HomeMy WebLinkAbout12499RESOLUTION NO. 12499
A RESOLUTION APPROVING A SETTLEMENT
AGREEMENT AND RELEASE AND AUTHORIZING
PAYMENT OF THE CIRSA RETENTION
REIMUBRUSEMENT
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Settlement Agreement and Release by Nicholas Falletta, a copy of which is
attached hereto, having been approved as to form by the City Attorney, is hereby
approved.
INTRODUCED: September 24, 2012
BY: Leroy Garcia
COUNCIL PERSON
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # M-4
DATE: September 24, 2012
DEPARTMENT:
LAW DEPARTMENT
THOMAS J. FLORCZAK, CITY ATTORNEY
TITLE
A RESOLUTION APPROVING A SETTLEMENT AGREEMENT AND RELEASE AND
AUTHORIZING PAYMENT OF THE CIRSA RETENTION REIMBURSEMENT
ISSUE
Should City Council approve the Settlement Agreement and Release with Nicholas
Falletta?
RECOMMENDATION
Approval of this Resolution.
BACKGROUND
On April 23-24, 2011, an incident occurred between Nicholas Falletta and Officers
Derek Wyberg and Antoinette Ramos of the Pueblo Police Department within the City of
Pueblo. The incident is the subject matter of a lawsuit entitled Falletta v. Wyberg and
Ramos in the United States District Court for the District of Colorado, Civil Action No.
12-cv-01910-RPM (the “Lawsuit”). Without any admission of liability or wrongdoing, the
parties have reached a compromise resolution of all claims and controversies alleged in
the Lawsuit. The Settlement Agreement and Release, a copy of which is attached
hereto, sets forth the full and complete agreement of the parties.
FINANCIAL IMPACT
The Colorado Intergovernmental Risk Sharing Agency (“CIRSA”) will issue a check to
Nicholas Falletta in the amount of $95,000 as set forth in the Settlement Agreement and
Release. CIRSA will then invoice the City for the settlement amount that represents the
City’s retention or deductible amount. The City will issue payment to CIRSA from the
Self-Insurance Fund (601fund).
SETTLEMENT AGREEMENT AND RELEASE
1.0 Parties and Controversy.
1.1 The Parties to this Settlement Agreement and Release ( "Agreement ") are as
fol lows:
A. Nicholas Falletta ( "Plaintiff'); and
B. Derek Wyberg, Antoinette Ramos, and the City of Pueblo, Colorado, as
well as all other related persons and entities, both past and present, including, but not limited to.
the City of Pueblo's departments, divisions, insurers, principals, attorneys, agents, employees,
successors, servants, elected officials, officers, and directors ( "Defendants ").
1.2 The case or controversy giving rise to this Agreement stems from an incident
which occurred between Nicholas Falletta and Officers Derek Wyberg and Antoinette Ramos of
the Pueblo Police Department within the City of Pueblo, Colorado on April 23 -24, 2011 (the
"Incident "), which is the subject matter of the lawsuit entitled Falletta v. Wyberg and Ramos in
the United States District Court for the District of Colorado, Civil Action No. 12 -cv -01910 -RPM
(the "Lawsuit ").
2.0 Release.
2.1 Plaintiff hereby releases, acquits, and forever discharges Defendants, as well as all
other related persons and entities, both past and present, including, but not limited to, the City of
Pueblo's departments, divisions, insurers, principals, attorneys, agents, employees, successors,
servants, elected officials, officers, and directors, of and from any and all liabilities, claims,
demands, rights, controversies, agreements, damages, actions, causes of action, expenses,
attorneys' fees, costs, interest, compensation, judgment, and any and all consequential and
punitive damages, of whatsoever kind or nature, either in law or equity, which might exist with
regard to any and all claims in any way related to or arising from the Incident or the Lawsuit.
2.2 Plaintiff hereby acknowledges and agrees that this Agreement, and the terms
thereof, shall be binding on his agents, attorneys, servants, employers, employees, principals,
heirs, executors, administrators, insurers, successors, assigns, subrogees, subrogors, lienholders,
and any and all other persons or entities which have or may have any claim on behalf of
themselves or be entitled to share in any settlement thereof.
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2.3 Plaintiff acknowledges that a portion of the consideration given for this
Agreement is being given for the full and final release of any and all unknown losses, claims,
injuries, costs, expenses, and damages which either may have occurred in the past and are not yet
known, or which may occur in the future and are not presently known. Plaintiff agrees to
voluntarily and knowingly assume the risk of any mistake of fact, either mutual or unilateral,
with respect to said losses, claims, injuries, costs, expenses and damages, and shall not, under
any circumstances, seek to present further claims himself or on behalf of his agents, attorneys,
servants, employers, employees, heirs, executors, administrators, insurers, successors, assigns,
subrogees, subrogors, and Iienholders as against the persons and entities herein released.
2.4 It is understood and agreed that the payment set forth at Section 3.0 of this
Agreement is in full settlement and compromise of Plaintiff's disputed claims; that the payment
made under this Agreement is not to be construed as an admission of liability on the part of the
persons and entities hereby released; and that any and all liability is by said persons and entities
hereby expressly denied.
2.5 After payment of the amount stated in this Agreement, Plaintiff covenants and
agrees to file a Stipulation of Dismissal with Prejudice of the entire Lawsuit. Plaintiff further
covenants and agrees that he will not bring any action at law, proceeding in equity,
administrative proceeding, or otherwise, nor prosecute or sue the released persons and entities by
way of complaint, counterclaim, or by any other manner at all, relating to the facts and claims
which were or could have been asserted in this lawsuit.
2.6 Every provision of this Agreement is intended to be severable, unless otherwise
noted. In the event that any term or provision hereof is declared to be illegal or invalid, for any
reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not
affect the balance of the terms and provisions hereof, which terms and provisions shall remain
binding and enforceable.
3.0 Approval by City Council.
The Agreement is conditional on Pueblo City Council approval of the settlement. If the
City Council does not approve the settlement, the Agreement will have no force and effect.
4.0 Payment.
In consideration of the releases set forth at Section 2.0 above, Defendants agree to cause
payment to be made on behalf of Defendants to Plaintiff and the Law Offices of James A. Carleo
in the amount of Ninety Five Thousand Dollars ($95,000.00).
If the Agreement is approved by the Pueblo City Council, payment will be made within
ten (10) days of said approval.
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5.0 Liens.
Plaintiff represents that there are no outstanding subrogated interests or liens related to
this claim or that any and all subrogated interests or liens related to the Incident have been
resolved or will be resolved upon receipt of payment as set forth above. It is understood and
agreed that this Agreement is intended to forever discharge any and all subrogated interests or
liens related to this claim. Plaintiff agrees to defend, indemnify and hold Defendants harmless
from any and all claims, actions, and liability whatsoever, including any attorney fees or costs
incurred by Defendants, which might arise from any unpaid or unsatisfied subrogated interest or
lien. This release and indemnification agreement includes, but is not limited to, any interests or
liens on behalf of any insurance companies, medical providers, and treatment providers on behalf
of the Plaintiff related to this Incident. Plaintiff acknowledges and agrees to indemnify, defend,
and hold Defendants harmless as provided in this paragraph of this Agreement, in the event any
other provision of this Agreement is deemed unenforceable and invalid for any reason, as it is
Plaintiff's express intent and understanding that this provision of this Agreement be viewed as a
separately bargained for and independent provision.
Plaintiff acknowledges that he has never applied for or received assistance from Social
Security Disability, Medicaid, or Medicare. Plaintiff hereby agrees to fully indemnify and
defend Defendants against any and all claims, actions, and liability whatsoever, including any
attorney fees or costs incurred by Defendants, which might be asserted by Medicaid, Medicare,
or any person or entity related thereto asserting any such lien, subrogated interest, or derivative
ri ght.
6.0 Confidentiality.
Plaintiff understands and agrees that as part of the consideration for this full and final
release and settlement of claims, that the amount of monetary consideration herein agreed to
shall, to the maximum extent permitted by law, remain confidential and shall not be disclosed to
anyone by Plaintiff, his counsel, agents or representatives. Notwithstanding this Agreement,
Plaintiff is entitled to disclose the amount of monetary consideration to accountants and/or
financial planners to the extent necessary for tax and financial preparation and planning, or as
otherwise required by law.
7.0 Representation of Comprehension of Document.
In entering into this Agreement, Plaintiff represents that the terms of this Agreement have
been completely read and explained to Plaintiff; and that the terms of this Agreement are fully
understood and voluntarily accepted by Plaintiff.
8.0 Warranty of Capacity to Execute Agreement.
Plaintiff represents and warrants that no other person or entity has, or has had, any
interest in the claims, demands, obligations, and causes of action referred to in this Agreement,
except as otherwise set forth herein; that Plaintiff has the sole right and exclusive authority to
execute this Agreement and receive the sum specified in it; and that Plaintiff has not sold,
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assigned, transferred, subrogated, liened or otherwise disposed of any of the claims, demands,
obligations, or causes of action referred to in this Agreement. Plaintiff hereby agrees to fully
indemnify and defend Defendants against any claims which might be asserted by any person or
entity asserting any such derivative right.
Plaintiff further represents and warrants that he is competent to enter into this Agreement
and he agrees to furnish correspondence from his treating physician attesting to his competency
in this regard.
9.0 Governing Law.
This Agreement shall be construed and interpreted in accordance with the laws of the
State of Colorado.
10.0 Additional Documents.
All Parties agree to cooperate fully and execute any and all supplementary documents
and to take all additional actions which may become necessary or appropriate to give full force
and effect to the basic terms and intent of this Agreement.
11.0 Entire Agreement and Successors In Interest.
This Agreement contains the entire Agreement between Plaintiff and Pueblo with regard
to the matters set forth in it and shall be binding upon and inure to the benefit of the executors,
administrators, personal representatives, heirs, successors, and assigns of each.
12.0 Tax Liability Clause.
It is understood, between the parties to this Agreement that Plaintiff has not relied upon
any representations, express or implied, made by Defendants or any of its representatives, as to
the tax consequences of this Agreement and that Plaintiff releases Defendants from any and all
liability in connection with any such tax consequences.
13.0 Effectiveness.
This Agreement shall become effective immediately following execution by each of the
parties and/or their attorney.
14.0 Counterparts /Facsimile Signatures
This Agreement may be executed in two or more counterparts and shall be fully effective
when executed by all parties. This Agreement may also be executed on multiple copies via
facsimile and shall be effective as if all signatures were affixed to one copy.
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(Initials)
4 /7)/ /
Nicholas Falletta
STATE OF COLORADO )
) ss.
COUNTY OF )
SUBSCRIBED AND SWORN to before me this lQ day of , 2012.
My Commission expires: 0 - kOt
- teat. , �T— t 1,
Valerie Beth Rosales Notary Public
NOTARY PUBLIC
STATE OF COLORADO
My commisslon expires. ..... ..
APPROVED AS TO FORM:
7
41 ,
mes A. Carleo, Esq.
Law Offices of James A. Carleo
1023 Cherrycrest Drive
Pueblo, Colorado 81005
Telephone: (719) 252 -4732
E -mail: Z<rc- law(acomcast.nei
Attorney for Plaintiff
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(Initials)
By
Eric M. Ziporin
Senter Goldfarb &Rice, ..L.C.
1700 Broadway, Suite 1700
Denver, Colorado 80290
Telephone: (303) 320 -0509
Facsimile: (303) 320 -0210
E - mail: e iporini i sgrllc.coal
Attorney far Defendants
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