SETTLEMENT AGREEMENT
UNDER THE AMERICANS WITH DISABILITIES ACT AND
THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT
AMONG
THE UNITED STATES OF AMERICA
TIMOTHY FOX, MICHELA ALIOTO, AND THE DISABILITY RIGHTS COUNCIL OF GREATER WASHINGTON, INC.
ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS,
AND THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
AND
SAFEWAY INC.



Settlement Agreement
| First Extension/Addendum | Second Extension/Addendum | Department of Justice Press Releases



TABLE OF CONTENTS

I. BACKGROUND (Page 1)

II. GENERAL PROVISIONS (Page 3)

A. Term of the Settlement Agreement (Page 3)
B. Time Limits for Performance of Obligations
(Page 3)
C. The Americans with Disabilities Act
(Page 3)

III. STRUCTURAL MODIFICATIONS IN THE EASTERN DIVISION AND CALIFORNIA (Page 3)

A. Modification to Shopping Cart Corrals (Page 3)
B. Modification to Parking Lots
(Page 4)

1. Safeway Owned Properties (Page 4)

a. District of Columbia Stores (Page 4)
b. All Other Stores in the Eastern Division
(Page 5)

2. Non-Safeway Owned Properties (Page 6)
3. Cost of Parking Lot Barrier Removal
(Page 7)

IV. NATIONAL COMPLIANCE PROGRAM (Page 7)

A. Definitions (Page 7)
B. Retention of ADA Consultant
(Page 8)
C. Creation and Testing of Survey Instrument
(Page 9)
D. National Survey of Safeway Stores
(Page 10)

1. Conduct of Survey (Page 10)
2. Record Retention
(Page 10)

E. Survey Reports (Page 10)

1. Timing of Reports (Page 10)
2. Content of Reports
(Page 10)

F. Compliance with Standards at Newly Constructed and Remodeled Stores (Page 12)
G. Modifications at Existing Stores
(Page 12)
H. Dispute Resolution with DRC
(Page 12)
I. Dispute Resolution with DOJ
(Page 14)
J. Dispute Resolution with DREDF
(Page 15)
K. Subsequent Barrier Removal and Modifications to Bring Nonconforming Elements into Compliance
(Page 17)
L. Maintenance of Accessible Features
(Page 17)
M. Resolution of Other Disputes
(Page 17)

V. PAYMENTS TO THE PLAINTIFFS IN THE FOX LITIGATION (Page 18)

VI. RELEASE, WAIVER, AND COVENANT NOT TO SUE (Page 18)

A. The Fox Litigation Plaintiffs (Page 18)
B. DREDF and Its Clients
(Page 19)
C. DOJ
(Page 20)

VII. DISCLOSURE (Page 21)

A. Publicity (Page 21)
B. Confidentiality of Records
(Page 21)

VIII. MISCELLANEOUS MATTERS (Page 21)

A. Entire Agreement (Page 21)
B. Modification
(Page 22)
C. Severability
(Page 22)
D. Section Titles and Other Headings
(Page 22)
E. Representations Regarding Settlement Authority
(Page 22)
F. Communications Among the Parties
(Page 22)
G. Successors
(Page 23)
H. Procedure for Execution of Effective Date
(Page 24)



I. BACKGROUND

A. On April 19, 1994, Timothy Fox, Michela Alioto and the Disability Rights Council of Greater Washington, Inc., commenced an action in the United States District Court for the District of Columbia against Safeway Inc. ("Safeway"), captioned Fox, et al. v. Safeway, Inc., Civ. No. 94-0878 (NHJ) (D.D.C.) ("the Fox Litigation"). The plaintiffs in the Fox Litigation alleged that at ten Safeway grocery stores in Washington, D.C., Safeway (a) denied equally convenient access to persons with mobility impairments by having in place security bollards with "flag" gates that prevented a number of persons who use wheelchairs from entering or exiting Safeway's stores; and (b) failed to provide adequate, designated accessible parking. The complaint alleged that these deficiencies constituted unlawful discrimination against persons with disabilities under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. (the "ADA"), and the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 et seq. (the "HRA"), and that Safeway's alleged violation of law caused injuries to the individual and organizational plaintiffs.

B. The United States Department of Justice ("DOJ"), which is not a party to the Fox Litigation, simultaneously conducted an investigation into a complaint it received against a Safeway store in Washington, D.C. The complaint was investigated by DOJ under the authority granted by the ADA. See 42 U.S.C. § 12188(b). The complaint alleged that there was an architectural barrier to access created by the security bollards (shopping cart corrals) at the entrance to the facility, and that a gate providing access through the security bollards was kept locked at all times. After investigating, DOJ concluded that Safeway violated § 12182(b)(2)(A)(iv) of the Act because the flag gates at the security bollards did not provide a minimum clear opening space of 32 inches, and that the only accessible entrance through the security bollards was through a locked gate. (See § 4.3.3 of the ADA's Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A, § 4.3.3). As a result, a number of customers who use wheelchairs could not pass through the flag gate to enter the facility. Customers who use wheelchairs that could not fit through the flag gate, would have to wait for a Safeway employee to unlock the only accessible entrance through the security bollard.

C. The Disability Rights Education and Defense Fund, Inc. ("DREDF"), which is not a party to the Fox Litigation, received several complaints from Robert Coleman, Jim Walkingbear, and Albany/El Cerrito Access (hereinafter "DREDF's clients" or "its clients") concerning Safeway's alleged failure to maintain accessible features in stores in the San Francisco Bay Area and Safeway's alleged failure to ensure that an adequate number of check-out aisles, including pay-point machines located in those aisles, were accessible to persons with mobility impairments. In lieu of instituting litigation, DREDF negotiated with Safeway concerning these access violations.

D.
Safeway denies that it has engaged in any discriminatory practices in violation of any federal or local law or regulation guaranteeing rights to persons with disabilities. Prior to this litigation, Safeway did not believe that the design of the security bollards in place at its stores in the District of Columbia was impairing access to persons with mobility impairments. In fact, Safeway contends that a number of Safeway customers utilizing wheelchairs were able to pass freely through the security bollards at issue in this litigation. Safeway further contends that modifying the security bollards at its existing stores is not required by the ADA based upon the substantial expense associated with such modifications. Safeway has nevertheless already made voluntary modifications to the design of the security bollards at its stores in D.C. in order to provide improved access to its customers.

E. The parties to the Fox Litigation, after good-faith negotiation, have determined that the Fox Litigation should be resolved and dismissed with prejudice through a comprehensive settlement agreement, the terms of which are set forth fully herein.

F. DOJ, having participated in the negotiations among the parties to the Fox Litigation, and having conducted its own investigation of the matters addressed by this Settlement Agreement, believes that the public interest will be served by entering this Settlement Agreement, the terms of which are set forth fully herein.

G. DREDF, having participated in the negotiations among the parties to the Fox Litigation, and having conducted its own investigation of the matters addressed by this Settlement Agreement, believes that the interests it represents are best served by entering into this Settlement Agreement, the terms of which are set forth fully herein.

H. The plaintiffs in the Fox Litigation, DREDF's clients, and DOJ recognize that Safeway has cooperated fully and demonstrated a strong commitment to provide equal access to Safeway stores for persons with disabilities. All parties to this Settlement Agreement believe that the implementation by Safeway of the significant structural modifications set forth in this Settlement Agreement will enhance equal architectural access for persons with disabilities and further compliance with the ADA, and other applicable state and local public accommodations laws.


II. GENERAL PROVISIONS

A. Term of the Settlement Agreement

Except as otherwise set forth, the term of this Settlement Agreement shall be five years from the date of execution.

B. Time Limits for Performance of Obligations

1. The parties to this Settlement Agreement agree that where a reasonable effort to meet a deadline set forth herein has been made, consent to a reasonable extension of that deadline will not be withheld, providing that the party seeking any extension requests that extension from the other parties before the deadline passes and explains, in the request, why the extension is necessary.

2. If any deadline established by this Agreement falls on a weekend or a holiday, the deadline shall be extended to the next business day.

C. The Americans with Disabilities Act

As used in this Agreement, the term "ADA" is defined to include the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and the Title III implementing regulation, 28 C.F.R., pt. 36, including Appendix A, the Standards for Accessible Design (hereinafter "the Standards").


III. STRUCTURAL MODIFICATIONS IN THE EASTERN DIVISION AND CALIFORNIA

A. Modification to Shopping Cart Corrals

1. Within 30 days after execution of this Settlement Agreement, Safeway shall certify in writing to DRC that at each of the 20 Safeway stores located in the District of Columbia at which bollards form a shopping cart corral (see Standards § 7.4), a permanent opening at least 36 inches wide through the shopping cart corral is provided. Although governing law does not require a 36 inch opening (see Standards § 4.2.1), Safeway nevertheless has expressly agreed to exceed the minimum standard in this respect. To the extent that Safeway utilizes any device to prevent the removal of shopping carts from store premises in California, all such devices will comply with § 3103A(c)2C of Title 24 of the California Administrative Code and the Standards.

2. Within 60 days after the execution of the Settlement Agreement, Safeway will certify in writing to DRC that it has inspected each of the stores in the Eastern Division, on a district by district basis; that it has undertaken measures to provide that, at a minimum, an accessible route of at least 36 inches in width is provided to one of the principal store entrances, as required by Standards § 4.3.3; and that at each of the stores in the Eastern Division at which bollards form a shopping cart corral, a permanent opening at least 32 inches wide is provided.

In order to effect compliance with this requirement, Safeway shall:

a. Inform store personnel (as specified in ¶ IV.L of this Settlement Agreement) that any 32 inch opening in the shopping cart corral and the 36 inch wide accessible route to one of the principal store entrances/exits is to be maintained free of obstacles and impediments to access (e.g., shopping carts and merchandise) at all times during business hours; and

b. To the extent that any shopping cart corral also includes a gate, require each store to keep the gates unlocked during regular business hours, provide that any such gate complies with the provisions in the Standards regarding swinging gates, (Standards § 4.13.3), and undertake good faith efforts to provide that the maximum force required to push or pull open any such gate is 5 lbf (22.2N) or as low as practicable.

3. Nothing herein shall preclude Safeway from adopting additional methods to promote compliance with Standards § 4.3.3. Safeway has, for example, striped a pathway at least 36 inches wide on the pavement through the shopping cart corral to one of the principal entrances/exits to certain stores. Striping is not mandatory, but demonstrates Safeway's commitment to provide access to persons with disabilities.

B. Modification to Parking Lots

1. Safeway Owned Properties

a. District of Columbia Stores. Within 30 days after the execution of this Settlement Agreement, Safeway shall certify in writing to DRC that at each Safeway store in the District of Columbia that is served by a parking lot located on property owned by Safeway (or a business or partnership owned or controlled by Safeway), the parking lot has been modified to include designated accessible parking spaces and accessible routes of travel in compliance with Standards §§ 4.1.2 & 4.6, and/or the District of Columbia Building Code, CABO/ANSI A117.1-1992 §§ 4.1, 4.6, as amended by the District of Columbia Building Code Supplement of 1992, § 512.5, whichever imposes more stringent requirements.

b. All Other Stores in the Eastern Division. Within 21 days after the execution of this Settlement Agreement, Safeway will provide to DRC a proposed parking lot survey form designed to identify any modifications needed to effect compliance with ADA standards governing designated accessible parking spaces and accessible routes of travel (Standards §§ 4.1.2 and 4.6) and/or any applicable state or local law, whichever imposes more stringent requirements. Within 10 days after receipt of Safeway's proposed parking lot survey form, DRC will either approve the form or provide suggested revisions to Safeway. Safeway shall make any suggested revisions necessary to conform the survey form to applicable legal standards. Within 60 days after the receipt of DRC's approval or suggested revisions, Safeway will complete its survey of Safeway-owned parking lots in all Eastern Division stores not in the District of Columbia. Safeway will schedule the modifications of such parking lots as follows:

(1) If curb ramp installation is not required to bring a parking lot into compliance with applicable law, Safeway shall complete the repainting of such a parking lot within 45 days after the completed survey form for that parking lot is received by Safeway's Eastern Division office, or as soon thereafter as weather conditions permit.

(2) If curb ramp installation is required to bring a parking lot into compliance with applicable law (see Standards § 4.6.2.), Safeway shall file an application for a building permit with the applicable jurisdiction within 60 days after the completed survey form for that parking lot is received by Safeway's Eastern Division office. Safeway shall complete curb ramp installation and painting of the parking lot within 30 days of the issuance of a building permit, unless the permit is issued between November 1 and March 1, in which case the curb ramp installation and painting shall be completed within 30 days or as soon thereafter as weather conditions permit.

(3) Safeway will use its best efforts to complete all modifications, subject to the factors listed above, within 12 months of the execution of the Settlement Agreement. Safeway will provide DRC with written notice as modifications in each district are completed.

(4) DRC may, from time to time, request Safeway to provide updates on the progress of its parking lot modifications, until such time as Safeway notifies DRC that scheduled modifications to Safeway-owned parking lots in the Eastern Division have been completed.

2. Non-Safeway Owned Properties

For each Safeway store site in the Eastern Division or California that includes a parking lot located on property owned by another entity:

a. Within 45 days of the execution of this Settlement Agreement, Safeway and DRC shall jointly notify in writing the landlord, property manager or other owner representative ("owner") of each such parking lot site where Safeway will survey the parking lot to assess compliance with the ADA and, where applicable, state or local laws. Such notice shall be provided by Safeway and DREDF with regard to stores in California within 90 days after the execution of this Settlement Agreement. This notification will refer specifically to the applicable provisions of the ADA and its implementing regulations, and will urge the owner to ensure that its parking lot is in compliance with the law. Safeway and DRC, and Safeway and DREDF, will share with one another any correspondence or other communication from the owner in response to the joint Safeway/DRC or Safeway/DREDF letter.

b. Within 60 days after receipt of the completed survey report by the Eastern Division and Northern California Division offices, discussed in Section IV, Safeway will provide written notice to the owner of such parking lot site of the required parking lot modifications which were identified as a result of the Safeway survey.

c. Within 60 days after the date of Safeway's written communication to each owner referenced in the preceding paragraph, Safeway will provide a separate status report to DRC and to DREDF which will provide: store number and location, owner's address and telephone number and contact person, Safeway's written communication(s) with the owner, and owner's response, if any, regarding the required modifications, including completion or scheduling of modifications, any failure or refusal to make the required modifications, or disagreements as between Safeway and the owner concerning the scope of the changes required.

d. If a dispute arises between Safeway and a parking lot owner as to which party is responsible to pay for modifications to a store parking lot located on property which is owned by an entity other than Safeway, Safeway shall not be required to commence modifications of such parking lots during a four month period after Safeway provides its Eastern Division Survey Report to DRC (for non-Safeway owned parking lots in the Eastern Division), or for four months after Safeway provides its National Survey Report to DOJ (for non-Safeway owned parking lots in California), as long as Safeway is attempting, in good faith, to resolve the dispute with the lot owner during that period. If the dispute is not resolved during that period, Safeway shall proceed to make any modifications that it is required to make under the ADA or local law as soon as possible after the owner consents to Safeway making the modifications, or within the timeframe established by ¶ III.B.1, whichever is later. Nothing in this Settlement Agreement shall limit the right of Safeway to pursue its rights under any lease with an owner nor require Safeway to violate the terms of any such lease.

e. Upon receipt of the information provided by Safeway under this section, DRC and/or DREDF may correspond directly with the person(s) whom DRC and/or DREDF deems responsible for the failure or refusal to bring the parking lots into compliance with applicable law in an effort to persuade such person(s) to comply with the law. DRC and/or DREDF shall provide Safeway with a copy of any such correspondence. Nothing in this Settlement Agreement shall limit the right of DRC and/or DREDF to commence litigation against the other person(s) whom DRC and/or DREDF deems responsible for the failure or refusal to bring a parking lot into compliance with applicable law.

3. Cost of Parking Lot Barrier Removal

The unreimbursed cost to Safeway of all parking lot barrier removal shall be reported in the Survey Report required by Section IV, and taken into account when determinations are made concerning what modifications are readily achievable.


IV. NATIONAL COMPLIANCE PROGRAM

A. Definitions

For the purposes of this Agreement:

1. "Existing" Safeway stores are those Safeway stores operating in the United States as of the date of the final approval by DOJ of the survey instrument, that were designed and constructed prior to the effective date of the new construction standards of the ADA (see 28 C.F.R. § 36.401), except as set forth in ¶ IV.A.3.

2. "Newly-Constructed" Safeway stores are those Safeway stores operating in the United States as of the date of the final approval by DOJ of the survey instrument, that were designed and constructed for first occupancy after the effective date of the new construction standards (see 28 C.F.R. § 36.401).

3. "Remodeled" Safeway stores are those Safeway stores (listed in Appendix A to this Agreement) operating in the United States that have been the subject of a major renovation that began after January 26, 1992 and before the date of final approval by DOJ of the survey instrument.

4. "Alterations in existing Safeway stores" refer to changes as defined by 28 C.F.R. §§ 36.402 & 36.403 which were begun prior to the date of final approval by DOJ of the survey instrument.

5. "Nonconforming elements" are those architectural features in existing, newly-constructed, or remodeled Safeway stores that do not comply with the Standards.

6. "Barriers" are nonconforming elements in existing Safeway stores that are not "alterations," as defined in ¶ IV.A.4.

7. The provisions in this Section IV shall not be construed to obligate Safeway to make modifications which are not required by the ADA, nor to relieve Safeway of any obligation to make modifications which are required by the ADA, except as otherwise expressly agreed upon herein.

B. Retention of ADA Consultant

By executing this Settlement Agreement, Safeway provides its assurance to DRC and DREDF that:

1. Safeway has retained Universal Designers & Consultants, Inc., ("UD&C") and its principal, John Salmen, as an architectural consultant with expertise in the requirements of the ADA and its implementing regulations and guidelines ("ADA Consultant"), to assist Safeway in enhancing and implementing this compliance program;

2. If Safeway terminates its relationship with UD&C and/or Mr. Salmen during the term of this Settlement Agreement, Safeway shall provide prompt written notice to DRC, DREDF and DOJ. The notice shall include an explanation for the termination of UD&C and/or Mr. Salmen. If the termination occurs prior to Safeway's submission of its survey reports pursuant to ¶ IV.E, Safeway shall retain another ADA Consultant to assist the company in performing its obligations under this Settlement Agreement. Prior to retaining a new ADA Consultant, Safeway shall submit the name of the proposed ADA Consultant to DRC, DREDF and DOJ for approval, which shall not be unreasonably withheld.

C. Creation and Testing of Survey Instrument

1. Within 60 days after the execution of this Settlement Agreement, and in consultation with its ADA Consultant, Safeway shall develop and submit to DOJ an instrument to survey every Safeway store currently operating in the United States as of the date of final approval by DOJ of the survey instrument.

2. This survey instrument shall be designed to identify nonconforming elements in reasonable detail, including communication barriers that are structural in nature.

a. To the extent feasible, the survey instrument shall be constructed in a manner that will eliminate the need for subjective appraisals by the person(s) conducting the survey.

b. If, within the 60 days allotted for creation of the survey instrument, field testing of the instrument reveals flaws in the instrument's design, Safeway may, upon notice to DRC, DREDF, and DOJ, take an additional 20 days to finalize the survey instrument.

3. Prior to use of a final survey instrument, Safeway shall submit the proposed survey instrument to DOJ for approval, which shall not be unreasonably withheld. Within 30 days of DOJ's receipt of the proposed survey instrument from Safeway, DOJ will either:

a. notify Safeway, DREDF and DRC in writing that the survey instrument is not acceptable to DOJ and specify the particular aspects of the instrument that must be revised (within 20 days of DOJ's notice) to obtain DOJ approval; or

b. notify Safeway, DREDF and DRC in writing that the survey instrument is acceptable.

4. A copy of all versions of the survey instrument provided by Safeway to DOJ for approval shall also be provided to DRC and DREDF including (but not limited to) the final form of the survey instrument.

5. Safeway and DOJ shall meet and confer promptly to resolve any disputes between them concerning the survey instrument.

D. National Survey of Safeway Stores

Commencing promptly upon DOJ approval of the survey instrument, Safeway shall undertake a survey of every Safeway store currently operating in the United States as of the date of final approval by DOJ of the survey instrument.

1. Conduct of Survey

a. Safeway personnel (or staff retained specially for this project) shall be properly trained to conduct the survey in a manner acceptable to Safeway and its ADA Consultant.

b. Safeway shall consult with personnel from its facilities, engineering and construction departments concerning the conduct of the survey.

c. Safeway shall involve persons with disabilities in developing the training materials for those persons who will conduct the survey. DRC and DREDF will assist Safeway to identify persons with disabilities who will undertake this role.

2. Record Retention

Safeway shall ensure that the original survey instrument completed for each store is retained during the term of this Settlement Agreement.

E. Survey Reports

Safeway shall provide a comprehensive summary report of the survey of its stores to DRC and DOJ, as follows:

1. Timing of Reports

a. Within 150 days after final approval of the survey instrument by DOJ, Safeway shall provide to both DRC and DOJ an Eastern Division ADA Survey Report;

b. Within 180 days after final approval of the survey instrument by DOJ, Safeway shall provide to DOJ a National ADA Survey Report.

2. Content of Reports

Both the Eastern Division ADA Survey Report and the National ADA Survey Report shall:

a. Identify each store surveyed by address and store number, and state whether each store is an "existing," "newly-constructed," or "remodeled" store as defined in § IV.A of this Agreement;

b. Describe individually (or by category if possible) each nonconforming element identified by the survey;

c. Describe individually (or by category if possible), each nonconforming element identified by the survey which Safeway, with the approval of its ADA Consultant, determines provides substantially equivalent or greater access to and usability of the facility. (Cf. Standards § 2.2.) For purposes of this agreement, items identified pursuant to this paragraph which DOJ agrees provide substantially equivalent or greater access to or usability of the facility, shall not be considered nonconforming elements;

d. Describe individually (or by category if possible) each nonconforming element that Safeway determines is a barrier to access whose removal is not readily achievable. Safeway shall represent that it has reviewed records sufficient to provide it with good reason to believe that it was not previously required by the ADA to remove such barriers in connection with any prior alterations. Safeway shall provide the following information with respect to such barriers:

(1) Safeway shall explain the reason for its judgment, including in its explanation pertinent financial or other information that led it to conclude that barrier removal is not readily achievable (see 42 U.S.C. §§ 12181(9) and 28 C.F.R. §§ 36.104 & 36.304);

(2) Safeway shall explain whether it intends to implement alternatives to barrier removal, and, if so, what those alternatives are and when they will be implemented (see 28 C.F.R. § 36.305). If Safeway determines not to implement alternatives to barrier removal, it shall include in its explanation pertinent financial or other information that led it to conclude that alternatives to barrier removal is not readily achievable.

e. Include a cost estimate for removal of barriers at existing stores that Safeway determines are readily achievable to remove;

f. Include a plan to bring each nonconforming element (or category of nonconforming element, if possible) into compliance with the Standards at all stores. This plan shall provide a general description of the remedial action to be taken and set forth a proposed schedule. DRC and DOJ may, from time to time, request Safeway to provide updates regarding the progress of its plan. Safeway reserves the right to revise the schedule, however, based upon the parties' response to Safeway's survey reports in light of its need to schedule related work in an efficient and cost-effective fashion.

F. Compliance with Standards at Newly Constructed and Remodeled Stores

All nonconforming elements identified in Safeway's survey of newly constructed and remodeled stores shall be brought into compliance with the Standards within one year from the submission of Safeway's ADA Survey Reports to DOJ and DRC.

G. Modifications at Existing Stores

1. All barrier removal at existing stores that Safeway determines is readily achievable shall be completed within two years from the submission of Safeway's ADA Survey Reports to DOJ and DRC, except as otherwise set forth. Safeway shall make good faith efforts to schedule the removal of barriers in the order of priority identified by 28 C.F.R. § 36.304(c). If Safeway plans to undertake barrier removal in its divisions on a sequential basis, it shall give priority to the Eastern Division and California stores.

2. Safeway agrees that any nonconforming elements that should have been modified pursuant to the ADA in connection with prior alterations of its existing stores will be brought into compliance with the Standards within two years from the submission of Safeway's ADA Survey Reports to DOJ and DRC, except as otherwise set forth.

H. Dispute Resolution with DRC

1. If, within 21 days after receiving the Eastern Division ADA Survey Report, DRC makes a request in writing for reasonable additional detail regarding Safeway's determination (a) that barrier removal or alternatives to barrier removal at existing Safeway stores in the Eastern Division are not readily achievable; and/or (b) that modifications to new or remodeled stores, or alterations to existing stores (including path of travel modifications), need not be made in order to comply with the Standards, Safeway shall provide to DRC in writing within 21 days of receipt of DRC's request additional detailed information that explains Safeway's judgment. If the information is voluminous, Safeway shall make the information available for inspection and copying at Safeway's Eastern Division Office. With respect to alterations at existing stores, including elements along all or part of a path of travel to such alterations, DRC will only seek information concerning Safeway's determinations with respect to obligations arising out of prior alterations on a limited basis in order to verify Safeway's judgments, unless such information reveals a pattern of errors or DRC otherwise has reason to believe that Safeway's determinations concerning prior alterations are in error. If it is determined that Safeway was obligated to modify a nonconforming element in connection with a prior alteration, Safeway shall bring the nonconforming element into compliance according to the schedule set forth in ¶ IV.G.2.

2. If, after receiving the additional information described in the preceding paragraph DRC concludes that Safeway's position is not legally justified, DRC shall notify Safeway in writing that DRC disagrees with Safeway's position. This notice of disagreement shall explain the basis of DRC's disagreements and be provided to Safeway within 21 days after DRC receives the additional information provided by Safeway.

a. Within 21 days of the receipt of DRC's notice of disagreement, representatives of Safeway and DRC shall meet and confer (including by telephone) in a good-faith effort to resolve the concerns identified by DRC.

b. DRC agrees that it will not commence any litigation concerning Safeway's determinations in any way relating to bringing nonconforming elements into compliance with the Standards unless DOJ has determined, after exhaustion of the procedures outlined in ¶ I of this section, that Safeway's position with respect to one or more of the nonconforming elements identified by DRC is contrary to law. In that event, and only with respect to nonconforming elements as described in the preceding sentence, DRC shall have the right to commence litigation against Safeway under the ADA and the HRA in the United States District Court for the District of Columbia seeking declaratory and injunctive relief requiring Safeway to bring nonconforming elements into compliance. DRC shall not seek compensatory or punitive damages in such litigation, but shall be entitled to seek a reasonable attorney's fee and costs as provided by the ADA. DRC further agrees that any request for injunctive relief shall be based solely upon Safeway's failure to bring nonconforming elements into compliance after the effective date of this Agreement; that DRC will not seek any order obligating Safeway to bring nonconforming elements into compliance prior to the time periods specified in this Agreement; and that it will only seek changes under provisions of local law to the extent that such provisions are more stringent than the ADA.

3. If DRC or Safeway believes that the other party has breached this Settlement Agreement, written notice of the alleged breach shall be provided within a reasonable period. If the party does not cure the alleged breach within a reasonable period (presumptively within 30 days of the receipt of notice), the party may bring suit for breach of this Settlement Agreement in a court of competent jurisdiction. If DRC is the prevailing party in any such action, it shall be entitled to an award of reasonable attorneys' fees and costs as if it were the prevailing plaintiff in litigation governed by 42 U.S.C. § 1988. If Safeway is the prevailing party in any such action, it shall be entitled to an award of reasonable attorneys' fees and costs if DRC's position in the litigation was frivolous, unreasonable, or without foundation. The parties agree that issues concerning Safeway's determinations about modifications to nonconforming elements required by law are subject to adjudication under the preceding paragraph.

4. Failure by DRC to enforce this entire Settlement Agreement or any provision hereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Settlement Agreement. Nor shall anything in this Settlement Agreement be construed to constitute a waiver of Safeway's right to prove, in litigation commenced pursuant to the terms of this Agreement, that it has no statutory obligation to modify any nonconforming element in dispute.

I. Dispute Resolution with DOJ

1. DOJ shall be entitled to evaluate each nonconforming element in existing stores that Safeway proposes not to bring into compliance. For these purposes, if DOJ needs additional information, including copies of survey forms or any other information listed in the statute (42 U.S.C. § 12181(9)) as factors to be considered in determining whether Safeway's action is justified, Safeway shall provide this information within 21 days of receipt of a written request by DOJ. DOJ shall notify Safeway in writing in a timely fashion after receiving this additional information if it disagrees with Safeway's determinations regarding barrier removal. DOJ's notice shall explain the basis for its disagreement. If the information is voluminous, Safeway shall make the information available for inspection and copying at Safeway's Eastern Division Office. DOJ agrees that it will only seek information concerning Safeway's determinations with respect to obligations arising out of prior alterations on a limited basis in order to verify Safeway's judgments, unless such information reveals a pattern of errors or DOJ otherwise has reason to believe that Safeway's determinations concerning prior alterations are in error. If it is determined that Safeway was obligated to modify a nonconforming element in connection with a prior alteration, Safeway shall bring the nonconforming element into compliance according to the schedule set forth in ¶ IV.G.2.

a. DOJ and Safeway shall engage in good faith negotiations to resolve any dispute. If the parties are unable to reach agreement they may utilize a mutually agreeable form of alternative dispute resolution.

b. If, as a result of good faith negotiations, DOJ and Safeway resolve the dispute and Safeway agrees to modify the nonconforming element, DOJ agrees that it will not seek compensatory damages or civil penalties relating to the existence of this nonconforming element.

c. If such negotiation and alternative dispute resolution fail to produce a timely resolution of the matter, then DOJ or Safeway may institute a civil action in an appropriate Federal district court. In any such action it files, Safeway may only seek declaratory relief. In any such action it files, DOJ may seek appropriate relief pursuant to 42 U.S.C. § 12188(b)(2). DOJ agrees that it will not seek compensatory damages for any injuries that may have occurred prior to the effective date of this Agreement; DOJ further agrees that any request for relief will be based solely upon Safeway's failure to bring nonconforming elements into compliance after the effective date of this Agreement; and that DOJ will not seek any order obligating Safeway to bring nonconforming elements into compliance prior to the time periods specified in this Agreement.

2. DOJ may review compliance with this Settlement Agreement at any time during the term of this Agreement, and if DOJ believes there has been a violation, it will give Safeway written notice of the alleged violation and an opportunity to cure, pursuant to Executive Order 12278. DOJ agrees that it will give Safeway written notice of the alleged violation and an opportunity to cure even if Executive Order 12778 is amended or repealed. The parties shall engage in good faith negotiations to resolve any dispute. However, if such negotiations fail, DOJ may institute a civil action in an appropriate Federal district court as authorized by 42 U.S.C. § 12188(b)(2). DOJ agrees that any such action will be based solely upon Safeway's actions after the effective date of this Agreement. Safeway also reserves the right to seek all appropriate relief for any breach of this Settlement Agreement.

3. Failure by DOJ to enforce this entire Settlement Agreement or any provision hereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Settlement Agreement. Nor shall anything in this Settlement Agreement be construed to constitute a waiver of Safeway's right to prove, in litigation commenced pursuant to the terms of this Agreement, that it has no statutory obligation to modify any nonconforming element in dispute.

J. Dispute Resolution with DREDF

1. For Safeway stores in Safeway's California Division, DREDF, on behalf of its clients, shall be entitled to participate in the dispute resolution process initiated by DOJ pursuant to ¶ IV.I.1, as follows:

a. If DOJ, pursuant to ¶ IV.I.1, notifies Safeway that it disagrees with Safeway's determinations regarding modifications to nonconforming elements for any store in California, DOJ shall, at the same time, provide notice to DREDF of the dispute and provide DREDF with all documentation regarding the dispute that Safeway had provided to DOJ.

b. DREDF, on behalf of its clients, may participate in any and all negotiations between Safeway and DOJ regarding disputes at stores in California pursuant to ¶ IV.I.1.a., in a good faith attempt to resolve the dispute.

c. If the good faith negotiations among Safeway, DOJ and DREDF fails to produce a timely resolution of the dispute, DREDF may bring suit against Safeway in the United States District Court for the Northern District of California seeking declaratory and injunctive relief under the ADA and any other applicable state or local law requiring Safeway to bring nonconforming elements into compliance with the Standards. DREDF's clients agree that they will not commence any litigation concerning Safeway's determinations in any way relating to bringing nonconforming elements into compliance with the Standards unless DOJ has determined, after exhaustion of the procedures outlined in ¶ I of this section, that Safeway's position with respect to one or more of the nonconforming elements identified by DREDF is contrary to law. In that event, and only with respect to nonconforming elements as described in the preceding sentence, DREDF's clients shall have the right to commence litigation against Safeway under the ADA and any other applicable state or local law. DREDF's clients shall not seek compensatory or punitive damages in such litigation under state or federal law, but shall be entitled to seek a reasonable attorney's fee and costs as provided by the ADA and any applicable state law. DREDF's clients further agree that any request for injunctive relief shall be based solely upon Safeway's failure to bring nonconforming elements into compliance after the effective date of this Agreement; that DREDF's clients will not seek any order obligating Safeway to bring nonconforming elements into compliance prior to the time periods specified in this Agreement; and that it will only seek changes under provisions of local law to the extent that such provisions are more stringent than the ADA. DREDF agrees that it will not be a plaintiff in any litigation concerning the subjects covered by this paragraph.

2. If DREDF's clients, DREDF, or Safeway believes that the other party has breached this Settlement Agreement, written notice of the alleged breach shall be provided within a reasonable period. If the party does not cure the alleged breach within a reasonable period (presumptively within 30 days of the receipt of notice), the party may bring suit for breach of this Settlement Agreement in a court of competent jurisdiction. If DREDF's clients are the prevailing parties in any such action, they shall be entitled to an award of reasonable attorneys' fees and costs as if they were the prevailing plaintiffs in litigation governed by 42 U.S.C. § 1988. If Safeway is the prevailing party in any such action, it shall be entitled to an award of reasonable attorneys' fees and costs if DREDF's position in the litigation was frivolous, unreasonable, or without foundation. The parties agree that issues concerning Safeway's determinations about modifications to nonconforming elements required by law are subject to adjudication under the preceding paragraph.

3. Failure by DREDF or its clients to enforce this entire Settlement Agreement or any provision hereof with regard to any deadline or any other provision herein shall not be construed as a waiver of its right to do so with regard to other deadlines and provisions of this Settlement Agreement. Nor shall anything in this Settlement Agreement be construed to constitute a waiver of Safeway's right to prove, in litigation commenced pursuant to the terms of this Agreement, that it has no statutory obligation to modify any nonconforming elements in dispute.

K. Subsequent Barrier Removal and Modifications to Bring Nonconforming Elements into Compliance

If, after consultation with DRC, DREDF and/or DOJ pursuant to ¶¶ IV.H, IV.I, and/or IV.J, Safeway determines that additional modifications should be implemented beyond that proposed in its Survey Report to bring nonconforming elements into compliance, or if a court determines that additional modifications are required in any action brought under ¶¶ IV.H, IV.I and/or IV.J, Safeway shall make such modifications within the time frames set forth in ¶¶ IV.F & G; one year from Safeway's determination; or six months from any judicial determination, whichever is later.

L. Maintenance of Accessible Features

Safeway will maintain in operable working condition at all U.S. Safeway stores those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the ADA. Within 30 days of the execution of this Settlement Agreement, Safeway shall submit to DRC, DREDF and DOJ for review a draft policy that provides for the notification to Safeway's store personnel of Safeway's obligations to maintain access to persons with disabilities. The policy shall address at least the following issues: procedures for handling complaints that designated accessible parking spaces are being used by unauthorized vehicles; Safeway's obligation to keep accessible routes into and through the store free of obstacles during business hours; and Safeway's obligation to keep accessible checkout aisles open and free of obstacles. This notification shall be in writing via material posted in the store or by other appropriate and effective means. Within 21 days of receipt of Safeway's proposed policy, the parties will either approve Safeway's policy or propose revisions. Safeway shall consider any proposed revisions and make appropriate changes in good faith. Safeway shall promptly thereafter finalize its policy, disseminate it to all Safeway's United States stores, and provide a copy to DRC, DREDF, and DOJ.

M. Resolution of Other Disputes

If DRC, DREDF and/or DOJ believes that Safeway (1) has failed to maintain accessible features, as required by the ADA; (2) learns of the existence of a nonconforming element that either did not exist at the time the survey was conducted or that the survey, if properly conducted, would have identified, but failed to identify; and/or (3) believes that Safeway has violated provisions of Title III, or analogous state and local laws, that are not covered by this agreement, DRC, DREDF and/or DOJ may provide written notice of the alleged violation to Safeway within a reasonable period. Within 21 days of the receipt of DRC, DREDF and/or DOJ's notice, representatives of Safeway and DRC, DREDF and/or DOJ shall meet and confer (including by telephone) in a good-faith effort to resolve the concerns identified by DRC, DREDF and/or DOJ. If, after meeting with Safeway, DRC, DREDF and/or DOJ continue to believe that Safeway has violated the ADA and/or any analogous state or local law and Safeway does not cure the alleged violation within a reasonable period (presumptively within 30 days of the receipt of notice), DRC and/or DOJ may bring suit under the ADA and any other applicable law in the United States District Court for the District of Columbia seeking whatever relief is available under the ADA and any other applicable law; DREDF, on behalf of its clients, may bring suit under the ADA and any other applicable law in the United States District Court for the Northern District of California seeking whatever relief is available under the ADA and any other applicable law. If DRC or DREDF brings suit, DRC or DREDF shall be entitled to seek, inter alia, a reasonable attorneys' fee and costs as provided by the ADA and any other applicable law. DRC, DREDF and/or DOJ agree that they will not seek relief in any such action based upon Safeway's failure to bring nonconforming elements into compliance prior to the effective date of this Agreement. The procedures set forth in this paragraph are the exclusive means for resolving disputes referenced in this paragraph.


V. PAYMENTS TO THE PLAINTIFFS IN THE FOX LITIGATION

Within 10 days after the execution of this Settlement Agreement, Safeway shall pay to the Fox Litigation plaintiffs $95,000, a portion of which includes a substantial charitable donation to DRC, in a manner specified in the Supplemental Settlement Agreement between the Fox Litigation Plaintiffs and Safeway.


VI. RELEASE, WAIVER, AND COVENANT NOT TO SUE

A. The Fox Litigation Plaintiffs

1. In consideration of this Settlement Agreement and Supplemental Settlement Agreement between the Fox Litigation Plaintiffs and Safeway as set forth herein, and except as otherwise provided in said Settlement Agreements, the Fox Litigation plaintiffs agree fully and forever to release Safeway and its successors, assigns, subsidiaries, directors, officers, agents and employees, from any and all past and present claims, demands, charges, complaints, rights and causes of action of any kind, known or unknown, whether arising under federal or local law, as of the date of the Settlement Agreement, for damages, injunctive relief, declaratory relief, or any other relief, in any way relating to alleged architectural barriers to access or nonconforming elements at Safeway stores surveyed pursuant to the terms of this
Agreement.

2. DRC and Michela Alioto further agree that, during the term of this Agreement, they will not file any litigation (or assist others in filing litigation) against Safeway concerning Safeway's compliance with the public accommodations provisions of the ADA and any analogous state or local public accommodations laws, except to the extent expressly authorized by this Agreement.

3. This Settlement Agreement does not purport to remedy any violations of the ADA or any state or local law not related to architectural barriers to access or nonconforming elements. This Settlement Agreement does not affect the duties of the owners and operators of Safeway to comply with the requirements of Title III of the ADA or any state or local law with regard to newly-constructed stores opening after the date of final approval by DOJ of the survey instrument, and alterations not undertaken pursuant to the terms of this Agreement which were begun after the date of final approval by DOJ of the survey instrument. In addition, this Settlement Agreement does not affect the duties of the owners and operators of Safeway to comply with the requirements of Title III of the ADA or any state or local law regarding reasonable modifications in policies, practices and procedures and provision of auxiliary aids and services.

4. After the term of this Agreement expires, the Fox Litigation plaintiffs further agree that they will not seek to impose liability on Safeway based upon actions concerning architectural barriers to access or nonconforming elements taken by Safeway prior to this Agreement, or actions concerning architectural barriers to access or nonconforming elements taken during the term of this Agreement, as to which they had actual notice and an adequate opportunity to seek redress pursuant to the terms of this Agreement.

B. DREDF and Its Clients

1. In consideration of this Settlement Agreement and the Supplemental Settlement Agreement between DREDF and Safeway as set forth herein, and except as otherwise provided in said Settlement Agreements, DREDF and its clients agree fully and forever to release Safeway and its successors, assigns, subsidiaries, directors, officers, agents and employees, from any and all past and present claims, demands, charges, complaints, rights and causes of action of any kind, known or unknown, whether arising under federal or local law, as of the date of the Settlement Agreement, for damages, injunctive relief, declaratory relief, or any other relief, in any way relating to alleged architectural barriers to access or nonconforming elements at Safeway stores surveyed pursuant to the terms of this Agreement.

2. DREDF's clients agree that, during the term of this Agreement, they will not file any litigation (nor assist others in filing litigation) against Safeway concerning Safeway's compliance with the public accommodations provisions of the ADA and any analogous state or local public accommodations law, except to the extent expressly authorized by this Agreement.

3. This Settlement Agreement does not purport to remedy any violations of the ADA or any state or local law not related to architectural barriers to access or nonconforming elements, nor affect the continuing responsibility of owners and operators of Safeway to comply with all aspects of the ADA and California access law. This Settlement Agreement does not affect the duties of the owners and operators of Safeway to comply with the requirements of Title III of the ADA or any state or local law with regard to newly-constructed stores opening after the date of final approval by DOJ of the survey instrument, and alterations not undertaken pursuant to the terms of this Agreement which were begun after the date of final approval by DOJ of the survey instrument. In addition, this Settlement Agreement does not affect the duties of the owners and operators of Safeway to comply with the requirements of Title III of the ADA or any state or local law regarding reasonable modifications in policies, practices and procedures and provision of auxiliary aids and services.

4. After the term of this Agreement expires, DREDF and its clients further agree that they will not seek to impose liability on Safeway based upon actions concerning architectural barriers to access, or nonconforming elements, taken by Safeway prior to this Agreement, or actions concerning architectural barriers to access or nonconforming elements taken during the term of this Agreement, as to which they had actual notice and an adequate opportunity to seek redress pursuant to the terms of this Agreement.

C. DOJ

1. The Attorney General of the United States (the "Attorney General") is authorized, pursuant to 42 U.S.C. § 12188(b)(1)(B) of the ADA, to bring a civil action under Title III, enforcing the ADA in any situation where a pattern and practice of discrimination is believed to exist or a matter of general public importance is raised. Except as outlined in this Agreement, the Attorney General agrees, during the term of this Agreement, to refrain from undertaking further investigation against Safeway under Title III or from filing civil suit against Safeway under Title III with respect to matters covered by this Agreement.

2. DOJ agrees that if it initiates any suit against Safeway under Title III of the ADA regarding matters covered by this Agreement after the expiration of this Agreement, it will not seek to impose liability based upon actions taken by Safeway prior to the effective date of this Agreement, or actions taken during the term of the Agreement, as to which DOJ had actual notice.

3. This Settlement Agreement does not purport to remedy any other violations of the ADA or any other federal law. This Settlement Agreement does not affect the duties of the owners and operators of Safeway to comply with the requirements of Title III of the ADA with regard to newly-constructed stores opening after the date of final approval by DOJ of the survey instrument, and alterations not undertaken pursuant to the terms of this Agreement which were begun after the date of final approval by DOJ of the survey instrument. In addition, this Settlement Agreement does not affect the duties of the owners and operators of Safeway to comply with the requirements of Title III of the ADA regarding reasonable modifications in policies, practices and procedures and provision of auxiliary aids and services.


VII. DISCLOSURE

A. Publicity

This Settlement Agreement is a public document. The parties to this Settlement Agreement may release this document or any information contained in it to any person.

B. Confidentiality of Records

The parties to this Settlement Agreement acknowledge that certain information provided pursuant to this Settlement Agreement including, but not limited to, the survey form, survey reports or related materials described herein, is required for the sole purpose of investigating, monitoring and enforcing Safeway's compliance with the ADA and this Settlement Agreement. The parties further acknowledge that such information may include confidential business information. All records, reports and other documents maintained or produced pursuant to the terms of this Settlement Agreement shall be kept confidential and used and/or disclosed solely for the purposes of this Settlement Agreement. DRC, DREDF and DOJ shall not disclose such information to any person except (a) as is reasonably necessary to enforce, monitor, or administer the provisions of this Settlement Agreement; (b) to comply with otherwise applicable laws; or (c) with the express consent of Safeway.


VIII. MISCELLANEOUS MATTERS

A. Entire Agreement

With the exception of the Supplemental Settlement Agreements referred to in ¶¶ IV.J.1.c and V, this Settlement Agreement constitutes the entire agreement among the parties on the matters raised herein, and the parties expressly agree that it supersedes and controls any and all prior communications, correspondence, memorialization of agreement, or prior agreement between the parties or their representatives relative to the matters contained herein. Except as explicitly set forth in this Settlement Agreement, there are no representations, warranties, or inducements, whether oral, written, expressed, or implied, that in any way affect or condition the validity of this Settlement Agreement or alter its terms. This Settlement Agreement is a compromise and settlement of disputed issues and claims and is a product of arms-length negotiations and the drafting of all parties. Ambiguities in this Settlement Agreement are not to be construed by operation of law against any party. This Settlement Agreement has no precedential value other than as to the matters within its scope and then only as among the parties.

B. Modification

This Settlement Agreement can be modified only by a writing signed by Safeway, DRC, DREDF and DOJ. Where any organizational party requires a modification due to unforeseen circumstances (including changes in the law or regulations), the other organizational parties agree that consent will not be unreasonably withheld.

C. Severability

The failure or invalidation of any particular provision or portion of a provision shall not in any way affect the validity of this Settlement Agreement or its remaining portions, which shall continue to have full force and effect, unless their enforcement would substantially impair the purpose of this Settlement Agreement.

D. Section Titles and Other Headings

Section titles and other headings contained in this Settlement Agreement are included only for ease of reference and shall have no substantive effect.

E. Representations Regarding Settlement Authority

A signer of this document in a representative capacity for a partnership, corporation, or other entity, represents that he or she is authorized to bind such partnership, corporation, or other entity to this Settlement Agreement.

F. Communications Among the Parties

All notices, demands, or other communications to be provided pursuant to this Settlement Agreement shall be in writing and sent by regular mail, postage prepaid (or by any other delivery service of equal or more expeditious means) to the following persons and addresses (or such other persons and addresses as any Party may designate in writing from time to time):

1. For Timothy Fox, Michela Alioto, and DRC:

David S. Cohen, Esq.
Mathew S. Nosanchuk, Esq.
Miller, Cassidy, Larroca & Lewin
2555 M Street, N.W.
Washington, D.C. 20037

2. For Safeway Inc.

Dian B. Emerson, Esq.
Safeway Inc.
4th & Jackson Streets
Oakland, CA 94660

3. For the Department of Justice

Kaye L. Pestaina, Esq.
Margarita M. Prieto, Esq.
Trial Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738

4. For DREDF and Its Clients

Elaine B. Feingold, Esq.
Disability Rights Education and Defense Fund, Inc.
2212 Sixth Street
Berkeley, CA 94710

G. Successors

All terms of this Agreement shall be binding on, and inure to the benefit of, the successors of any party.

H. Procedure for Execution of Effective Date

Five originals of this Settlement Agreement shall be executed and shall become effective on the date of the last signature below. Once executed, an original of this Settlement Agreement signed by all parties is to be delivered to each party.




SO AGREED:

FOR TIMOTHY FOX AND MICHELA ALIOTO: FOR THE UNITED STATES:


MILLER, CASSIDY, LARROCA & LEWIN

By: __________________________
DAVID S. COHEN
MATHEW S. NOSANCHUK
2555 M Street, N.W.
Washington, DC 20037

Dated:       7-25-95      










DEVAL L. PATRICK
Assistant Attorney General
Civil Rights Division

By: __________________________
JOHN L. WODATCH
JOAN A. MAGAGNA
KAYE L. PESTAINA
MARGARITA M. PRIETO
Trial Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035-6738

Dated:       7-25-95      




FOR THE DISABILITY RIGHTS COUNCIL
OF GREATER WASHINGTON, INC.
:


FOR ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS, AND THE DISABILITY RIGHTS EDUCATION
AND DEFENSE FUND, INC.
:


By: __________________________

MARC FIEDLER
Koonz, McKenney, Johnson & Regan
2020 K Street, N.W.
Suite 840
Washington, DC 20006

Dated:      7-25-95     


By: __________________________

ELAINE B. FEINGOLD
Disability Rights Education and Defense Fund, Inc.
2212 Sixth Street
Berkeley, CA 94710


Dated:      7-28-95     


FOR SAFEWAY, INC.:


By: __________________________

DIAN B. EMERSON
Senior Attorney
Safeway Inc.
4th & Jackson Streets
Oakland, CA 94660

Dated:      7-25-95     


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EXTENSION OF AND ADDENDUM TO
SETTLEMENT AGREEMENT

UNDER THE AMERICANS WITH DISABILITIES ACT AND
THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT

AMONG

THE UNITED STATES OF AMERICA

TIMOTHY FOX, MICHELA ALIOTO, AND
THE DISABILITY RIGHTS COUNCIL OF GREATER WASHINGTON, INC.

ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS,
AND THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.

AND

SAFEWAY INC.



I. BACKGROUND

A. In July 1995, the above parties entered into a settlement agreement to resolve issues concerning Safeway’s compliance with Title III of the Americans with Disabilities Act, U.S.C. §§ 12181 et seq. (the “ADA”). Because Safeway has not yet completed barrier removal at all of its “existing”1 stores and because Safeway has agreed to take extensive and expedient measures to ensure that barrier removal is completed at all Safeway stores, the parties have entered into this addendum and extension of the original agreement.


II. ADDENDUM

A. This document incorporates by reference, expands upon and extends the time allowed for compliance with certain provisions of the Original Agreement entered into by the above parties on or about July 25, 1995. These modifications are entered into pursuant to ¶IIB and ¶VIIIB of the Original Agreement.

B. Safeway agrees to complete barrier removal in a manner that is consistent with title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181-89, and the Department's title III regulation, 28 C.F.R. pt. 36, including the Standards for Accessible Design, Appendix A ("the Standards").

C. Safeway agrees that, by no later than December 30, 2001, it will complete barrier removal at every “existing” Safeway Store. Included among those stores are all Safeway stores not closed or undergoing a “major remodel” beginning prior to December 30, 2001. During a “major remodel”, Safeway will address all accessibility issues in compliance with the Standards.2

D. To the extent that Safeway believes it is an undue hardship to eliminate barriers to access at any “existing” store, it will notify the United States, in writing, prior to October 1, 2000. Such notification will include:

1. the location and address of the Safeway store;

2. a detailed description of the barrier, including existing measurements and the location in the store or site;

3. a detailed explanation of the reason why Safeway proposes not to remove any barrier (including the actual cost, and/or technical problems associated with the removal of a particular barrier) and;

4. any alternatives to barrier removal which Safeway proposes.

Any issues with respect to barrier removal will be resolved in accordance with ¶IV I of the Original Agreement.

E. In completing barrier removal, Safeway will ensure that every store it owns will, at a minimum, have:

1. At least one accessible entrance meeting the Standards,

2. Accessible parking, meeting the Standards and accessible routes, meeting the Standards, between accessible parking, public transportation (if available) and the accessible entrance,3

3. All Signage required by the Standards,

4. Safe and easy access to all available goods and services,

5. If toilet rooms are available to the public, at least one men’s and one women’s or one unisex toilet room that is accessible to individuals with disabilities as well as an accessible route to such room(s) from the store entrance,

6. At least one accessible checkout aisle, including an accessible reader, credit card machine and clearly marked signage displaying the symbol of accessibility, available at all times,

7. In all service areas (e.g. a pharmacy, deli, etc.) a level of service for individuals with disabilities that is equivalent to that provided to other members of the public,

8. All amenities (water fountains, public telephones etc.) usable to individuals with disabilities,

9. All self-serve areas, (i.e. salad bars, etc.) accessible to and usable by individuals with disabilities.

F. With regard to stores which have been acquired by Safeway during the term of the original agreement, up to and including the date of this agreement, and which are operated under other names, including, but not limited to Vons’, Pavillions, Dominick’s Fine Foods, Randall’s, Tom Thumb, and Carr-Gottstein Foods Co., (hereafter the “acquired stores”) Safeway will complete barrier removal consistent with paragraphs B and E by December 31, 2001. By October 1, 2000, Safeway will provide the United States with summary information about the acquired stores including: name under which the store is operated, store number, address, date of last major or other remodel, dates of future remodels, and other remodel activity related to barrier removal. This information will be similar in nature to information previously provided by Safeway regarding its existing stores.

G. In the event that Safeway acquires additional stores during the period of this agreement, Safeway will complete barrier removal in those stores in an manner that is consistent with title III of the ADA and the Standards. Within six months of the time Safeway takes over actual operation of any such stores, Safeway will provide the United States with information about the process and time frame in which Safeway will complete this obligation.


REPORTING

H. Safeway will provide quarterly progress reports to the United States each year (by October 1, January 1, April 1, and July 1) which document, by location, Safeway’s progress toward removing barriers and completing remodel projects at its “existing stores”.

I. In addition to the quarterly progress reports, Safeway will provide the United States with accessibility reports of existing and acquired stores. These reports, completed by an independent consultant, will be based on that consultant’s new survey of the facility and will list all elements not complying with the Standards. The locations of the facilities will be chosen by the United States. Safeway agrees to provide to the United States a minimum of 70 of these reports with at least 10 provided by November 30, 2000. The scope of the reports, the frequency of submission of these reports, number of facilities to be surveyed, completion dates, and other pertinent details will be further negotiated between Safeway and the United States and memorialized in an addendum to this agreement, no later than August 31, 2000.

J. The term of the Settlement Agreement between the parties is extended until, and this addendum is effective until, July 31, 2002.



SO AGREED:

FOR SAFEWAY, INC.: FOR THE UNITED STATES:


By: __________________________

DIAN B. EMERSON
Senior Attorney
Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588

Dated:       7-21-2000      










BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division

By:__________________________
JOHN L. WODATCH
L. IRENE BOWEN
ALYSE S. BASS
Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, DC 20035


Dated:       7-25-2000      




FOR THE DISABILITY RIGHTS COUNCIL
OF GREATER WASHINGTON, INC.
:


FOR ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS, AND THE DISABILITY RIGHTS EDUCATION
AND DEFENSE FUND, INC.
:


By: __________________________

MARC FIEDLER
Chair, Disability Rights Council of Greater Washington
11 Dupont Circle N.W.
Suite 400
Washington, DC 20036

Dated:       7-24-2000      


By: __________________________

LINDA KILB
Disability Rights Education and Defense Fund, Inc.
2212 Sixth Street
Berkeley, CA 94710


Dated:       7-20-2000      




______________________________

1“Existing” Safeway stores means all U.S. facilities operating under the name Safeway, as of the date of this addendum. This is a modification of the definition of “existing” on page 7 of the original agreement. (return to text)

2By letter of November 15, 1999, Safeway advised the United States that all of its facilities, designated as “New” or “Remodel”, have been inspected and brought into compliance with the ADA. Specifically, Safeway has advised the United States that all stores which Safeway has identified as “Post 1992 Major Remodel” “were constructed in compliance with ADAAG, and all accessibility issues were remedied at the time of the remodel.” Safeway has also advised the United States that it has completed “Post 1992 Other Remodel” projects (which were typically lower dollar remodel projects) and that “at the time of this type of remodel, accessibility issues were also remedied.” (return to text)

3With regard to stores located on non-Safeway properties, Safeway will make best efforts to provide compliance by the indicated deadline by working with the property owner(s) and/or property manager(s), and exercising such remedies as are available under leasehold agreements in the event the property owners do not comply with applicable government law and/or regulations. (return to text)




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SECOND EXTENSION OF AND ADDENDUM TO
SETTLEMENT AGREEMENT

UNDER THE AMERICANS WITH DISABILITIES ACT AND
THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT

AMONG

THE UNITED STATES OF AMERICA

TIMOTHY FOX, MICHELA ALIOTO, AND
THE DISABILITY RIGHTS COUNCIL OF GREATER WASHINGTON, INC.

ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS,
AND THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.

AND

SAFEWAY INC.


I. BACKGROUND

In July 1995, the above parties entered into a Settlement Agreement to resolve issues concerning Safeway’s compliance with Title III of the Americans with Disabilities Act, U.S.C. §§ 12181 et seq. (the “ADA”). In July 2000, the parties entered into an Extension of and Addendum to the Original Agreement. Safeway has taken steps toward fulfilling its obligations under the ADA and the Settlement Agreement. However, to date Safeway has not completed barrier removal and other required remedial work at all of its stores covered by this Agreement and has sought a second extension of time to complete that work under the Agreement. Safeway has agreed that it will complete barrier removal and all other remedial work at every Safeway store by no later than September 30, 2002 or that it will pay civil penalties to the United States, on a monthly basis, pursuant to the schedule set forth in Paragraph G. Accordingly, the parties have entered into this Second Addendum and Extension of the Original Agreement.


II. ADDENDUM

A. This document incorporates by reference, and expands upon the Original Agreement entered into by the above parties on or about July 25, 1995 and the Extension of and Addendum to that Agreement entered into on or about July 31, 2000. These modifications are entered into pursuant to ¶IIB and ¶VIIIB of the Original Agreement.

B. Safeway reaffirms its commitment to complete barrier removal and other remedial work in a manner that is consistent with title III of the ADA, and the Department's title III regulation, 28 C.F.R. pt. 36, including the Standards for Accessible Design, Appendix A ("the Standards") and as set forth in Paragraph E below.

C. Safeway agrees that, by no later than September 30, 2002, it will complete barrier removal at all stores covered by the Original Agreement and all stores “acquired” by Safeway up to and including July 31, 2000 and covered by the Extension of and Addendum to the Original Agreement.

D. Safeway reaffirms that pursuant to the Extension of and Addendum to the Original Agreement entered into on or about July 31, 2000, Safeway agreed that it is not an “undue hardship” for Safeway to eliminate barriers to access at any of its stores in a manner that complies with title III of the ADA and, at a minimum, with Paragraph E below.

E. In completing barrier removal, Safeway will ensure that every store it owns will, at a minimum, have:

1. At least one accessible entrance meeting the Standards,

2. Accessible parking, meeting the Standards, and accessible routes, meeting the Standards, between accessible parking, public transportation (if available) and the accessible entrance,1

3. All Signage required by the Standards,

4. Safe and easy access to all available goods and services,

5. If toilet rooms are available to the public, at least one men’s and one women’s or one unisex toilet room that is accessible to individuals with disabilities as well as an accessible route to such room(s) from the store entrance,

6. At least one accessible checkout aisle, including an accessible reader, credit card machine and clearly marked signage displaying the symbol of accessibility, available at all times,

7. In all service areas (e.g. a pharmacy, deli, etc.) a level of service for individuals with disabilities that is equivalent to that provided to other members of the public,

8. All amenities (water fountains, public telephones etc.) usable to individuals with disabilities,

9. All self-serve areas, (i.e. salad bars, etc.) accessible to and usable by individuals with disabilities.

F. At all of its Newly Constructed and Altered (Remodeled) Stores, Safeway will remedy all inaccessible features, in a manner that is consistent with title III of the ADA, by no later than September 30, 2002. This paragraph includes all Newly Constructed or Altered stores which were open to the public on or before July 31, 2002.


CIVIL PENALTIES

G. In the event that Safeway fails to complete all barrier removal and remedial work required by this agreement by September 30, 2002, it will pay civil penalties to the United States, on a monthly basis until all of its stores are in compliance with the Agreement.2 Civil penalties will accrue on the last day of each month beginning on September 30, 2002 and must be paid on or before the last day of the next consecutive month after accrual. (Eg., penalties accruing on September 30, 2002 must be paid to the United States on or before October 31, 2002). In the event that Safeway owes civil penalties pursuant to this Agreement, Safeway must submit monthly reports, as detailed below, in paragraph H.

October 31, 2002 $5,000.00
November 30, 2002 $5,000.00
December 31, 2002 $10,000.00
January 31, 2003 $10,000.00
February 28, 2003 $10,000.00
March 31, 2003 $10,000.00
April 30, 2003 $10,000.00
May 31, 2003 $10,000.00
June 30, 2003 $10,000.00
July 31, 2003 $10,000.00
August 31, 2003 $10,000.00
September 30, 2003 $10,000.00


REPORTING

H. By no later than October 31, 2002, (and, if necessary continuing on the last of each month for one year), Safeway will deliver a report to the United States (both by electronic mail and by hard copy) which certifies, for each store, whether it is ADA compliant. The report(s) must be signed by designated Safeway representatives and shall include the following data: 1) the name of each store; 2) store number; 3) address; 4) ADA category (New Construction, Alteration or Barrier Removal); and 5) a certification as to whether the store is ADA Compliant or Not. For any store which is not yet ADA compliant, Safeway shall provide the date when it expects all accessibility work to be concluded. The reports required by this paragraph include all stores covered by paragraphs C and F of this Agreement.

I. In addition to the monthly reports, Safeway will provide the United States, at its request, with accessibility surveys of certain of its stores. These reports, completed by an independent consultant, will be based on that consultant’s new survey of the facility and will list all elements not complying with the Standards. The locations of the facilities will be chosen by the United States. Safeway agrees to provide to the United States with up to 40 of these reports within 45 days after the date that the United States provides Safeway with a list of the stores to be surveyed.


ENFORCEMENT

J. Nothing in this Second Addendum to and Extension of the Agreement, (or in the Original Agreement, dated July 1995, or in the Extension and Addendum, dated July 2000), waives the right of the United States, or of any party, to bring a civil action for any alleged failure by Safeway to comply with title III of the ADA, or with the terms of this Second Addendum to and Extension of the Agreement.


TERM

K. This Second Addendum to and Extension of the Agreement is effective until January 31, 2004.



SO AGREED:

FOR SAFEWAY, INC.: FOR THE UNITED STATES:


By: __________________________

DIAN B. EMERSON
Senior Corporate Counsel
Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588-3229

Dated:       7-24-02      










RALPH F. BOYD
Assistant Attorney General
Civil Rights Division

By:__________________________
JOHN L. WODATCH, CHIEF
L. IRENE BOWEN, DEPUTY
ALYSE S. BASS, ATTORNEY
Disability Rights Section-NYA
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave. N.W.
Washington, DC 20530


Dated:       7-29-02      



FOR ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS, AND THE DISABILITY RIGHTS EDUCATION
AND DEFENSE FUND, INC.
:


By: __________________________

LINDA KILB
Disability Rights Education and Defense Fund, Inc.
2212 Sixth Street
Berkeley, CA 94710


Dated:       7-24-02     


FOR THE DISABILITY RIGHTS COUNCIL
OF GREATER WASHINGTON, INC.
:


By: __________________________

MARC FIEDLER
Chair, Disability Rights Council of Greater Washington
11 Dupont Circle N.W.
Suite 400
Washington, DC 20036

Dated:       7-25-02      




______________________________

1With regard to stores located on non-Safeway properties, Safeway will make best efforts to provide compliance by the indicated deadline by working with the property owner(s) and/or property manager(s), and exercising such remedies as are available under leasehold agreements in the event the property owners do not comply with applicable government law and/or regulations. (return to text)

2In the event that Safeway is required by this Agreement to pay civil penalties, it will deliver a check to the Department and payable to the United States Treasury, by no later than the last day of each month, by overnight mail, signed receipt required. Further details on the mechanics of this payment will be worked out in another document. (return to text)



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December 17, 2002