HomeMy WebLinkAboutExhibit 1UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 03-21039-CIV-GOLD
FLORIDA PARAPLEGIC ASSOCIATION, INC.
DENNY WOOD and DAMIAN GREGORY
Plaintiffs,
vs.
CITY OF MIAMI, FLORIDA,
Defendant.
STIPULATION FOR SETTLEMENT
IT IS HEREBY stipulated and agreed by and between Plaintiffs, FLORIDA
PARAPLEGIC ASSOCIATION, INC., DENNY WOOD and DAMIAN GREGORY
(jointly referred to herein as "Plaintiffs") and Defendant, the CITY OF MIAMI,
FLORIDA (hereinafter referred to as "Defendant" or- the -"-City"), as follows: -
WHEREAS, Plaintiffs filedthis action against the City for its alleged
violations of Title II of the Americans With Disabilities Act, 42 U.S.C. §12131, et
seq. ("ADA"), pursuant to which Plaintiffs sought a permanent injunction,
damages, and attorneys' fees, litigation expenses and costs;
WHEREAS, the aforementioned parties desire to avoid further expense,
time, effort and uncertainty in regard to this action;
WHEREAS, the City denies that it has violated the ADA;
WHEREAS, subject to the terms set forth herein, Plaintiffs and the City
have agreed to finally resolve any and all claims and disputes by and between them; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the parties, the parties
hereto agree to the following terms and conditions as full and complete settlement of this
action:
1. The City already has or shall cause the following actions to be
taken, and the following alterations and improvements to be made to the City's
properties, facilities, programs, activities, services and accommodations which are the
subject of this action:
A. ADA COORDINATOR
i) The City shall designate and shall at all times have at least one
individual who shall have the responsibility of general ADA Coordinator
("ADA Coordinator"). As of the execution of this Stipulation, the ADA
Coordinator is Patrice Rey. Ms. Rey can be reached at (305) 416-1732,
TTY 305-4161735 or by mail at 444 Southwest Second Avenue, Miami,
Florida 33130.
ii) The ADA Coordinator shall be responsible for coordinating the
City's ADA compliance and shall:
a) Compile, organize, file, and have available to the City's
employees and representatives all necessary and pertinent
information and documentation regarding the ADA and the City's
obligations thereunder.
b) Conduct and prepare an internal study, with outside
expertise if necessary, of all applicable ADA requirements and
ensure uniformity, continuity and coordination in the
implementation by the City's departments and divisions thereof.
c) Conduct and prepare an internal study, with outside
expertise if necessary, of all applicable ADA requirements and
ensure implementation thereof into all policies, procedures and
practices that govern the availability and administration of the
City's programs, activities and services.
d) Conduct and prepare internal ADA surveys, with outside
expertise if necessary, regarding implementation of the applicable
ADA requirements on the City of Miami's facilities, buildings,
programs and services not specifically addressed herein or
subsequently purchased or added by the City, and prioritizing the
implementation thereof to ensure the quickest benefit to
individuals with disabilities by:
1) Identifying physical obstacles in the City's facilities
which are open to the public that limit the accessibility of
its programs and activities to individuals with disabilities;
2) Describing in detail the methods that will be used to
make the facilities accessible;
3) In performing 1 and 2, above, the City shall take
into consideration the attached Exhibits to this Stipulation
for Settlement as barriers common to such facilities and
barriers which have been identified in City facilities;
4) Specifying the schedule for taking the steps
necessary to achieve compliance with this section.
5) Describing budget appropriations for the then -
current fiscal year for the implementation of barrier
removal; and
6) Indicating the individual(s) responsible for
implementing the plan.
e) The City shall provide a certified sign language interpreter
or other means for effective communication for City of Miami
meetings, programs, activities and services upon 5 business days
notice, except for counsel meetings which shall only require 3
business days notice.
f) To the extent the City provides to individuals without
disabilities transportation to or from City of Miami meetings,
programs, activities or services, then the City shall establish a
contract with a qualified provider of transportation for individuals
who use wheelchairs and with other mobility impairments to
provide transportation for such individuals to the same meetings,
programs, activities or services.
iii) Within thirty days after the effective date of the Stipulation for
Settlement (for the purpose of this entire agreement, the effective date is
the date that the Mayor executes the enabling resolution or after the
expiration of the veto period after the approval of this agreement by the
City Commission), the City's ADA Coordinator, in conjunction with the
City Clerk shall implement a program to ensure compliance with the ADA
and equal access to individuals with disabilities. The program shall
include, without limitation:
a) A review of City of Miami public meeting procedures and
grievance procedures to ensure ADA compliance and that the
procedures are available to individuals with disabilities.
I) The grievance procedure will detail the procedures
for providing prompt and equitable resolution of
complaints alleging any action that would constitute a
violation of the requirements of Title II of the ADA
pertaining to the programs, activities and services offered
by the City to the public.
2) The grievance procedure will detail the procedures
for prompt and equitable resolution of complaints alleging
any action, or the failure to take required action, that would
constitute a violation of the requirements of Title II of the
ADA pertaining to employees of the City.
b) Publish at least one time in the Miami Herald notice of the
City's adoption of and the availability of the City's ADA
grievance procedure. The City's ADA grievance procedure
shall also be permanently and conspicuously posted in at
least one readily viewable location in the public area of
each City of Miami building and facility which is open to
the public, The grievance procedure shall be posted on the
City's website.
c) Implement a training program regarding Service Animals
and a minimum 2 hour training for the Building
Department and/or Code Enforcement on implementation
of the Checklist.
iv) The City shall have at least one telephone which shall comply
4.31.9 of Appendix A to 28 CFR part 36 (the "ADAAG") for departments
that have text telephones, the City shall establish a written policy and
procedure requiring that for said departments that the City's
operator/employee who shall have telephone contact in the ordinary
course of their employment duties with persons inquiring as to general
information or accessible programs or services offered by the City they
shall be required to know how to use the text telephone in order to
communicate with individuals using same. The City of Miami Parks and
Recreation text telephone number shall be set forth in the City's
brochures, programs, website and pamphlets distributed by the City to the
public, and such brochures, programs and pamphlets shall also provide
notice that the information is available in alternative formats.
B. RECREATION / CULTURE / PARKS
i) After the execution of the Stipulation for Settlement at least one
time before each year's summer programs begin, all permanent employees
of the Parks and Recreation Department who have contact with the public
as part of their employment responsibilities shall receive information from
the ADA Coordinator regarding all services and programs provided by the
Parks and Recreation Department to individuals with disabilities. Each
such employee shall also be directed by the ADA Coordinator to inform
any inquiring individual as to the availability of these services and
programs.
ii) The Parks and Recreation Department permanent employees who
have contact with the public as part of their employment responsibilities
shall receive ADA sensitivity training. Additionally, before
commencement of each year's summer program all employees who will
be involved with those programs shall receive similar ADA sensitivity
training and, all new permanent employees hired by the Parks and
Recreation Department shall also receive similar ADA sensitivity training.
iii) Commencing no later than sixty days after the execution of the
Stipulation for Settlement, and no less than two times a year
thereafter, the Parks and Recreation Department shall develop a
directory of accessible programs and services offered by the Parks
and Recreation Department. The directory and each update thereof
shall be made available to the public including on the City website
and shall be provided to each of the City's employees of the Parks
and Recreation Department who shall have telephone or personal
contact with persons inquiring as to accessible parks, programs or
services
iv) Additionally,--exce.pt—for... passive parks, the City shall install
permanent signage adjacent to the existing signage identifying
each inaccessible park informing the location of the nearest
accessible park.
v) The City shall establish a written policy and procedure requiring
that each of the City's employees, in no case less than two employees,
who have telephone contact in the ordinary course of his/her employment
duties with persons inquiring as to general information or accessible
programs or services offered by the Parks and Recreation Department
shall be required to know how to use the text telephones in order to
communicate with individuals using same. The City's text telephone
number shall be set forth in all brochures, website, programs and
pamphlets distributed to the public by the Parks and Recreation
Department.
v) Commencing ninety days after the effective date of the Stipulation
for Settlement, all subsequently printed materials disseminated by the
Parks and Recreation Department for distribution to the general public
regarding the City's programs, activities and services shall contain an
access statement. The access statement shall at least include the telephone
number and the TDD number and shall state that "to request materials in
accessible format, a sign language interpreter (5 business days advance
notice required), or information on access available to individuals with
disabilities." Furthermore, commencing sixty days after the effective date
of the Stipulation for Settlement, all subsequently printed materials
disseminated by the Parks and Recreation Department for distribution to
the general public regarding the City's programs, activities and services
indicating the availability of accessible programs including identification
of accessible parks.
vi) Commencing no later than sixty days after the effective date of the
Stipulation for Settlement, and thereafter, any electronic information
provided by the City of Miami, such as Websites, shall be provided in an
-accessible f rmat.which_shall include a text only format. .. . .....
vii) Within sixty days of the effective date of this Agreement, and on
subsequent anniversaries of the effective date of this Agreement, the City
will distribute to all persons — employees, and contractors who design,
develop, maintain, or otherwise have responsibility for content and format
of its website(s) or third party websites used by the City — the technical
assistance document, "Accessibility of State and Local Government
Websites to - People with Disabilities," which is Attachment H to this
Agreement (it is also available at www.ada.gov/websites2.htm).
C. BUILDING AND PROGRAM ACCESS
i) CITY FACILITIES, PROGRAMS, SERVICES AND
ACTIVITIES - The City shall comply with the recommendations as set
forth in the Stipulation for Settlement and Exhibits by October 1, 2010.
ii) CITY BUILDINGS AND PARK - The City shall take into
consideration Exhibit A, B, and C, as part of its internal ADA survey
regarding implementation of ADA requirements on the City of Miami's
facilities, buildings, programs and services not specifically addressed
elsewhere in this Stipulation for Settlement and Exhibits. Completion
date: October 1, 2010.
D. ADA NOTICES
i) Commencing no later than sixty (60) days after the effective date
of the Stipulation for Settlement, all subsequently printed brochures,
pamphlets, notices and all other materials disseminated by the City and
any and all departments and divisions thereof for distribution to the
general public regarding the City's programs, activities and services shall
be reviewed by the City of Miami ADA Coordinator or designee in his/her
absence to ensure that all such printed materials properly notify
individuals with disabilities about the City's programs, grievance
procedures, policies, accommodations, transportation (to the extent such
services are provided to persons without disabilities) and services
available to individuals with disabilities.
ii) The City of Miami's ADA Coordinator or a designee in his/her
absence shall also ensure that all printed brochures, pamphlets, notices and
all other materials disseminated to the public shall contain an access
statement. The access statement shall include the telephone number and
TDD number and shall state that: "to request materials in accessible
format, a sign language interpreter (5 business days advance notice
required), or information on access available to individuals with
disabilities."
E. CITY STREETS, SIDEWALKS AND CURB CUTS
i) Beginning no later than three months after the effective date of this
Agreement, the City will provide curb ramps or other sloped areas
complying with the Standards or UFAS at any intersection having curbs or
other barriers to entry from a street level pedestrian walkway, whenever a
new street, road, or highway is constructed or altered. Paving, repaving,
or resurfacing a street, road, or highway is considered an alteration for the
purposes of this Agreement. Filling a pothole is not considered an
alteration for the purposes of this Agreement.
ii) Beginning no later than three months after the effective date of
this Agreement, the City will provide curb ramps or other sloped areas
complying with the Standards or UFAS at all newly constructed or altered
pedestrian walkways where they intersect a street, road, or highway.
iii) State/County Roads — Within ninety (90) days of the effective date
of this Stipulation for Settlement, the ADA Coordinator and/or
their designee shall provide notice to the State and/or County, as
applicable, a copy of which shall also be forwarded to Plaintiffs'
counsel; Todd W. Shulby, Esq., 12555-Orange Drive, Suite 270,
Davie, Florida 33330, of the instant ADA litigation and of the
requirement that curb cuts be modified when streets are resurfaced
and of existing sidewalks with obstructions that reduce the width to
less than 36" as with signs, bus benches, waste receptacles,
newspaper containers, etc that it has been made aware of by the
Plaintiff's expert. The State and/or County shall also be notified of
the requirement for a curb removal/ modification plan including
prioritization, time frames and budgetary allocations on roads
which have not been resurfaced, but which are still inaccessible
due to the lack of accessible curb ramps or other sidewalk
obstructions. The ADA Coordinator and/or their designee letter
should provide adequate information that the failure to comply
with the requirements of Title II could expose such entity to
litigation.
F. MISCELLANEOUS
1. The alterations and modifications required hereby shall be
completed timely in all respects as set forth in this Stipulation and the time tables
contained in the Exhibits thereto.
2. The barrier removal, alterations and modifications required hereby
shall be completed in all respects within the time frames set forth in this
agreement. The time period for completion by Defendant shall be subject to acts
of God, force majeure, or events beyond the control of Defendant such as
inability to obtain building or zoning permits, failure of the city/ county inspectors
to make inspections, contractor defaults or work stoppages. In the event of such
unforeseen circumstances, the time period for completion of the barrier removal,
alterations and modifications provided in this agreement will be extended by the
number of days reasonably attributable to such delay -causing event as long as
Defendant immediately provides written notice by certified or registered mail to
Plaintiffs' counsel, Todd W. Shulby, Esq., 12555 Orange Drive, Suite 270, Davie,
Florida 33330, of the delay, the specific reasons therefore, the estimate time for
completion and makes a good faith effort to effect implementation as soon as
reasonably possible thereafter,
3. In the event that the modifications, alterations and other actions
required by this Stipulation for Settlement and the Exhibits thereto are not completed or
fulfilled timely as set forth herein, Plaintiffs shall give the City written notice of any
provisions of this Stipulation for Settlement which Plaintiffs deem not to be in
compliance with the terms hereof. Within 30 days after receiving such notice, the City
shall respond in writing as to its position on each alleged non-compliance. Within thirty
days after receipt of the Plaintiff(s)' notice, representatives for the parties, or counsel for
the parties, at the parties' request, will confer via telephone or in person and attempt to
resolve the dispute. If the conference process described above does not occur timely or
does not resolve the dispute, the matter may be referred by either party to mediation
before the United States Magistrate Judge or a neutral third party to whom the parties
agree. If mediation does not occur or does not resolve the dispute, the matter may be
submitted by any party to the United States Magistrate Judge assigned to this matter for
enforcement of the terms hereof ,Plaintiffs, Plaintiffs' counsel and/or Plaintiffs' expert
shall be entitled to their reasonable fees, expenses and costs in relation to the time, costs
or expenses reasonably incurred in connection with this Paragraph if the City is found to
be in default under this agreement and failed to cure.
4. Within three months of the effective date of this Agreement, and
throughout the life of the Agreement, the City will do the following:
a. Establish, implement, and post online a policy that its web
pages will be accessible and create a process for implementation;
b. Ensure that all new and modified web pages and content
are accessible;
c, Develop and implement a plan for making existing web
content more accessible;
d. Provide a way for online visitors to request accessible
information or services by posting a telephone number or e-mail address
on its home page; and
e. Periodically (at least annually) enlist persons with
disabilities to test its pages for ease of use.
5. VOTING -
a. Commencing three months after the effective date of this
agreement and continuing until all polling places in each precinct or
voting district have accessible parking, exterior routes, entrances, and
interior routes to the voting area, prior to each election, the City will
identify and widely publicize to the public and to persons with disabilities
and organizations serving them the most accessible polling place(s) for
each precinct or voting district.
b. Within three months of the effective date of this
Agreement, the City will survey its voter registration locations for
accessibility to persons with disabilities by using the form provided at
Attachment F and will report the results of this survey to the Department.
If barriers to access are identified, the City will implement and report the
Department its plan to provide program access, which may include
allowing persons to register to vote through alternative means or at
alternative locations.
6. SPECIAL EVENTS -The ADA Coordinator or his/her designee
will review the site of any major special event for which a permit is issued
in the City of Miami to ensure compliance with the accessibility
requirements of the ADA. This review will occur on or prior to the first
day of the major special event.
7. PICNIC TABLES AT PARKS — At any park with a minimum of
20 picnic tables the City will have at least one accessible picnic table. In any such
park if there are remote locations of the park where there is a cluster of a least
four picnic tables, the City will add no less than one accessible table in that area.
S. CHECKLIST - The City shall prepare an accessibility checklist
which shall be used as working document in the review and/or inspections of
places of public accommodation as identified under section 11-3.5 Definitions of
the Florida Accessibility Code for Building Construction. This checklist shall be
finalized within 90 days of the execution of this agreement. Review of this
checklist will by the Plaintiffs and accepted prior to its implementation.
9. The City shall pay Plaintiffs the reasonable attorneys' fees,
expert's fees, litigation expenses and costs incurred by the Plaintiffs in this action in the
amount of Ninety Two Thousand Dollars ($92,000.00). This amount is payable within
forty five (45) days of the entry of a final order of dismissal. Except as set forth in this.
Stipulation for Settlement, each Party shall bear its own fees, expenses and costs except
as agreed herein.
10. This Stipulation for Settlement is contingent upon the approval of
the City of Miami's City Commission. If the Stipulation is not approved by the City
Commission, it is null and void.
11. Subject to the approval of the City Commission mentioned in the
above paragraph, each person executing this Stipulation for Settlement has been
authorized to sign on behalf of the respective parties and has authority to bind the party
whom he represents to the terms of the Stipulation for Settlement.
12. This Stipulation for Settlement represents a compromise of
disputed and uncertain claims and does not constitute an admission of liability on
the part of the City of Miami. Neither the fact of, nor any action taken hereunder,
shall constitute or be construed as an admission with respect to any claim or facts
alleged by the Plaintiffs. Nothing herein shall be construed as a waiver or release
of any claims that Plaintiffs may have with respect to any property or facility not
owned and operated by the City and specifically addressed in this Stipulation for
Settlement. Additionally, this Stipulation for Settlement does not extend to nor
inure to the benefit of any third party, tenant or lessee, including those places of
public accommodation that have leased City buildings or land for use as a public
accommodation. This should not be construed as a waiver or release as to any
claim that Plaintiffs may have against any third party, or tenants or lessees of the
City. By way of example, and not limitation, this Stipulation for Settlement does
not cover matters relating to Bayside, the Miami Parking Authority, the Miami
Community Redevelopment Agency, etc., and Plaintiffs do not waive any rights
or claims with respect to such persons or entities. Moreover, to the extent that the
City has agreed to send letters to certain entities or persons pursuant to this
Stipulation for Settlement within three months of the effective date of this
Agreement, a copy of which shall also be forwarded to Plaintiffs' counsel, Todd
W. Shulby, Esq., 12555 Orange Drive, Suite 270, Davie, Florida 33330, such
agreement does not constitute and shall not be construed as a waiver or release as
to any claim that Plaintiffs may have against such person or entity.
13. The parties acknowledge that the modifications described in this
Agreement shall be implemented according to the standards set out in the
ADAAG and/or ANSI A117.1 - 1998, and as specifically specified below. It is
agreed that the specific modifications detailed in this Agreement shall constitute
full compliance with ADAAG. The ADAAG dimensions, pursuant the Section
3.2, are subject to conventional building industry tolerances for field conditions.
All references to figures in the paragraphs above refer to those that accompany
the ADAAG. Completion of the modifications detailed above pursuant to the
ADAAG and/or ANSI A117.1 -1998 shall be considered full compliance with the
ADA, to the extent the parties agree is readily achievable and technically feasible.
14. All demands, notices, requests or other communications required
by this Stipulation for Settlement shall be in writing and shall be deemed to have been
served when hand delivered or mailed to the applicable address below.
IF TO PLAINTIFFS TO: Todd W. Shulby, P.A.
Todd W. Shulby, Esq.
12555 Orange Drive, Suite 270
Davie, Florida 33330-4304
Telephone No.: (954) 862-1770
Facsimile No.: (954) 862-1769
E-mail: tshulby@comcast.net
With a copy to: Michael Brennan
Brennan Consulting, Inc,
7955 Biscayne Point Circle
Miami Beach, Florida 33141
Telephone No.: (305) 864-7070
Facsimile No.: (305) 864-4140
E-mail: michael.brennan a,mindspring.com
IF TO THE CITY TO: Manuel A. Diaz, Mayor
444 Southwest Second Avenue
Miami, Florida 33130-1910
Telephone: (305) 250-5300
E-mail: mannydiaz@,ci.miami.fl.us
With a copy to:
Patrice Rey, ADA Coordinator
444 Southwest Second Avenue
Miami, Florida 33130-1910
Telephone: (305) 416-1732
E-mail: patricern@,ci.miami.fl.us
And with a copy to: Henry J. Hunnefeld, Esquire
Jorge L. Fernandez, City Attorney
444 Southwest Second Avenue, Ste. 945
Miami, Florida 33130-I910
Telephone: (305) 416-1800
Facsimile: (305) 416-1801
E-mail: hjhunnefeld@ci.miami.fl.us
15. The parties shall file a joint motion indicating that the matter has
been settled, seeking Court confirmation of the Stipulation for Settlement, and
requesting that the matter be dismissed, subject to the Court retaining jurisdiction
to enforce the provisions of this Stipulation for Settlement.
DEFENDANT:
For City of Miami, a municipal corporation of the State of Florida, on:
By:
JOE ARRIOLA, City Manager
ATTEST:
By:
PRICILLA A. THOMPSON,
City Clerk
APPROVED AS TO FORM AND CORRECTNESS:
By:
JORGE L. FERNANDEZ,
City Attorney
Date:
PLAINTIFFS:
FLORIDA PARAPLEGIC ASSOCIATION, INC.
DENNY WOOD
DAMIAN GREGORY
Dated:
Henry J. Hunnefeld, Esquire
Assistant City Attorney
945 Miami Riverside Center
Ste.270
444 Southwest Second Avenue
Miami, Florida 33130-1910
Telephone: (954) 862-1770
Telephone: (305) 416-1800
Facsimile: (305) 416-1801
Fla. Bar No.: 343811
Counsel for City of Miami
Todd W. Shulby, Esquire
Todd Shulby, P.A.
12555 Orange Drive,
Davie, Florida 33330-4304
Facsimile: (954) 862-1769
Fla. Bar No.: 068365
Counsel for Plaintiffs