SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

THE CITY OF SAN RAFAEL, CALIFORNIA

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ# 204-11-272

 

 

           

BACKGROUND

 

SCOPE OF THE INVESTIGATION

 

            The United States Department of Justice (Department) initiated this matter as a compliance review of the City of San Rafael (City) under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35. Because the City receives financial assistance from the Department of Justice, the review was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.

 

            The review was conducted by the Disability Rights Section of the Department's Civil Rights Division and focused on the City's compliance with the following title II requirements:

 

C           to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department's title II regulation, 28 C.F.R. § 35.105;

 

C           to notify applicants, participants, beneficiaries, and other interested persons of their rights and the City's obligations under title II and the Department's regulation, 28 C.F.R. § 35.106;

 

C           to designate a responsible employee to coordinate its efforts to comply with and carry out the City's ADA responsibilities, 28 C.F.R. § 35.107(a);

 

C           to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);

 

C           to operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150, by:

 

 

C           to ensure that facilities for which construction or alteration was begun after January 26, 1992, are readily accessible to and usable by people with disabilities, in accordance with 1) the Department's title II regulation and 2) the Standards or UFAS, 28 C.F.R. § 35.151;

 

C           to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others, including furnishing auxiliary aids and services when necessary, 28 C.F.R. § 35.160;

 

C           to provide direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9-1-1 services, for persons who use TTY's and computer modems, 28 C.F.R. § 35.162;

 

C           to provide information for interested persons with disabilities concerning the existence and location of the City's accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and

 

C           to provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).

 

            As part of its compliance review, the Department reviewed the following facilities,  which because construction or alterations commenced after January 26, 1992 must comply with the ADA's new construction or alterations requirements:

 

1.         Court Street Plaza

2.         Public Works Headquarters

3.         Albert Park: Bocce Federation office and court

4.         Albert Park: Parkside Children's Center

5.         Parking Structure at Third and C Streets (based on architectural plans)

6.         Cuthbert Building

7.         Pickleweed Park: Childcare mobile units

 

            The Department's program access review covered those of the City's programs, services, and activities that operate in the following facilities:

 

8.         Library

9.         City Hall

10.       Pickleweed Park Community Center

11.       Terra Linda Community Center

12.       San Rafael Community Center

13.       Falkirk Mansion

14.       Boyd House and Park

15.       Albert Park: Baseball field and play area

16.       Oleander Park

17.       Bret Harte Park

18.       Gerstle Park

19.       Terra Linda Pool

20.       Freitas Park

21.       Bernard Hoffman Park

22.       Beach Park

23.       Sun Valley Park

24.       Santa Margarita Park

25.       McInnis Park (owned by County of Marin)

26.       Menzies lot

27.       Lootens parking structure (3rd and Lootens)

28.       Third and Cijos lot

29.       Third and Lootens lot ("Walgreens lot")

30.       Fifth and D lot

31.       Lootens and Commercial lot

32.       Fifth and Lincoln lot

33.       Fifth and C parking structure

34.       Second Street lot

35.       West end of Fourth lot

36.       Fifth at Lootens lot

37.       A Street parking structure 

 

            The Department reviewed the City's policies and procedures regarding emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.

 

            Finally, the Department reviewed the City's Police Department's policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.

 

JURISDICTION

 

1.         The ADA applies to the City because it is a "public entity" as defined by title II.  42 U.S.C. § 12131(1).

 

2.         The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the City with title II of the ADA and the Department's title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.

 

3.         The Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the City's compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the City provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.

 

4.         The parties to this Agreement are the United States of America and the City of San Rafael, California.

 

5.         In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.

 

6.         In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."

 

7.         By entering into this Agreement, the City does not admit liability on any issue.

 

 

ACTIONS TAKEN BY THE CITY OF SAN RAFAEL

 

8.         The City appointed its first ADA Coordinator on January 21, 1992.  Since then, the ADA Coordinator has monitored implementation of the Transition Plan in conjunction with the City's annual budget process, which has allocated approximately $100,000 per year to improve accessibility in the City.

 

9.         The City adopted an ADA Grievance Procedure on March 16, 1992.

 

10.       The City completed its Self Evaluation and Transition Plan in September 1994, prioritized architectural barrier removal based on usage of the facility, and has been working steadily to provide program access to persons with disabilities.

 

11.       In 1995, the City distributed an Accessibility Handbook, which outlined the City's policies for providing auxiliary aids and services to persons with disabilities to ensure effective communication for persons with visual or hearing impairments.

 

12.       Subsequent to the Transition Plan, and pursuant to the Curb Ramp Addendum adopted therewith, the City adopted a City Sidewalk Project, which has spent $500,000 exclusively on curb ramp improvements.  The City has allocated a total of $230,000 for such projects during 2004-2005 fiscal years.

 

13.       On all City Council, Planning Commission and Redevelopment Agency agendas, the City provides public notice that auxiliary aids, such as sign language interpreters and assistive listening devices, are available upon request for such meetings.

 

14.       The City states on job announcements that reasonable accommodations may be made for individuals with disabilities.

 

15.       Each of the City's 9-1-1 call stations, which are located in the Police Department's Dispatch Center, has been equipped since 1992 with TTY capabilities, originally with TTY equipment, and since 2001 with software incorporated into the Dispatch Center's computerized VESTA telephone system.

 

16.       As incoming 9-1-1 calls are picked up by a Police Department Dispatcher occupying one of the 9-1-1 call stations, the Dispatcher's computerized VESTA telephone system automatically prints the text of the incoming TTY message on the Dispatcher's computer screen.  The Police Department's Dispatchers are trained to respond to these incoming TTY messages by sending out appropriate TTY messages as quickly as the incoming messages have been received.

 

REMEDIAL ACTION

 

NOTIFICATION

 

17.       Within six months of the effective date of this Agreement, the City will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the City; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings.  It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement.  Copies will also be provided to any person upon request.

 

18.       Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the City will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the City's accessible programs, services, and activities.

 

GRIEVANCE PROCEDURE

 

19.       Within six months of the effective date of this Agreement, the City will adopt the attached ADA Grievance Procedure (Attachment B), distribute it to all agency heads, and post copies of it in conspicuous locations in each of its public buildings.  It will refresh the posted copies, and update the contact information contained on it, as necessary, for the life of the Agreement.  Copies will also be provided to any person upon request.

 

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

 

20.       Within six months of the effective date of this Agreement, the City will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and within one year will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).

 

21.       Within six months of the effective date of this Agreement, the City will take steps to ensure that all appropriate employees are trained and practiced in using the California Relay Service to make and receive calls.

 

                       

LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

 

22.       Within six months of the effective date of this Agreement, the City will adapt for its own use and implement the City of San Rafael's Police Department Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing (Attachment C) and distribute to all police officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing (Attachment D).

 

23.       Within six months of the effective date of this Agreement, the City will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its police officers or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).

 

24.       Within six months of the effective date of this Agreement, the City will ensure that each police station is equipped with a working TTY to enable persons who are deaf, hard of hearing, or who have speech impairments to make outgoing telephone calls.

 

                     

EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

 

25.       The City has a collaborative agreement with the American Red Cross to provide emergency services at the San Rafael Community Center, the Pickleweed Park Community Center, and the Terra Linda Community Center ("City Shelters").  In connection with that agreement, the City will ensure that the following provisions are met with regard to the City Shelters or any successor shelter designated by the City:

 

26.       Within one year of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that it regularly solicits and incorporates input from persons with a variety of disabilities and those who serve them regarding all phases of its Emergency Operations Plan.

 

27.       Within one year of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that its community evacuation plans enable those who have mobility impairments, vision impairments, hearing impairments, cognitive disabilities, mental illness, or other disabilities to safely self-evacuate or be evacuated by others.  The City plan should address accessible transportation needs for persons with disabilities.

 

28.       Within one year of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that if the City acquires emergency warning systems that use sirens or other audible alerts, then it will also provide ways to inform persons with hearing impairments of an impending disaster.  The use of auto-dialed TTY messages to pre-registered individuals who are deaf or hard of hearing, text messaging, e-mails, open-captioning on local TV stations and other innovative uses of technology may be incorporated into such procedures, as well as lower-tech options such as dispatching qualified sign language interpreters to assist with emergency TV broadcasts.

 

29.       Within one year of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that at least one emergency City Shelter has a back-up generator and a way to keep medications refrigerated (such as a refrigerator or a cooler with ice).  Such shelter(s) will be made available to persons whose disabilities require access to electricity and refrigeration, for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving certain medications, such as insulin, that require refrigeration.  The written procedures will include a plan for notifying persons of the location of such shelter(s).

 

30.       Within one year of the effective date of this Agreement, the City will implement and report to the Department its written procedures that ensure that at one emergency City Shelter, persons who use service animals are not separated from their service animals when sheltering during an emergency, even if pets are normally prohibited in shelters.  The procedures will not unnecessarily segregate persons who use service animals from others but may take into account the potential presence of persons who, for safety or health reasons, should not be in contact with certain types of animals.

 

31.       Some of the emergency shelters located in the City may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, are subject to the obligation to provide program access or remove barriers to accessibility under the ADA.  This Agreement does not limit such future enforcement action against the owners or operators of these facilities by any person or entity, including the Department.

 

32.       Within one year of the effective date of this Agreement and until all emergency City Shelters have accessible parking, exterior routes, entrances, interior routes to the shelter area, and toilet rooms serving the shelter area, the City will identify and widely publicize to the public and to persons with disabilities and the organizations that serve them the most accessible emergency City Shelter.

 

33.       To the extent that the City provides opportunities for post-emergency temporary housing to its residents, within one year of the effective date of this Agreement, it will develop, implement, and report to the Department its plans for providing equivalent opportunities for accessible post-emergency temporary housing to persons with disabilities.  Within one year of the effective date of this Agreement, the City will ensure that information it makes available regarding temporary housing includes information on accessible housing (such as accessible hotel rooms within the community or in nearby communities) that could be used if people with disabilities cannot immediately return home after a disaster if, for instance, necessary accessible features such as ramps or electrical systems have been compromised.

                                                           

SIDEWALKS

 

34.       Within one year of the effective date of this Agreement, the City will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.

 

35.       Within one year of the effective date of this Agreement, the City will identify and report to the Department all streets, roads, and highways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement.  Filling a pothole is not considered an alteration for the purposes of this Agreement.  Within 10 years and six months of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.

 

36.       Beginning no later than six months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.

 

37.       Within six months of the effective date of this Agreement, the City will identify all street level pedestrian walkways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement.  Within 10 years and six months of the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.

 

38.       Beginning no later than six months after the effective date of this Agreement, the City will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.

 

WEB-BASED SERVICES AND PROGRAMS

 

39.       Within six months of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the City will distribute to all persons employees and contractors who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the City (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment E to this Agreement (it is also available at www.ada.gov/websites2.htm).

 

40.       Within six months of the effective date of this Agreement, and throughout the life of the Agreement, the City will do the following:

 

A.        Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;

 

B.         Ensure that all new and modified web pages and content are accessible;

 

C.        Develop and implement a plan for making existing web content more accessible;

 

D.        Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and

 

E.         Periodically (at least annually) enlist persons with disabilities to test its pages for ease of use.

                                   

PHYSICAL CHANGES TO FACILITIES AND PROGRAM ACCESSIBILITY

 

41.       It is the Department's position that the elements or features of the City's facilities that do not comply with the Standards, including those listed in Attachments F, G, and H, could prevent persons with disabilities from fully and equally enjoying the City's services, programs, or activities and could constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.  The City contests this position and enters into this Agreement and agrees to take the actions described herein in order to avoid the expense of litigation.

 

42.       The City will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

 

43.       Within six months of the effective date of this Agreement, the City will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.

 

44.       Newly Constructed Facilities:  In order to ensure that the spaces and elements in City facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment F within 3 years of the date of this Agreement.

 

45.       Altered Facilities:  In order to ensure that the spaces and elements in City facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the City will take the actions listed in Attachment G within 3 years of the date of this Agreement.

 

46.       Program Access in San Rafael's Existing Facilities:  In order to ensure that each of the City's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the City will take the actions listed in Attachment H within 5 years of the date of this Agreement.

 

MISCELLANEOUS PROVISIONS

47.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the City will submit written reports to the Department summarizing the actions the City has taken pursuant to this Agreement.  Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.

 

48.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the City will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so.  This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).

 

49.       Within six months of the effective date of this Agreement, the City will develop or procure a one-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  The City will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.

 

50.       Within one year of the effective date of this Agreement, the City will deliver its training program to all City employees whose duties normally involve direct contact with members of the public.  At the end of that period, the City will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.

 

 

IMPLEMENTATION AND ENFORCEMENT

 

51.       If at any time the City desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect.  These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.

 

52.       The Department may review compliance with this Agreement at any time.  If the Department believes that the City has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the City in writing and it will attempt to resolve the issue or issues in good faith.  If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the City, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.

 

53.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the City to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.

 

54.       Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.

 

55.       This Agreement is a public document.  A copy of this document or any information contained in it will be made available to any person by the City or the Department on request.

 

56.       This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement (including its Attachments, which are hereby incorporated by reference), will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the City's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

 

57.       This Agreement will remain in effect for five years, except that paragraphs 34 - 38, 47 - 48, and 51 - 59 shall remain in effect for ten years and six months, or until six months after the actions in paragraphs 35 and 37 have been completed, whichever occurs first.

 

58.       The person signing for the City represents that he or she is authorized to bind the City to this Agreement.

 

59.       The effective date of this Agreement is the date of the last signature below.

 

 

 

 

 

 For the City of San Rafael:

 

 

 

 

 

By: ____________________________

      ALBERT J. BORO, Mayor

 

 

 

 

 

 

 

 

 

 

 

Date:  ___________________________ 

     For the United States:

 

     R. ALEXANDER ACOSTA,

     Assistant Attorney General for Civil Rights

 

 

By:_____________________________                    

     JOHN L. WODATCH, Chief

     JEANINE WORDEN, Deputy Chief

     ELIZABETH BACON, Supervisory Attorney

     HILARY L. MARTINSON, Attorney Advisor

     MARILYN CRANDALL, Architect

     U.S. Department of Justice

     Civil Rights Division

     950 Pennsylvania Avenue, N.W.

     Disability Rights Section - NYA

     Washington, D.C. 20530

 

 

Date:  ______________________________