I. BACKGROUND
In July 1995, the above parties entered into a Settlement Agreement to resolve issues concerning Safeway’s compliance with title III of the Americans with Disabilities Act, U.S.C. §§ 12181 et seq. (the “ADA”). In July 2000, and in September 2002, the parties entered into Extensions of and Addendums to the Original Agreement. Although Safeway has taken steps toward fulfilling its obligations under the ADA and the Settlement Agreement, Safeway has not completed barrier removal and other required remedial work at all of its stores covered by the Agreement and Addendums, and has sought a third extension of time to complete that work As consideration for that extension of time to fulfill its obligations, Safeway has agreed to the terms of this Third Addendum and Extension (the “Agreement”) which are intended to bring Safeway into full compliance with the accessibility requirements of the ADA. Accordingly, the parties have entered into this Agreement.
II. AGREEMENT
A. This document incorporates by reference, and expands upon, the Original Agreement entered into by the above parties on July 25, 1995, and the Extensions of and Addendums to that Agreement entered into on July 31, 2000, and September 30, 2002. These modifications are entered into pursuant to ¶IIB and ¶VIIIB of the Original Agreement. This Agreement covers every store owned by Safeway as of January 31, 2004, including all newly acquired Safeway stores and all stores owned by Safeway and operating under another name, including, but not limited to: Vons, Pavillions, Dominick’s Fine Foods, Randall’s, Tom Thumb, Genuardi's and Carr-Gottstein Foods Co.
B. Safeway reaffirms its commitment to complete barrier removal and other remedial work in a manner that is consistent with title III of the ADA and the Department's title III regulation, 28 C.F.R. pt. 36, including the Standards for Accessible Design, Appendix A ("the Standards"), and as set forth in Paragraph E below.
C. Safeway agrees that:1. By no later than May 28, 2004, Safeway will hire a full-time Compliance Officer who will have authority and responsibility for ensuring that Safeway meets the terms of this Agreement and of the ADA. The Compliance Office will – at Safeway’s expense – undergo training on the ADA’s accessibility requirements, including, but not limited to, training by a representative or contractor of the United States, or another person or entity approved by the United States, by no later than July 1, 2004. Safeway shall retain an employee in the Compliance Officer position until the dissolution of this Agreement.
2. A. By no later than September 30, 2004, Safeway will have systematically evaluated every Safeway store to identify: a) all remaining barriers to access, including but not limited to any barrier preventing compliance with the accessible features identified in paragraph E below; and b) all aspects of new construction and any alterations (as those terms are defined on pages 7-8 of the Original Agreement) which do not meet the Standards. Safeway will maintain copies of these evaluations, and will upon request, make them available to any party within 30 days of a request. Safeway will provide a progress report to the United States on or before on August 2, 2004, detailing which facilities have been surveyed to date.
B. With respect to stores located in states in which the building code has been certified as substantially equivalent in compliance with the ADA and 28 C.F.R. Part 36, subpart F, those newly constructed or altered Safeway stores which have been found, by local or state enforcement officials – after official certification of the code and without any waivers or modifications – to meet the relevant state or local code, need not be separately surveyed as required by paragraph 2B of this Agreement.3. By no later than October 15, 2004, Safeway will provide a report to the United States documenting which of its stores are (and which are not) in compliance with the new construction and alterations requirements of the ADA or, for stores subject to barrier removal requirements, the requirements of Paragraph E of this Agreement. For each store that is not in compliance, Safeway will provide a date, no later than March 31, 2005, for the completion of compliance measures.
4. By no later than July 1, 2004, Safeway will identify and train specific Safeway personnel in each region who will assist the Compliance Officer in closely monitoring the work of Safeway personnel and any private contractors hired to carry out accessibility work.
5. By no later than August 1, 2004, Safeway will educate all store managers and assistant managers about its obligations under the ADA including, but not limited to, how to maintain and operate Safeway stores in such a way as to achieve maximum accessibility (i.e. ensuring that accessible features are maintained, add that displays and seasonal items do not impair passage). Safeway will provide a report to the United States by August 15, 2004, documenting the completion of this training. Safeway will also annually educate all new managers and assistant managers.
6. By no later than January 15, 2005, Safeway will provide a follow-up report to the United States documenting its progress toward compliance with this Agreement. That report will identify which of its stores are (and which are not) in compliance with the Agreement.D. Pursuant to the evaluation of its stores required by paragraph C, Safeway will, by no later than March 31, 2005, remove all barriers to access at all stores owned by Safeway in a manner consistent with Paragraph E, unless the United States has approved an extension under the provisions of this paragraph. If Safeway believes that it requires an extension for any particular facility, it will provide the United States with a detailed, written request on or before September 1, 2004. The United States will consider the request and will grant or deny it on or before October 1, 2004. Safeway reaffirms its agreement that it is readily achievable for Safeway to eliminate barriers to access at all of its stores in a manner that complies with title III of the ADA and, at a minimum, with Paragraph E below.
E. In completing barrier removal, Safeway will ensure that every store it owns will, at a minimum, have:1. At least one accessible entrance meeting the Standards;
2. Accessible parking, meeting the Standards, and accessible routes, meeting the Standards, between accessible parking, public transportation (if available) and the accessible entrance. With regard to stores located on non-Safeway owned properties, Safeway will make its best efforts to provide compliance by the indicated deadline by working with the property owner(s) and/or property manager(s), and exercising such remedies as are available under leasehold agreements in the event the property owners do not comply with applicable government law and/or regulations;
3. All signage required by the Standards;
4. Safe and easy access to all available goods and services;
5. If toilet rooms are available to the public, at least one men’s and one women’s or one unisex toilet room that is accessible to individuals with disabilities as well as an accessible route to such room(s) from the store entrance;
6. At least one accessible checkout aisle, including an accessible reader, credit card machine and clearly marked signage displaying the symbol of accessibility, available at all times;
7. In all service areas (e.g. a pharmacy, deli, etc.) a level of service for individuals with disabilities that is equivalent to that provided to other members of the public;
8. All amenities (water fountains, public telephones etc.) usable to individuals with disabilities;
9. All self-serve areas (i.e. salad bars, etc.) accessible to and usable by individuals with disabilities.F. In addition to completing barrier removal, Safeway will, by no later than March 31, 2005, bring all of its newly constructed and altered (remodeled) stores into compliance with title III of the ADA. This provision pertains to all stores owned by Safeway on January 31, 2004, and constructed or altered after the effective date of the new construction standards, 28 C.F.R. §36.401.
G. By April 15, 2005, Safeway will certify to the United States, in writing, whether all of its stores are in compliance with the Agreement. The certification will identify any stores that are not in compliance and provide details as to the respects in which each store is not compliant, reasons for the noncompliance, and a date when that noncompliance will be remedied.
H. If the United States determines, based on the certification required by paragraph G, that Safeway has failed to bring all of its stores into compliance with this Agreement as of March 31, 2005 (with the exception of those stores for which the United States has agreed to extend the time for compliance, as provided in paragraph D, above), Safeway will pay the United States $75,000.00 in civil penalties by April 30, 2005.
I. By May 15, 2005, the United States will identify 90 facilities for which it seeks detailed compliance information. Safeway will ensure that an independent consultant conducts surveys of and prepares reports on each of these facilities by September 1, 2005. Prior to January 15, 2005, Safeway will identify the independent consultant which it proposes to use and the United States reserves the right to veto that consultant. Safeway will provide the consultant’s reports to the United States in the following manner: it will provide 30 reports by July 1, 2005; 30 by August 1, 2005; and 30 by September 1, 2005. These reports will identify each store number and location, the date the store was constructed, the date(s) of any significant alterations which would require accessibility improvements under the ADA, and all elements that do not comply with the Standards or this Agreement.
J. By or before October 31, 2005, after the United States has received and evaluated the 90 survey reports conducted by Safeway, and has also had the opportunity to conduct its own independent evaluation of a number of Safeway stores, the United States will determine whether Safeway is in substantial compliance with the terms of this Agreement. In the event that Safeway is not in substantial compliance with the Agreement, it will pay additional civil penalties to the United States. For purposes of this Agreement “substantial compliance” is defined as at least 95% of the stores surveyed (by Safeway and the United States) meeting the requirements of this Agreement.Safeway will pay Civil Penalties to the United States as follows:
1. If fewer than 75% of the surveyed Safeway stores are in compliance with this
Agreement, Safeway will pay an additional $200,000.00 in civil penalties to the United States within 30 days of being notified by the United States of its non-compliance.
2. If fewer than 85% of the surveyed Safeway stores are in compliance with this
Agreement, Safeway will pay $150,000.00 in civil penalties to the United States within 30 days of being notified by the United States of its non-compliance.
3. If fewer than 95% of the surveyed Safeway stores are in compliance with this
Agreement, Safeway will pay $100,000.00 in civil penalties to the United States within 30 days of being notified by the United States of its non-compliance.K. If the United States believes that Safeway is not in compliance with this Agreement or any requirements contained herein, the United States agrees to notify Safeway in writing of the alleged noncompliance and attempt to seek a resolution of the matter with Safeway. If the parties are unable to reach a resolution within sixty (60) days of the date of the United States' written notification, the United States may seek enforcement of the terms of the Agreement in any United States District Court where jurisdiction and venue are proper. In the event that a court determines that Safeway has failed to comply with any term in this Agreement, such failure to comply shall be treated as a violation of Title III of the ADA, and the United States may seek, and the court may assess, civil penalties as provided in 42 U.S.C. § 12188(b)(2)(C). Alternatively, should the parties be unable to reach a resolution within sixty (60) days of the date of the United States' written notification, the United States may bring an action to enforce compliance with the ADA and its implementing regulation in any United States District Court where jurisdiction and venue are proper.
L. Nothing in this Agreement waives the right of the United States, or of any party, to bring a civil action to enforce this Agreement, or any alleged failure by Safeway to comply with title III of the ADA.
M. This agreement shall be binding on Safeway, its agents and employees. In the event Safeway seeks to transfer or assign all or part of its interest in any facility covered by this agreement, and the successor or assign intends on carrying on the same or similar use of the facility, as a condition of sale Safeway shall obtain the written accession of the successor or assign to any obligations remaining under this agreement for the remaining term of this agreement.
N. The Disability Rights Council of Greater Washington Inc., is not a party to this Agreement.
O. This Agreement is effective until February 28, 2007.
SO AGREED:
| FOR SAFEWAY, INC.: | FOR THE UNITED STATES: |
By:_________________________________ DIAN B. EMERSON Senior Corporate Counsel Safeway Inc. 5918 Stoneridge Mall Road Pleasanton, CA 94588-3229 Date:_______3-4-04___________________ |
R. ALEXANDER ACOSTA Assistant Attorney General Civil Rights Division By:_______________________________ JOHN L. WODATCH, CHIEF L.IRENE BOWEN, DEPUTY CHIEF ALYSE S. BASS, ATTORNEY Disabilty Rights Section-NYA Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington , DC 20530 Date:______3-10-04__________________ |
| FOR ROBERT COLEMAN, JIM WALKINGBEAR, ALBANY/EL CERRITO ACCESS, AND THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC: | |
By: ____________________________________ LINDA KILB Disability Rights Education and Defense Fund, Inc. 2212 Sixth Street Berkeley, CA 94710 Dated:__________3-10-04_______________ |
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March 19, 2004