Exhibit B-Settlement Agreement.pdf

SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA

AND THE WASHINGTON STATE PARKS AND RECREATION COMMISSION

USAO #2023v00508; DJ #204-82-233

I. BACKGROUND

1. The parties to this settlement agreement (“Agreement”) are the United States of America (“United States”) and the Washington State Parks and Recreation Commission (“WA State Parks”), a Washington state agency (collectively “the Parties”).

2. The United States initiated an investigation in response to a complaint against WA State Parks, alleging violations of Title II of the Americans with Disabilities Act of 1990, as amended (the “ADA”), 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 C.F.R.

Part 35. Specifically, Complainant D.H. (the “Complainant”), alleged that WA State Parks failed to maintain the accessible campsite at Paradise Point State Park, which caused her partner J.E., an individual with a mobility disability, to suffer a physical injury in violation of his rights.

3. WA State Parks fully cooperated with the United States’ investigation of this matter. The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement.

II. INVESTIGATION AND DETERMINATIONS

4. The U.S. Attorney’s Office for the Western District of Washington (“USAO”) is authorized under 42 U.S.C. §§ 12131-34 and 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine the WA State Parks’ compliance with Title II of the ADA. The USAO has the authority to, where appropriate, negotiate and secure voluntary compliance agreements, to resolve investigations through informal resolution such as settlement agreements, and to bring civil actions enforcing Title II of the ADA should it fail to secure voluntary compliance. 28 C.F.R. § 35.172(c).

5. J.E. has a mobility impairment, as such, is an individual with a “disability” within the meaning of the ADA. 42 U.S.C. § 12102; 28 C.F.R. § 35.104.

6. The ADA applies to WA State Parks because it is a “public entity” pursuant to Title II of the ADA, 42 U.S.C. § 12131. Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in the “services, programs, or activities of a public entity.” 42 U.S.C. § 12132. Title II also states that public entities may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.” 28 C.F.R. § 35.130(b)(1)(ii).

If a public entity employing fifty (50) or more persons will undertake structural changes to existing facilities to achieve program accessibility, the public entity must develop, a transition plan setting forth the steps necessary to complete such changes.” 28 C.F.R. § 35.150(d). Title II regulations also require public entities employing fifty (50) or more persons to “designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities” under Title II. 28 C.F.R. § 35.107.

7. Under Title II of the ADA, no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity. 28 C.F.R. § 35.149. Public entities shall operate each service, program, or activity, so that when viewed it its entirety, it is readily accessible to or usable by individuals with disabilities as required by 28 C.F.R. § 35.150.

a. Public entities must ensure new construction and alterations to facilities are completed “in such a manner that the facility or part the facility is readily accessible to and usable by individuals with disabilities,” as set out in 28 C.F.R. § 35.151.

b. For altered facilities, the “path of travel to any altered area and the restrooms, telephones, and drinking fountains serving the altered area must be “readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs,” as set out in 28 C.F.R. § 35.151(b).

c. Facilities must comply with the applicable accessibility standards as set out in 28

C.F.R. § 35.151(c).

d. Public entities must “maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities.” 28 C.F.R. § 35.133.

8. The USAO has determined that WA State Parks failed to comply with Title II of the ADA. Specifically, the USAO observed that WA State Parks has no formal procedures for identifying and addressing maintenance of accessible feature problems. In addition, during the course of the USAO investigation, the USAO learned that WA State Parks does not have a coordinated routine to ensure new construction or alterations satisfy applicable ADA accessibility standards and identified several non-compliant facilities at Paradise Point State Park that were constructed or altered after the ADA effective dates.

9. The USAO and WA State Parks agree that this settlement agreement represents an appropriate method to remediate these violations of the ADA identified by the USAO.

III. DEFINITIONS

10. “ADA accessibility standards” means the relevant standards required under 28 C.F.R. § 35.151(c) and as set forth below:

a. Physical construction or alterations commenced between July 26, 1992, and September 15, 2010, must comply with either UFAS or the 1991 Standards.

b. Physical construction or alterations commenced between September 15, 2010, and

March 15, 2012, must comply with the 2010 Standards, UFAS, or the 1991 Standards.

c. Physical Construction or alterations commenced after March 15, 2012, including construction or alterations completed to remediate non-compliant features and elements under the Remediation Plan required by Paragraph 20, must comply with the 2010 Standards.

11. “State Parks” include all parks operated by WA State Parks.

12. “Alterations” include alterations to a facility or part of a facility made in a manner that affects or could affect the usability of the facility or part of the facility, excluding alterations to windows, hardware, controls, electrical outlets, and signage. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

13. “Path of Travel” means a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility, includes the restrooms, telephones, and drinking fountains serving the altered area. Path of travel may consist of walkways and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.

14. “Disproportionate costs” are costs that exceed 20% of the overall cost of the alteration to facilities where activities, services, and programming are provided to the public.

15. “Effective Date” means the date of the last signature to this Agreement below.

IV. EQUITABLE AND COMPENSATORY RELIEF

A. General Principles

16. Non-Discrimination. With respect to all of its programs, services, and activities, WA State Parks agrees not to engage in any act or practice, directly or through contracting, licensing, or other arrangements, that has the purpose or effect of unlawfully discriminating against any person with a disability in violation of Title II of the ADA.

17. Equal Opportunity. WA State Parks will ensure that people with disabilities, including persons with physical disabilities, have an equal opportunity to participate in or benefit from WA State Parks’ programs, services, and activities. WA State Parks will comply with the identified ADA accessibility standards when making remediations required by this Agreement.

18. Maintenance of Accessible Features. Isolated or temporary interruptions in service or access due to maintenance or repairs are not prohibited, but WA State Parks otherwise will maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities.

B. Changes to Policies and Facilities

19. Policies. Within ninety (90) days of the Effective Date of this Agreement, WA State Parks will submit to the USAO for review and comment draft policies that will be established to implement the requirements of this Agreement, including procedures for maintaining accessible features and ensuring new construction and alterations satisfy the applicable ADA accessibility standards. Policies will, at minimum, provide for routine inspections to identify maintenance problems that require correction, notice to the public of temporary accessibility or usability interruptions, and a description how the WA State Parks will determine remediation timelines to ensure prompt completion of necessary maintenance and repairs. The policies will further include procedures for reviewing WA State Parks buildings and facilities for compliance with 28 C.F.R. § 35.151. WA State Parks will adopt the amended policies within thirty (30) days after the USAO’s final approval.

20. Remediation of Newly Constructed and Altered Facilities. In order to ensure that its facilities where activities, services, and programs are provided to the public are readily accessible to and usable by persons with disabilities as required by the ADA, WA State Parks will make remediations to ensure all such facilities constructed or altered after July 26, 1992, and any paths of travel are compliant with the applicable ADA accessibility standards. If the changes required for accessibility of the path of travel result in disproportionate costs, WA State Parks will ensure the path of travel is made accessible to the extent it can without incurring disproportionate costs. Within twelve (12) months of the Effective Date of this Agreement, WA State Parks will submit to USAO for review and approval a list of any noncompliant buildings and facilities and a Remediation Plan and timeline to satisfy these requirements.

a. The submission will include a list of all construction and alteration completed since July 26, 1992, at all WA State Parks along with improvements to the path of travel thereto to satisfy the applicable ADA Accessible Design Standards.

b. For any noncompliant paths of travel to the altered area, the list will specify the improvements required to satisfy the applicable ADA accessibility standards.

c. The submission will include a proposed Remediation Plan and timeline for ensuring that all necessary corrections to any non-compliant buildings and facilities begin no later than October 1, 2025, and are completed by June 30, 2031, if fully funded by the Legislature. WA State Parks will make a good faith effort to complete all remediations according to the approved Remediation Plan’s timeline. Good faith effort will be demonstrated through the following:

i. When the Remediation Plan is complete, State Parks will begin any necessary consultations with stakeholders, including but not limited to affected tribal nations.

ii. No later than September 30, 2024, WA State Parks will prepare and submit any necessary budget requests to the Office of Financial Management for the first phase of implementation.

iii. As soon as practicable and no later than June 30, 2025, WA State Parks will notify the USAO of any anticipated delays due to budget constraints and will propose modifications to the Remediation Plan’s timeline for the USAO approval.

iv. If WA State Parks believes any further modifications to the Remediation Plan’s timeline are necessary, WA State Parks will notify the USAO as soon as practicable and will propose modifications to the Remediation Plan timeline for the USAO approval.

d. Upon approval by the United States, WA State Parks will complete all necessary corrections in accordance with its remediation plan.

21. Transition Plan Revisions. Within (90) days of the USAO’s approval of the Remediation Plan required under Paragraph 20, WA State Parks will revise and republish its 2020 ADA Title II Transition Plan to correspond with the Remediation Plan and ensure all facilities that were constructed or altered after July 26, 1992, are compliant with applicable ADA Accessible Design Standards by June 30, 2031.

C. Notice and Implementation

22. Grievance Procedure. Within one hundred twenty (120) days of the Effective Date of this Agreement, WA State Parks will submit to the United States for review and comment draft revisions to its ADA grievance procedures. WA State Parks will adopt and publish the amended grievance procedure within thirty (30) days after the USAO’s final approval. The grievance procedure must be revised to provide for the following:

a. Investigation and equitable resolution of complaints related to WA State Parks programs, services, facilities, and activities alleging acts or omissions that would be prohibited by the ADA or this Agreement; and

b. Procedures for individuals to report usability or accessibility barriers to state park programs, services, or activities. WA State Parks shall include a list of complaints made under this procedure in its Six-Month Report, see Paragraph 28.

23. ADA Coordinator. WA State Parks has a designated ADA Coordinator, who will serve as the primary point of contact for WA State Parks’ efforts to comply with and carry out its responsibilities under Title II of the ADA and this Agreement.

a. The duties of the ADA Coordinator will include the investigation of any complaints on the basis of disability communicated to WA State Parks. The ADA Coordinator will log all complaints, whether formal or informal, the outcome of each investigation, and any remedial steps taken in response.

b. WA State Parks shall provide the ADA Coordinator with sufficient authority, training, and resources to perform the tasks required by this Agreement.

c. The ADA Coordinator shall have the authority to make the final determination regarding actions and responses to complaints concerning disability-related issues, including requests for auxiliary aids and services, and reasonable modifications to policies, practices, and procedures, subject to the approval of the Director of Parks Development.

d. WA State Parks will maintain an ADA Coordinator for the term of this Agreement. If

WA State Parks changes its ADA Coordinator, it will notify the United States in writing, and update the name and contact information anywhere it appears, within ten

(10) days of making such a change.

24. Notice. Within one hundred twenty (120) days of the Effective Date of this

Agreement, WA State Parks will provide notice to the public about its ADA policies and plans.

a. At all WA State Parks public facilities in which personnel are reasonably anticipated to engage with members of the public, WA State Parks will post conspicuous signs in public areas that advise individuals with disabilities of the ADA Coordinator’s name and contact information and grievance procedures required under Paragraphs 22 and 23.

b. WA State Parks will post on its public facing website at https://parks.wa.gov/find-activity/activity-search/ada-accessible-recreation the ADA Coordinator’s name and contact information, its ADA grievance procedure, its remediation plan for facilities constructed or altered after July 26, 1992, and its revised transition plan to remove obstacles in WA State Parks that limit accessibility of WA State Parks’ programs and activities to individuals with disabilities. This information will also be made available in an accessible format to any individual upon request.

25. Log of Maintenance Inspections and Repairs. WA State Parks will maintain a log in which all inspections and repairs of accessible features in state parks will be documented.

a. The log will indicate the location and time of all inspections and identify the accessible features assessed in the WA State Parks.

b. If inspections, reports, or complaints identify any accessible features in the state parks that need maintenance or repairs, the log will indicate the accessible feature reported or identified, the nature of repairs requested or recommended, the location of the accessible feature, and the date work is completed.

c. If a usability barrier to an accessible feature is reported or identified but the WA State Parks determines repair is not necessary, the log shall contain a statement as to why the requested or recommended work was not completed and identify the Employee who conducted the assessment and made the determination.

d. A copy of this log shall be included in WA State Park’s Six-Month Report, see

Paragraph 28.

26. Training. WA State Parks will train all WA State Parks personnel involved in the planning, development, or implementation of any new construction or alterations or in the maintenance of accessible features on the policies and plans required under this agreement.

Within ninety (90) days of the implementation of the Policies, WA State Parks will include information about the ADA maintenance of accessible features in new employee onboarding.

Within twelve (12) months of the implementation of the Policies, WA State Parks will submit draft training materials on all revised Policies for all employees and the resume or curriculum vitae of the trainer to the United States for review and comment. The training will be completed within six (6) months of the United States’ approval. After this initial training, WA State Parks will train all newly hired Personnel involved in the planning, development, or implementation of any new construction or alterations or in the maintenance of accessible features on the policies and plans required under this agreement within sixty (60) days of the commencement of their employment. The trainings for current and new Personnel will be sufficiently detailed to enable WA State Parks Personnel to effectively implement all provisions of this Agreement, including, but not limited to:

a. The content and meaning of the policies and plans adopted pursuant to Paragraphs 19 and 20;

b. WA State Parks’ prohibition against discrimination, retaliation, or coercion against any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the

ADA;

c. The use of the maintenance inspections and repair logs required by Paragraph 25; and

d. The name and basic responsibilities of the ADA Coordinator and how they can be reached.

27. Training Log. WA State Parks will maintain records of all training provided in accordance with Paragraph 26, which will include the names, signature, and respective job titles of the attendees, as well as the date and time of the training session. Within eighteen (18) months of the Effective Date of this Agreement, WA State Parks will provide the United States with a copy of the training log and a statement that all WA State Parks Employees required to be trained under this Agreement have been trained. This documentation shall be included in the Six- Month Report, see Paragraph 28. If any WA State Parks employee has not been trained, WA State Parks will explain the reason why they have not been trained and provide a date by when they will be trained.

28. Six Month Reports and Compliance Review. During the term of this Agreement, WA State Parks will report every six months and at the end of the term of the Agreement, to the U.S. Attorney’s Office as to its compliance with this Agreement. The reports shall be forwarded by regular or electronic mail to the designated U.S. Attorney’s Office employee handling this matter. This report shall describe efforts to comply with the terms of this Agreement and shall include:

a. The Log of Grievances Related to the ADA (Paragraph 23);

b. The Log of Maintenance Inspection and Repairs (Paragraph 25);

c. The Training Log and either a statement that all WA State Parks Personnel required to be trained under this Agreement have been trained or the number of WA State Parks Personnel who are required to be trained but have not been trained, the reason(s) why, and a corrective plan of action (Paragraph 27); and

d. A status report of remediations set forth in the Remediation Plan (Paragraph 20) and obstacle removals set forth in the Transition Plan (Paragraph 21) that have been completed during the reporting period.

V. ENFORCEMENT AND MISCELLANEOUS PROVISIONS

29. Duration of the Agreement. This Agreement will be in effect for seven (7) years or when the Parties agree that full compliance with this Agreement by WA State Parks has been achieved, whichever is earlier.

30. Consideration. In consideration of the terms of this Agreement as set forth above, the United States agrees to refrain from undertaking further investigation or from filing a civil suit under Title II of the ADA related to Complainant’s allegations in Paragraph 8, except as provided in Paragraph 31. Nothing contained in this Agreement is intended or will be construed as a waiver by the United States of any right to institute proceedings against WA State Parks for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.

31. Compliance Review and Breach. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in the U.S. District Court in accordance with applicable court rules and laws. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with WA State Parks, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow WA State Parks thirty (30) days from the date it notifies WA State Parks of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement. If the United States reopens this investigation, WA State Parks agrees not to assert statute of limitations, laches, or any other defense as the delay caused by the period in which this Agreement was in place. If any part of this Agreement is for any reason held to be invalid, unlawful, or otherwise unenforceable by a court of competent jurisdiction, such decision will not affect the validity of any other part of the Agreement. WA State Parks and the United States will meet within fifteen (15) days after a court’s decision to determine whether the Agreement should be revised or supplemental in response to the court’s decision.

32. Scope. This Agreement and the attachments hereto constitute the entire agreement between the Parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, will be enforceable. This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA, such as violations relating to persons other than Complainant, or any other federal law.

33. Binding. This Agreement is final and binding on the Parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. WA State Parks has a duty to so inform any such successor in interest of this Agreement.

34. Non-Waiver. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.

35. Execution. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures will constitute acceptable, binding signatures for purposes of this Agreement.

36. Severability. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement will nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and WA State Parks will engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.

FOR THE UNITED STATES OF AMERICA:

Susan Kas Assistant United States Attorney United States Attorney’s Office

[SIGNATURES CONTINUE ON NEXT PAGE]

8/26/24 Date

FOR THE WASHINGTON STATE PARKS AND RECREATION COMMISSION:

Heather Saunders Director of Parks Development Washington State Parks and Recreation Commission

08-26-2024

ATTORNEYS FOR THE WASHINGTON STATE PARKS AND RECREATION

COMMISSION

ROBERT W. FERGUSON

Attorney General s/ Andy Woo 8/22/2024

Andy Woo Assistant Attorney General Washington State Office of the Attorney General

V. ENFORCEMENT AND MISCELLANEOUS PROVISIONS