HomeMy WebLinkAboutR-03-0350J-03-117
04/02,.3
RESOLUTION NO. 03— 350
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT(S), AUTHORIZING THE DIRECTOR
OF FINANCE TO PAY ACCESS NOW, INC. AND CHRIST
TAVANTZIS ATTORNEYS FEES AND COSTS OF
$150,000, AND DIRECTING THE CITY MANAGER TO
MAKE REPAIRS AND MODIFICATIONS TO THE STREETS
AND SIDEWALKS WITHIN THE MAINTENANCE
JURISDICTION OF THE CITY OF MIAMI TO COMPLY
WITH THE REQUIREMENTS OF THE AMERICANS WITH
DISABILITIES ACT IN THE AMOUNT OF $4,500,000
OVER THE NEXT EIGHT YEARS, IN FULL AND
COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND
DEMANDS AGAINST THE CITY OF MIAMI, FOR THE
CASE OF ACCESS NOW, INC., ET AL VS. CITY OF
MIAMI, ET AL, IN THE UNITED STATES DISTRICT
COURT, SOUTHERN DISTRICT OF FLORIDA, MIAMI
DIVISION, CASE NO. 02-21413-CIV-MORENO, UPON
DISMISSING THAT CLAIM SUBJECT TO A SETTLEMENT
AGREEMENT, IN SUBSTANTIALLY THE ATTACHED
FORM; ALLOCATING FUNDS FOR THE PAYMENT OF
$150,000 OF ATTORNEYS FEES AND COSTS FROM THE
SELF-INSURANCE AND INSURANCE TRUST FUND,
INDEX CODE NO. 515001.624401.6.651.
WHEREAS, Access Now, Inc., and Christ Tavantzis, filed a
claim and lawsuit against Miami -Dade County, the Florida
Department of Transportation and the City of Miami, in the United
States District Court, Southern District Of Florida, Case
No. 02-21413-CIV-MORENO, in Miami -Dade County, Florida; and
WHEREAS, the above claim and lawsuit have been investigated
by the City Attorney's Office pursuant to Section 18-232 of the
CITY COMMISSION
MEETING OF
APP 1 0 2003
Resolution No.
03- 250
Code of the City of Miami, Florida, as amended, which created the
City of Miami's Self-Insurance and Insurance Trust Fund and said
Office recommends that the claim and lawsuit be settled for the
sum of $150,000 for attorneys fees and costs as well as making
repairs and modifications to the streets and sidewalks of the
City of Miami over the next eight years in the amount of
$4,500,000 as required by the Americans with Disabilities Act;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Section 2. The Director of Finance is authorized to pay
Access Now, Inc., and Christ Tavantzis attorneys fees and costs
in the sum of $150,000, and the City Manager is directed to make
repairs and modifications to the streets and sidewalks within the
maintenance jurisdiction of the City of Miami to comply with the
requirements of the Americans with Disabilities Act, in the
amount of $4,500,000 over the next eight years, in full and
complete settlement of any and all claims and demands against the
City of Miami, for the case of Access Now, Inc. , et al vs. City
of Miami, et al, in the United States District Court, Southern
District of Florida, Miami Division, Case No. 02-21413-CIV-
MORENO, upon dismissing that claim subject to a Settlement
Agreement, in substantially the attached form, with the funds for
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03- 350
attorneys fees and costs allocated from the Self -Insurance and
Insurance Trust Fund, Index Code No. 515001.624401.6.651.
Section 3. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor."
PASSED AND ADOPTED this 10th day of April , 2003.
v r4wfow
Y dR_jj1,
_/Mum EL A. DIAZ, MA �!Rit;,
ATTEST:
PR SCILLA A. THOMPSON
CITY CLERK
APPROVED AS F/R D CORRECTNESS:
ILARELLO
TY
W6098:HJH:IR:BSS
i� If the Mayor does not sign this Resolution, it shall become effective at
the end of ten calendar days from the date it was passed and adopted. If
the Mayor vetoes this Resolution, it shall become effective immediately
upon override of the veto by the City Commission.
Page 3 of 3
03- 350
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case No. 02-21413 Civ-Moreno/Garber
ACCESS NOW, INC., A Florida
non-profit corporation, and
CHRIST TAVANTZIS,
Plaintiffs,
0
THE CITY OF MIAMI, a municipal
corporation, MIAMI-DADE COUNTY,
and THOMAS F. BARRY, JR.,
in his official capacity as the Secretary of the Florida
Department of Transportation
Defendants
SETTLEMENT AGREEMENT
BETWEEN PLAINTIFFS AND THE CITY OF MIAMI
Plaintiffs filed this case on May 9, 2002, alleging violations of Title II of the
Americans with Disabilities Act, Title 42 U.S.C. §§12131 et seq. (Title II, ADA), and its
implementing regulation, 28 C.F.R. Part 35, and § 504 of the Rehabilitation Act of 1973,
29 U.S.C. §§ 701 et seq. (Rehabilitation Act), and the regulations implementing them.
Plaintiffs sued Defendants CITY OF MIAMI, MIAMI-DADE COUNTY, Florida, and
THOMAS F. BARRY, JR., in his official capacity as Secretary of the Florida Department
of Transportation. Plaintiffs seek declaratory and injunctive relief. The Complaint
alleges problems with sidewalks, curb cuts, and other problems, which purportedly
impede access to individuals with disabilities in the City of Miami, Florida.
de la O & Marko
TutpHoNt 305/285-1000 3001 &W. 3RD AVENUE, M[AMt, FLoatoA 33129 FACStMILt 305285-5555
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Plaintiffs and Defendant, the City of Miami, have expressed their desire to settle,
rather than litigate this lawsuit. The parties acknowledge the costs and uncertainty of
protracted litigation and mutually believe that settlement is the preferred method of
resolving the case.
THEREFORE, in settlement of this action, the parties agree as follows:
1. Definitions
A. "Defendant," as used herein, refers only to the City of Miami.
B. "Parties" refer to the Plaintiffs and the City of Miami.
C. "City of Miami" refers to the municipal boundaries of the City of
Miami, Florida, as it exists on the date this agreement is executed.
D. "City Roads" refers to roads, streets, or highways, or portions
thereof, within the City of Miami that are owned or maintained by the City of Miami.
This includes curb -cuts, sidewalks, cross -walks and related pedestrian
notification/directional crosswalks and systems.
E. "ADA" refers to Title II of the Americans with Disabilities Act, Title
42 U.S.C. §§12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.
F. "ADA standards" means:
(1) with regard to existing City Roads that have not been altered
since January 26, 1992, the standard is that contained in 28 C.F.R § 35.150(a), (i.e.,
when viewed in its entirety, is readily accessible to and usable by individuals with
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Case No. 02-21413 Civ-Moreno/Garber
disabilities).
(2) with regard to new construction on City Roads that have been
altered since January 26, 1992, the standard is that contained in 28 C.F.R § 35.151(b),
(i.e., to the maximum extent feasible, be altered in such manner that the altered portion
of the facility is readily accessible to and usable by individuals with disabilities).
G. "Commercial Areas" are those in the City of Miami which contain
any establishment where business or government is conducted that serves the
public, and areas immediately adjacent thereto, including those City Roads that are
zoned for any business, educational, religious, office, or commercial use.
H. `Parks" refers to all public parks within the City of Miami.
The "effective date" of this Agreement is the date after approved by
the City Commission and the Mayor has either signed the approval or the ten day
period to veto has expired, and the Court enters on Order of Dismissal of the claims
against the City of Miami.
2. Terms of the Agreement
A. The City of Miami will, over a period of eight years from the date of
dismissal of this action, expend $ 4.5 million to improve the City -owned curb cuts and
sidewalks and related areas relevant to pedestrian activity by persons with disabilities
within the City of Miami, specifically on City Roads in the Commercial Areas as well as
all public rights-of-way in and around the Parks, in accordance with the ADA standards
described in paragraph IF, above and in accordance with this Agreement.
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B. In addition to Defendant's commitment to improve the Commercial
Areas and Parks, Defendant shall also improve access on the public rights-of-way on
Mary Street in Coconut Grove. Within one (1) year of the effective date of this
Agreement, Plaintiffs and Defendant will diligently attempt to obtain written consent of
the property owners on Mary Street in Coconut Grove, from Bird Road to Tiger Tail, for
the placement of a sidewalk, on either side of the street. The City of Miami will make
reasonable efforts to obtain this consent, including signing correspondence on the
letterhead of the City of Miami directed to the property owners advising them of the
intention to place a sidewalk and requesting written consent to do so. If the parties are
successful in receiving consent of the property owners in this area, the City of Miami
agrees to fund and construct an accessible sidewalk on Mary Street from Bird Road to
Tiger Tail with the accessible curb cuts and transitions within one (1) year of receipt of
the consent of the affected property owners. If the parties are unsuccessful in
obtaining consent for the sidewalk, the City of Miami agrees to install curb cuts on Mary
Street from Bird Road to Tiger Tail within two (2) years of the date of dismissal of this
action. If there are any public rights-of-way on the relevant portion of Mary Street,
which may be utilized so as to improve accessibility, then Defendant shall do so within
two (2) years of the effective date of this Agreement.
C. Defendant has provided its previously prepared report of public
rights-of-way in the Commercial Areas. Defendant will provide Plaintiffs with its report
of the public rights-of-way in and around the City of Miami Parks within one hundred
and eighty (180) days of the effective date of this Agreement. Within one hundred
twenty (120) days of having received Defendant's previously prepared reports Plaintiffs
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TxLt euONL 305!285-2000 3001 SW, 3RD AVENUE, MIAMI, FLORIDA 33129 FAcstuux 305/285-5555
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will provide to Defendant a prioritized list of City -owned curb cuts and sidewalks and
related areas relevant to pedestrian activity on City Roads by persons with disabilities
within the City of Miami that it wants improved, as described in paragraph 1 G, above.
Prior to submitting their list of priorities, Plaintiffs shall survey up to twenty-five percent
(25%) of the area surveyed by the City of Miami to confirm the accuracy of City's survey
and protocol. Should Plaintiffs, based on the sampling, mutually dispute in good faith
the findings of the City of Miami's survey, Plaintiffs may conduct a full survey of the
same areas at Defendant's expense. Defendant shall have a reasonable opportunity to
remediate any difficulties in its report prior to an expert's survey by Plaintiff. In the
event of the larger survey, Plaintiffs shall be entitled to a reasonable time frame in
which to diligently conduct their survey. It is understood that any amount of. money in
excess of the $150,000 must be very conservatively expended in such a way as to
minimize any inefficiency and maximize sums available for construction and alterations.
The rate to be charged by the Plaintiffs' expert shall not exceed initially $75 per hour
plus reasonable inflationary increases (CPI -W) over the 8 years of this Agreement.
Before any such excess expenses are incurred the Plaintiffs' expert must identify the
scope of work and invoice amount in writing and provide the Defendant with a
reasonable opportunity to review and object to said estimate, or any expenses would be
per se unreasonable.
D. Pursuant to Plaintiffs' survey, Plaintiffs shall submit to Defendant
their recommended list of priorities. Defendant shall then have 180 days to respond to
the proposed list of recommended changes, or they shall be deemed accepted.
Plaintiffs shall have 45 days in which to review and reply to Defendant's response to
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Plaintiffs' survey and reported priorities. If Plaintiffs fail to respond timely to Defendant,
it shall be deemed as consent that Defendant's response is reasonable and acceptable
to implement. If Plaintiffs respond and decline to accept any positions in Defendant's
response, then the parties shall utilize the dispute resolution mechanism contemplated
below.
E. Defendant shall complete at least fifty (50) percent of all identified
and agreed (or otherwise ordered) modifications within five (5) years of the effective
date. Defendant will notify Plaintiffs' counsel, in writing, within thirty (30) days of having
reached this fifty (50) percent mark. Within thirty (30) days of completion of all work
pursuant to this Agreement, City of Miami will so notify Plaintiffs' counsel, in writing.
F. Once counsel for the Plaintiffs has been notified by Defendant that
fifty (50) percent of all modifications have been completed, Plaintiffs may, at their
discretion utilize an expert to inspect a twenty-five (25) percent sampling of particular
areas within the zones which the City has advised have been completed to ensure that
is the case. If the survey demonstrates that this Agreement is not being satisfied, then
Plaintiffs, at Defendant's expense, shall be entitled to have their expert survey the
remaining areas alleged to be completed. Prior to an expanded survey, Defendant
shall have thirty (30) days in which to address Plaintiffs concerns.
3. Dismissal, Remediation, and Annual Reports
A. Within thirty (30) days of the execution of this agreement, Plaintiffs
shall dismiss the case with prejudice. The Court will retain jurisdiction to enforce the
terms of this Agreement.
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B. Defendant shall have eight (8) years from the effective date in
which to fully comply with this agreement.
C. Defendant shall provide Plaintiffs with an annual written report on
modifications completed during the year pursuant to this settlement agreement. The
report shall detail the status of the work done to comply with the agreement, identifying
each area that has been renovated, the renovations completed, and issues of technical
infeasibility or areas where compliance could not be attained. The reports shall be due
each year on the anniversary of the date of the effective date of this Agreement.
4. Dispute Resolution Mechanism
A. If Plaintiffs do not believe the Defendant is in substantial
compliance with the terms of the agreement, Plaintiffs may move for an Order of the
Court to compel compliance and enforce the Agreement as a judgment of the Court. In
determining whether Defendant is in compliance, the parties understand that
implementation of this Agreement will take substantial time to plan, design, fund, bid,
and execute contracts for the projects envisioned by this settlement agreement. The
parties intend to be reasonable under these circumstances.
B. If an action is required to enforce this Agreement, Plaintiffs shall
give Defendant specific reasons, in writing, why they believe the Defendant has not
substantially complied with the terms of the agreement. Defendant shall provide a
written response to the Plaintiffs' notification within ninety (90) days of its receipt.
Plaintiffs shall reply, in writing, informing Defendant of their acceptance or rejection of
the Defendant's response within thirty (30) days of its receipt. Plaintiffs' notice and
Defendant's response thereto shall be sent to the parties' attorneys.
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de la O & Marko
TEUPRON6 305!185-2000 3001 &W. 3RD AVENUE, MIAMI, FLORIDA 33129
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C. If the Parties are unable to reach agreement on any issues, the
Parties agree to submit to mediation, which will be completed within forty five (45) days
after the failure to reach agreement on the identified problems. If mediation is
unsuccessful, Plaintiffs may declare a "material breach" and may move for
enforcement.
D. If an impasse is not successfully mediated, the parties may submit
any disputes to the Magistrate Judge assigned to this case, or if the Court so
determines, to the Court, for resolution.
5. Attorneys' Fees and Costs; Plaintiffs' Expert's Fees.
A. Defendant shall pay $150,000.00 for all fees and costs incurred by
Plaintiffs' counsel and expert through the effective date of this Agreement, as well as for
all future fees and costs incurred by Plaintiffs' expert under this Agreement, unless
otherwise stated herein. Payment of the above $150,000.00 shall be made in three
installments; $50,000 within thirty (30) days of the effective date of this Agreement;
$50,000 on or before October 1, 2003; and $50,000 on or before March 1, 2004; and
paid to the order of de la O & Marko Trust Account. In addition, if Plaintiffs' expert
incurs expenses that exceed the above amounts, said amounts shall be deducted from
the $ 4.5 million allocated in paragraph 2 above. However, any amounts to which
Plaintiffs' counsel and experts are entitled for enforcing this Agreement shall be paid
separately by Defendant.
B. Plaintiffs shall be reimbursed their reasonable attorneys fees,
experts' fees and costs in any dispute resolution proceeding if the mediator or Court, as
the case may be, determines that Defendant's position was not reasonable. Such
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Case No. 02-21413 Civ-Moreno/Garber
fees and costs, as well as any fees and costs required to enforce this Agreement, shall
not be counted against the agreed $150,000.00 for fees and costs or drawn against the
$ 4.5 million allocated in paragraph 2 above, but shall be paid separately by Defendant.
6. Non-admission/Non-determination. By agreeing to this Agreement,
there is no admission, express or implied, that the Defendant has in any way violated
the Americans with Disabilities Act or the Rehabilitation Act of 1973, or any other
federal, state, or local law, regulation, ordinance, administrative order, or rule. The
Court has made no findings concerning the alleged violations contained in the
Complaint.
7. Changes to the Settlement Agreement. By mutual agreement, in
writing, the parties may change the terms of this Agreement.
8. Procedure for Receiving and Responding to Public Complaints.
Defendant will publish an email address and telephone number on Defendant's
website, informing members of the public how they can notify Defendant about
accessibility concerns on City -owned or maintained roads, curb cuts, sidewalks,
crosswalks and pedestrian notification/directional crosswalks and systems. Defendant
will also place the email address and telephone number of its ADA Coordinator on its
television station for a period of five (5) years from the effective date of this Agrees.
Defendant will continue its policy of responding to all citizens' inquiries or comments.
9. Residential Implementation/Transition Plan. The scope of this
Agreement contemplates modifications and improvements to the public rights-of-way in
Commercial Areas as well as the City of Miami Parks and the referenced sidewalk on
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Mary Street in Coconut Grove. It does not encompass any other public rights of way in
areas designated as "residential." Defendant, nonetheless, will conduct a full survey of
the City -owned or maintained public rights-of-way (sidewalks, curb cuts, intersections,
etc.) of all residential areas within three (3) years from effective date of this Agreement.
Additionally, based on its survey of the residential areas, Defendant will develop an
implementation or transition plan, pursuant Title II of the ADA, to improve access for
people with disabilities within the City of Miami.
10. ADA Coordinator. Defendant's Coordinator for ADA and accessibility
issues is Patrice Noval. The ADA Coordinator is available to act as a liaison with any
committee, advisory board or task force set up to propose, implement or monitor
accessibility in the City of Miami. Defendant agrees that it shall create and maintain,
within 180 days of the effective date of this Agreement, a committee consisting of
members of the community chosen in accordance with the Defendant's rules and its
reasonable discretion so the Defendant may enjoy input from persons with disabilities,
their advocates, as well as other members of the community. The Committee shall
advise Defendant on access issues.
11. Policies and Procedures.
A. Within 180 days from the effective date of this Agreement, Defendant will
propose policies and procedures for persons to follow in communicating complaints or
issues concerning accessibility, as well as procedures for Defendant's relevant
personnel to follow in receiving a complaint or concern about accessibility and
addressing it.
B. Defendant agrees to provide a copy of its proposed policies and
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procedures to Plaintiffs' counsel within 180 days from the effective date of this
Agreement for the sole purpose of comment and guidance.
C. Within 240 days from the effective date of this Agreement, Defendant will
implement the policies and procedures proposed above. Contemporaneous with the
implementation of such of policy, Defendant will post a notice of its new policies or
procedures in conspicuous and otherwise appropriate locations frequented by the
public. The forms and locations shall include, without limitation, bulletin boards in
buildings owned and/or maintained by the Defendant and frequented by the public, in
public service announcements on television channels owned and maintained by
Defendant, and on its website.
D. Defendant agrees to appoint a person to serve as a liaison to implement
the terms of this Agreement and to interact with any committee, advisory board or task
force set up to propose, implement or monitor any part of this Agreement.
12. Cooperation by Defendant. Defendant shall cooperate with Plaintiffs by
providing to Plaintiffs documentation or information necessary for the implementation of
this Agreement upon written request by Plaintiffs.
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Stipulated and agreed this
David Everett Marko
Florida Bar Number 939633
DE LA O & MARKO
3001 S.W. 3`d Avenue
Miami, Florida 33129
Telephone: (305) 285-2000
Facsimile: (305)285-5555
For the Plaintiffs Access Now, Inc.,
Christ Tavantzis
Access Now, Inc.
By its President, Edward Resnick
Christ Tavantzis, Plaintiff
Case No. 02-1.4 . d Civ-Moreno/Garber
day of
12003
H my Hun a eld
Florida Bar Number 3 3811
City Attorney's Office
444 S.W. 2"d Avenue, Suite 945
Miami, Florida 33130-1910
Telephone: (305) 416-1800
Facsimile: (305) 416-1801
For Defendant City of Miami
ity f Miam"
By:
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de la 0, & Marko
TELEPHONE 3051285.2000 3001 SW. 3RD AVENUE, MIAMI, FLORIDA 33129
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CITY OF
CITY ATTORNEYMI' OFFICE CA -11
MEMORANDUM
TO: Mayor and Members of the City Commission
FROM: Alejandro Vilarello, City Attorney
DATE: April 2, 2003
RE: Proposed Settlement -City Commission Agenda -April 10, 2003
Access Now, Inc. and Christ Tavantzis vs. City of Miami, et al.
CASE NO.02-12413-CIV-MORENO
Claim No. 012/POL/200101
The attached Settlement Agreement and proposed Resolution seeks authorization for
settlement of all claims against the City of Miami by paying to plaintiffs attorneys fees and costs
in the amount of $150,000 and an agreement to coordinate repairs and modifications to the
streets and sidewalks of the City of Miami as required by the Americans with Disabilities Act
over the next eight years in the amount of $4,500,000.
This is an action brought by David E. Marko, Esq. on behalf of Access Now, Inc., and
Christ Tavantzis against the Florida Department of Transportation, Miami -Dade County and City
of Miami, alleging violations of the Americans with Disabilities Act relating to the accessibility
of City streets and sidewalks.
The City Attorney's Office has investigated and evaluated this case and has approved the
recommendation of this settlement. Funds in the amount of $150,000 will be allocated from the
Self -Insurance and Insurance Trust Fund, Index Code No. 515001.624401.6.651.
Attachment(s)
c: Joe Arriola, City Manager
Elvi G. Alonso, Agenda Coordinator
W853 03. 350