CONTRACT 3924 Settlement AgreementSETTLEMENT AGREEMENT
1. PARTIES
X924.
This Settlement Agreement ( "Agreement ") is made and executed as of
February %?iq 2009, by and between Neal Boushell and Laura Jane Boushell (collectively
"Boushell ") and the City of El Segundo ( "City ").
2. RECITALS
2.1 Neal Boushell and Laura Jane Boushell are husband and wife and own, in
joint tenancy, the property commonly known as 694 West Palm Avenue, Street, El Segundo,
California ( "Property ");
2.2 On or about June 16, 2006, Boushell and City entered into the "City of El
Segundo Insulation Program Agreement" ( "RSI Agreement "). The City subsequently awarded a
contract to NSA Construction ( "NSA ") contemplated by the RSI Agreement. NSA was
responsible for providing all of the goods and services necessary to install the improvements
contemplated by the RSI Agreement.
2.3 On or about October 13, 2008, Boushell filed a claim with the City of El
Segundo that certain windows were either defective or installed improperly ( "Claim "). Boushell
Claim asserts, amongst other things, that condensation is collecting on the windows and is
causing mold to grow on and around the windows, including in the adjacent walls.
2.4 The City contends that it has no legal obligation to remediate any
problems that may exist concerning the windows or the issues identified in the Claim. However,
the City is entering into this Agreement in an attempt to resolve the Claim and avoid the
potential further costs of processing and defending against same by expending a relatively
minimal amount to perform the Widow Replacement defined below. The City contends that to
the extent that any dispute exists regarding the RSI Agreement, including but not limited to the
Claim, that the City is not liable for any damages of whatsoever kind or nature regarding such
dispute(s) and that Boushell's recourse, if any, lies against the architects, contractors or
manufacturers that performed services or provided goods related to the RSI Agreement.
3. CONSIDERATION
3.1 The City shall within 10 business days of the execution of this Agreement
replace the two windows located in the dining room that are depicted on Exhibit A hereto as
window number 5 and 6 with windows that are substantially similar in design and color as those
that are currently in the location where the windows will be replaced ( "Window Replacement ").
It is understood that the City shall not be performing any other work on the Property other than
the Window Replacement, including but not limited to work relating to other problems identified
in the Claim or alleging arising from the problems identified in the Claim.
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3.2 Boushell hereby acknowledges and agrees that the City does not warrant
or represent that the Window Replacement will correct the issues that give rise to the Claim or
any other problem that may exist on the Property, including but not limited to any condensation
or mold problem that Boushell alleges exist. Boushell further acknowledges and agrees that the
City is performing the Window Replacement because Boushell believes that the Window
Replacement will correct the problems identified in the Claim and whatever other problems that
Boushell otherwise allege exist. Boushelll acknowledges and agrees that any and all of the
communications had between Boushell or Boushell's agents and the City of El Segundo and its
officers, employees and agents relating to the Window Replacement and the actions of the City
of El Segundo and its officers, employees and agents relating to the Window Replacement shall
not be admissible by Boushell as evidence for any purpose in any subsequent administrative,
legal or equitable proceeding of whatsoever type or nature, except for purposes of enforcing the
terms and conditions of this Agreement. Boushell further warrants and represents it shall not
even attempt to introduce such communications and actions as evidence in any subsequent
administrative, legal or equitable proceeding. Boushell acknowledges and agrees that City may
introduce this Agreement as evidence in any administrative, legal or equitable proceeding for
purposes of defending itself or asserting its rights regarding the Claim or the RSI Agreement.
Boushell also acknowledges and agrees that this Agreement and the actions taken in connection
herewith shall not in any manner amend the terms and conditions of the RSI Agreement.
3.3 Boushell and the City shall each bear their own attorney fees and costs
incurred in connection with this Agreement.
3.4 In exchange for the Window Replacement, representations and covenants
made herein, and except only as to such rights or claims as may be created by this Agreement,
Boushell hereby, and for their respective heirs, representatives, successors, and assigns, release,
acquits, and forever discharge the City and all of its current and former, officers, officials, and
employees, and each of them, from any and all claims, charges, complaints, liabilities,
obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses,
damages, actions, causes of action, suits, rights, and demands of any nature whatsoever, known
or unknown, suspected or unsuspected, which the parties now have or may acquire in the future,
which relate to or arise out of any act, omission, occurrence, condition, event, transaction, or
thing which was done, omitted to be done, occurred or was in effect at any time from the
beginning of time up to and including the date of this Agreement relating or arising from the
issues set forth in or otherwise relate to the Claim, without regard to whether such arise under the
federal, state or local constitutions, statutes, rules, ordinances or regulations, or the common law.
In this connection, Boushell hereby waives and releases any rights which they respectively have
against the City and all of its current and former officers, officials, and employees, if any, jointly
or severally, directly or indirectly, under the provisions of California Civil Code section 1542,
and any similar state or federal statute, which reads in sum, substance or substantial part as
follows:
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.
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Boushell acknowledges that the facts with respect to which each gives this general
release may turn out to be different from the facts they now believe to be true. Boushell hereby
assumes the risk of the facts turning out to be different, and agree that the above release shall in
all respects be effective and not subject to termination or rescission because of any such
difference in facts.
The release set forth in section 3.4 does not extend to architects, contractors, and
manufacturers that provided services or goods for purposes of completing the construction
contemplated by the RSI Agreement.
4. REPRESENTATIONS AND WARRANTIES
Each of the parties to this Agreement represent and warrant and agree with each other
party as follows:
4.1 Advice of Counsel: Each party has received, or has had the opportunity to
receive, independent legal advice from its attorney(s) with respect to the advisability of entering
into this Agreement.
4.2 No Fraud in Inducement: No party (nor any officer, agent, employee,
representative, or attorney of or for any party) has made any statement or representation or failed
to make any statement or representation to any other party regarding any fact relied upon in
entering into this Agreement, and neither party relies upon any statement, representation,
omission or promise of any other party (or of any officer, agent, Boushell, representative, or
attorney of or for any party) in executing this Agreement, or in making the settlement provided
for herein, except as expressly stated in this Agreement.
4.3 Independent Investigation: Each party to this Agreement has made such
investigation of the facts pertaining to this severance and settlement and this Agreement and all
the matters pertaining thereto as it deems necessary.
4.4 Comprehension and Authority: Each party or responsible officer thereof
has read this AGREEMENT and understands the contents hereof and warrants that he or she is
authorized to execute the Agreement.
4.5 Future Cooperation: The parties will execute all such further and
additional documents as shall be reasonable or necessary to carry out the provisions of this
AGREEMENT.
5. MISCELLANEOUS
5.1 No Admission: Nothing contained herein shall be construed as an
admission by the parties of any liability of any kind. The parties each deny any liability in
connection with any claim or wrongdoing.
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5.2 Governing Law: This Agreement and the rights and obligations of the
parties shall be construed and enforced in accordance with, and governed by, the laws of the
State of California. The venue for any legal action relating to this Agreement shall be the Los
Angeles County Superior Court.
5.3 Continuing Benefit: This Agreement is binding upon and shall inure to
the benefit of the parties hereto, their respective successors, assigns, agents, employees,
representatives, officers, and officials.
5.4 Joint Drafting: Each party has cooperated in the drafting and preparation
of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not
be construed against any party.
5.5 Severability: In the event that any term, covenant, condition, provision or
Agreement contained in this Agreement is held to be invalid or void by any court of competent
jurisdiction, the invalidity of any such term, covenant, condition, provision or Agreement shall in
no way affect any other term, covenant, condition, provision or Agreement and the remainder of
this Agreement shall still be in full force and effect.
5.6 Titles: The titles included in this Agreement are for reference only and are
not part of the terms of this Agreement, nor do they in any way modify the terms of this
Agreement.
5.7 Counterparts: This Agreement may be executed in counterparts, and by
facsimile and when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other signed counterparts,
shall constitute one Agreement, which shall be binding upon and effective as to all parties.
5.8 Executed Copy: All parties shall receive a fully executed copy of this
Agreement.
5.9 Notice: Any and all notices given to any party under this Agreement shall
be given as provided in this paragraph. All notices given to either party shall be made by
certified or registered United States mail, or personal delivery, at the noticing party's discretion,
and addressed to the parties as set forth below. Notices shall be deemed, for all purposes, to
have been given on the date of personal service or three (3) consecutive calendar days following
deposit of the same in the United States mail.
As to BOUSHELL:
Neal Boushell and Laura Jane Boushell
694 West Palm Street
El Segundo, California 90245
As to the CITY:
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392-4.
Attn: City Clerk
City of El Segundo
250 Main Street
El Segundo, California 90245
WHEREFORE, the parties hereto have read all of the foregoing, understand the
same, and agree to all of the provisions contained herein.
DATED: ? 3u -07
DATED: 3 7-2 - C rI
APPROVED AS TO FORM:
CITY OF EL SEGUNDO
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BOUSHELL
By: 1e"�
Neal Boush ll
B y: A Q�A N
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Laura Jane *shell
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By
Mark IJ. Hensley, City Attorney
Attest:
By: 60y (l -
Cindy MoVtesen, City Clerk
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