Loading...
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. Page 1 of 6 A 1 1 (In itials) 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. Page 2 of 6 (Initials) 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, Page 3 of 6 - (initials) 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. Page 4 of 6 !44 - F (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 Page5of6 a (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 Page 6 of 6 (Initials)