1-468B.

1.15

“Trust” means the Bascom Remediation Trust. The purpose of the Trust is to collect
and disburse amounts for environmental remediation (as defined in 26 C.F.R. Section
301.7701- 4(e)(1)) of the Site, which is an existing waste site, to resolve, satisfy, mitigate,
address, or prevent the liability or potential liability of persons imposed by federal, state,
or local environmental laws.

1.16

“Trust Declaration” means this Declaration of Trust for the Bascom Remediation Trust.

1.17

“Trustee” means Bret A. Stone, or any successor trustee.

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Recitals

2.1

WHEREAS, the Trust will be established by Court Order approving this Trust
Declaration.

2.2

WHEREAS, Renzel wishes to retain the Trustee, and the Trustee wishes to be retained
as trustee of the Trust in accordance with the terms of this Trust Declaration;

2.3

WHEREAS, Renzel intends that the Trust constitutes a trust organized under California
law, particularly California Probate Code Section 15200;

2.4

WHEREAS, the Trust is being established to resolve or satisfy one or more contested or
uncontested claims that have resulted or may result from an event (or related series of
events) that has occurred and that has given rise to at least one claim asserting liability for
environmental damages or arising out of a tort, breach of contract, or violation of law;

2.5

WHEREAS, the Settling Parties have actual or potential liability or a reasonable
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expectation of liability under federal, state or local laws for environmental remediation of
the Site;
2.6

WHEREAS, funds and assets deposited in the Trust will be for the purpose of
implementing investigative and remedial actions at the Site;

2.7

WHEREFORE, in order to effectuate the purposes of this Trust Declaration and to
comply with the requirements of the United States of America and the State of California
regarding qualified settlement funds and trusts, Renzel and Trustee enter into this Trust
Declaration.

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Terms of this Trust Declaration

3.1

Parties Bound. This Trust Declaration shall apply to and be binding upon the Trustee
and Renzel, and shall inure to the benefit of Renzel, including, all its successors and
assigns. The undersigned representative of Renzel certifies that she is fully authorized by
Renzel to enter into the terms and conditions of this Trust Declaration, to execute this
Trust Declaration, and to legally bind Renzel.

3.2

Name of the Trust. The name of the Trust shall be the Bascom Remediation Trust.

3.3

Purposes of the Trust. The purposes of the Trust are as follows:

3.3.1 To collect and disburse amounts for investigation or remediation of the Site paid on or
behalf of the Settling Parties, or any other Transferor, to resolve or satisfy one or more
contested or uncontested claims that have resulted or may result from an event (or related
series of events) that has occurred and that has given rise to at least one claim asserting
liability for environmental damages or arising out of a tort, breach of contract, or violation
of law;
3.3.2 To comply fully with the requirements of this Trust Declaration and all applicable
provisions of California law, including, but not limited to California Probate Code Sections
15000 et seq. and 16000 et seq.; and
3.3.3 To make, sign, execute, acknowledge and deliver any and all contracts or agreements in
furtherance of the purposes of this Trust Declaration, including, but not limited to:
3.3.3.1 Contracts for professional services;
3.3.3.2 Contracts for the investigation or remediation of the Site; and
3.3.3.3 Contracts to pursue enforcement of assigned claims and assigned proceeds held by the
Trust.
3.4

Corpus of the Trust. Concurrently with the execution of this Trust Declaration, Renzel
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shall take steps to ensure that the transfer to the Trustee of the assets listed in Appendix 1
to this Trust Declaration occurs, so that these amounts are held and administered as
provided in this Trust Declaration.
3.5

Disbursement of Funds. During the term of this Trust Declaration, the Trustee shall
make disbursements, distributions, transfers or rebates from the Trust consistent with the
purposes of this Trust Declaration. The Trustee shall make such payments solely from
funds on deposit in the Trust and shall have no obligation to make any payments if
sufficient funds are not available in the Trust.

3.6

Tax Matters.

3.6.1 It is the intention of Renzel that the Trust be treated as a qualified settlement fund pursuant
to 26 Code of Federal Regulations (“C.F.R.”) Section 1.468B-1 et seq.
3.6.2 For federal and state tax purposes, any earnings, losses, fees, and expenses of the Trust
are to be reported for tax purposes as attributable to the Trust.
3.6.3 The Trustee shall file the applicable federal and state tax forms on the earnings and
expenses of the Trust.
3.6.4 The Trustee and Renzel shall jointly elect to apply the applicable Treasury Regulations,
including 26 C.F.R. Sections 1.468B-1 through 1.468B-5, to the Trust. Accordingly, in
addition to those other requirements relating thereto, the Trustee shall elect to apply
settlement fund rules, if appropriate, under 26 C.F.R. Section 1.468B-5(b)(2), by the filing
of a “Section 1.468-5(b)(2) Election.”
3.6.5 The Trustee shall be deemed to be the “administrator” within the meaning of 26 C.F.R.
Section 1.468B-2(k)(3).
3.6.6 It is further intended that transfers to the Trust by a Transferor will satisfy the “all events
test” and the “economic performance” requirement, and that no transfer of funds by a
Settling Party or Transferor shall be taxable on the gross income of the Trust.
3.6.7 The Trust shall be subject to tax payable on the modified gross income of the Trust which
will not include the sums transferred to it from any Transferor. In computing the Trust’s
modified gross income, deductions will be allowed for, inter alia, administrative costs and
other incidental deductible expenses incurred in connection with the operation of the Trust,
including without limitation, state and local taxes relating to the operation of the Trust.
3.6.8 Upon the establishment of the Trust and in accordance with 26 C.F.R. Section 1.468B2(k)(4), the Trustee shall apply for an Employer Identification Number for the Trust
pursuant to Internal Revenue Service Form SS-4.
3.6.9 In accordance with the provisions of 26 C.F.R. Section 1.468B-2(k)(1), the Trustee shall
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cause to be filed, on behalf of the Trust, all required federal, state, and local tax returns,
and may retain an independent, certified public accountant to consultant with and advise
the Trustee with respect to the preparation of such returns.
3.6.10 Each Transferor shall supply to the Trustee and to the Internal Revenue Service the
statement described in 26 C.F.R. Section 1.468B-3(e)(2), no later than February 15 of the
year following each calendar year in which such Transferor (or some other person on
behalf of such Transferor) makes a transfer to the Trust.
3.6.11 In accordance with 26 C.F.R. Section 1.468B-2(j), the taxable year of the Trust shall be
the calendar year and the Trust shall use an accrual method of accounting within the
meaning of Section 446(c) of the Internal Revenue Code, 26 U.S.C. Section 446(c).
3.6.12 Anything contained in this Trust Declaration notwithstanding, the Trustee may take all
such actions deemed necessary to comply with the applicable laws in order to assure that
the Trust is treated as a “Qualified” settlement fund under Section 468B of the Internal
Revenue Code, 26 U.S.C. Section 468B, and the regulations promulgated thereunder and
codified at 26 C.F.R. Section 1.468B-1, including such actions as may be inconsistent with
those expressly set forth in this Trust Declaration.
3.6.13 The Trustee may amend either in whole or in part, any administrative provision of this
Trust Declaration which causes unanticipated tax consequences or liabilities inconsistent
with the foregoing, or conform the administrative provisions of this Trust Declaration to
the requirements of the taxing authorities. The Trustee is, therefore, expressly authorized
to enter into any agreements and to execute any documents that will, in the discretion of
the Trustee, tend to minimize the taxes resulting from the Trust or minimize the
consequences of noncompliance with the intent of this section.
3.7

No Authority to Conduct Business. The purposes of the Trust are limited to those purposes
set forth in Section 3.3 of this Trust Declaration. This Trust Declaration does not confer
upon the Trustee any authority to conduct business which is not expressly authorized by
this Trust Declaration.

3.8

Winding Down and Termination of the Trust.

3.8.1 The Trust shall terminate when Site Closure is achieved or when the trust funds are
exhausted, whichever occurs first.
3.8.2 Upon termination of the Trust, the Trustee shall distribute the remaining assets of the
Trust, if any, as designated in writing by Renzel or its assignee to reimburse the costs of
funding, managing, and supervising the Trust. Any funds remaining after all such
reimbursements are made shall be paid to Renzel as designated in writing by Renzel or its
assignee.
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3.9

Integration, Alterations, Amendments and Revocation.

3.9.1 This Trust Declaration may be altered, amended or revoked only by a subsequent
instrument in writing executed by the Trustee and Renzel.
3.9.2 No such alteration, amendment or revocation may conflict with or modify in any respect
the obligations under this Trust Declaration or the Court Order, unless such agreements
are altered or amended in a manner that conforms with the purposes of this Trust
Declaration; provided, however, that the Trustee is not under any obligation to determine
if any amendment of this Trust Declaration conflicts with the purposes of this Trust
Declaration and may petition the Court for a determination of the issue.
3.10

Designation of Trustee. The Trust shall be administered by a Trustee. The initial Trustee
will be Bret A. Stone.

3.11

Authority of the Trustee.

3.11.1 The Trustee shall determine whether this Trust Declaration has been fully implemented.
3.11.2 Until such time as this Trust Declaration has been fully implemented, the Trustee shall
issue instructions for payments from the Trust exclusively to pay for the fees, costs, and
expenses of implementing the purposes of this Trust Declaration.
3.12

Investment. The Trustee shall invest and reinvest the principal and income of the Trust,
each of which shall be treated as a single fund without distinction between principal and
income, in order to protect the corpus of the Trust. Such investments shall take into account
the need for sufficient liquidity to meet the anticipated cash needs of the Trust.

3.13

Trustee Statements.

3.13.1 The Trustee shall submit to Renzel on or before January 31 of each year an annual activity
report with respect to the Trust for the prior year. There is no obligation for the Trustee
to obtain audited annual activity reports.
3.13.2 The Trustee shall provide to Renzel a final accounting with respect to the Trust by the
thirtieth Business Day after termination of the Trust.
3.13.3 Upon demand from Renzel at any time, the Trustee shall provide an accounting of all
activity with respect to the Trust since its inception.
3.14

Responsibilities and Reliance of Trustee.

3.14.1 The Trustee shall not have any duties or responsibilities except those expressly set forth
in this Trust Declaration and no implied covenant, functions, responsibilities or duties on
the part of the Trustee shall be read into this Trust Declaration or otherwise exist against
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the Trustee.
3.14.2 The Trustee may (at the expense of the Trust) consult with counsel, accountants, or other
experts and any opinion of such counsel, accountants, or other experts shall be full
authorization and protection in respect of any action taken suffered or omitted by the
Trustee under this Trust Declaration in accordance therewith.
3.14.3 The Trustee shall be entitled to rely and shall be protected in acting upon any certificate,
notice or other document (including any facsimile or e-mail) believed by it to be genuine
and correct and to have been signed by the proper person or persons.
3.15

Trustee Compensation.

3.15.1 The Trustee shall be entitled to an annual payment of $2,000 per month due and payable
on the first Business Day of each month until the Trust is terminated.
3.15.2 The Trustee shall have a first priority lien upon and right of set-off against the assets of
the Trust for fees and expenses not paid in a timely manner.
3.15.3 The Trustee shall have no recourse against the Settling Parties for payment of fees and
expenses.
3.16

Resignation or Removal of Trustee; Successor Trustee.

3.16.1 The Trustee may resign at any time by delivering a resignation in writing to Renzel.
Renzel may remove the Trustee at any time by delivering notice of such removal in writing
to the Trustee. Such resignation or removal will take effect upon the earlier of: (1) sixty
days after delivery of the notice of resignation or removal; or (2) the acceptance of
appointment in writing by a successor Trustee.
3.16.2 A successor Trustee shall be appointed by Renzel upon the resignation or removal of the
Trustee, with such appointment to be effective immediately following the effective date
of the resignation or removal of the prior Trustee.
3.16.3 Acceptance of appointment as a successor Trustee shall be in writing and shall become
effective upon the mailing to Renzel and the Court of notice of such acceptance. Each
successor Trustee shall have all of the rights, powers, duties, authority and privileges as if
initially named as the Trustee under this Trust Declaration. Upon the acceptance of
appointment of any successor Trustee, the previous Trustee shall deliver all assets,
documentation and other property of the Trust in its possession, custody or control to such
successor Trustee. After selection of a successor Trustee, the previous Trustee shall
reasonably cooperate in meeting any reasonable request for information or other assistance
made by the successor Trustee to the previous Trustee with respect to any matter subject
to this Trust Declaration.

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3.17

Immunity and Indemnification. Limitation on Liability of Trustee.

3.17.1 In respect of any contract, obligation or liability made or incurred by the Trustee in
performing his duties hereunder, all persons shall look solely to the Trust and not the
Trustee (except for any liability resulting from the Trustee’s willful misconduct), nor any
of the Trustee’s directors, officers, employees or authorized representative, personally.
3.17.2 The Trustee shall not incur any liability, personal or corporate, of any nature in connection
with any act or omission, unless involving its willful misconduct, in the administration of
the Trust or otherwise pursuant to the Trust.
3.17.3 The Trustee shall have no personal responsibility with respect to management or
performance of any environmental remediation, the payment of any costs of remedial or
removal action, damages, penalties, fines, taxes or other expenses related to the compliance
by Renzel with this Trust Declaration or to conduct any duties other than the express
duties explicitly set forth in this Trust Declaration with respect to the Trust.
3.18

Notices under this Trust Declaration.

All notices or other communications relating to this Trust shall be given in writing and
shall be deemed to have been given if hand delivered, sent and confirmed by facsimile, sent and
received by e-mail, or mailed by depositing in United States mail prepaid to the person at the
address noted below or such other address as may be designated in writing from time to time;
provided that communications to the Trustee shall not be effective until receipt:
To Renzel:

Margaret Ma
600 Palm Haven Avenue
San Jose, CA 95125
[phone]
[e-mail]

To Trustee:

Bret A. Stone, Esq.
Paladin Law Group® LLP
220 W. Gutierrez Street
Santa Barbara, CA 93101
[phone]
[e-mail]

To Torres:

Jeffery L. Caufield
CAUFIELD & JAMES, LLP
2851 Camino Del Rio South, Suite 410
San Diego, California 92108
[phone]
[e-mail]

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3.19

Interest Not Assignable or Subject to Claims of Creditors. No Settling Party shall be
deemed to have any interest in the Trust that may be subject to anticipation or assignment
or subject to the claims of any creditor of any Settling Party.

3.20

Successors and Assigns. This Trust Declaration shall inure to the benefit of, and be
binding upon the Trust and Renzel.

3.21

Choice of Law. This Trust Declaration shall be administered, construed and enforced in
accordance with and governed by the laws of the State of California. The venue for any
dispute concerning this Trust Declaration shall be in the Court pursuant to the Court
Order.

3.22

Rights and Obligations of Settling Parties. Except for a Settling Party’s obligations and
undertakings as set forth in Section 3.4 of this Trust Declaration, a Settling Party shall
have absolutely no obligations to take any action with respect to the Trust, nor shall a
Settling Party have any rights with respect thereto, except as may be expressly set forth
in this Trust Declaration.

3.23

Interpretation.

3.23.1 As used in this Trust Declaration, words in the singular include the plural and words in
the plural include the singular, and the masculine and neuter genders shall be deemed to
include the masculine, feminine and neuter.
3.23.2 The descriptive heading for each Section and Subsection of this Trust Declaration shall
not affect the interpretation or the legal efficacy of this Trust Declaration.
3.23.3 It is agreed that neither the act of entering into this Trust Declaration nor any contribution
to the Trust nor any action taken under this Trust Declaration shall be deemed to
constitute an admission of any liability or fault on the part of the Settling Parties, nor does
it constitute a commitment or agreement, either expressed or implied, by any or all of them
to undertake any further activities with respect to the Site.
3.24

Third Parties. Except as expressly provided in this Trust Declaration or the Court Order,
nothing contained in this Trust Declaration shall be construed to create any rights in any
person or entity not a party to this Trust Declaration.

3.25

Severalty of Provisions. If any provision of this Trust Declaration or its application to
any person or entity or in any circumstance shall be invalid or unenforceable, the
application of such provision to persons or entities an in circumstances other than those as
to which it is invalid or unenforceable, and the other provisions of this Trust Declaration,
shall not be affected by such invalidity or unenforceability.

3.26

Entire Agreement. This Trust Declaration contains the entire agreement and its terms are
contractual, not a mere recital.
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APPENDIX 1

Settlement funds from Renzel in the amount of $460,000
Settlement funds from Torres in the amount of $320,000

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