1. The undersigned acknowledge that the following Agreement is entered into voluntarily, and sets out the terms and conditions to bring certain roads under the jurisdiction of the State of Delaware into further compliance with the Americans With Disabilities Act of 1990.

2. In accordance with the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 – 12134 (“ADA”), as implemented by regulations at 28 C.F.R. Part 35, the Delaware Department of Transportation (“DelDOT”), the Community Legal Aid Society, Inc. (“CLASI”), and the United States Department of Justice, by and through the United States Attorney’s Office for the District of Delaware (“USDOJ”) voluntarily enter into this letter Agreement (“Agreement”) regarding installation of curb ramps at intersections on state-maintained roads throughout the State of Delaware. Section 504 of the Rehabilitation Act of 1973 (“Section 504") likewise prohibits discrimination against people with disabilities by recipients of federal financial assistance in providing transportation and related services, and its implementing regulations expressly direct recipients of federal transportation assistance to comply with all aspects of the ADA. See 29 C.F.R. §§ 27.7 and 29.19. The following procedures for retrofitting curb ramps at intersections, which have not previously been accessible, take into account DelDOT’s resources, the seasonal constraints of curb ramp construction, and establish a schedule for bringing all applicable state roads into compliance with the ADA and Section 504.

3. The parties agree that under the ADA, pavement rehabilitation projects, including suburban residential streets, must include the construction of accessible curb ramps. 28 C.F.R. § 35.151(e)(1-2); Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002), cert. denied,       U.S.       , 123 S. Ct. 2639 (2003); Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994).

4. CLASI and USDOJ accept the assurances of DelDOT that DelDOT included, and continues to include, the installation of required accessible curb ramps in all new pavement resurfacing and Community Transportation Needs (CTN) (formerly known as Suburban Street Fund) projects prospectively beginning in 2001 and thereafter. The parties also agree that DelDOT retrofitted all previous projects commenced in the years 1998-2000 with curb ramps, in order to make them accessible where required.

5. In addition, CLASI and USDOJ accept the assurances of DelDOT that since 1992 DelDOT has installed curb ramps as required under the ADA for all Paving and Rehabilitation Projects with 3” or more of top material removed, and for all large re-paving projects funded with a combination of state and federal dollars. Except under limited circumstances, in addition to the retrofitting described in the paragraph 4 of this Agreement, however, DelDOT did not install curb ramps for resurfacing projects where less than 3” top material was removed, or on suburban residential streets projects, as called for under ADA regulation, 28 C.F.R. 35.151(e)(1-2)¹, at the locations where such curb ramps should have been so installed. The number of curb ramps in Delaware that remain to be retrofitted to comply with the ADA, based on the repaving work done between the 1992 and the 1997 construction seasons, is estimated at approximately 1500. Delaware’s approximate construction cost per ramp varies by contract issued pursuant to the state procurement laws, but has ranged from $800 to $1,500 in recent years.

6. To bring its remaining roads into ADA-compliance with respect to curb ramps where required, DelDOT hereby agrees to undertake to identify and retrofit one hundred (100) additional curb ramps each year, over and above any curb ramps installed pursuant to its normal construction practices, until the estimated 1500 ADA non-conforming sites for the years 1992-1997 or their equivalent have been retrofitted, subject to the funding limitations noted in paragraph 10 of this Agreement.

7. The parties recognize that some of these ramp locations will be conformed to the ADA as the result of the ongoing and regular resurfacing cycles applicable to all state roads and streets. The parties expect that by completion of the retrofitting schedule described below, all intersections on State of Delaware roads will eventually conform to the ADA’s curb ramp requirements through either routine resurfacing cycles or this retrofitting agreement.

8. DelDOT hereby agrees to use its best efforts to review its records concerning resurfacing projects from years 1997 to 1992, to identify, to the extent feasible and practical, those intersections in which accessible curb ramps have not yet been installed. Starting with June 2004 and in subsequent years as applicable, DelDOT will identify the additional curb ramp locations that will be retrofitted during the following year’s upcoming construction season. To the extent feasible and practical, DelDOT will set the construction priorities for such ramps based on the following scheme:

Original Construction Season Compliance Year		Retrofit Schedule Year
1997		2005
1996		2006
1995		2007
1994		2008
1993		2009
1992		2010

If any remaining curb ramps have not been retrofitted by the year 2010, upon completion of the above schedule, DelDOT will begin this review cycle again, starting with Compliance Year 1997, until all non-conforming sites have been retrofitted.²

9. In addition, in June of each Review Year, DelDOT will post non-conforming ramp locations proposed to be retrofitted for the upcoming construction season on the DelDOT website, http://www.deldot.net, over and above the ramp locations to be retrofitted under the regular resurfacing and reconstruction programs. DelDOT will collaborate with the State Council for Persons with Disabilities and its own advisory council, EDTAC, in order to publicize this process and to facilitate public input into the prioritization of sites. In determining which sites have a higher priority, DelDOT agrees to review the public comments, and consider those comments when scheduling sites for retrofitting for that year. CLASI and USDOJ agree that DelDOT shall have the ability to adjust the above schedule to include sites they deem appropriate due to public comment in any particular year, as long as adjustments do not alter the overall pace of remedial retrofitting outlined in paragraph 8.

10. Under either procedure outlined in paragraphs 8 and 9 of this Agreement, $150,000 in construction costs will be dedicated each year to the construction of the accessible curb ramps to be built pursuant to this Agreement. These funds are expected to provide sufficient wherewithal for the construction of a minimum of 100 curb ramps each year under this Agreement. If bid prices permit a higher number than 100 curb ramps to be reconstructed within this $150,000 limit, DelDOT will proportionately increase the number of curb ramps to be installed in construction cycle year immediately following the nomination process. The parties also agree that DelDOT’s actual total costs under this program will exceed $150,000 per year, but that the funding limitation relates only to the bid prices for ramp construction.

11. In return for DelDOT’s agreement to conform intersections on the schedule and under the procedure above, CLASI agrees to forebear suit on ADA and § 504 violations related specifically to the installation of curb cuts subject to this agreement, absent a specific new complaint related to installation of curb ramps in state roads that are subject to this agreement. If a specific new complaint does arise, CLASI agrees to attempt to informally resolve the matter with the State of Delaware prior to the filing of any lawsuit. CLASI does not waive or otherwise agree to forebear suit on any other potential ADA, § 504, or other claim related to any other aspect of DelDOT or state activity, including without limitation, any obligation the state may have to maintain sidewalks. It is agreed that any material violation of this Agreement may result in a lawsuit by CLASI and/or a Letter of Finding issued by the USDOJ, subject to any defenses the State of Delaware may have to such litigation.

12. The State of Delaware agrees to waive any statute of limitations defenses as to the intersections covered under this Agreement. In addition, annually, and not later than March 1 each year, DelDOT agrees to issue a report to the Project Director of the Disabilities Law Program, of CLASI, one copy to Chairman of the State Counsel for Persons with Disabilities, in care of the Delaware Division of Administrative Services, Delaware Department of State. The report would provide the following information: (1) The number and location of curbs retrofitted for the prior year; and (2) a synopsis of the public comments received.

13. In entering into this Agreement, the State of Delaware does not admit that the Delaware Department of Transportation, its employees, or any entity on its behalf has violated any legal requirement of the Americans with Disabilities Act, including but not limited to any alleged violations of the curb ramp regulation, 28 C.F.R. 35.151(e)(1-2), but that this Agreement is entered into voluntarily in settlement of disputed claims. Except as provided in paragraph 12 of the Agreement, the Department of Transportation expressly reserves any and all defenses it may be entitled to assert in any subsequent litigation relating the Americans with Disabilities Act, notwithstanding the representations and commitments outlined in this Agreement, none of which may be used against the State of Delaware, its agencies and/or employees in any such proceeding.

Executed on this    16th    day of July, 2004.
COLM F. CONNOLLY United States Attorney By:                                                    Paulette K. Nash Assistant United States Attorney The Nemours Building 1007 Orange Street, Suite 700 Wilmington, Delaware 19801 302-573-6277	Community Legal Aid Society, Inc.                                                          James G. McGriffin, Jr. Executive Director 100 W. 10th Street, Suite 801 Wilmington, Delaware 19801 302-575-0660
Delaware Department of Transportation By:                                                    Carolann Wicks, P.E. Chief Engineer Delaware Department of Transportation P.O. Box 778 Dover, DE 19903 302-760-2305	Attest:                                               Martha N. Dobson Director, Technology and Support Services Delaware Department of Transportation P.O. Box 778 Dover, DE 19903 302-760-2203
Approved as to form:                                                          Frederick H. Schranck Deputy Attorney General Delaware Department of Justice P.O. Box 778 Dover, DE 19903 302-760-2020

¹Section 35.151 of the Code of Federal Regulations, Title 28 states the following:

“...(e) Curb ramps

1. Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.

2. Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.” 28 C.F.R. § 35.151(e)(1 and 2).

(Return to Agreement)

²As further discussed in this Agreement, this formula may be amended dependent upon the public comment period, at the discretion of the State of Delaware, when public comments require retrofitting out of sequence for a particular intersection(s), as long as adjustments do not alter the overall pace of remedial retrofitting outlined in paragraph 8.

(Return to Agreement)