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

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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 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:

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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 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

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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"), 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

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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.

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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. 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

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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 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

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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. 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

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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 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.

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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:

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Patricia BombelynPerez & Bombelyn, PC402 Livingston ANew BrunswickAttorneys for Plai