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HomeMy WebLinkAboutExhibit 1UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20304-CIV-UNGARO-O'SULLIVAN LINDA DIEDEL, an individual, Plaintiff, vs. CITY OF MIAMI, Defendant. CONSENT DECREE AND ORDER 1. Plaintiff, Linda Diedel (the "Plaintiff'), filed this case against the Defendant, City of Miami (the "City"), on February 5, 2008, seeking declaratory and injunctive relief, and compensatory damages pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 CFR Part 35, and § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. The Complaint alleges that the City failed to make newly constructed or altered portions of City public rights -of - way readily accessible to the disabled in violation of the ADA and Rehab Act. The Complaint further alleges that the City failed to take corrective action after being placed on notice regarding the ADA and Rehab Act violations well before the pertinent construction projects were complete. These alleged violations include areas such as sidewalks, curb ramps, and other problems such as Page 2 of 9 Case No. 08-20304-C1V-UNGARO-O'SULLIVAN water drainage and flooding issues, which purportedly impede access to individuals with disabilities in the City. 2. The City denies the allegations in the Complaint and by entering into this Consent Decree, does not admit liability to any of the allegations in Plaintiffs Complaint. The parties hereby enter into this Consent Decree for the purpose of resolving this lawsuit without the need for protracted litigation, and without the admission of any liability. JURISDICTION 3. The parties to this Consent Decree agree that the Court has jurisdiction over this matter pursuant to 28 USC §1331 for claims under the Americans with Disabilities Act of 1990 ("ADA"), 42 USC 12101 et seq. and § 504 of the Rehabilitation Act of 1973 ("Rehab Act"), as amended, 29 U.S.C. § 701 et seq. 4. In order to avoid the costs, expense, and uncertainty of protracted litigation, the parties to this Consent Decree agree to the entry of an Order to resolve all claims regarding injunctive relief and damages raised in the Complaint filed with this Court. Accordingly, the parties agree to the entry of an Order without trial or further adjudication of any issues of fact or law concerning Plaintiffs claims for injunctive relief and damages. WHEREFORE, the parties to this Consent Decree hereby agree and stipulate to the Court's entry of this Consent Decree and Order, which provides as follows: Page 3 of 9 Case No. 08-20304-CIV-UNGARO-O'SULLIVAN SETTLEMENT OF INJUNCTIVE RELIEF 5. This Consent Decree and Order shall be a full, complete, and final disposition and settlement of Plaintiff's claims against Defendant for injunctive relief and damages that have arisen out of the subject Complaint. The parties agree that there has been no admission or finding of liability or violation of the ADA and/or Rehab Act, and this Consent Decree and Order should not be construed as such. 6. Except as otherwise specifically stated in this Consent Decree, the parties agree and stipulate that the corrective work will be performed in compliance with the standards and specifications for disabled access as set forth in the ADA Accessibility Guidelines ("ADAAG"): (a) Remedial Measures: The City agrees to remove all barriers to access identified in Exhibit A. Exhibit A is incorporated herein by reference as if fully set forth in this document. In addition, the City must correct any and all flooding and/or water accumulation as a result of the Roads newly constructed traffic calming circles and associated altered portions of City public rights -of -way in proximity of such. The City shall inspect, repair/replace all elements so that no water ponds in front of any curb ramp or right-of-way. Subject to section 9 infra, the corrective drainage solution used should provide at a minimum the same drainage capability as the preexisting condition. For example, where a preexisting functioning inlet was detrimentally modified a new inlet will be provided. All street improvements, sewer, sanitation, flood control and storm drain facilities and elements must comply with the applicable requirements of the Page 4 of 9 Case No. 08-20304-CIV-UNGARO-O'SULLIVAN ADA Standards (July 1, 1994) and/or the FDOTS "Greenbooks" STANDARD SPECIFICATIONS for PUBLIC WORKS CONSTRUCTION, FDOT DRAINAGE MANUAL (Current Edition). The scope of work identified in the Survey and this section are referred to herein as the "Remedial Measures." (b) Timing and Reporting of Remedial Measures: The City will complete all Remedial Measures no later than April 1, 2010. Within thirty (30) days from the date of entry of this Consent Decree and Order by the Court, the City will prepare drawings and a written letter outlining a critical path schedule for the implementation of the Remedial Measures. In addition, the City must identify in the letter all companies involved in the Remedial Measures, along with the names of all project managers and/or supervisors for each company, and the Assistant City Manager and/or supervisor responsible for the project implementation of the Remedial Measures. A copy of the drawings and letter outlining the written critical path schedule must be provided within the thirty (30) day time period to Plaintiffs counsel, the City Commissioner for the district where the Remedial Measures are taking place, and the Bond Oversight Board. For every thirty (30) days thereafter until the Remedial Measures are completed, the City must provide a written status update (progress report) stating whether or not the Remedial Measures are on schedule along with a written description of what has been completed, as well as the percentage of completeness of the scope of work. In addition to the written status update, the City Manager and/or his designee must personally and fully update the City of Miami Bond Oversight Board at each of its meetings until the Remedial Measures are complete. The Page 5 of 9 Case No. 08-20304-CIV-UNGARO-0'SULLIVAN Bond Oversight Board, the City Commissioner for the District and Plaintiff's counsel shall also have access to all drawings, calculations, checklists, and other documents that reflect the scope of work to be undertaken as apart of the Remedial Measures. (c) Post Compliance: Within ten (10) days of completion of the Remedial Measures described above, the City shall notify Plaintiffs counsel of the fully completed Remedial Measures. Upon such notice, Plaintiffs expert, ADAAG Consulting Services, Inc., shall be allowed to make a post compliance inspection to verify completion of the Remedial Measures. If all barriers and violations identified in Exhibit A and § 7(a) above have been removed or modified correctly under the standards and specifications set forth in the ADAAG, the time for the inspection is at Plaintiffs expense, and, if not, the City is responsible for the reasonable cost of Plaintiffs' expert's time for the re -inspection. The rate to be charged by Plaintiffs expert will be $150.00 hourly for such re -inspection. If the work is not done correctly, then the City will have 60 days to cure any and all deficiencies after receipt of written notice from Plaintiffs Counsel after the re - inspection. If the City fails to cure all of the deficiencies within 60 days after receipt of such written notice, then Plaintiff may file a motion to enforce this Consent Decree, and will be entitled to recovery of reasonable attorney's fees, litigation expenses, and costs pursuant to 42 U.S.C. § 12205 of the Americans with Disabilities Act. The City has a continuing duty to maintain the Remedial Work in ADA compliant condition. DAMAGES, ATTORNEY FEES, LITIGATION EXPENSES, AND COSTS Page 6 of 9 Case No. 08-20304-CIV-UNGARO-O'SULLIVAN 7. For the purposes of damages, fines, attorney fees, litigation expenses and costs, Plaintiff is the prevailing party under 42 U.S.C. § 12205 of the Americans with Disabilities Act. Accordingly, the City will pay $7,500.00 in full satisfaction of Plaintiff's claim for past damages, and also pay $107,000.00 for Plaintiffs reasonable attorney fees, litigation expenses and costs. Within 20 days from the date of entry of this Consent Decree and Order by the Court, payment will be made by check payable to "de la 0, Marko, Magolnick & Leyton, P.A." In addition, all additional work by Plaintiffs counsel and expert reasonably associated with the monitoring and implementation of this Consent Decree and Order shall be reimbursed by the City within 30 days of invoice, including the reimbursement of all reasonable attorneys fees and costs required to enforce this Consent Decree and Order if the City fails to complete the Remedial Measures by or before April 30, 2009. For all purposes under this Consent Decree and Order, time is of the essence. ACTS OF GOD AND BUDGETARY CONSIDERATIONS 8. All deadlines set forth in this agreement are subject to modification by the Court in the event of supervening impossibility not caused by the City of Miami. Examples of such events include, but are not limited to, hurricanes, terrorist attacks, defaults of independent contractors or civil disturbance. 9. Recognizing the current economic realities facing the City, if for budgetary reasons the City is unable to comply with the terms of this Settlement Agreement, the parties agree to negotiate, in good faith, a Page 7 of 9 Case No. 08-20304-CIV-UNGARO-O'SULLIVAN modification to this Settlement Agreement to address said budgetary issues. If the parties are unable to arrive at an agreed modification, then either party may submit the matter to the Court for resolution in the Court's broad discretion. ENTIRE CONSENT DECREE AND ORDER 10. Issues resolved and issues reserved: a) This Consent Decree and Order and Exhibit A to this Consent Decree, which is incorporated herein by reference as if fully set forth in this document, constitutes the entire agreement between Plaintiff and the City on the matters of injunctive relief, damages, and Plaintiffs attorneys' fees, costs, and litigation expenses reasonable incurred in this matter, and no other statement, promise, or agreement, either written or oral, made by the Plaintiff or any agents of the Plaintiff, to the City, or by the City or any agents of the City to the Plaintiff, that is not contained in this written Consent Order, shall be enforceable regarding the matters of injunctive relief and Plaintiffs attorneys' fees, costs, and litigation expenses described herein. Plaintiff waives all claims for damages against the City arising under enforcement of this Consent Decree. CONSENT ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST 11. This Consent Order shall be binding on Plaintiff and the City; and any successors in interest. The parties have a duty to so notify all such successors in interest of the existence and terms of this Consent Order during the period of the Court's jurisdiction of this Consent Decree. TERM OF THE CONSENT ORDER Page 8 of 9 Case No. 08-20304-CIV-UNGARO-O'SULLIVAN 12. This Consent Order is a final judgment within the meaning of Fed. R. Civ. P. 54, and shall be in full force and effect for a period of five (5) years after the date of entry of this Consent Order, or until the injunctive relief and all other terms and provisions contemplated by this Consent Order are completed, whichever occurs later. The Court shall retain jurisdiction of this action to enforce the terms and provisions of this Consent Order for five (5) years after the date of this Consent Decree, or until the injunctive relief and all other provisions contemplated by this Consent Order are completed, whichever occurs later. WRITTEN NOTICE 13. The notice provided for under this Consent Order shall be in writing and sent by certified or overnight mail, return receipt requested as follows: If to Plaintiff: If to the City: Charles Ferguson, Esq. de la 0, Marko, Magolnick & Leyton 3001 S.W. 3rd Avenue Miami, Florida 33129 Henry J. Hunnefeld, Esq. Office of the City Attorney 444 S.W. 2nd Avenue Suite 945 Miami, Florida 33130-1910 Page 9 of 9 Case No. 08-20304-CIV-UNGARO-O'SULLIVAN SIGNATORIES BIND PARTIES 14 Signatories on behalf of the parties represent that they are authorized to bind the parties to this Consent Decree and Order. This Consent Decree and Order may be signed in counterparts and a facsimile signature shall have the same force and effect as an original signature. PLAINTIFF: Dated: , 2008 DEFENDANT: Dated: . 2008 Linda Diedel City of Miami APPROVED AS TO FORM: Dated: , 2008 Dated: , 2008 Charles Ferguson, Esq. de la 0, Marko, Magolnick & Leyton Attorneys for Plaintiff Henry J. Hunnefeld, Esq. Assistant City Attorney Attorney for Defendant ORDER Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED. The Court will retain jurisdiction over this matter to enforce the terms of this Consent Decree between the parties. Dated: HON. URSULA UNGARO UNITED STATES DISTRICT JUDGE