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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 Count Three alleges that Defendants conspired to deprive

to safety and

happiness;

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

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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 procss, 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


membership of Roselle Park in the NIIIF; and

result

of

the

WFF1154S, the Parties have mutually agreed to resolve the claims that form the
basis for the Action and wish to memorialize their sefflement herein:

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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 Bombelyn

Perez& Bombelyn, PC 402 Livingston Avenue New Brunswich NJ 08901 Attorneys for Plaintiff

2.

It is the Parties understanding that there is not any


as

ta;< consequence and/or

liability for any of the Settlement Sum

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 st 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 fueral disability payments,
u:nemployment

Security payroll taxes ("FICA"), state and/or

taneg and/or state and/or federal income taxes.

3.
hereby

Plaintiff, for herself and on behalf of her successors, heirs, beneficiaries,

estates and assigns, (individually and collectively referred to herein as "Releasors"), does

fully and forever releasg remit, acquit, remisg hold harmless and discharge, (the

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"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"), causes

jointly and individually, from any and all liabilities, claims,

of actio4

charges, appeals, complaints, obligations, costs, losseq damages,


as

injurieq attorneys' feeg and other legal responsibilities, (collectively, referred to


"Claimsn),

of any form or kind

whatsoever, whether vested

or contingent, which
of time through the

Releasors have or may have against Releasees from the beginning

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,
amended, the

as

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

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-s3g2122), 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.

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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.
Releasees.

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

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,


has the sole right and exclusive authority

and that she

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 change

fully

understands the meaning and intent of this Agreement. No runless

to or modification of this Agreement shall be valid or binding

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

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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


Settlement Sum as liquidated damages.

to

receive repayment from Plaintiff

of

the

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


Releasees

of each of the Parties to

it.

Each of the

who are not signatories to this Agreement are intended to be third-party

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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.

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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.
they

Ptaintiffhereby certifies that if any liens exist against the Settlement Sum"

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 medical

intended

to include all liens, including but not limited to, attorneys' lieng

provider liens, Medicare and Medicaid lienq workers' compens,ation liens, all satutory or

cornmon law lieng and judgment liens. Plaintiff agrees


Releasees harmless

to indemni$ and hold

the
ta>(

in connection with any claim made by reason of liens against or

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

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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


understand how this Agreement

in this Agreement. The Parties each


and voluntarily enter into this

will affect their legal rights

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 of releasing all claims assrtd in the Action. The Parties acknowledge that:

full intent

(a) (b)

They have read this Agreement;

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)
releases

They understand the terms and conseguenses of this Agreement and of the

it contains;
They are fully aware of the legal and binding effect of this Agreement.

(d)

IN WITNESS WffiREOF, the Parties have executed this Agreement on the


respective dates set forth below.

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ln

MOMCAMONTOYA
By:

Date:

The New Jersey Intergovernmental Insurance Fund on Behalf of the Borough of Roselle

Parh Police Officer Harold Breuninger,


Wielgus.

Police Sergeant P. Cusmano, Police Offrcer Michael Antonucci, and Police Chief Warren

Eric J. Nemetll Esq. General Counsel New Jersey Intergovernmental Inzurance Fund 55 Madison Avenue Suite +oo Morristown, New Jersey 07960
Date:

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tl

Patricia Bombelyn
Perez

& Bombelyn, PC

402 Livingston

New Brunswick Attorneys for Plai