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HomeMy WebLinkAboutNB1- Settlement Agreement o DUFF SETTLEMENT AGREEMENT BETWEEN CITY OF SAN BERNARDINO AND THE ATTORNEY GENERAL THIS SETTLEMENT AGREEMENT ("Agreement" ) , dated as of 1996, is entered into by and among the City of San Bernardino, a municipal corporation, ("City") and THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, on behalf of the People of the State of California ("Attorney General" ) . R E C I T A L S A. A member of the public has lodged a complaint with the Attorney General alleging that the City has failed to .timely and adequately investigate disabled access complaints, and has failed to timely and adequately enforce violations of certain disabled access regulations under Title 24 of the California Code of Regulations, as required pursuant to Government Code section 4450 et seq. , and Health & Safety Code section 19955 et seq. B. The Civil Rights Enforcement Unit of the Attorney General ' s Office has reviewed the City' s disabled access complaint procedure, and has inspected the privately funded public facilities, and the publicly funded facilities which were the subject of the citizen complaint . As a result of this review, the Attorney General concluded that the City' s disabled access complaint procedure in effect at the time the citizen complaint was lodged with the City was inadequate to meet the City' s responsibilities as set forth in Government Code section 4450 et seq. , and Health & Safety Code section 19955 et seq. In addition, the Attorney General concluded that the City had failed /� l . 17 �������� �/@ //-t/-q( to timely and adequately correct violations of disabled access laws and regulations with respect to the facilities listed in the citizen complaint, as described in this Agreement . C. The City and the Attorney General met to discuss and seek a resolution of the citizen complaint . The City and the Attorney General , in order to avoid litigation, have reached a settlement of this dispute, to be embodied in this Settlement Agreement (Agreement) , in which the City has agreed to implement a written complaint procedure that provides for the timely investigation and resolution of disabled access complaints, and correction of access violations that are set forth in- this Agreement . D. The Attorney General understands, acknowledges and agrees that nothing contained in this Agreement will be construed to be an admission on the part of the City that it has in any respect failed to comply with the building standards of Title 24 , or any other state laws or regulation regarding disabled access enforcement . This Agreement is entered into as a settlement of the parties ' various claims, and as such, it and its contents are inadmissible under California Evidence Code §1152 , provided, however, that it shall be admissible in any proceeding brought to enforce its terms . The terms of this Agreement may be enforced pursuant to Government Code §4458, and Health & Safety Code §19958 . 5 . NOW, THEREFORE, the Parties hereto agree as follows : 1 . Establishment Of A Written Complaint Procedure 2 In full and complete settlement of all claims arising from the City' s alleged failure to establish and implement an adequate written complaint procedure for investigating and resolving disabled access complaints, the City will implement a written complaint procedure that is in conformance with Government Code section 4450 , et seq. , Health and Safety Code section 19955 et seq. , and Title 24 . The Attorney General ' s Office, has reviewed and approved the City' s complaint procedure, a copy of which is attached to this Agreement as Exhibit 1 . 2 . Training of City Officials . In full and complete settlement of all claims arising - from the alleged violations regarding the City' s failure to timely and adequately investigate and resolve disabled access complaints, the City personnel responsible for resolving access complaints have completed two days of Attorney General-approved training by a disabled access consultant . The City shall continue to provide disabled access training for all City officials in the investigation of disabled access complaints, the interpreting and enforcing of state laws and regulations; specifically, Government Code §4450 , et . seq. , Health & Safety Code §19955 et . , seq. , California Code of Regulations and Title 24 concerning disabled access standards, to all future City personnel responsible for screening, and/or enforcing disabled access laws and regulations within the City. Training of personnel hired in the future shall occur within 30 days of the commencement of their employment, or before such time as said personnel is responsible for screening, 3 and/or enforcing disabled access laws and regulations within the City. 3 . Corrections of Publicly Funded Facilities In conformance with Title 24 regulations, the City hereby agrees to make improvements necessary to correct access violations that exist at the following publicly funded facilities : 3 . 1 Signage at City Hall Parking Structures and Entrances The City hereby agrees to install signage directing persons with disabilities to the City' s accessible parking spaces at the City' s multilevel parking structure, and all primary entrances to City Hall in full compliance with Title 24 , sections 3105A (e) , and section 3105A (e) 8, as specified in the recommendations submitted by Peter Margen, with Access Specialists Incorporated to the City on May 31, 1995, (hereinafter, "Peter Margen Report") in a report entitled, "Accessibility Evaluation of City Council Chambers, " attached as Exhibit 2 , and incorporated herein by reference . The corrections required in the Peter Margen Report have been completed. 3 . 2 Handicap Parking Stalls The City hereby agrees to complete the improvements necessary to bring the accessible parking stalls on level 3 of the City Hall parking structure into compliance with Title 24 section, 3107A (b) , as specified in the Peter Margen Report . These improvements have been completed. 3 . 3 Parking Structure Curb Ramp 4 The City hereby agrees to complete the improvements necessary to bring the pedestrian ramp on level 3 of the City Hall parking structure into compliance with Title 24 section, 3107A (b) . These improvements are to be completed by November 30, 1996, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . 3 . 4 "D" Street Loading Zone and Pedestrian Route The City hereby agrees to submit plans for installing a passenger loading zone and path of travel from the designated "D" street loading zone to the closest City Hall entrance in compliance with Title 24 , as specified in the Peter Margen Report, to the Attorney General for review and approval by November 30, 1996, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . In the event that the Attorney General and the City cannot reach an agreement concerning these plans, both parties agree to submit the plans to the Access Compliance Section of the Division of the State Architect (DSA) for review and approval . The decision of the DSA shall be final and nonappealable. A pedestrian path of travel, ramp and handrails will be installed and completed in conformance with Title 24 sections 3307 (a . l) , and 3307 (e . l) , by November 30, 1996, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . 5 3 . 5 City Hall Entry Circle The City hereby agrees to complete the improvements necessary to bring the City Hall Entry Circle path of travel into compliance with Title 24 by installing a curb cut located as close as practical to the closest City Hall entrance in conformance with section 3106A (e) . These corrections are to be completed by November 30, 1996, subject to extensions as may be reasonably requested by the City and granted by the Attorney General . 3 . 6 City Hall Council Chamber Automatic Doors The City hereby agrees to complete the improvements necessary to install two sets of automatic doors to both of the entrances to the City Hall Council Chambers in compliance with Title 24 , section 402 , subsection (cc) , and section 3304 (f) 4 . These corrections have been completed. 3 . 7 City Hall Council Chamber Wheelchair Seating The City hereby agrees to complete the improvements necessary to install wheelchair seating in the City Hall Council Chambers, as specified in the Peter Margen Report, in compliance with Title 24 , section 3103A (b) 2 . These corrections will be completed by January 30 , 1997, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . 3 . 8 Restrooms Adjacent to City Hall Council Chambers The City hereby agrees to complete the improvements necessary to install accessible restrooms adjacent to the 6 City Hall Council Chambers in compliance with Title 24, section 3105A (b) 3 . These improvements will provide accessible restrooms for men and women, and will not make use of a unisex restroom. The improvement for installing accessible restrooms will be completed by January 30, 1997, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . 3 . 9 Podium And Council Dais in City Hall Council Chambers The City hereby agrees to complete the improvements necessary to install an accessible speaker' s podium and wheelchair access to the council dais in the Council Chambers in compliance with Title 24 sections 3103A (b) 2 , and 3103A (b) 2 .D. The City hereby agrees to submit plans for providing access to the Council dais and for installing an accessible podium to the Attorney General for review and approval by November 30, 1996, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . In the event that the Attorney General and the City cannot reach an agreement concerning these plans, both parties agree to submit the plans to the Access Compliance Section of the Division of the State Architect (DSA) for review and approval . The decision of the DSA shall be final and nonappealable . 3 . 10 "E" Street Sidewalk The City hereby agrees to complete the improvements necessary to widen those portions of the sidewalk on the 7 west side of "E" street, north of Second street, which do not comply with Government Code section 4450 (a) and Title 24 section 3324 (a) , due to the recent installation by the City of street lights . These corrections are to be completed by November 30, 1996, subject to extensions as may be requested by the City and reasonably granted by the Attorney General . If in resolving this violation, the City grants itself an unreasonable hardship exception, the Attorney General reserves the right to conduct an independent inspection of the documentation supporting the granting of the exception to determine if any abuse of discretion was committed in the granting of the exception and to take appropriate legal action as necessary. 3 . 11 Hospitality Lane Sidewalks The City hereby agrees to complete the improvements necessary to widen those portions of the sidewalk on Hospitality Lane public sidewalks between Waterman Ave and "E" street which do not comply with Government Code section 4450 (a) and Title 24 section 3324 (a) . These corrections have been completed. 3 . 12 NE corner of Hospitality Lane and Carnegie Drive The City hereby agrees to complete the improvements necessary to bring the curb and sidewalks at the Northeast corner of Hospitality Lane and Carnegie Drive into compliance with Title 24 sections 3307 (a. l) and 3324 (a) . These improvements have been completed. 8 4 . Upon completion of the improvements in compliance with Title 24 as set forth in Paragraph 3 , subsections 3 . 1 through 3 . 12 , above, the Attorney General hereby releases the City from any and all claims, demand, debts, obligations, liabilities, penalties, fines, costs, expenses, rights of action and causes of action arising out of or in any way related to the corrections at City Hall , and on the City-owned public walks and sidewalks covered by this Agreement . 5 . Correction of Violations on Privately Funded Facilities In conformance with Health & Safety Code section 19955 et seq. , and the City' s responsibility to enforce disabled access laws and regulations with respect to privately funded public facilities in the City of San Bernardino, the City hereby agrees to do the following: 5 . 1 Red Lobster: 195 E. Hospitality Lane In satisfaction of the claim that the front entrance of the Red Lobster is reached by an inaccessible set of stairs from the public sidewalk in violation of Title 24 section 3106A, the City issued a notice of noncompliance to the owners stating that the path of travel from the public sidewalk must be brought into full compliance with Title 24 within 90 days of the issuance of the notice . The violation has been corrected by the removal of the inaccessible set of stairs from the public walkway to the front entrance . 5 . 2 TGIF : 390 E . Hospitality Lane In satisfaction of the claims that TGIF does not have an 9 accessible path of travel from the public sidewalk to the front entrance of TGIF, and does not have adequate signage for its disabled parking in compliance with Title 24 sections 3106A (a) and 3107A (a) 2 , the City issued a notice of noncompliance to the owners stating that the path of travel from the public sidewalk and the parking signage must be brought into full compliance with Title 24 within 90 days of the issuance of the notice. Work bringing the path of travel and parking signs into compliance has been completed. 5 . 3 Chili ' s Restaurant : 475 E Hospitality Lane In satisfaction of the claims that Chili ' s Restaurant does not have an accessible path of travel from the public sidewalk to the front entrance of the restaurant, in compliance with Title 24 sections 3106A (a) , the City issued a notice of noncompliance to the owners stating that the path of travel from the public sidewalk to the front entrance must be brought into full compliance with Title 24 within 90 days of the issuance of the notice . Work bringing the path of travel into compliance has been completed. 5 . 4 Spiros Burgers : 2390 Del Rosa Ave In satisfaction of the claims that Spiros Burger does not have an accessible path of travel from the public sidewalk to the front entrance of the restaurant, in compliance with Title 24 sections 3106A (a) , the City issued a notice of noncompliance to the owners stating that the path of travel from the public sidewalk to the front entrance must be 10 brought into full compliance with Title 24 within 90 days of the issuance of the notice. Work bringing the path of travel into compliance has been completed. 5 . 5 Blockbuster/Big Five Highland Ave In satisfaction of the claims that Blockbuster/Big Five does not have an accessible path of travel from the public sidewalk to the store entrances in compliance with Title 24 sections 3106A (a) , the City issued a notice of noncompliance to the owners stating that the path of travel from the public sidewalk to the store entrances must be brought into full compliance with Title 24 within 90 days of the issuance of the notice . Work bringing the path of travel into compliance has been completed. 6 . Upon completion of the improvements set forth in Paragraph 5, subsection 5 . 1 through 5 . 5, above, the Attorney General hereby releases the City from any and all claims, demand, debts, obligations, liabilities, penalties, fines, costs, expenses, rights of action and causes of action arising out of or in any way related to the City' s responsibility pursuant to Health & Safety Code § 19955 et seq. , to enforce the state disabled access laws and regulations cited herein on the privately funded public facilities listed in Paragraph 5 . 7 . The Attorney General agrees not to, directly or indirectly, initiate, commence, prosecute, actively assist or participate in any action, proceeding, complaint or grievance against the City 11 relating to the released claims that are set forth in Paragraph 5, above . 8 . The Attorney General and the City acknowledge and agree that nothing contained in this Agreement will be construed as an admission on the part of City that it has abused its discretion in investigating and enforcing state access laws and regulations in the facilities set forth in Paragraph 5, above . 9 . The Attorney General agrees that the actions taken with regard to City-owned facilities pursuant to Paragraph 3 above, when completed, shall bring the alleged violations within those facilities with respect to those facilities into substantial compliance with Title 24 . 10 . The Attorney General agrees that the actions taken with regard to the privately-owned facilities pursuant to Paragraph 5 above, when completed, shall bring the alleged violations within those facilities with respect to those facilities into substantial compliance with Title 24 . However, the Attorney General reserves the right to pursue any remedies he deems necessary should he determine that the City has abused its discretion in resolving the violations at the privately-owned facilities set forth in Paragraph 5 . 11 . Each party hereto shall from time to time execute and deliver such further instruments, and take such further cooperative actions as the other party or its agents may reasonably request to effectuate the intent of this Agreement . 12 . This Agreement may be amended only by an instrument in 12 writing signed by all of the parties hereto. 13 . Each individual signing this Agreement represents and warrants that he or she has the right, power, legal capacity, and authority to enter into and perform each of the obligations specified under this Agreement, and that no further approval or consent of any person, board or entity is necessary for that party to enter into and perform each of the obligations under this Agreement . 14 . This Agreement shall be governed by and construed in accordance with the laws of the State of California. 15 . This Agreement constitutes the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous negotiations, correspondence, discussions, understandings or representations among the parties . 16 . If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect . The foregoing terms and conditions are hereby agreed and accepted by the City and the Attorney General on the day and year first written above . 13 IN WITNESS WHEREOF, this Settlement Agreement has been executed as of the date first above written. The City of San Bernardino Daniel E . Lungren Attorney General For The State California On Behalf Of The People Of The State Of California By: By: James F. Penman Patricia Barbosa City Attorney Deputy Attorney General APPROVED AS TO FORM APPROVED AS TO FORM AND LEGAL CONTENT AND LEGAL CONTENT R James F, Penman Patricia Barbosa City Attorney Deputy Attorney General 14