AMENDED* CONSENT DECREE AND [PROPOSED] ORDER FOR INJUNCTIVE RELIEF ONLY
MAXINE M. CHESNEY, District Judge.
1. Plaintiff Janice Payne filed a Complaint in this action on August 4, 2016, to enforce provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California civil rights laws and to obtain recovery of damages for discriminatory experiences, denial of access, and denial of civil rights against Defendant Peralta Community College District (sometimes "Defendant"), relating to disability discrimination at Defendant's public accommodations as of February 6, 2016, and continuing. Plaintiff has alleged that Defendant violated Titles II of the ADA, the Rehabilitation Act of 1973, sections 51, 54, and 54.1 of the California Civil Code, and section 11135 of California Government Code by failing to provide full and equal access to the users of the facilities at 900 Fallon Street, Oakland, California, known as Laney College.
2. In order to avoid the costs, expense, and uncertainty of protracted litigation, Plaintiff and Defendant (together sometimes the "Parties") agree to entry of this Consent Decree and Order to resolve all claims regarding injunctive relief raised in the Complaint without the need for protracted litigation. Accordingly, the Parties agree to the entry of this Order without trial or further adjudication of any issues of fact or law concerning Plaintiffs claims for injunctive relief.
3. Plaintiffs claims for damages, attorney fees, litigation expenses and costs have not been resolved. They will be the subject of further negotiation and/or litigation.
JURISDICTION:
4. The Parties to this Consent Decree and Order agree that the Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331 for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. and pursuant to supplemental jurisdiction for alleged violations of California Civil Code sections 51, 54, and 54.1.
WHEREFORE, the Parties to this Consent Decree hereby agree and stipulate to the Court's entry of this Consent Decree and Order, which provide as follows:
SETTLEMENT OF INJUNCTIVE RELIEF:
5. This Order shall be a full, complete, and final disposition and settlement of Plaintiffs claims against Defendant for injunctive relief that have arisen out of the subject Complaint.
6. 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 California Code of Regulations, Title 24-2, and Americans with Disabilities Act Standards for Accessible Design, unless other standards are specifically agreed to in this Consent Decree and Order.
a. Remedial Measures and Administrative Procedures: Except as otherwise provided herein, the corrective work agreed upon by the Parties to be performed at Laney College is set forth in Attachment A, attached and incorporated herewith. Defendant agrees to undertake all of the respective remedial measures and implement the administrative procedures as set forth therein.
b. Timing: Defendant will complete each item on the schedule stated in Exhibit A. In the event that unforeseen difficulties prevent Defendant from completing any of the agreed-upon injunctive relief, Defendant or its counsel will notify Plaintiffs counsel in writing within seven (7) days of discovering the delay. Plaintiff will have thirty (30) days to investigate and meet and confer with Defendant, and to approve the delay by stipulation or otherwise respond to Defendant's notice. If the Parties cannot reach agreement regarding the delay within that time period, Plaintiff may seek enforcement by the Court.
c. Defendant or defense counsel will notify Plaintiffs counsel when the corrective work is completed, and, whether completed not, will provide a status report to Plaintiffs counsel no later than 120 days from the Parties' signing of this Consent Decree and Order.
d. Defendant or defense counsel will notify Plaintiff in writing at the end of 120 days from the Parties' signing of this Consent Decree and Order as to the current status of agreed-to injunctive relief, and every 90 days thereafter until all corrective measures are completed. If Defendant fails to provide injunctive relief on the agreed upon timetable and/or fails to provide timely written status notification, and Plaintiff files a motion with the Court to obtain compliance with these terms, Plaintiff reserves the right to seek additional attorney's fees for any compliance work necessitated by Defendant's failure to keep this agreement. If the Parties disagree, the parties agree to participate in a Magistrate Judge-conducted Settlement Conference for the purposes of resolving the disputed fees. If the Settlement Conference fails to resolve the fee dispute, plaintiff may seek relief via motion for an order directing the Defendant to pay Plaintiffs counsel reasonably incurred fees.
ENTIRE CONSENT DECREE AND ORDER:
7. This Consent Decree and Order and Attachment A constitute the entire agreement between the signing Parties on the matters of injunctive relief, and no other statement, promise, or agreement, either written or oral, made by any of the Parties or agents of any of the Parties that is not contained in this written Consent Decree and Order, shall be enforceable regarding the matters of injunctive relief described herein.
CONSENT DECREE AND ORDER BINDING ON PARTIES AND SUCCESSORS IN INTEREST:
8. This Consent Decree and Order shall be binding on Plaintiff, Defendant, and any successors-in-interest. Defendant has a duty to so notify all such successors-in-interest of the existence and terms of this Consent Decree and Order during the period of the Court's jurisdiction of this Consent Decree and Order.
9. Except for all obligations required in this Consent Decree and Order — and exclusive of Plaintiff s continuing claims for damages, statutory attorneys' fees, litigation expenses, and costs each of the Parties to this Consent Decree and Order, on behalf of each, their respective agents, representatives, predecessors, successors, heirs, partners, and assigns, releases and forever discharges each other Party and all officers, directors, shareholders, subsidiaries, joint venturers, stockholders, partners, parent companies, employees, agents, attorneys, insurance carriers, heirs, predecessors, and representatives of each other Party, from all claims, demands, actions, and causes of action of whatever kind or nature, presently known or unknown, arising out of or in any way connected with the lawsuit.
SEVERABILITY:
If any term of this Consent Decree and Order is determined by any court to be unenforceable, the other terms of this Consent Decree and Order shall nonetheless remain in full force and effect.
SIGNATORIES BIND PARTIES:
10. Signatories on the 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.
ORDER
Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.
ATTACHMENT A
REMEDIAL MEASURES AND ADMINISTRATIVE PROCEDURES
PAYNE v. PERALTA COMMUNITY COLLEGE DISTRICT CASE NO. 4:16-cv-04390 MMC COURT ORDERED SETTLEMENT
The parties agree that PERALTA shall institute the following physical remediation to disabled access barriers on the Laney College Campus and establish written administrative procedures by the compliance dates indicated below. Laney College is now conducting final interviews to hire a Director of Facilities whose responsibilities (among other duties and responsibilities) will include the remediation of Laney College facility disabled access barriers and will oversee the enactment of Administrative Procedures and ensure that training is conducted as described below. PERALTA represents that the Laney College Director of Facilities will be hired by January 31, 2018. In the interim, Dr. Sadiq B. Ikharo, the Peralta Community College District Vice Chancellor for the Department of General Services will manage the remediation of disabled access barriers at Laney College and will oversee the enactment of Administrative Procedures and ensure that training is conducted as described below. The following applies to the Laney College Campus.
I. BUILDING G
1. ADMINISTRATIVE PROCEDURES:
a. If any DSPS student reports that access to the Building G restroom causes them difficulty or discomfort or otherwise presents a barrier to equal access, DSPS will provide the student a key to the locked staff restroom adjacent to the A Building breezeway under reasonable terms and conditions. Laney College represents that the restroom in the A Building breezeway is now open during business hours.
Compliance Date: Laney College represents this procedure is now in place.
II. THEATRE BUILDING
1. ADMINISTRATIVE PROCEDURES:
a. The Theatre Building chair lift will be kept unlocked at all times, allowing people with disabilities independent access.
b. The Theatre Building chair lift will not be used to store furniture or other items.
c. The Theatre Building chair lift will not be used as a service elevator.
d. No later than the beginning of each semester, PERALTA will conduct training for stationary engineers, custodians, and employees who work in the Theatre Building in this Administrative Procedure. New janitorial and custodial hires will be trained at the time of hiring. The training will be conducted every semester and at orientation for new and existing staff. PERALTA represents that staff have already been trained in the last 3 months.
Compliance Date: Laney College represents that this procedure is now in place.
2. THEATRE BUILDING-PHYSICAL ACCESS REMEDIATION:
a. As a provisional measure Plaintiff has been provided with a key to the chair lift in the Theatre Building. This task has been completed.
b. PERALTA agrees that the Theatre Building chair lift locking mechanism will now being placed on "by pass" mode to facilitate access for disabled persons. Laney College represents that this has been completed.
c. A sign will be placed adjacent to the chair lift warning that the chair lift is for the exclusive use of disabled persons and that unauthorized use of the chair lift is unsafe. This placement of a permanent sign will be incorporated in the Laney College Signage Project as detailed below in Section IV. An interim sign will be in place during the winter break. The installation of a permanent sign will be included in the Laney College signage contract.
d. Door No. TH 114 will be replaced and fitted with ADA paddles. Appropriate signage will be affixed to this door. The interior door will be affixed with push bar. Door No. G 114 will also be fitted with an ADA paddle and will be included in the Master Door contract. PERALTA represents that this task has been completed,
e. ROOM G 189A (Music Room): PERALTA agrees to remove all architectural barriers to access to the area in and around the piano to ensure that students with mobility disabilities can perform at the piano in the same manner as able-bodied students, A schematic of the agreed remediation is attached and incorporates as Exhibit 1. A contractor will be identified and a contract for this project will be in place by December 29, 2017. The construction will be completed by January 22, 2018.
Compliance Dates: As noted above.
III. MAINTENANCE OF EXTERIOR and ADA PADDLED DOORS
1. ADMINISTRATIVE PROCEDURES:
a. Signs will be posted next to all ADA-paddled automatic door openers, Tower elevator doors, and exterior steel doors indicating that if the doors are not operating properly, the Laney Business Office, Facilities Specialist will be contacted at, 510-464-6984 to place a service work order to mitigate the door issues. Interim signs will be placed before school starts on January 22, 2018. (School is closed by December 15, 2017), This placement of permanent signage will be incorporated in the Laney College Signage Project as detailed below in Section IV.
b. PERALTA will retain, on a three-year contract cycle, an outside contractor to inspect, repair, and maintain for the purposes of ADAAG and Title 24 compliance, the Exterior and ADA paddled doors on the Laney College Campus.
c. PERALTA shall establish a maintenance policy for the Laney College Campus that requires an outside vendor to inspect, maintain and repair all ADA paddled doors and exterior doors on a quarterly basis, in addition to repairs and maintenance issues that are brought to its attention at other times.
d. PERALTA shall establish a maintenance policy that requires the outside vendors to check the door pressure, opening force and closing speed of exterior doors on the Laney College Campus on a monthly basis for the purposes of maintaining such doors in compliance with the ADA and or Title 24, whichever is more stringent.
e. PERALTA agrees that the repair and/or adjustment of ADA paddled doors and exterior steel doors shall be performed within four hours of receiving notice, and in no case later than one business day following the report of an ADA paddled or exterior door being out of compliance, except in situations when relevant parts are not readily available.
f. Until the elevators in the Tower Building are replaced, PERALTA shall establish a maintenance policy to check the closing speed of the Tower elevator doors on a monthly basis for the purposes of maintaining such doors in compliance with the ADA and/or Title 24, whichever is more stringent.
Compliance Date: PERALTA represents that the administrative procedures have been issued and the correction of ADA paddled doors and mechanisms has been completed. Substantial completion date for all door related work and retention of a maintenance contractor is February 28, 2018.
2. MASTER DOOR CONTRACT/PHYSICAL REMEDATION:
a. PERALTA shall hire an outside contractor to repair, replace as necessary and maintain the exterior and ADA paddled doors. For the purposes of this Settlement Agreement, the project will be referred to as the "Master Door Contract." PERALTA represents that the contractor has been hired and has replaced and repaired ADA paddled doors.
b. PERALTA agrees that the doors numbered G 171, G 190 and the door to the women's restroom in the cafeteria will be given priority for compliance within the schedule of work within the Master Door contract currently on-going. PERALTA represents that this task has been completed and the doors have been made compliant.
Compliance Date: As noted with substantial completion for the Master Door Contract February 28, 2018.
1. CIRCULATION SYSTEM REBALANCING/PHYSICAL REMEDIATION:
a, PERALTA has identified exterior and ADA paddled doors on the Laney College Campus for the purposes of ADAAG/Title 24 compliance. This will require correction of the circulation systems in a number of Laney College buildings.
Compliance Date: Laney College represents that this has been completed.
IV. LANEY COLLEGE DISABLED ACCESS SIGNAGE
1. PHYSICAL REMEDIATION
a. PERALTA represents that it has hired the GNU Group, Walnut Creek, an architectural signage firm to update disabled access signage and other signage on the Laney College Campus. PERALTA agrees to ensure that within the GNU Group contract will include placing a priority on disabled access signage for Building G.
Compliance Date: April 30, 2018.
V. SWIMMING POOL CHAIR LIFT
1. ADMINISTRATIVE PROCEDURES
a. PERALTA shall maintain the swimming pool lift in working order.
b. It will establish a 6-month inspection and maintenance schedule and, in addition, perform maintenance and repairs immediately upon receiving notice of need and in no case later than one business day following the report; except in situations when relevant part are not readily available to remedy the repairs.
c. PERALTA will track its inspection, maintenance and repair of the chair lift by adding a line to the written maintenance log, so that al! inspections, maintenance and repairs are logged on a weekly basis.
Compliance Date: Laney College represents this has been completed
EXHIBIT 1
