UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT
OF FLORIDA
Case No.
02-23374-CIV-MARTINEZ/BANDSTRA
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ACCESS NOW, INC. and CHRIST SOTER TAVANTZIS, on their own behalf and on behalf of all those similarly situated, |
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Plaintiffs, |
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RTM OPERATING COMPANY, d/b/a |
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ARBY'S, |
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Defendant. |
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THIRD AMENDED
PROPOSED CONSENT DECREE
1. INTRODUCTION.
1.1 Parties. This Amended Proposed Consent Decree (the "Consent Decree" or "Decree") is entered into by and between (1) RTM and (2) representative Plaintiffs Access Now, Inc. and Christ Soter Tavantzis ("Plaintiffs"), individually and on behalf of the Settlement Class, as defined herein. Throughout this Consent Decree, RTM, Plaintiffs, or the Settlement Class may be referred to individually as a "Party," or collectively as the "Parties." When an action or decision by a Party or the Parties is referenced in this Consent Decree, it shall mean as that action is taken or the decision is made through counsel for the Party or Parties, unless otherwise specified.
1.2 Facilities. RTM owns, leases, operates or manages approximately 773 Arby’s restaurants in the Geographic Area, as defined herein, as of the date this Consent Decree is executed by RTM.
1.3
Lawsuit. On File an Amended Complaint. On
1.4 Purpose of the Consent Decree. The Parties and Class Counsel now wish to effect a full, final and complete resolution and settlement of all claims, disputes and controversies relating to the allegations made by Plaintiffs and Class Counsel and to resolve their differences and disputes by settling their controversy in such a manner as to: (a) achieve improvements, where needed, to access at RTM Arby’s Restaurants; (b) achieve those improvements in a manner that satisfies RTM's obligations under Title III of the ADA and regulations promulgated thereunder, or applicable State or Local Accessibility Law, and is consistent with the fundamental nature of RTM's business for the benefit of both RTM and its customers; and (c) avoid the uncertainties and costs of further or future litigation. To achieve the benefits and finality contemplated by this Consent Decree, as more fully described below, the Parties wish to expressly recognize and include all persons who have qualified, qualify, or will qualify as having a "disability," as that term is defined by 42 U.S.C. § 12102(2), and who have been or will be a guest, customer, patron, visitor or otherwise, in any RTM Arby’s Restaurant that is the subject of this litigation. It is understood and agreed by the Parties that this Consent Decree represents a compromise of doubtful and disputed claims and neither this Consent Decree itself, any of the payments or covenants described herein, nor anything else connected with this Consent Decree is to be construed as an admission of liability on the part of RTM, by whom liability is expressly denied.
1.5
Motivation of Plaintiffs and Class Counsel. Plaintiffs and Class Counsel believe
that this Consent Decree, including its class notification procedures, is fair,
reasonable and adequate, and agree to settle the Action, pursuant to the
provisions of this Consent Decree, after considering such factors as the
substantial benefits to Plaintiffs and the Settlement Class under the terms of
this Consent Decree and the attendant risks and uncertainties of litigation,
especially in complex actions such as this, as well as the difficulties and
delays inherent in such litigation, including (a) the uncertainty inherent in
establishing any liability of RTM, (b) the uncertainty inherent in the various
theories of relief, even if Plaintiffs prevailed in establishing the liability
of RTM, and (c) the desirability of consummating this Consent Decree promptly in
order to provide effective relief to Plaintiffs and the Settlement Class. Class Counsel and Plaintiffs consider it
desirable for the Action to be settled and dismissed because the Settlement
will: (a) provide substantial
benefits to Plaintiffs and the Settlement Class; (b) resolve the issues
presented by the Action; (c) resolve the issues asserted with respect to the
alleged application of the ADA or
regulations promulgated thereunder, or State or Local
Accessibility Law, to the restaurants at issue; and (d) finally put
Plaintiffs' claims and the underlying matters to rest without undue expense to
the Parties, while reducing the burdens and uncertainties associated with
protracted litigation of those claims.
Class Counsel have investigated and determined that certain modifications
to the restaurants satisfy the requirements of the
1.6 Fact Investigation and Evaluation. Class Counsel have conducted an extensive investigation and evaluation of the facts and law relating to the claims asserted in the Action, including (1) having Plaintiffs’ expert, Richard Londono, inspect numerous RTM Arby’s Restaurants both prior to and during the Action; (2) having Mr. Londono create inspection reports detailing the barriers to access and ADA violations located at RTM Arby’s Restaurants; (3) working with Mr. Londono to prepare a training seminar for various RTM administrative employees for the purpose of collecting data at RTM Arby’s Restaurants nationwide; (4) having Mr. Londono monitor said training seminar with RTM’s expert, Fred Shotz, which will result and has resulted in the Parties obtaining significant architectural and construction data used by the Parties and their experts to identify barriers to access and to negotiate specific settlement points in this matter. These steps have permitted Class Counsel to determine how to best serve the interests of Plaintiffs and the Settlement Class. RTM's counsel have conducted a similar investigation on behalf of their respective client.
1.7 Terms of all Exhibits. The terms of all Exhibits attached hereto are fully incorporated into this Consent Decree and are an integral part thereof. The terms of this Consent Decree, where applicable, are fully incorporated into all Exhibits and are, where applicable, an integral part thereof. Where there is a conflict of terms between the terms of this Consent Decree and its Exhibits, the terms of this Consent Decree control.
1.8 Successors and Assigns. This Consent Decree and all Exhibits are binding on all successors, assigns, heirs, administrators and personal representatives of the Plaintiffs, Class Counsel, the Settlement Class, and RTM. It is the intent of the Parties through this Consent Decree to assure that the Plaintiffs, Class Counsel, and/or the Settlement Class will not attempt to enforce, and RTM will not thereby be subject to, conflicting standards regarding compliance with Title III of the ADA and applicable State or Local Accessibility Laws concerning the physical access to its restaurants. This Consent Decree is intended to bind the Parties so that none of the Plaintiffs, Class Counsel, the Settlement Class, or other Persons will hereafter assert or claim that RTM, or Releasees, are required to make additional or different modifications, or institute different policies or procedures with regard to RTM's restaurants, or are required to follow different standards beyond what is agreed to herein.
1.9
Non-Determination.
The Court has made no findings concerning the alleged violations of the
2. OVERVIEW OF CLASS ACTION SETTLEMENT. This Consent Decree has as its purpose the identification and remediation of Nonconforming Elements at RTM Arby’s Restaurants subject to the proposed Consent Decree. Through this Consent Decree, the Parties have agreed that RTM will institute and maintain accessibility standards, modifications, policies, practices, and procedures for the benefit of all persons with disabilities who have been or will be adversely affected by the design or construction of, or the policies, practices, or procedures relating to, accessibility for 773 RTM Arby’s Restaurants nationwide. The proposed Consent Decree is drafted in such a way that the identification of accessibility enhancements, the implementation of those enhancements, and the verification of work claimed to have been completed is done in a multi-layered approach. This Consent Decree also contains a dispute resolution process. The Parties agree that the Consent Decree, which is the product of lengthy negotiations and intensive review by the Parties, is fair, reasonable, and adequate.
3.
DEFINITIONS.
A. Rules of
Definition.
Unless otherwise indicated, defined terms include the plural as well as the singular. Unless the context otherwise requires, a reference to any Person includes its successors and assigns; the words "include," "includes" and "including" are not limiting and shall be deemed to be followed by the words "without limitation" whether or not in fact followed by such words or words of like import; and the terms "hereof," "herein," "hereunder" and comparable terms refer to this entire Consent Decree with respect to which such terms are used and not to any particular article, Section or other subsection or subdivision thereof. Words or phrases not specifically defined herein, which currently are defined by the ADA or the Standards for Accessible Design or applicable State or Local Accessibility Laws, shall take on those definitions and interpretations as applicable.
B. Defined
Terms.
For the purposes of this Consent Decree, the following terms have the meanings
ascribed as follows:
"Abatement" means triggering coverage of a building code or ordinance other than what currently covers the RTM Arby's Restaurant.
"Accessibility Enhancement" means a modification to a RTM Arby’s Restaurant that is necessary to bring a Nonconforming Element of the restaurant into compliance with the Standards for Accessible Design. Accessibility Enhancements are distinguished from Alterations.
"Accessible Route" has the meaning ascribed to it in 28 C.F.R. Part 36 Appendix A § 3.5.
"Action" means that lawsuit currently pending in the United States District Court for the Southern District of Florida, Miami Division, styled Access Now, Inc. and Christ Soter Tavantzis v. RTM Operating Company d/b/a Arby's, Case No. 02-23374-CIV-MARTINEZ/KLEIN.
"ADA" or "Americans with Disabilities Act" means the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. and the Title III implementing regulations, 28 C.F.R. Part 36, including Appendix A, the Standards for Accessible Design, in effect as of the Execution Date of this Consent Decree.
"Affiliated Companies" means RTM Operating Company, Inc., RTM Acquisition Company, L.L.C., RTM Management Company, L.L.C., RTM Family Restaurants, L.L.C., RTM Holding Company, Inc., RTM Partners, Inc., RTM Development Company, RTM Operating Company of Canada, RTM Foundation, RTM Enterprises, Inc., RTM Blue Ridge, Inc., RTM Restaurant Group, Inc., RTM, Inc., RTMSC, Inc., RTM Savannah, Inc., RTM Georgia, Inc., RTM Alabama, Inc., RTM Gulf Coast, Inc., RTM Indianapolis, Inc., RTM Mid-America, Inc., RTM Ventures, Inc., RTM Portland, Inc., RTM Sea-Tac, Inc., RTM West, Inc., and Franchise Associates, Inc., and any and all restaurants doing business as "Arby’s" owned and/or operated by any of those entities, which are located in the Geographic Area.
"Alteration" has the meaning ascribed in 28 C.F.R. § 36.402, subject also to the provisions of 28 C.F.R. § 36.403. Accessibility Enhancements undertaken based upon Section 11.1 of this Consent Decree are specifically excepted from and do not constitute Alterations.
"Alternative Measures" has the meaning ascribed to it in 28 C.F.R. § 36.305 and Section 11.6 of this Consent Decree.
"Architectural Barrier" has the meaning ascribed to it in 28 C.F.R. § 36.304(a).
"Auditory Disability" or "Auditory Disabilities" means any disability that substantially limits a person’s ability to hear.
"Beneficiaries" has the meaning ascribed to it in Section 20.22 of this Consent Decree.
"Class Counsel" means and refers to Rosen & Switkes P.L., and the attorneys practicing therein.
"Communication Disability" or "Communication Disabilities" mean any disability, other than an Auditory Disability, that substantially limits a person's ability to communicate with others via speech or other means.
"Conditioned Permit" means a permit required to complete an Accessibility Enhancement that contains extraordinary, unusual, or unexpected conditions.
"Consent Decree" or "Decree" means this document and its Exhibits.
"Court" means the United States District Court for the Southern District of Florida, Miami Division.
"Direct Construction Cost(s)" means all construction labor and material costs associated with making Accessibility Enhancements, excluding architectural, design, consulting and legal fees and costs.
"Dispute Resolution" or "Dispute Resolution Process" means the process described in Section 16.
"Error(s)" means a situation in which an element that was not designated for an Accessibility Enhancement is found to require an Accessibility Enhancement by the inspection described in Section 10.7.1.
"Execution Date" means the date of the last signature required to form the agreement embodied in this Consent Decree.
"Exhibit" refers to the referenced Exhibit letter or number, and all Sub-Exhibits expressly incorporated therein, or according to the context may generically refer to the Exhibits incorporated in this Consent Decree.
"Existing Facility" or "Existing Facilities" means RTM Arby’s Restaurants that were designed and constructed for first occupancy by any owner or operator on or before January 26, 1993, as defined in 28 C.F.R. § 36.401.
"Facility" or "Facilities" means all portions of a Place of Public Accommodation, as that term is used in 28 C.F.R. § 36.104, in RTM's Arby’s Restaurants, that are open to the public and available for use by customers.
"Fairness Hearing" means the hearing described in Section 18 of this Consent Decree.
"Final Approval" means the final, post-Fairness Hearing approval given to this Consent Decree by a United States District Judge. If any appeal of the District Judge's approval is taken, "Final Approval" means that date that all possible appeals have been dismissed and the time for any further appeal has expired, plus ten (10) days thereafter.
"Geographic Area" means the fifty states in the United States of America and the District of Columbia.
"Historic Preservation" has the meaning given to it in 28 C.F.R. § 35.405, the procedures set forth in § 4.1.7 of the Standards for Accessible Design and Section 11.2.
"Law" means law of every kind and nature, including without limitation statutory law as well as case law and rules and regulations.
"Litigation" means all actions, claims and proceedings which were asserted in, or could have been asserted in, the Action.
"Mental Disability" or "Mental Disabilities" means any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
"New Construction Unit(s)" means RTM Arby’s Restaurants that were designed and constructed for first occupancy by any owner or operator after January 26, 1993, as defined in 28 C.F.R. § 36.401.
"Nonconforming Elements" are those policies or architectural
features in Existing Facilities or New Construction Units that do not comply
with the
"Notice of Disapproval" has the meaning ascribed to it in Section 12.3(B) of this Consent Decree.
"Party" or "Parties" means Plaintiffs and/or RTM.
"Person" or "person" means an individual, corporation, limited liability company, partnership, association, joint stock company, estate, legal representative, trust, unincorporated association, government or any political subdivision or agency thereof, and any business or legal entity and their spouses, heirs, predecessors, successors, representatives, or assigns.
"Place of Public Accommodation" has the meaning ascribed to it in 42 U.S.C. § 12181 and 28 C.F.R. § 36.104.
"Preliminary Approval" means the initial approval by the Court of the terms of this Consent Decree, which will occur before any notice being provided in accordance with Section 19 of this Consent Decree.
"Purpose of the Consent Decree" means those purposes set forth in Sections 1.4 and 1.5 of this Consent Decree.
"Readily Achievable" shall have the meaning ascribed to it in 42 U.S.C. § 12181, 28 C.F.R. § 36.104, and Section 11.2 of this Consent Decree.
"Regulations" shall mean the Title III ADA regulations as promulgated by the Department of Justice and codified at 28 C.F.R. Part 36, pursuant to the final rule published at 56 Federal Register 35592 (July 26, 1991). All references to 28 C.F.R. Part 36 shall mean and refer to these Regulations.
"Related Parties" means each of a Person's past or present directors, officers, employees, managers, operators, affiliates, affiliated companies, owners, independent contractors, landlords, tenants, experts, consultants, investment bankers, partners, partnerships, principals, agents, brokers, insurers, co-insurers, reinsurers, shareholders, attorneys, accountants, personal or legal representatives, predecessors, successors, parents, subsidiaries, divisions, joint venturers, co-venturers, assigns, spouses, advisors, heirs, executors, related or affiliated entities, any entity in which a Person has a direct or indirect controlling interest, any members of their immediate families, and/or any trust of which a Person is the settler or which is for the benefit of the Person.
"Released Claims" has the meaning ascribed to it in Section 8.3 of this Consent Decree.
"Releasee(s)" means RTM, its Affiliated Companies, and any or all of their Related Parties, including but not limited to those Persons described in this Section 3. This term shall additionally include RTM's landlords, lessors, and ground lessors, to the extent that any potential claims against those entities would be in regard to any Person adversely affected by the design or construction of, or the policies, practices, or procedures relating to the accessibility requirements applicable to the specific location occupied by the RTM Arby’s Restaurant.
"Remediation Plan" has the meaning ascribed to it in Section 12 of this Consent Decree.
"Representative Plaintiff(s)" or "Plaintiffs" means Christ Soter Tavantzis and Access Now, Inc., a Florida Not-for-Profit Corporation, on behalf of themselves, members of Access Now, the Settlement Class, and the Settlement Class Members.
"RTM" means RTM Operating Company and its Affiliated Companies.
"RTM Arby’s Restaurants," "RTM Restaurants" or "restaurants" mean, according to context, multiple or individual restaurants doing business as "Arby’s," owned and/or operated by RTM, which are located in the Geographic Area, including New Construction Units, Existing Facilities, and Subsequently Acquired RTM Arby’s Restaurants. The terms "RTM Arby’s Restaurants," "RTM Restaurants" or "restaurants" do not include Arby’s restaurants owned and/or operated by persons or entities other than RTM, which are unrelated to RTM.
"RTM Arby’s Restaurant Survey(s)" has the meaning ascribed to it in Section 10 of this Consent Decree.
"Settlement" means the settlement embodied in this Consent Decree.
"Settlement Class" means all persons who have qualified, qualify, or will qualify as having a "disability," as that term is defined by 42 U.S.C. § 12102(2), and who have been or will be a guest, customer, patron, visitor or otherwise, and who have been, are, or will be denied full and equal access to or have been, are, or will be discriminated against under Title III of the ADA or regulations promulgated thereunder, or similar federal, state or local law rule, order or ordinance, because of their "disability," at or in connection with the following: All restaurants doing business as "Arby’s" now or hereafter owned and/or operated by Defendant RTM Operating Company, Inc., or its affiliated companies, which are located in the fifty states in the United States of America and the District of Columbia. Upon entry of Final Approval, this Consent Decree shall settle, compromise and resolve the claims of, and apply to, all of the Persons who collectively constitute the "Settlement Class."
"Settlement Class Member" means any Person who falls within the definition of the Settlement Class, including but not limited to the Representative Plaintiffs.
"Significant Loss of Selling or Serving Space" has the meaning ascribed in 28 C.F.R. § 36.304(f).
"Significant Risk" has the meaning ascribed in 28 C.F.R. § 36.304(d)(2).
"Stand Pipe Chases" is defined as a continuous recess built into a wall to receive pipes, ducts, etc. See McGraw Hill Dictionary of Architecture and Const., 3d Ed.
"Standards for Accessible Design" or "Standards" means the version of 28 C.F.R. Part 36 Appendix A in effect as of the Execution Date of this Consent Decree.
"State or Local Accessibility Laws" or "State or Local Accessibility Law" means any and all state or local laws, rules, regulations or ordinances pertaining to access for persons with disabilities.
"Statutory Damages" means any damages available by operation of statute that may be recovered without proof of actual damages.
"Structural Impracticability" or "Structurally Impracticable" has the meaning ascribed in 28 C.F.R. § 36.401(c).
"Subsequently Acquired RTM Arby’s Restaurants" means any facility that becomes a RTM Arby’s Restaurant after the Execution Date of the Consent Decree by RTM.
"Subsequently Relinquished RTM Arby’s Restaurants" means any RTM Arby’s Restaurant that ceases to be a RTM Arby’s Restaurant before the expiration of the Consent Decree.
"Survey Database" has the meaning ascribed to it in Section 10 of this Consent Decree.
"Survey Report" has the meaning ascribed to it in Section 10 of this Consent Decree.
"Technical Infeasibility" or "Technically Infeasible" has the meaning ascribed in the Standards for Accessible Design.
"Term of (this) Consent Decree" has the meaning ascribed to it in Section 6 of this Consent Decree.
"Terms of Settlement" or "Terms of (this) Consent Decree" has the meaning ascribed to it in Section 4 of this Consent Decree.
"Toilet Rooms" is
defined as an enclosed space containing one or more water closets, lavatories,
toilet enclosures (stalls), urinals, and other plumbing fixtures. See McGraw Hill
Dictionary of Architecture, 3d Ed.
"Virtual Impossibility" or "Virtual Impossibility" has the meaning ascribed in 28 C.F.R. § 36.402(c).
"Visual Disability" or "Visual Disabilities" means any disability that substantially limits a person’s ability to see.
4.
TERMS OF SETTLEMENT.
NOW THEREFORE, in light of the foregoing, which is incorporated herein and made a part hereof, and in consideration of the mutual promises, agreements, and covenants contained herein, the sufficiency and receipt of which are hereby acknowledged, it is hereby stipulated and agreed, by, between and among the Parties, that the Action and the matters raised by it hereby will be settled, compromised, dismissed on the merits and with prejudice on the following terms and conditions, subject to the Final Approval of the Court:
5.
CONDITIONS PRECEDENT OF THIS CONSENT DECREE.
This Consent Decree is conditioned upon, and will be effective only upon, the occurrence of all of the following events specified below in Sections 5.1 through 5.4:
5.1 Joint Motion. The Parties jointly move for an Order Granting Preliminary Approval of the Proposed Consent Decree, Approving the Proposed Notice to the Settlement Class, and Scheduling a Fairness Hearing in accordance with Section 19 of this Consent Decree and the motion is granted by the Court.
5.2 Notice. Notice as approved by the Court is provided to the Settlement Class in accordance with Section 19 of this Consent Decree.
5.3 Fairness Hearing. A Fairness Hearing is held in accordance with Section 18 of this Consent Decree.
5.4 Court Approval. The Court grants Final Approval of the Consent Decree, certifies the Settlement Class and enters Judgment in accordance with the terms set forth herein following a Fairness Hearing. The Judgment will resolve finally all issues raised in this proceeding.
6.
TERM OF CONSENT DECREE.
Except as otherwise set forth in this Consent Decree, the Term of this Consent Decree is eight (8) years from the date of Final Approval, unless the Parties successfully petition the Court for an extension of time pursuant to Section 14.1(I). Said extension of time will be limited to Subsequently Acquired RTM Arby's Restaurants.
7.
ADA & ADA-RELATED ACCESSIBILITY CODES.
Plaintiffs and Class Counsel acknowledge that compliance with this Consent Decree will constitute full satisfaction of the claims of the Plaintiffs, Class Counsel, and the Settlement Class (excluding claims for all damages, other than Statutory Damages) relating to accessibility issues and compliance with any federal law, rule or regulation, order, ordinance, or common law relating to or concerning accessibility for persons with disabilities, and any applicable State or Local Accessibility Law.
8.
DENIAL OF LIABILITY AND RELEASE.
8.1 Denial of Liability and Class Certification for Settlement Purposes Only. RTM has denied and continues to deny any liability to Plaintiffs, the Settlement Class, or Class Counsel. RTM has denied and continues to deny that it has violated the ADA or any other federal, state, or local law, rule, regulation, order, or ordinance pertaining to access for persons with disabilities or otherwise at any of the RTM Arby’s Restaurants. Neither this Consent Decree, any Exhibit or document referenced herein and/or attached hereto (all of which are an integral part of the Settlement and are hereby incorporated in their entirety by reference), nor any actions taken by RTM in satisfaction of this Consent Decree constitute, may be construed as, or may be used as, an admission of any liability or wrongdoing, or recognition of the validity of any of the allegations of fact or law made by Plaintiffs in this Action or in any other action or proceeding. This Consent Decree, any statements or negotiations made in connection with this Consent Decree, and any actions taken by RTM under this Consent Decree, may not be offered or be admissible in evidence or in any other fashion against RTM in any action or proceeding for any purpose, except in any action or proceeding brought to enforce the terms of this Consent Decree by or against Plaintiffs, Class Counsel, the Settlement Class, or RTM, or by RTM in defense of any claims brought by Plaintiffs, Class Counsel, or the Settlement Class. Upon execution of this Consent Decree, the Parties agree that, subject to Court approval, this Action will be deemed by the Parties, for purposes of settlement only, to satisfy the requirements for class certification and to be certified as a class for settlement purposes only. RTM has agreed to certification of the Settlement Class for settlement purposes only. Any class certification entered in this Action under this Consent Decree or otherwise does not constitute, in this or in any other action or proceeding, an admission by RTM, or finding or evidence, that Plaintiffs' claims are appropriate for class treatment or that any requirement for class certification is otherwise satisfied in this lawsuit.
8.2 Release and Discharge. In consideration of the covenants set forth herein, Plaintiffs, Class Counsel, and the Settlement Class fully and finally release and forever discharge, to the fullest extent allowed by law, RTM and Releasees from any and all of the Released Claims as defined in Section 8.3 of this Consent Decree.
8.3 Released Claims. The Released Claims are any and all claims, rights, demands, charges, complaints, actions, causes of action (including legal, equitable, administrative or of any other nature), obligations, or liabilities of any and every kind, known or unknown, for individual and/or class injunctive relief, Statutory Damages, declaratory relief or attorney’s fees asserted by named Plaintiffs, Class Counsel, and/or the Settlement Class in the Action or arising out of or predicated upon allegations that RTM or any other Releasee did not or does not comply with Title III of the ADA, the Standards for Accessible Design, or any applicable State or Local Accessibility Laws, at any and all RTM Arby’s Restaurant(s), which Plaintiffs, Class Counsel, and/or the Settlement Class ever had, could have had, now have, or could have brought, from the beginning of time up to the date of Final Approval. Released Claims also include claims relating to Nonconforming Elements, Accessibility Enhancements or the elements of RTM Arby’s Restaurants affected thereby that arise during the term of this Consent Decree, including but not limited to allegations that an Accessibility Enhancement fails to comply with any or all requirements of the ADA, the Standards for Accessible Design, or any applicable State or Local Accessibility Law at any and all RTM Arby’s Restaurant(s). The Released Claims also include but are not limited to any and all claims, known or unknown, against RTM and/or any of the Releasees for attorney’s fees, expert witness fees, consulting fees, expenses, costs, or disbursements incurred by Plaintiffs, Class Counsel, and/or the Settlement Class which arise out of the Released Claims, except as set forth in Section 17. Neither the Plaintiffs, Class Counsel, or any Settlement Class Member may hereafter assert or claim that RTM and/or any of the Releasees is required to make additional or different Accessibility Enhancements to an RTM Arby’s Restaurant or is required to follow different standards in order to comply with Title III of the ADA or applicable State or Local Accessibility Laws beyond what is agreed to in this Consent Decree. To the extent permitted by law, the final entry of this Consent Decree will be fully binding and effective for purposes of res judicata and collateral estoppel upon Releasees, Plaintiffs, Class Counsel, and the Settlement Class with respect to Title III of the ADA and any and all applicable State or Local Accessibility Laws at any and all RTM Arby’s Restaurants. If a Person seeks, in a separate action or proceeding, relief that would be inconsistent with the terms of this Consent Decree, RTM or any Releasee may by affidavit or otherwise in writing, advise the other Parties and the court or other forum in which such action or proceeding is brought, that such relief in that action or proceeding is barred by this Consent Decree. If requested by RTM or any Releasee, Class Counsel shall also advise the court or other forum in which such action or proceeding is brought, in writing, that such relief in that action or proceeding is barred by this Consent Decree. Since this Consent Decree provides for review by the Court, any of the Parties hereto may recommend that matters raised in such separate action or proceeding should be submitted to the Court for resolution under the terms of this Consent Decree. Nothing in this Section, however, will prevent Class Counsel from enforcing this Consent Decree. Nothing in this Consent Decree is intended to, nor shall it be construed to, waive or release any claim for damages other than Statutory Damages; specifically, nothing in this Consent Decree is intended to, nor shall it be construed to, waive compensatory, personal injury, punitive or other money damages, and/or any attorneys' fees or costs associated with such claims for damages, pursuant to the laws of any state or local jurisdiction. Nothing in this Consent Decree is intended to, nor shall it be construed to, waive or release any claim based on affirmative conduct that occurs after the date of Final Approval.
8.4 Covenant Not to Sue. Without limiting the generality of any provision herein, or the provisions contained above, each Representative Plaintiff, each Settlement Class Member, and Class Counsel hereby expressly agrees that they, acting individually or together, shall not seek to institute, maintain, prosecute, sue, or assert in any action or proceeding, any of the Released Claims.
8.5 Release Covers Fees and Costs. Except as otherwise expressly provided in this Consent Decree, and without in any way limiting the scope of the foregoing release and covenant not to sue, the foregoing release and covenant not to sue cover, without limitation, any and all claims for attorney’s fees, expenses, costs or disbursements incurred by Class Counsel and/or any other counsel representing Representative Plaintiffs or the Settlement Class Members, or by Representative Plaintiffs or Settlement Class Members, or any of them, in connection with or related in any manner to the Action, the Litigation, this Consent Decree, the Settlement, and/or the administration of such Settlement.
8.6 Subsequent Discovery of Facts. In connection with Sections 8.2, 8.3, 8.4, and 8.5, Plaintiffs, Class Counsel, and the Settlement Class Members acknowledge that they are aware that they may hereafter discover facts, actions, claims, and causes of action presently unknown or unsuspected, or facts in addition to or different from those which they now know or believe to be true with respect to the matters released herein. Nevertheless, it is the purpose of this Consent Decree and the intention of Plaintiffs, Class Counsel, and the Settlement Class Members to settle and release such matters, and all actions, causes of action, and claims relating thereto, which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action). Representative Plaintiffs, Settlement Class Members, and Class Counsel hereby knowingly and willingly waive any and all rights and benefits afforded by the provisions of Section 1542 of the California Civil Code, to the extent that it would apply here, and any other similar state or federal law that relates to the Released Claims.
8.7 Materiality of Scope of Settlement and Settlement Class. Without limiting any term hereof, the Parties understand and agree that RTM would not enter into this Consent Decree were it not for the understanding that all the Released Claims, the Action, and the Litigation are being fully and finally compromised and settled and that all Persons who are Settlement Class Members will be bound by this Settlement.
9.
SUBSEQUENTLY ACQUIRED & RELINQUISHED RTM
RESTAURANTS.
9.1 Subsequently Acquired RTM Arby’s Restaurants. Subsequently Acquired RTM Arby’s Restaurants will be treated as follows:
(A) Subsequently Acquired RTM Arby’s Restaurants that are New Construction Units will be subject to the provisions of this Consent Decree after the date of their acquisition, and will be subject to the schedule for remediation as set forth in Section 14.
(B) Subsequently Acquired RTM Arby’s Restaurants that are Existing Facilities will be subject to the provisions of this Consent Decree after the date of their acquisition, and will be subject to the schedule for remediation as set forth in Section 14.
9.2 Subsequently Relinquished RTM Arby’s Restaurants. RTM shall have no obligations under this Consent Decree for Subsequently Relinquished RTM Arby’s Restaurants. Nothing herein will prohibit RTM from selling, closing, or otherwise terminating operations of any RTM Arby’s Restaurant.
10. SURVEYS OF RTM
ARBY’S RESTAURANTS.
10.1 Data Collection Training. Prior to the signing of this Consent Decree, RTM developed, and Plaintiffs approved, a checklist for RTM supervisors and construction personnel, selected by RTM’s Region Leaders, to use in collecting data as to the various RTM Arby’s Restaurants’ compliance with the scoping and technical guidelines of the ADA Accessibility Guidelines. To the extent feasible, the checklist was constructed in a manner that eliminates the need for subjective appraisals by the persons collecting the data. On August 27-28, 2003, at 800 Hammond Drive NE, Atlanta, GA 30328, RTM supervisors and construction personnel were trained on how to administer the checklist, which is attached as Exhibit 2. The syllabus for the training workshop is attached as Exhibit 1.
10.2 RTM Arby’s Restaurant Surveys. RTM supervisors and construction personnel are in the process of collecting the data referenced in Section 10.1 for each RTM Arby’s Restaurant (the "RTM Arby’s Restaurant Surveys").
10.3 Purpose of RTM Arby’s Restaurant Surveys.
10.3.1 Nonconforming Elements. To the extent the conditions reported in a RTM Arby’s Restaurant Survey are Nonconforming Elements, RTM will make, or cause to be made, Accessibility Enhancements, as described in Section 11.1.
10.3.2. Non-existence of Nonconforming Elements. With regard to Accessibility Enhancements required under this Consent Decree, to the extent that any Nonconforming Element reported in a RTM Arby’s Restaurant Survey no longer exists, no modification will be made.
10.3.3 Changed conditions. To the extent that the conditions reported in a RTM Arby’s Restaurant Survey are different than those that presently exist, and such conditions are Nonconforming Elements, Accessibility Enhancements will be made pursuant to Section 11.1.
10.4 Survey Database. After completion of the data collection described in Sections 10.1 and 10.2, RTM will review the data and compile the data from every RTM Arby’s Restaurant Survey into a database (the "Survey Database"). The Survey Database shall also contain information indicating whether the RTM Arby’s Restaurant covered by the RTM Arby’s Restaurant Survey is an Existing Facility or a New Construction Unit. The Survey Database shall serve as a reference to the Parties in determining what, if any, Accessibility Enhancements are required for each RTM Arby’s Restaurant.
10.5 Survey Report(s). The data collected pursuant to Sections 10.1 and 10.2, and entered into the Survey Database, will be provided to Plaintiffs via CD-ROM (the "Survey Report" or "Survey Reports").
10.6 Retention of Forms. RTM will retain the original RTM Arby’s Restaurant Survey for each RTM Arby’s Restaurant for one (1) year after the end of the Term of this Consent Decree.
10.7 Verification of the RTM Arby's Restaurant Surveys. This Consent Decree provides for the following procedures for the verification of the RTM Arby's Restaurant Surveys:
10.7.1 Plaintiffs’ Inspection. To verify the data collected by RTM supervisors and construction personnel, Class Counsel may select a total of ten (10) RTM Arby’s Restaurants for which RTM Arby’s Restaurant Surveys have been conducted. For each of the ten (10) RTM Arby’s Restaurants selected, Plaintiffs’ expert, Richard Londono, may personally inspect the restaurant to verify the accuracy of the data collected.
10.7.2 Class Counsel Participation. Class Counsel may attend three (3) of the ten (10) inspections allowed under Section 10.7.1.
10.7.3 Notification of Perceived Errors. Subsequent to the inspections conducted pursuant to Section 10.7.1, Plaintiffs shall notify RTM of any perceived Errors in the data collected by RTM discovered during an inspection conducted pursuant to Section 10.7.1. Any disputes between the parties relating to the perceived Errors shall be subject to mediation. In the event a determination is made that RTM erred in the collection of data, Plaintiffs’ designated expert shall be allowed to inspect two (2) additional restaurants for every restaurant inspected pursuant to Section 10.7.1 in which an Error was found.
11. AGREED
GUIDELINES FOR DEVELOPING REMEDIATION PLANS.
11.1 Accessibility
Enhancements. Except as
provided in Sections 11.2, 11.3, 11.4, 11.5, 11.6, and 11.7, of this Consent
Decree, RTM will complete all Accessibility Enhancements, as determined by the
RTM Arby’s Restaurant Surveys, at each RTM Arby’s Restaurant within the time
frames set forth in Section 14.1 of this Consent Decree. When making an Accessibility Enhancement
or in applying for any permit to make an Accessibility Enhancement under this
Consent Decree, RTM will comply with the Standards for Accessible Design and
State or Local Accessibility Laws applicable to the requested Accessibility
Enhancement, except as provided in Sections 11.2, 11.3, 11.4, 11.5, 11.6, and
11.7 of this Consent Decree. The
provisions of this Consent Decree shall not be construed to obligate RTM to make
modifications that are not required by the provisions of the ADA or State or
Local Accessibility Laws applicable to the Accessibility Enhancement. Pursuant to this Consent Decree, RTM
will comply fully with the terms of the
11.2 Structural Impracticability, Technical Infeasibility, Virtual Impossibility, Significant Risk, Significant Loss of Selling or Serving Space, Readily Achievable, Historic Preservation and Permitting Restrictions. Subject to the provisions of Section 11.6 (Alternative Measures), this Consent Decree does not require RTM to initiate any Accessibility Enhancements described in Section 11.1:
(A) In a New Construction Unit, to the extent such an Accessibility Enhancement is Structurally Impracticable;
(B) In an area that has been the subject of an Alteration, to the extent such an Accessibility Enhancement is Structurally Impracticable, Technically Infeasible, or Virtually Impossible;
(C) In an Existing Facility, if completion of an Accessibility Enhancement would involve a Significant Risk or a Significant Loss of Selling or Serving Space;
(D) If the areas proposed to be enhanced are subject to Historic Preservation restrictions as described in 28 C.F.R. § 35.405. However, to the extent that any RTM Restaurant is subject to 28 C.F.R. § 35.405 regarding historic preservation, RTM will comply with Section 4.1.7 of the Standards for Accessible Design where relevant to Section 11.1 of the Consent Decree;
(E) If a permit is denied for reasons not associated with an error(s) on the submitted construction document(s) or permit application(s), a Conditioned Permit is required, or if the work will result in a violation of an existing permit or certificate of occupancy, RTM will, nonetheless, complete all applicable Accessibility Enhancements at such site that are not otherwise precluded by the inability to obtain the permit for which a permit is not required or has been obtained; or
(F) To the extent such an
Accessibility Enhancement is not Readily Achievable, in Existing
Facilities. In addition to the
definition of "readily achievable" contained in 28 C.F.R Part 36 Subpart A
§36.104, the Parties agree that the following barrier removal measures or
alterations are not Readily Achievable:
(1) Removing or altering exterior walls;
(2) Removing or altering load-bearing members(s), which is/are an essential part of the structural frame;
(3) Removing or altering elements that would trigger "abatement" to the existing facility;
(4) Removal of or relocation of non-bearing walls that contain an electrical panel;
(5) Removal of
or relocation of non-bearing walls that contain the
kitchen’s Halon fire protection/suppression system;
(6)
Removal of or relocation of non-bearing walls that will significantly or
substantially reduce the existing operable work or storage space of the
facility;
(7)
Removal of or relocation of non-load-bearing walls that contain
electrical panels (excluding electrical outlets), plumbing lines (excluding
water feed lines to restroom fixtures), plumbing fixtures, vent stacks that
penetrate the roof, gas lines, or stand pipe chases, or where such remediation
work would require penetration of the floor slab (excluding relocation of
sanitary waste lines or plumbing vents or installation of hand rails),
foundation, or roof of the building;
(8) Removal of non-load-bearing walls that will significantly reduce the restaurant’s existing floor service area (i.e., tables, counters, bars, queuing areas, etc.);
(9) Constructing a standard accessible toilet stall in a multi-user toilet room, as shown in figure 30(a) to the Standards for Accessible Design, where requirement(s) of the authority having jurisdiction prevent combining existing toilet stalls to provide space for a standard accessible toilet stall. See, e.g., (Standards for Accessible Design Fig. 30[a]). In reference to the Plumbing Code, RTM will make a good faith attempt (and shall document such attempt) in having the authority having jurisdiction approve the combination of existing toilet stalls in order to provide a standard accessible toilet stall (Standards for Accessible Design Fig. 30[a]). However, RTM will not be required to seek any approval from the authority having jurisdiction to reduce the number of plumbing fixtures if such a reduction would reduce the number of toilet rooms within a facility or reduce the total waste fixture count within a facility below two waste fixtures, one in a women’s restroom and one in a men’s restroom;
(10) Alterations to restrooms that would require the temporary closing of an RTM Arby’s Restaurant. If the scope of the alterations is such that the work cannot be completed through after-hours construction with usable restrooms meeting the requirements of local building and/or health codes not being provided during all hours of operation then the alteration will be deemed to not be readily achievable. For restaurants where the drive through lane is open during hours where the dinning room and interior sales counter is closed an alteration that would not result in no less than one restroom being usable by employees during those hours would not be readily achievable; and
(11) Removing or altering a condiment counter that is not at an accessible height or within an accessible reach range.
11.3 Accessible Parking.
11.3.1 Width of parking spaces and access aisles. RTM will widen each requisite accessible parking space and access aisle and provide signage to comply with the Standards for Accessible Design.
11.3.2
Surface slopes on accessible parking spaces and
aisles. RTM will provide or
modify requisite accessible parking space and access aisle to comply with the
Standards for Accessible Design.
RTM is not required to modify parking spaces and access aisles that do
not have surface slopes that exceed 2.9 % in any direction for Existing
Facilities and 2.6% in any direction for New Construction Units.
11.3.3 Nearest parking not required. RTM may provide the requisite accessible parking in an area of the parking lot that is not the nearest parking to an accessible entrance if other parts of the parking lot are more level than the parking spaces nearest an accessible entrance and when the more distant parking area can be on an accessible route.
11.4 Accessible Entrance. All RTM Arby's Restaurants where entrances were altered on or before the Execution Date are not required to undergo an Accessibility Enhancement concerning the clear floor space between two doors in series when the doors in series provide an interior clear floor space between the doors of 46 inches measured from the leading edge of the inner door and the interior wall plane or surface of the wall in which the outer door is located and when the doors are 3'0" doors. RTM will provided or modify requisite doors in series clear floor space to comply with the Standards for Accessible Design for all RTM Arby’s Restaurant entrances altered after the Execution Date.
11.5 Elements Not Within the Ownership or Control of RTM. This Consent Decree does not require RTM to initiate any Accessibility Enhancements described in Section 11.1 to the extent that the elements are not within the ownership or direct control of RTM, except for elements that RTM is otherwise responsible for Accessibility Enhancements under applicable law as tenant or lessee. Where elements are not under RTM's ownership or control, RTM agrees to notify the owner of such element of any needed Accessibility Enhancement where such element is within the footprint of the property owned or controlled by RTM (such as a vending machine or telephone).
11.6 Alternative Measures. Whenever RTM determines that one or more of the Accessibility Enhancements described in Section 11.1 cannot be completed, pursuant to Section 11.2 through 11.5, RTM will undertake Readily Achievable Alternative Measures to provide accessibility and usability to the element affected. Illustrative examples of Alternative Measures that may be taken in lieu of making an Accessibility Enhancement, if Readily Achievable, include, but are not limited to providing accessibility and usability to a condiment counter that is too high by providing condiments in packets at the point of sale counter, as are provided at the drive-through window, and implementing policies and procedures to assist customers in accessing and using the condiments.
11.7 Maximum Expenditures on Existing Facilities. RTM's obligation under Section 11.2 to provide Accessibility Enhancements for Existing Facilities is subject to a $12,500.00 Direct Construction Cost limit per RTM Arby’s Restaurant.
11.8 Exterior Accessible Route to the Public Right-of-Way. An exterior accessible route to the public right-of-way will not be required at RTM Arby's Restaurants under the following conditions:
(A) When RTM does not own or control the land between the building or the building site and the public right-of-way.
(B) When there is no pedestrian sidewalk that is part of the public right-of-way adjacent to or bounded by the property line or site owned and/or operated by RTM the RTM owned and/or operated site; and,
(C) When the nearest public transportation stop is more than 1/4 of a mile from the location of the RTM Arby's Restaurant.
An exterior accessible route to the public right-of-way will be provided at all RTM Arby's Restaurants when a segment or portion of pedestrian side walk that is part of the public right-of-way is provided and is adjacent to or bounded by the property line or site owned and/or operated by RTM and when the construction of the exterior accessible route is technically feasible and readily achievable.
11.9 Policies and Procedures Pertaining to Effective Assistance and
Communication. RTM agrees to implement the following
policies and training programs intended to promote effective assistance for and
communication with persons with Auditory Disabilities, Visual Disabilities,
Communication Disabilities, and/or Mental Disabilities:
(A)
RTM will implement policies concerning the proper roles of managers and
counter and pick-up window employees in assisting customers with Auditory
Disabilities, and it will provide training concerning these
policies;
(B)
RTM will implement policies concerning the proper roles of managers and
counter and pick-up window employees in assisting customers with Visual
Disabilities with tasks such as reading the menu, ordering food, negotiating the
areas of the restaurant, and it will provide training concerning these
policies;
(C)
RTM will implement policies concerning the proper roles of managers and
counter and pick-up window employees in assisting customers with Communication
Disabilities with tasks such as reading the menu, ordering food, negotiating the
areas of the restaurant, and it will provide training concerning these
policies;
(D)
RTM will implement policies concerning the proper roles of managers and
counter and pick-up window employees in assisting customers with Mental
Disabilities, and it will provide training concerning these policies;
and
(E)
RTM will implement a policy permitting service animals in RTM Arby's
restaurants, and it will provide training concerning this
policy.
Before the policies and training programs set forth in this Section 11.9 are implemented by RTM, RTM shall deliver to Plaintiffs, and Plaintiffs shall approve, the content of such policies and outline of each of the training programs. RTM shall deliver the content of the policies and outline of each of the training programs to Plaintiffs within sixty (60) days of Final Approval of the Consent Decree. Within thirty (30) days of receipt of the proposed policies and training programs, Plaintiffs shall notify RTM in writing of:
(1) their approval of the policies and training programs; or
(2) their disapproval of the policies and training programs (a "Notice of Disapproval"). A Notice of Disapproval shall explain, with sufficient specificity, the basis of Plaintiffs’ disapproval of the policies and training programs and shall provide a suggested alternative and/or recommendations.
If Plaintiffs fail to notify RTM of such approval or disapproval within such thirty (30) days, the policies and training programs shall be deemed approved. If Plaintiffs disapprove of RTM's proposed policies and training programs, RTM shall have an additional thirty (30) days from its receipt of Plaintiffs' Noti