Date post: | 08-Mar-2015 |
Category: |
Documents |
Upload: | the-concerned-citizens-of-roselle-park |
View: | 705 times |
Download: | 5 times |
CONIIIDEhNIAL SETTLEMN,NT AGREEMENT AIYD RELF:ASE
This Confidential Settlement Agreement and Release ("Agreement") is made by
and between Plaintiff, Monica Montoya ("Plaintiff') on the one hand, and the New Jersey
Intergovernmental Insurance Fund (hereinafter, rderred to as the "I{JIIF') on behalf of
the Borough of Roselle Park (hereinafter, referred to as "Roselle Park" or "Borough"),
Police Offrcer Flarold Breuninger, Police Sergeant P. Cusmano, Police Officer Michael
Antonucci, and Police Chief Warren Wielgus (Roselle Park, Brarnin,ger, Cusmano,
Antonucci, and Wielgus being collectively referred to as "Defendants"), on the other
hand, (the Plaintiff and NJIIF being hereinafter referred to individually as' a "Party" and
jointly as the "Parties"), and shall be deemed entered into as of the date of signature of
the last Party or Party representative to slgn this Agreement.
WITNESSETH
WI|npE4S, Plaintiff brouglrt an action against Defendants in United States
District Court-District of New Jersey, captioned Moica Montoya v- Borough of Roselle
Puk, et a/., Civil Action No. 09-2371 (SDW) (the'Action"); and
WHTREAS, Plaintiff has asserted and alleged personal injury/civil rights claims
pursuant to 42 U.S.C. 1983, inter alia: Count One alleges an unreasonable search and
seizurg contrary to PlaintifFs rights under Article I, Section 7 in the New Jersey
Constitution and the Fourth Amendment to the United States Constitrrtiou Count Two
alleges that Defendants' actions deprived Plaintiff of her rights to safety and happiness;
Count Three alleges that Defendants conspired to deprive Plaintiffof her rights under the
New Jersey Common Law and the United States Consitution to be free fiom unlawful
searches, seizures and detention; Count Four alleges a*sault in that Defendants
14<{O6t_t
negligently, recklessly and with deliberate indifference and with callous disregard to her
rights, intentionally and purposely assaulted and battered Plaintiffi, causing Plaintiff
physical injury, pain and permanent emotional stress; Count Five alleges Defendants
deprived Plaintiffof her right to due proc€ss, in violation of the New Jersev Constitution,
and the Fourth and Fifth Amendments to the United States Constittrtion; Count Six
alleges that as a result of Defendants' illegal conduct, she was deprived of her right to
due process and equal protection under tAe law, under the Fourteenth Amendment to the
United States Constitution and under the New Jersey Constitution; Count Seven alleges
that Defendants knowingly, recklessly and/or with deliberate indifference, failed to
instruct, supervisg control and discipline Defendants Brzuninger and Antonnuci; Count
Eight alleges that as a result ofthe unlawful, willful and malicious conduct ofDefendants
acting under color of state law, Plaintiffs rights of substantive due proces$ and/or equal
protection as secured by the United States Constitution and the New Jersey Stae
Constitution were violated pursuant to the New Jersey Civil Rights Act; and Count Nine
alleges that Defendants maliciously issued and approved the issuance of crirninal charges
against Plaintiff alleging resisting arrest and obstnrction with the administration of law,
without reasonable or probable cause_
WHEREAS, Defendants have denied all allegations asserted againr;t them in the
Actioq and
WHTRB45, Defendants are provided with insurance as a result of the
membership of Roselle Park in the NIIIF; and
WFF1154S, the Parties have mutually agreed to resolve the claims that form the
basis for the Action and wish to memorialize their sefflement herein:
rd5<o6?_l
NOW THEREFORE, in consideration of the mutual promises, agreements and
covenants made herein, the Parties hereby covenant and agree as follows:
l. Within thirty (30) days following its receipt of fully executed copies of
this Agreement and a Stipulation of Dismissal with Prejudice as to all Delbndants in the
form attached hereto as Exhibit A (the "Stipulation"), the NJIIF shall pnovide Plaintiff
with payment of One-Hundred Fifty-Three Thousand Dollars, $153,000.00, (referred to
herein as the "Settlement Sum"). The Settlement Sum shall be made payatrle to "Monica
Montoya and Perez & Bombelyrq PC" and shall be delivered to:
Patricia BombelynPerez& Bombelyn, PC402 Livingston AvenueNew Brunswich NJ 08901Attorneys for Plaintiff
2. It is the Parties understanding that there is not any ta;< consequence and/or
liability for any of the Settlement Sum as this is a settlement of a personal irnjury cause of
action. Howwer, Plaintiff acknowledges and agrees thet all federal and state income
ta:res and/or penalties relating to the payments s€t forth in this Agreement are her sole
responsibility. Plaintifffurther covenants and agrees that she will indemnily Defendants
and the NJIIF for any ta:res and/or penalties sought from or assessed to Defendants and/or
the NJIIF by any state or fueral governmental agency, including but not lirnited to Social
Security payroll taxes ("FICA"), state and/or fueral disability payments, u:nemployment
taneg and/or state and/or federal income taxes.
3. Plaintiff, for herself and on behalf of her successors, heirs, beneficiaries,
estates and assigns, (individually and collectively referred to herein as "Releasors"), does
hereby fully and forever releasg remit, acquit, remisg hold harmless and discharge, (the
l4<506?_l
"Release"), Defendants and the NJIIF, as well as the Defendants' and the NJIIF's past
and present officials, agents, attorneys, departments, officers and employees, (for
individuals, said Release runs to them in their official and personal capacirties), and all of
their respective heirs, sucoessors and assigns, (hereinafter, individually and collectively
referred to as nReleasees"), jointly and individually, from any and all liabilities, claims,
causes of actio4 charges, appeals, complaints, obligations, costs, losseq damages,
injurieq attorneys' feeg and other legal responsibilities, (collectively, referred to as
"Claimsn), of any form or kind whatsoever, whether vested or contingent, which
Releasors have or may have against Releasees from the beginning of time through the
date of this Agreement, including but not limited to any Claims in law, ecluity, contract,
tort, public policy, any Claims or causes of action for breach of contraot, negligence,
retaliatiorL harassment and/or discrimination based uporL among other things, disability,
handicap, sex, age or race, intentional infliction of emotional distress, failure to promote,
improper demotioq defamation, any claims which were raised or could have been raised
in the Complaint, or any claims under Title VII of the Civil Rights Act of 1964, as
amended, the Civil Rigtrts Act of 1991, as amended, the Reconstruction Era CMI Rights
Act, as amended the Americans with Disabilities Act, the Age Discrimination in
Employment Act of 1967, as amended, the Family and Medical Leave Act, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, as
amended, (except for claims for vested benefits under ERISA), the Uniformed Services
Employment and Reemployment Act of 1994, as amended, the New Jersey Law Against
Discriminatiorq the New Jersey Family Leave Act, the New Jersey Conscientious
Employee Protection Act, the New Jersey Workers' Compensation Act, the New Jersey
l4{qqr{?-1
State Wage and Hour Law, the New Jersey Workers' Compensation Act, the New Jersey
State Wage and Hour Law, the New Jersey Constitutiorq or any other f.bderal, state or
local statutg ordinance or law whether known or unknowq unforeseer\ unanticipated,
unsuspected or latent, and any Claims which were raised or could have been raised in the
Action, whether known or unknown, unforeseen, unanticipated, unsuspected or latent.
Notwithstanding anything set forth herein to the coritrary, the Releasees do not waive any
defenses or afrrmative defenses in any pending or future litigation or clair4 including
but not limited to the entire controversy doctrine, estoppel, joinder, etc., whether with
regard to the Action, any Claims or otherwise.
4. Plaintiffpromises and agrees that she will not file, re-filg appeal, initiate,
or cause to be filed, refilled or initiated any claim, suit, action or other proceeding based
upon, arising out of, or related to any Claims released herein; nor shall she solicit,
encourage, participate, assist or cooperate in any claim against any of the Releasees,
whether before a court or administrative agency, unless required to do so by law. If a
court order or lawful zubpoena is served on Plaintiff requiring that she testr$ in any
claim in which Releasees have an interest, she agrees to immediately notifu and provide a
copy of the court order or subpoena to the NJIIF's General Counsel c/o Eric J. Nemettr,
P.c. 55 Madison Avenue, suite 400, Morristown New Jersey, o7gff., phone (g73-s3g-
2122), tax (973-5394677). Plaintiff shall provide the NJIIF's General Counsel with a
copy of the court order or subpoena as soon as possible and reasonably iin advance of
hiVher appearance and/or compliance with the court order or nrbpoena. plaintiff agrees
to take actions to lawfully cooperate with and assist the Borough and NJIIF in connection
with any lawful efforts to quash or limit the scope of the zubpoena or court c,rder.
rl<<06"_r
5. This fureement is not an admission by the NJIIF ancVor Defendants
and/or any of their agents, employees or representatives of any wrongdoing or liability
and is being entered into solely for the purpose of economic expediency.
6. Plaintiff agrees that she shall engage in no act which is intended, or
reasonably may be expected to harm the reputatiorl business, prospects, or operations of
Releasees.
7. Plaintiff represents and warrants that no other person or entity has any
interest in the claims that compromise or could have been raised in the Action, or in any
otier demands, obligations, or causes of action referred to in this Agreement, and that she
has the sole right and exclusive authority to execute this Agreement and receive the
benefits specified. Plaintiff further represents that she has not sold, assigned, transferred,
conveyed or otherwise disposed of any of the claims which comprise the Action, or any
other demands, obligations, or causes of action referred to in this Agreernent. plaintiff
further acknowledges that the only consideration for signing this Agreement are the terms
stated in this Agreement, and that no other promise or agreement of any kind have been
made to him or with him by any person or entity whatsoe'yer to cause him to sign this
Agreement; that she is competent to execute this Agreement; thal she has been advised in
writing and given the opporurnity to consult advisors, legal or othenvise, of his own
choosing; and that she fully understands the meaning and intent of this Agreement. No
change to or modification of this Agreement shall be valid or binding runless it is in
writing and signed by Plaintiffand the NJIIF.
8. Plaintiffand her Attorneys agree that they shall not disclose, or cause to be
disclosed, the terms of this Agreement, or the fact that this Agreement exists, except to
ra<soAt_l
their, accountants and/or ta:r advisors, or to the ortent otherwise required by law. Each
such person who is provided information regarding the terms ofthis Agreement shall first
be required to review this Agreement and agree to abide by the limitations on disclosure.
Plaintiffand her Attorney acknowledge and agree that this confidentiality provision is an
express and absolute condition of this Agreemer[ is bargained for consideration for this
Agreement and that any violation of the tenns and conditions of this confidentiality
provision shall constitute a material breach of this Agreemefi. In the event that this
Agreement is required to be disclosed pursuant to applicable law, Plaintiff and her
Attorneys agree that their communication with any person or the media regarding the
Litigation shall be limited to the statement that the "litigation was resolved to their
satisfaction." If Plaintiffand/or her attorneys breach the provisions of this Paragraph 8,
Defendants and/or the NJIIF shall be authorized to proceed summarily for enforcement of
these covenants and shall be entitled to receive repayment from Plaintiff of the
Settlement Sum as liquidated damages.
9. If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not atrect other provisions or applications and to this end the
provisions of this Agreement are declared to be severable.
10. No waiver or any breach of any term or provision of this Agreement shall
be construed to be, nor shall it be, a waiver of any other breach of this Agreement. No
waiver shall be binding unless in writing and signed by the party waiving the breach.
I l. This Agreement shall inure to the benefit of and be binding upon the heirs,
representatives, successors, and assignees of each of the Parties to it. Each of the
Releasees who are not signatories to this Agreement are intended to be third-party
la<so6t_l
beneficiaries of this Agreement. Each such Releasee shall be entitled to enforce this
Agtreement and each of its terms. In the event of any breach of this Agreement, an
aggrieved Releasee may move to enforce the terms hereof and shall be awarded legal fees
if it is the prevailing party in such action.
12. Plaintiffhereby agrees to jointly and severally indemni$, defend and hold
harmless Defendants and the NJIIF, as well as Defendants' and the NJIIF's past and
present officials, agents, attorneys, departments, officers and employees, (for individuals,
said Indemnification runs to them in their official and personal capacities), and all of their
respective heirs, srccessors and assigns, (hereinafter, individually and collectively
referred to as "Indemniteesn), jointly and individually, from any and all liabilities, claims,
causes of action, charges, demands, administrative actions, appeals, complaints,
Obligations, costs, losses, damages, injurieg attorneys' fees, and other legal
responsibilities of any form or kind whatsoever, whether vested or contingent, which any
persorL party or potential party or their successors or assigns have or may have against
the Indemnitees arising from the subject matter of the Actiorl including but not limited to
any claims based upon payment of the Settlement Sum as well as those based in law,
equity, contract, torq regulatioq statute, public policy, any claims or causes of action for
breach of contracf negligence, retaliatior\ harassment and/or discrimination based upon"
among other things, disability, handicap, seL age or race, intentional infliction of
emotional distress, defamatiorq and any claims which were raised or could have been
raised in the Actioq whether known or unknowr\ unforeseeq unanticipated' unsuspected
or latent.
t4<<06"-t
13 This Agreement represents the entire agreement and understanding
between the Parties, constitutes the complete, final and exclusive embodiment of their
agreement with respect to the subject matter hereof, and supersedes and replaces any and
all prior agreements and understandingg both wriuen and oral" concerning the zubject
matter hereof. The terms of this Agreement are contractual and not mere recitals. This
Agreement may not be changed or modified, except by a writing signed by the Parties
hereto.
14. This Settlement Agreement will be governed by and construed under the
laws of the State ofNew Jersey and shall not be construed for or against any party based
on afnibution of drafting to any party.
15. This Settlement Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall constitute an
effective, binding agreement onthe part of each ofthe undersigned.
16. Ptaintiffhereby certifies that if any liens exist against the Settlement Sum"
they will be paid in full, compromised or satisfied and released by him. If a lien exists
which is not satisfied as required by this Agreement, and a claim is made by anyone to
enforce that lieq Plaintiffagrees that she will pay that lien in full. This representation is
intended to include all liens, including but not limited to, attorneys' lieng medical
provider liens, Medicare and Medicaid lienq workers' compens,ation liens, all satutory or
cornmon law lieng and judgment liens. Plaintiff agrees to indemni$ and hold the
Releasees harmless in connection with any claim made by reason of liens against or ta>(
obligations associated with payment of the Settlement Sum. If a claim is hereafter made
against the Releasees by anyone seeking payment of the liens, Plaintitr will indemnify
1 d<<o6t-l
and hold the Releasees harmless for any zuch liens and/or defending against such a claim,
including but not limited to, attorneys' fees, costs of suit, and interest.
17. Each Party represents that it has had the oppornrnity to consult with an
attorney, and has carefully read and understands the scope and efffect of the provisions of
this Agreement, and signs this Agreement of its own free will. No Party to the
Agreement has relied upon any representations or statements made by any other Party
hereto which af,e not specifically set forth in this Agreement. The Parties each
understand how this Agreement will affect their legal rights and voluntarily enter into this
Agreement with such knowledge and understanding.
18. This Settlement Agreement is executed voluntarily and without any duress
coercion or undue influence on the part or behalf of the Parties hereto, with the full intent
of releasing all claims ass€rt€d in the Action. The Parties acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiatiorq and execution
of this Agreement by legal counsel of their own choice or that they have voluntarily
declined to seek zuch counsel;
(c) They understand the terms and conseguenses of this Agreement and of the
releases it contains;
(d) They are fully aware of the legal and binding effect of this Agreement.
IN WITNESS WffiREOF, the Parties have executed this Agreement on the
respective dates set forth below.
td{<o6t-l ln
By:
MOMCAMONTOYA
Date:
The New Jersey Intergovernmental InsuranceFund on Behalf of the Borough of RoselleParh Police Officer Harold Breuninger,Police Sergeant P. Cusmano, Police OffrcerMichael Antonucci, and Police Chief WarrenWielgus.
Eric J. Nemetll Esq. General CounselNew Jersey Intergovernmental InzuranceFund55 Madison AvenueSuite +ooMorristown, New Jersey 07960
Date:
1 A(<O6t-l tl
Patricia BombelynPerez & Bombelyn, PC402 Livingston ANew BrunswickAttorneys for Plai