WILLITS, et al v. CITY OF LOS ANGELES - Settlement Agreement and Release of Claims

12. Annual Commitment for Program Access Improvements

The Parties agree to the following terms as the final and complete resolution of the claims pertaining to the City’s funding for Program Access Improvements during the Compliance Period.

12.1. Commencement of the Compliance Period

The Parties agree that the Compliance Period shall commence on the date that the Judgment has become Final.

12.2. Amount of the Annual Commitment

The City shall expend a total of $1,367,142,684 during the Compliance Period for Program Access Improvements. The Annual Commitment for each year of the Compliance Period shall be as follows (subject to Section 12.3):

(a) For the five fiscal years following Final Approval of this Settlement Agreement by the District Court (i.e., Years 1-5), the City shall expend $31,000,000 per year.

(b) For the five fiscal years following the period set forth in Section 12.2(a) above (i.e., Years 6-10), the City shall expend $35,743,000 per year.

(c) For the five fiscal years following the period set forth in Section 12.2(b) above (i.e., Years 11-15), the City shall expend $41,211,697 per year.

(d) For the five fiscal years following the period set forth in Section 12.2(c) above (i.e., Years 16-20), the City shall expend $47,517,066 per year.

(e) For the five fiscal years following the period set forth in Section 12.2(d) above (i.e., Years 21-25), the City shall expend $54,787,177 per year.

(f) For the five fiscal years following the period set forth in Section 12.2(e) above (i.e., Years 26-30), the City shall expend $63,169,615 per year.

The City may use any and all revenue sources available to it to fund the Annual Commitment obligations set forth in this Section 12. The Parties agree that, throughout the Compliance Period, the City shall have sole and absolute discretion to determine the revenue sources it will use for such purposes, and shall have no obligation to consult with Plaintiffs or Class Counsel regarding any such determination.

12.3. First Year Funding

The Parties agree that any and all amounts expended by the City in fiscal year 2015-16 (and in any period thereafter prior to the time that this Settlement Agreement becomes Final) to make Program Access Improvements (or for other expenditures to implement the Settlement Agreement as set forth in Sections 12.4 and 12.11, below) shall count towards the City’s performance of its funding obligation under Section 12.2(a) as to the first year (Year 1) of the Compliance Period. (For example, if the City expends $11,000,000 in fiscal year 2015-16, the City’s obligation in the first year of the Compliance Period will be proportionately reduced, such that the City will satisfy its obligation under Section 12.2(a) as to the first year (Year 1) of the Compliance Period by expending $20,000,000 on Program Access Improvements during such first year (Year 1).) Each subsequent fiscal year throughout the Compliance Period will commence on July 1 of the applicable year.

12.4. Use of the Annual Commitment for Program Access Improvements

The Annual Commitment shall be used for installation, repair, remediation, construction, design, inspection, monitoring and support costs of the implementation of the Settlement Agreement as to Pedestrian Facilities existing as of the commencement of the Compliance Period (along with the other uses expressly permitted under this Settlement Agreement), including, without limitation, for the following types of Program Access Improvements:

(a) Installation of missing curb ramps;

(b) Repair of damage caused by tree roots to sidewalk or walkway surfaces so that the sidewalk or walkway surfaces are made accessible to and usable by persons with Mobility Disabilities;

(c) Upgrading of existing curb ramps to comply with the standards set forth in Section 12.9 below;

(d) Repair of broken and/or uneven pavement in the pedestrian rights of way (including utility covers and repair covers) deeper and/or wider than 1/2 inch;

(e) Repair of vertical or horizontal displacement or upheaval of the sidewalk or crosswalk surface greater than 1/2 inch (including sidewalk flags, curbs and utility covers);

(f) Correction of non-compliant cross-slopes in sidewalks or sections of sidewalks;

(g) Removal of protruding and overhanging objects and/or obstructions that narrow pedestrian rights of way to less than 4 feet of accessible width;

(h) Widening of pedestrian rights of way and sections thereof to provide 4 feet of accessible width;

(i) Providing 4 feet of clearance to the entrances of public bus shelters;

(j) Repair of excessive gutter slopes at the bottom of curb ramps leading into crosswalks;

(k) Elimination of curb ramp lips on curb ramps;

(l) Installation of accessible tree grates, or other compliant remediation, where such grates are missing from tree wells;

(m) Installation of missing utility covers where such covers are missing from sidewalks, crosswalks or pathways; and

(n) Remediating other non-compliant conditions.

The Parties agree that the Annual Commitment shall not be used for Pedestrian Facilities located immediately adjacent to the facilities of the United States, the State of California, the County of Los Angeles, or other governmental entities, bodies, departments or agencies other than the City (including, without limitation, the Los Angeles Unified School District, the California Department of Transportation, and the Los Angeles County Metropolitan Transportation Authority) which are not owned or maintained by the City. Within two (2) years after the commencement of the Compliance Period, or as otherwise reasonably agreed to by the Parties, the City shall identify (by list, map or otherwise) for Class Counsel the locations of the Pedestrian Facilities that the City believes are immediately adjacent to such governmental facilities and will not be subject to Program Access Improvements under this Settlement Agreement.

12.5. Allocation of the Annual Commitment

For the duration of the Compliance Period, the Annual Commitment shall be allocated for Program Access Improvements, subject to the following:

(a) Any amounts that the City may expend on curb ramp or sidewalk installation or remediation which was necessitated as the result of: (i) any alterations arising from the resurfacing of streets or roadways wherein said resurfacing involved work on a street or roadway spanning from one intersection to another and included overlays of additional materials to the road surface (excluding slurry seals); (ii) street widening or widening of other roadways and alleys; (iii) the creation of a new street or the reconstruction of an existing street; (iv) the construction of a new City building, park or other similar major facility or site; (v) sewer or storm drain installation or repair; (vi) bridge, viaduct, and tunnel repair or construction; (vii) street lighting installation or repair; or (viii) bus pad installation or repair shall not count towards the Annual Commitment.

(b) For the first year of the Compliance Period, 20% of the Annual Commitment shall be allocated to the Access Request Program (as defined below). For each year thereafter, the City and Class Counsel shall meet and confer to discuss in good faith whether the percentage of the Annual Commitment allocated to the Access Request Program should be changed based upon the number of requests received, the amount of remediation and construction work performed, and such other factors as the Parties deem relevant. If, for any year of the Compliance Period after the first year, the City and Class Counsel are unable to agree on the percentage of the Annual Commitment that should be allocated to the Access Request Program, the percentage shall remain the same as the percentage that was allocated in the preceding year.

(c) For the first year of the Compliance Period, Five Million Dollars ($5,000,000) of the Annual Commitment shall be allocated to construction and development relating to curb ramp or curb cut installation or remediation (including, without limitation, for Program Access Improvements described in Sections 12.4(a), 12.4(c) and 12.4(k) above and including through the Access Request Program described in Section 12.8 below). Each year thereafter, the City and Class Counsel shall meet and confer to discuss in good faith whether the amount of the Annual Commitment allocated to such construction and development should be changed based upon the number of curb ramps or curb cuts installed or remediated, the number of locations that require further curb ramp or curb cut installation or remediation and such other factors as the Parties deem relevant. If, for any year of the Compliance Period after the first year, the City and Class Counsel are unable to agree on the amount of the Annual Commitment that should be allocated for such construction and development, the amount shall remain the same as the amount that was allocated in the preceding year.

12.6. Pour-Over Provision

The Annual Commitment amounts set forth in Section 12.2 above ("required amount(s)") are the targeted commitment of funds from the City.

(a) If the City expends more than the required amount for the Annual Commitment in any year, the excess amount will be credited toward the Annual Commitment in future years.

(b) If the City expends less than the required amount for the Annual Commitment in any year, the uncommitted portion of that year’s Annual Commitment will be utilized to implement this Settlement Agreement in subsequent years as soon as practical, but within no longer than the next three fiscal years. Such uncommitted portions shall be spent or appropriated in addition to the required amount or amounts for the Annual Commitment for such subsequent years.

(c) In no fiscal year (other than the first year, in accordance with Section 12.3 above) shall the City expend less than $25 million as its Annual Commitment pursuant to the Settlement Agreement.

12.7. Project Prioritization

The selection and timing of particular projects for Program Access Improvements (including, without limitation, the selection of the types of Program Access Improvements set forth in Section 12.4 above that will be conducted, the selection of locations where installation, remediation or other construction will be conducted, the selection of personnel, materials, methodologies and technologies to be utilized, and the order and scope of the particular projects) shall be determined by the City in its discretion, subject to the following priorities:

(a) Program Access Improvements needed to address Pedestrian Facilities serving the following (in descending order of prioritization):

(i) City government offices and facilities (including the pedestrian rights of way adjacent to facilities owned or operated by the City, and the paths of travel leading from such adjacent pedestrian rights of way to the primary entrances to such facilities). Program Access Improvements with respect to Pedestrian Facilities serving City government offices and facilities shall be prioritized with the goal of completing such work within the first five years of the Compliance Period (if feasible);

(ii) transportation corridors;

(iii) hospitals, medical facilities, assisted living facilities, and other similar facilities;

(iv) places of public accommodation such as commercial and business zones;

(v) facilities containing employers; and

(vi) other areas such as residential neighborhoods and undeveloped areas.

(b) With respect to Program Access Improvements addressing the Pedestrian Facilities set forth in this Section 12.7, the following barrier removal work shall receive priority:

(i) Installation of missing curb ramps;

(ii) Repair of damage caused by tree roots to sidewalk or walkway surfaces so that the sidewalk or walkway surfaces are made accessible to and usable by persons with Mobility Disabilities;

(iii) Upgrading of existing curb ramps to comply with the standards set forth in Section 12.9 below;

(iv) Repair of broken and/or uneven pavement in the pedestrian rights of way (including utility covers or repair covers) deeper and/or wider than 1/2 inch;

(v) Repair of vertical or horizontal displacement or upheaval of the sidewalk or crosswalk surface greater than 1/2 inch (including sidewalk flags, curbs and utility covers);

(vi) Correction of non-compliant cross-slopes in sidewalks or sections of sidewalks;

(vii) Removal of protruding and overhanging objects and/or obstructions that narrow pedestrian rights of way to less than 4 feet of accessible width;

(viii) Widening of pedestrian rights of way and sections thereof to provide 4 feet of accessible width;

(ix) Providing 4 feet of clearance to the entrances of public bus shelters;

(x) Repair of excessive gutter slopes at the bottom of curb ramps leading into crosswalks;

(xi) Elimination of curb ramp lips on curb ramps;

(xii) Installation of accessible tree grates, or other compliant remediation, where such grates are missing from tree wells;

(xiii) Installation of missing utility covers where such covers are missing from sidewalks, crosswalks and pathways; and

(xiv) Remediating other non-compliant conditions.

(c) When making Program Access Improvements in accordance with the priorities set forth in this Section 12.7, the City shall also apply the following principles:

(i) The City shall prioritize remediation, installation or other construction for locations that do not have site constraints or technical infeasibility issues, as defined in the standards set forth in Section 12.9 below;

(ii) With respect to unusually expensive installation or remediation concerning any Pedestrian Facility, the City shall have the discretion to address such items in connection with larger, street-related capital projects at such locations;

(iii) Work on difficult sites may be postponed if there is an alternative accessible route within no more than 200 feet of the condition at issue (to the maximum extent feasible). Such alternative routes will be identified to persons with Mobility Disabilities in accordance with applicable ADA Title II regulations;

(iv) Locations at which site constraints make strict compliance with applicable design standards impracticable may be made compliant with the standards set forth in Section 12.9 below to the maximum extent feasible;

(v) Trees that are the cause of sidewalk barriers will be preserved to the extent feasible, and protected trees may only be removed in accordance with Los Angeles Municipal Code §§ 46.00-46.06, and all other applicable City and/or State codes, rules and policies regarding trees and tree removal.

12.8. Access Request Program

Each year of the Compliance Period, the City shall maintain and operate a policy and procedure for Settlement Class members to submit requests for Program Access Improvements at locations identified by such members (the "Access Request Program"). The Access Request Program shall consist of and be governed by the following terms:

(a) The costs of the Access Request Program shall be funded each year from the Annual Commitment, including as provided in Section 12.2 above.

(b) Access Requests may only be made by members of the Settlement Class, including individuals acting on behalf of members of the Settlement Class, or organizations acting on behalf of members of the Settlement Class ("the requestor") (provided that the individual on whose behalf the request is made is identified). Requests made by individuals who are not members of the Settlement Class, or by individuals who are not acting on behalf of members of the Settlement Class, shall not be processed or addressed under the Access Request Program.

(c) The funds allocated to the Access Request Program shall be used for Program Access Improvements as set forth in Section 12.4 above.

(d) The selection and timing of particular projects conducted under the Access Request Program (including, without limitation, the selection of the types of Program Access Improvements set forth in Section 12.4 above that will be conducted, the selection of locations where installation, remediation or other construction will be conducted, the selection of personnel, materials, methodologies and technologies to be utilized, and the order and scope of the particular projects) shall be determined by the City in its discretion, subject to the following priorities: (i) requests for Program Access Improvements shall be reviewed and investigated in the order received; (ii) the highest priority shall go to requests for Program Access Improvements in residential neighborhoods or that are necessary to provide access to bus stops or other forms of public transit; and (iii) the types of Program Access Improvements identified in Sections 12.4(a) – (n) above shall also receive priority.

(e) The City shall maintain facilities that enable Settlement Class Members to submit Access Requests by telephone, by electronic mail, by an accessible electronic form available on a website (with the relevant portions of the website compliant with WCAG), or by standard mail (in addition to such other methods that the City may determine). The City shall ensure that Access Requests may be made through the Grievance Procedure, as referenced in Section 17 below.

(f) The City shall require that each Access Request provide, at a minimum, the following information: (i) the requestor’s name, address and other contact information; (ii) a statement that the requestor is a person with a Mobility Disability or is making the request on behalf of an identified person with a Mobility Disability; (iii) a description of the particular access barrier; (iv) the location of the particular access barrier; and (v) the method preferred by the requestor to receive the City’s response to the Access Request (e.g., by telephone, by electronic mail or by standard mail). An "access barrier" shall mean and refer to any condition not in compliance with the 2010 ADA Standards for Accessible Design, subject to Section 12.9. Access Requests may be made by Settlement Class members with a request form that shall be made available by the City and shall be in a form substantially similar to the request form attached to this Settlement Agreement as Exhibit "G".

(g) The City shall document receipt of each Access Request made by a member of the Settlement Class or on behalf of a member of the Settlement Class. Each such Access Request shall be assigned a specific identification number (or other identifying information) and logged into a software program or other electronic system that records the requestor’s name and contact information, the date of the request, the type of access barrier, and the location of the access barrier. Within ten (10) days of receipt, the City shall notify the requestor that his or her Access Request has been received and provide the requestor with the identification number or other identifying information assigned to the Access Request. The City shall use its best efforts to conduct its investigation or determination of whether and when an Access Request may be completed within thirty (30) days of receipt of a submitted Access Request and shall promptly thereafter provide the requestor with an estimated date by which the City expects the access barrier to be removed or addressed. The City shall use its best efforts to, and to the extent feasible, complete each such Access Request within one hundred twenty (120) days of receipt. Access Requests that are not completed within the fiscal year in which they are received shall roll over to the following fiscal year and be addressed in accordance with the terms of this Section 12.8 during such year.

(h) The Parties recognize and acknowledge that the implementation of the Access Request Program will require investigation, assessment, adjustment and cooperation between the Parties throughout the Compliance Period (including, without limitation, due to the number and type of Access Requests received and the amount of Annual Commitment funds allocated to and expended through the Access Request Program). On an annual basis, the City and Class Counsel shall meet and confer to discuss in good faith whether the allocation of funds, procedures, time periods and other features of the Access Request Program should be modified to more effectively address the Access Requests and the interests of the Settlement Class.

12.9. Standards for Accessibility and Program Access Improvements

The parties agree that all Program Access Improvements under this Section 12 shall comply with the standards set forth in the 2010 ADA Standards for Accessible Design or the then-current iteration of Title 24 of the California Building Code, whichever provides greater protection or access to persons with Mobility Disabilities. If and as any new federal or California disability access design standards that apply to the pedestrian rights of way referenced in this Settlement Agreement become effective, or as applicable legal precedent is established, those standards shall then become the standard for performance under this Section 12.

12.10. Exemption for Program Access Improvements

The Parties agree that the City will be exempted from any obligation to install or perform a Program Access Improvement at a particular Pedestrian Facility location if: (i) there exist barriers to remediation controlled by third parties (such as the U.S. Post Office, the State of California, or the Gas Company); (ii) the particular location requires a Program Access Improvement that is required to be performed by a third party pursuant to a lawfully-issued permit, a conditional use permit or other agreement with such third party (in which case, the City will issue a demand to such third party for the prompt completion of the Program Access Improvement); (iii) the particular location is not within City boundaries or is owned by a third party governmental entity (e.g., the United States, the State of California, the County of Los Angeles, or a neighboring municipality); or (iv) there exists a technical infeasibility to installing or performing a Program Access Improvement at the particular location because of topography or some other factor, including if remediation would be "technically infeasible" as defined by Standard 106.5 of the 2010 ADA Standards for Accessible Design.

The Parties also agree that the obligations of the City with respect to Program Access Improvements at a particular location or with respect to a particular access barrier may be postponed if the postponement is caused by or attributable to a force majeure (that is, due to acts of God, war, government regulations (other than regulations by the City), terrorism, disaster (including power outages), strikes, civil disorder, government declared fiscal emergency, or an emergency beyond the City’s control that make it illegal or impossible for the City to perform the access work at issue. Under this provision, the City’s obligations may be tolled for the period of the force majeure’s effect.

12.11. Use of the Annual Commitment for Other Expenses

In addition to the matters set forth above in this Section 12, the Annual Commitment shall be used for the following:

(a) Any reasonable costs incurred by the City to provide notice to the Settlement Class regarding the settlement embodied in this Settlement Agreement, the Fairness Hearing, the Judgment or any other matter as required under this Settlement Agreement (including as set forth in Section 6.5 above) and to provide outreach and information to the general public regarding the Settlement Agreement.

(b) Any costs incurred by Class Counsel to provide notice to the Settlement Class regarding the settlement embodied in this Settlement Agreement, the Fairness Hearing, the Judgment or any other matter as required under this Settlement Agreement (including as set forth in Section 6.5 above).

(c) The City’s Support Costs.

(d) The costs of creating, updating and maintaining the Access and Construction Database, as set forth in Section 14 below.

(e) The costs of the ADA Coordinator for the Pedestrian Right of Way, as set forth in Section 15 below.

(f) Plaintiffs’ Inspection Fees, as set forth in Section 18 below.

(g) The Parties’ attorneys’ fees and costs incurred for any Dispute, pursuant to Section 19 below.

(h) "Monitoring Fees" paid to class counsel in the Carter/Fahmie Action of up to a maximum of Twenty-Five Thousand Dollars ($25,000) annually during only the third, fourth and fifth years of the Compliance Period, as set forth in the Carter/Fahmie Settlement Agreement attached hereto.