AMENDED SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA,

AND

CITY OF NEW ORLEANS, LOUISIANA

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ 204-32-44


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BACKGROUND

A.    2002 SETTLEMENT AGREEMENT

  1. On January 30, 2002, the United States Department of Justice (“Department”) and the City of New Orleans (“City”) entered into a settlement agreement (“2002 Agreement”) that resulted from the Department’s compliance review of the 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. According to the terms of the 2002 Agreement, it is to remain in effect until January 30, 2007, or until the parties agree that full compliance with the 2002 Agreement by the City has been achieved.
  2. Section C (Physical Changes) of the 2002 Agreement required the City to make physical changes to specified facilities within specific time frames. In August 2005, Hurricane Katrina produced wide-spread flooding in the City. As a result, almost all of the facilities listed in Section C of the 2002 Agreement were closed. The remaining facilities have been damaged. In light of this development, in this Amended Agreement (hereinafter, “Agreement”), the Department and the City have agreed to modify Section C (Physical Changes) of the 2002 Agreement as described below.
  3. Paragraphs 7-16 of the 2002 Agreement, on Policies and Procedures and City Communications, are incorporated into this Agreement and shall remain in effect for the life of this Agreement.

B.    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)(A).
  2. The Department is authorized to provide technical assistance to the City pursuant to section 506 of the ADA, 42 U.S.C. § 12206. The Department is also 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. The Attorney General is further 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 parties to this Agreement are the United States of America and the City of New Orleans, Louisiana.
  4. The parties enter into this Agreement to address provisions of the 2002 Agreement that require amendment because of hurricane damage, to facilitate the City’s compliance with the requirements of title II of the ADA with respect to its emergency operations plan and its efforts to address hurricane-related damage to its buildings and facilities, and to avoid the burdens and expenses of an investigation and possible litigation.
  5. In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to provide the technical assistance set forth in this Agreement. The Attorney General also 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.”
  6. In consideration of the technical assistance provided by the United States pursuant to this Agreement and to address its obligations under the 2002 Agreement, the City agrees to comply with the terms of this Agreement.

C.    ENSURING ACCESS TO FACILITIES, PROGRAMS, SERVICES, AND ACTIVITIES

  1. Provisions from the 2002 Agreement
    1. The following paragraphs in Section C (Physical Changes) of the 2002 Agreement are hereby rescinded: 17, 19-22, 25-26, 28d, 28e, 28f, 28h, 29-32, and 35.
    2. The physical changes required by the following paragraphs in Section C of the 2002 Agreement shall be completed within three years of the effective date of this Amended Agreement:
      1. paragraph 18 (Broadmoor Library)
      2. paragraph 23 (City Hall)
      3. paragraphs 24 (Civil Courts Building)
      4. paragraph 27 (City Hall Annex (Amoco Building))
      5. paragraph 28b (1st District Police Station)
      6. paragraph 28c (2nd District Police Station)
      7. paragraph 28g (6th District Police Station)
      8. paragraph 28i (8th District Police Station)
      9. paragraph 33 (Gallier Hall)
      10. paragraph 34 (New Orleans Museum of Art)
      11. paragraph 36 (Main Library)
      12. paragraph 37 (Behrman Complex (gym building and swimming pool))
      13. paragraph 38 (Algiers Regional Library)
      14. paragraph 39 (Criminal District Court Building)
  2. Construction and Rehabilitation of Buildings and Facilities: The City will ensure that all of its facilities will be constructed or rehabilitated in full compliance with the requirements of the ADA as set forth below.
    1. For all City buildings and facilities constructed following the effective date of this Agreement (i.e., “new construction” pursuant to 28 C.F.R. § 35.151(a)), the City will comply with the requirements of the Department’s ADA regulation, 28 C.F.R. Part 35, and the ADA Standards for Accessible Design, 28 C.F.R. Part 36, App. A (“Standards”), including the scoping provisions in effect at the time of construction.
    2. In its rehabilitation of all City buildings and facilities for which original construction commenced after January 26, 1992 (i.e., “new construction” pursuant to 28 C.F.R. § 35.151(a)), the City will comply with the requirements of the Department’s ADA regulation, 28 C.F.R. Part 35, and the Standards in effect at the time of rehabilitation.
    3. In its rehabilitation of all City facilities for which original construction commenced on or before January 26, 1992 (i.e., “alterations” to “existing facilities” pursuant to 28 C.F.R. § 35.151(b) and (c)), the City will ensure that all elements are in compliance with the Standards in effect at that time, including the “path of travel” requirements if alterations are made to primary function areas.
  3. Program Access: As it re-introduces its programs, services, and activities into its facilities closed due to hurricane-related damage, the City will ensure compliance with ADA requirements.
    1. With respect to facilities for which original construction commenced after January 26, 1992 (i.e., “new construction”), the City will ensure that such facilities become and/or remain readily accessible to and usable by people with disabilities in compliance with the Standards. 28 C.F.R. § 35.151(a). Prior to reopening each such facility, the City will identify and remove barriers to access for persons with disabilities by applying the Standards, including the Standards’scoping requirements, to determine whether the facility is “readily accessible to and usable by” persons with disabilities. 28 C.F.R. §§ 35.149, 35.151(a).
    2. With respect to facilities for which original construction commenced on or before January 26, 1992 (i.e., “existing facilities”), the City will ensure that, when viewed in its entirety, each such program, service, or activity becomes and/or remains readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150. Prior to re-opening each such facility (including the facilities listed in the following paragraphs in Section C of the 2002 Agreement: 17, 19- 22, 25-26, 28d, 28e, 28f, 28h, 29-32, and 35), the City will identify barriers to access for persons with disabilities by applying the Standards, including the Standards’ scoping requirements, to determine whether the facility is “readily accessible to and usable by” persons with disabilities. Once barriers have been identified, the City will take whatever actions are needed to ensure that persons with disabilities have access to the programs, services, and activities that would otherwise be provided at that facility. Such actions may include removing the architectural barriers, reassigning services to more accessible facilities, conducting home visits, or implementing any other method that results in making the program, service, or activity readily accessible to and usable by persons with disabilities. 28 C.F.R. § 35.150. This paragraph does not require the City to take any action that it can demonstrate would result in a fundamental alteration or undue burden. 28 C.F.R. § 35.150(a)(3).
  4. Maintenance of Accessible Features: 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).

D.    TECHNICAL ASSISTANCE AND CONSULTATION

  1. Technical Assistance and Other Services Provided by Consultant: Both parties acknowledge that the initiatives contained in paragraphs 15 - 17 of this Agreement will be performed by a Department of Justice consultant.
  2. Design Reviews of Plans for New Construction and Modifications to Facilities: The parties agree as follows:
    1. To assist the City with ensuring ADA compliance during its rebuilding and rehabilitation of facilities, the Department will provide an architectural consultant to review design plans for certain facilities that are being constructed or rehabilitated. The plans selected for review by the consultant will be agreed upon jointly by the City and the United States, with priority being given to those plansfor facilities which members of the public will use most frequently to obtain access to the City’s programs, activities, and services. The reviews will focus on critical accessibility features such as parking, routes to the facility, entrances, routes inside the facility, and toilet rooms, as well as the accessibility of special features such as courtrooms, assembly areas, and holding cells.
    2. To assist the parties in selecting the plans most appropriate for review by the consultant, the City will advise the Department in writing within 30 days after it develops and/or receives design plans for the construction or rehabilitation of any building or facility.
    3. The City will submit the plans selected for review to the consultant provided by the Department at least 90 days prior to the commencement of construction or rehabilitation of a facility.
    4. The consultant’s contract with the Department will require the consultant to provide comments simultaneously to the City and to the Department within 30 days of receipt of the design plans.
    5. The City will re-design and construct its facilities consistent with the consultant’s and the Department’s ADA findings and recommendation
  3. Training on ADA Architectural Requirements for Key City Personnel and for Local Architects, Engineers, and Contractors: To further assist the City during the rebuilding effort, the Department will provide live ADA training and consultation for City building inspectors, facilities personnel, and City employees involved in the rebuilding and rehabilitation process. The training and consultation will be provided by an ADA architectural consultant hired by the Department and/or by a staff architect employed by the Department. Training sessions will be open to architects, engineers, and contractors who may engage in the design or construction of public or private buildings or facilities in the City. The Department will determine the amount of training and consultation provided based upon available funding.
  4. “Ask the ADA Architect” Desk: The Department will provide live ADA consultation for private business owners, landlords, contractors, architects, and others who are designing or rebuilding private (non-governmental) facilities within the City. The City will provide adequate office space, equipment, and support for this initiative, and will conduct all necessary outreach to the targeted communities. This consultation will be conducted by an architectural consultant hired by the Department and/or by a staff architect employed by the Department. The Department will determine the amount of consultation provided based upon available funding.

E.   EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

  1. Within 15 days of the effective date of this Agreement, the City will provide the Department with the City’s Emergency Operations Plan (“EOP”), including all supporting documents.
  2. Within 75 days of the effective date of the Agreement, the Department will provide technical assistance to the City, including written comments, on the modifications required to address issues in the EOP relating to compliance with title II of the ADA and the Department’s implementing regulation.
  3. This Agreement contemplates a collaborative relationship in which the City and the Department work together to identify means by which the City’s EOP will be in compliance with ADA requirements. Within 135 days of the effective date of the Agreement, the City will incorporate the Department’s technical assistance into its EOP, consistent with the requirements of title II of the ADA, and will provide a copy of its revised EOP (including supporting documents) to the Department.
  4. The City will implement the EOP and supporting documents consistent with technical assistance received from the Department relating to compliance with title II of the ADA and its implementing regulation. Pursuant to 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), and 35.164 of the regulations implementing title II of the ADA, the City is not required to take any steps in implementing its EOP that the City can demonstrate would result in undue financial and administrative burdens and/or result in fundamental alterations to the nature of its operations.

F.    IMPLEMENTATION AND ENFORCEMENT

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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, 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.
  8. This Agreement will remain in effect for four years from the effective date of this Agreement.
  9. The person signing for the City represents that he or she is authorized to bind the City to this Agreement.
  10. The effective date of this Agreement is the date of the last signature below.

For the City of New Orleans, Louisiana:
For the United States:
 
WAN J. KIM
Assistant Attorney General for Civil Rights


BY:___________________________


BY:___________________________

C. RAY NAGIN, Mayor
City of New Orleans
New Orleans City Hall
1300 Perdido Street
New Orleans, LA 70112
(504) 658-4000

JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
ELIZABETH BACON, Supervisory Attorney
SUSAN BUCKINGHAM REILLY, Attorney
DOV LUTZKER, Attorney
THOMAS ESBROOK, Investigator
DANA JACKSON, Investigator
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
(202) 307-0663


Date                               

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July 30, 2007