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MEMORANDUM OF AGREEMENT

This is an agreement of settlement ("Agreement"), the terms of which are subject to Court approval, of the claims in the lawsuit entitled Thalheimer, et al. v. Los Angeles County Service Authority For Freeway Emergencies, et al., Superior Court of the State of California, County of Los Angeles, Case Number BC 113690 (the "Litigation") to the extent such claims involve the California Department of Highway Patrol. The Litigation concerns generally the accessibility of freeway "call boxes," including, without limitation, surrounding areas and supporting structures, in Los Angeles County ("Call Boxes") to the Plaintiffs and others similarly situated. A separate written settlement agreement has been executed among Plaintiffs, on the one hand, and defendants the Los Angeles Service Authority for Freeway Emergencies ("LA SAFE"), the Los Angeles County Metropolitan Transportation Authority ("MTA"), and the California Department of Transportation ("Caltrans"), on the other hand, concerning the claims in the Litigation to the extent such claims are asserted against any of those defendants (the "Prior Settlement Agreement"), a copy of which is attached hereto as Exhibit A. Any capitalized term not defined herein shall have the meaning specified in the Prior Settlement Agreement.

  1. Parties. The parties to this Agreement (collectively, "Parties" or, individually, a "Party") are:
    1. On the one hand, Carol Anne Wright, Mona Thalheimer, Michelle Weiss and Jonathan Weiss, on their own behalf and on behalf of all other similarly situated California residents who may utilize Los Angeles County freeways and are deaf, hearing or speech impaired, or use wheelchairs (collectively, "Plaintiffs").
    2. On the other hand, the California Department of Highway Patrol ("CHP").
  2. Accessibility Of Call Box Program To Those With Hearing And/Or Speech Impairments.
    1. Receiving and responding to calls. If CHP contracts with LA SAFE to receive and respond to calls made utilizing telecommunications devices for the deaf ("TTYs") installed in Call Boxes, CHP shall (1) receive and respond to calls made utilizing TTYs in Call Boxes with the same priority and substantially the same speed as it at the time receives and responds to voice calls placed from Call Boxes; (2) dedicate specific call-taking locations for all Call Box calls; (3) install a TTY or other equipment provided by LA SAFE capable of receiving and responding to TTY calls at every dedicated Call Box call-taking position; (4) ensure that any enhanced features used for voice calls are also used for TTY calls, unless said enhanced feature(s) has (have) no application to TTYs; (5) ensure that TTYs are maintained in working order and backup TTYs are available, to the extent CHP has such an obligation pursuant to contract and/or statute; (6) perform reasonable periodic testing to ensure TTYs installed at any CHP Los Angeles Communications Center ("LACC") are working and, if not, give notice to LA SAFE expeditiously; (7) to the extent LA SAFE is required by contract and/or statute to ensure that any TTY or TTY-related equipment installed at a LACC is maintained in working order, to provide LA SAFE and/or its vendor reasonable access to every LACC for purposes of LA SAFE's fulfilling this obligation; (8) keep available any backup equipment provided to CHP by LA SAFE; (9) ensure that call takers are trained to switch from TTY mode to voice mode easily during a call, and (10) ensure that deployment of the keyboard notifies the call taker that the call is a TTY call, or adopt a policy to query all open line calls with a TTY (whereby the call taker sends a TTY message to the caller on an open line call, and does not to require the TTY caller to press one or more keys after the keyboard deploys to notify the call taker that the caller is using a TTY). The Parties acknowledge, however, that a TTY caller will have to press keys or buttons in order to deploy a Call Box TTY keyboard. Further, CHP shall ensure that, prior to the commencement of the installation of TTYs in Call Boxes, it has undertaken training of its operators and taken all other steps necessary to comply with the obligations in the previous sentence in accordance with the schedule specified herein for installation of the TTYs in the Call Boxes. In this regard, the Parties acknowledge that communication using TTYs is slower than voice communication to the extent that typing is slower than speaking.
    2. Access to Information by Plaintiffs. CHP will provide access and information reasonably requested by Plaintiffs to assure themselves of CHP's compliance with its obligations under Subparagraph 2.a. Such access will be granted to designated representatives reasonably agreed upon by plaintiffs and CHP. In this regard, the Parties acknowledge that CHP's CAD records do not currently distinguish voice from TTY calls. In the event such CHP records do in the future so distinguish, Plaintiffs will be given the access to them as set forth in the first two sentences of this Subparagraph 2.b.
    3. LA SAFE Contract Review. If LA SAFE contracts with an entity other than CHP to receive and respond to calls made utilizing TTYs in Call Boxes, CHP shall review the contract in good faith pursuant to Section 2421.5 of the Vehicle Code and shall not disapprove the contract on the ground that requirements in (a) the third sentence, or (b) clause (1) of the fifth sentence, of Subparagraph 2.g of the Prior Settlement Agreement are inappropriate performance standards under Section 2421.5 of the Vehicle Code for contracts to receive and respond to calls made utilizing TTYs in Call Boxes.
    4. Defenses to Performance. Any CHP contractual defense against LA SAFE arising from (1) a failure by LA SAFE to reimburse CHP for costs that are required to be reimbursed pursuant to Section 2421.5 of the Vehicle Code, or (2) a failure by LA SAFE to provide required Call Box related and dedicated equipment or, to the extent required by contract and/or statute, maintenance to CHP, shall be assertable by CHP to the same extent against Plaintiffs, except that under no circumstances may CHP decrease the service it provides for TTY calls from Call Boxes pursuant to Paragraph 2.a disproportionately to the service it provides for voice calls from Call Boxes due to the failure of LA SAFE to comply with its obligations to reimburse CHP's expenses. In the event that CHP contemplates a reduction in TTY service, it shall give Plaintiffs immediate notice of the contemplated reduction, as well as meaningful information from which Plaintiffs can verify that such reduction does not violate any provisions of this Agreement.
  1. Physical Accessibility Of Call Boxes.
    1. CHP Review And Approval. To the extent CHP review of the modifications of the Call Boxes specified in the Assessment referenced in the Prior Settlement Agreement is required by law for those modifications to be made, or CHP review of the Cellular Program referenced in the Prior Settlement Agreement is required by law for the Cellular Program to be implemented, CHP shall expeditiously review for approval the modification of the Call Boxes specified in the Assessment and/or the Cellular Program. This Subparagraph 3.a is without prejudice to any other obligations CHP shall undertake with respect to access to Call Boxes.
    2. CHP Failure to Approve Plans. To the extent CHP does not approve modifications proposed by LA SAFE, or its successors and assigns, relating to the Assessment, CHP shall forthwith notify all Parties and all parties to the Prior Settlement Agreement in writing by facsimile, stating in meaningful detail the reasons therefor. In addition, any Party or any Party to the Prior Settlement Agreement may, at its sole option, challenge said lack of approval, issuance of permits or granting of requests. Such a challenge shall be made in accordance with the procedures specified in Paragraph 6 hereof.
  1. Status Reports. Beginning on July 1, 1999 and quarterly thereafter, CHP will serve on Plaintiffs' designated counsel an interim status report ("Interim Status Report") enumerating in meaningful detail the actions that it has taken in the prior three months, and the actions that it plans to take in the next three months, in accordance with the terms of this Agreement. Within fifteen days of learning of any delay which may materially affect its performance of any of its obligations under this Agreement, CHP will also provide meaningful written notice of the delay to Plaintiffs. CHP's obligation to make Interim Status Reports under this Paragraph 4 shall terminate six (6) months after the later of (a) the installation of the final TTY required to be installed pursuant to the Prior Settlement Agreement, and (b) CHP's fulfillment of its obligations under Paragraph 3.a. One (1) month prior to the date on which its obligation to make Interim Status Reports is scheduled to terminate, CHP shall serve on Plaintiffs' designated counsel a final status report enumerating in meaningful detail the actions that it has taken since the date of its immediately prior Interim Status Report.
  1. Attorney's Fees And Costs.
    1. Each Party agrees that the Court may award attorney's fees and costs to Plaintiffs in the actual dollar amount, without a multiplier, of Plaintiffs' attorney's fees and costs in conjunction with the Litigation and the settlement thereof. While the actual amount of attorney's fees and costs to be awarded to Plaintiffs is subject to approval and/or determination by the Court in the Litigation, each Party agrees that the Court may set such amount for services rendered through March 4, 1999 at nine hundred ten thousand dollars ($910,000), it being also agreed by each Party that this is the approximate dollar amount of Plaintiffs' attorney's fees and costs through March 4, 1999, that such amount is fair and reasonable in view of the services rendered and costs incurred by Plaintiffs' counsel and that CHP will not in any way oppose or seek disapproval of a request for nine hundred ten thousand dollars ($910,000) (or any lesser amount) for said time period.
    2. CHP agrees that the attorney's fees and costs awarded to Plaintiffs shall be paid to Plaintiffs' counsel as specified in Subparagraphs 6.b and 6.c of the prior Settlement Agreement.
    3. Court disapproval of any attorney's fees and costs sought shall not affect the remainder of this Agreement.
  1. Dispute Resolution. Any dispute arising under this Agreement (whether or not the dispute relates to another provision of this Agreement that specifically references dispute resolution under this Paragraph 6) shall in the first instance be submitted to a mediator (the "Mediator") for assistance in reaching a consensual resolution, except as otherwise specified in Subparagraph 6.e herein.
    1. The Mediator shall be Richard Chernick unless (1) otherwise agreed by the Parties (in which case the Mediator will be the person agreed to by the Parties) or (2) Mr. Chernick does not agree to serve as the Mediator. If Mr. Chernick does not agree to serve as the Mediator, the Mediator will be chosen according to the procedures then employed by the American Arbitration Association for choosing an arbitrator in the County of Los Angeles, except that the Mediator will be selected within no more than twenty (20) days absent all parties' consent to a different time frame.
    2. The Mediator so-selected will mediate all further disputes subject to mediation under this Agreement unless (1) the Parties agree otherwise (in which case the Mediator will be the person agreed to by the Parties) or (2) the mediator so-selected declines further service as the Mediator (in which case a new Mediator will be selected according to the same procedures specified to select the prior mediator).
    3. All fees and costs of any Mediator shall be borne solely by the defendants in the Litigation who are involved in the mediated dispute, in such proportions to which those defendants agree (or, if those defendants cannot agree, those defendants may invoke the procedures of this Paragraph 6 to resolve the issue); provided, however, that if the Mediator finds that Plaintiffs have acted unreasonably in a particular dispute, the Mediator may propose to the Court that it enter an order that some or all of the Mediator's fees and costs in conjunction with that dispute be reimbursed by Plaintiffs from the Fee Set-Aside referenced in Subparagraph 6.d of the prior Settlement Agreement.
    4. Any Party may apply to the Court in the Litigation for resolution of any dispute under this Agreement that is not resolved within forty-five (45) days after one Party gives the other Parties notice of intent to submit the dispute to mediation, except that this period shall be extended by an additional twenty (20) days if a new Mediator is required to be selected to mediate the dispute. Said application shall be made by noticed motion unless, for good cause shown, the Court agrees to hear the matter on shortened time. The Court may decide the motion based upon the Parties' written submissions, or refer the matter to the Mediator pursuant to Code of Civil Procedure section 638.
    5. If the Mediator at any time determines that there has been a pattern of failure of the dispute resolution process under this Agreement, the Mediator may and shall relieve the Parties of their respective obligations to mediate any future dispute as a prerequisite to applying to the Superior Court. If, in the course of mediating any particular dispute, the Mediator determines that there is not a reasonable chance of a consensual resolution of that dispute, the Mediator may relieve the Parties of any obligation under Subparagraph 6.d to wait to submit that dispute to the Court in the Litigation for resolution.
  1. Code of Civil Procedure Section 664.6. Pursuant to Code of Civil Procedure section 664.6, the Court shall retain jurisdiction over the Parties to enforce the settlement embodied in this Agreement until performance in full of the terms of that settlement and, upon motion of Plaintiffs, may enter judgment pursuant to the terms of this Agreement. Plaintiffs agree that they will not move for entry of judgment pursuant to the terms of this Agreement until and unless CHP (1) fails to meet any of its obligations under this Agreement by the deadline specified herein, or (2) otherwise breaches this Agreement. Plaintiffs may forego moving for entry of judgment at any particular time without prejudice to their right to move for entry of judgment at another time. Prior to moving for entry of judgment, Plaintiffs will follow the dispute resolution procedures specified in Paragraph 6 herein (unless the Mediator has relieved them of that obligation pursuant to Subparagraph 6.e). CHP shall not object, except on the basis of a failure by Plaintiffs to comply with a prerequisite specified in this Paragraph 7, to any motion by Plaintiffs for entry of judgment pursuant to the terms of this Agreement. CHP shall not object to the Court's retention of jurisdiction over the parties to enforce the settlement embodied in this Agreement until performance in full of the terms of that settlement.
  1. Statutes of Limitations. All statutes and rules relating to the time during which the claims in the Litigation must be brought to trial will be tolled and suspended during the pendency of this Agreement.
  1. Motion To Expand Mobility Impaired Subclass. CHP agrees (1) to the expansion of the subclass that is currently limited to California residents who may utilize Los Angeles County freeways and use wheelchairs, and (2) not to oppose or interfere with any of the actions taken by any other parties in the Litigation to accomplish that objective, both as further specified in Paragraph 11 of the Prior Settlement Agreement.
  1. Class Notice. CHP will pay for any notice to the class of this Agreement and any additional class notice in the Litigation which the Court orders that is in addition to that notice for which the other defendants in the Litigation are responsible pursuant to Paragraph 10 of the Prior Settlement Agreement. The Parties will work together and with the other defendants in the Litigation to submit a joint proposal for any further class notice to the Court in the Litigation and to ensure minimum cost and maximum practicable combination of notices and outreach in any mailing or publication.
  1. Court Approval Of Settlement; Additional Documentation. Each of the Parties will use its best efforts to obtain court approval of the settlement embodied in this Agreement as soon as possible and to carry out the terms of this Agreement. Without limitation on the generality of the foregoing, the Parties agree to prepare and submit all documents, pleadings, and other materials to the Court (including without limitation (1) a Stipulation of Settlement in accordance with the terms of this Agreement, (2) a motion for preliminary approval of the Stipulation of Settlement, for approval of a proposal for class notice, and for a hearing on final approval of the Stipulation of Settlement, and (3) a motion for final approval of the Stipulation of Settlement), and taking all other actions, necessary to obtain final approval in the Litigation of the settlement embodied in this Agreement.
  1. Coordination With Prior Settlement Agreement. The Parties acknowledge that Plaintiffs have separately entered into the Prior Settlement Agreement, subject to Court approval, with the other defendants in the Litigation. The Parties will work together and with the other defendants in the Litigation to combine, and to coordinate to the extent combining is not feasible, the motions, stipulations, notices and other documents and actions necessary for approval of the settlement embodied in this Agreement with the motions, stipulations, notices and other documents and actions necessary for approval of the settlement embodied in the Prior Settlement Agreement. The Parties also agree that any dispute resolution under Paragraph 6 of this Agreement may include any of the other defendants in the Litigation, and any dispute resolution under the prior Settlement Agreement may include any Party hereto, as if LA SAFE, MTA, CHP, Caltrans, and Plaintiffs had jointly entered into one dispute resolution provision governing both (1) disputes arising under this Agreement, and (2) disputes arising under the Prior Settlement Agreement.
  1. Communications with Plaintiffs. Status reports and other notices to Plaintiffs pursuant to this Agreement should be submitted to:

Charles D. Siegal or Stuart N. Senator
Munger, Tolles & Olson LLP
355 South Grand Avenue
35th Floor
Los Angeles, CA 90071-1560
(213) 687-3702 (fax)

and to:

Carol Codrington or Eve L. Hill
Western Law Center for Disability Rights
919 S. Albany Street
Los Angeles, CA 90015-3980
(213) 736-1428 (fax)

or to such other person(s) as Plaintiffs may in the future designate in writing.

  1. Effective Date. This Agreement shall become effective upon (1) execution by all of the Parties, and (2) LA SAFE's carrying out its obligation under Subparagraph 6.b of the prior Settlement Agreement to cause nine hundred ten thousand dollars ($910,000) in good and immediately available funds to be deposited into an escrow account established by Plaintiffs' counsel. However, if this Agreement or the prior Settlement Agreement is disapproved by the Court in the Litigation, this Agreement shall be null and void ab initio and the parties shall have no further obligations under the Agreement once that disapproval is final and no longer subject to challenge by appeal or otherwise (the "Disapproval Date").
  1. Dismissal of Lawsuit. At such time as the Court in the Litigation approves the settlements embodied in this Agreement and the prior Settlement Agreement and awards attorney's fees and costs to Plaintiffs (the "Approval Date"), the Court shall enter an order ("Order") to that effect, which Order shall also dismiss the Litigation as to CHP, except the Court shall retain jurisdiction for purposes of enforcing the settlement embodied in this Agreement (including any award of attorney's fees and costs to Plaintiffs).
  1. Release. Once the Approval Date has occurred, and the approvals by the Court in the Litigation of the settlements embodied in this Agreement and the Prior Settlement Agreement are no longer subject to challenge by appeal or otherwise, CHP and its successors, attorneys, accountants, representatives, and each of them, shall be forever relieved, released, and discharged by Plaintiffs from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, and expenses (including costs and attorney's fees), damages, actions and causes of action, of whatever kind or nature based on, arising out of, or in connection with CHP's alleged failure, through the Approval Date, to provide access to Call Boxes. Notwithstanding the foregoing, this release does not extend to any rights or obligations under this Agreement.

a. Reservation of Rights by CHP.

  1. Notwithstanding anything else in this Agreement, CHP retains all rights, claims and/or defenses that it has or may have against any other defendant in the Litigation for indemnity, contribution and/or allocation with respect to its obligations under this Agreement, and nothing in this Agreement shall be construed as an agreement to waive or prejudice CHP's rights to bring or oppose a motion or other action for indemnity, contribution and/or allocation against any other defendant in the Litigation in connection with this Agreement or the Prior Settlement Agreement. Nothing in this Agreement shall prejudice CHP's right to appeal or otherwise seek review of any court determination of the proper allocation among the defendants in the Litigation of Plaintiffs' attorney's fees and costs, regardless of when incurred by Plaintiffs, said appeal or other review not to affect the total amount of attorney's fees and costs awarded to Plaintiffs, or the payment of said award to Plaintiffs and/or Plaintiffs' counsel. In the event any defendant in the Litigation seeks indemnity, contribution and/or allocation against any other defendant in the Litigation stemming from this Agreement or the Prior Settlement Agreement, Plaintiffs' counsel, upon request, shall provide to CHP copies of Plaintiffs' Litigation billing records, redacted for information that is privileged or otherwise protected from disclosure.
  2. Nothing herein shall be construed as an agreement on the part of CHP that, under any circumstances, it is the party liable to Plaintiffs or to any other defendant in the Litigation for any amount of attorney's fees. The terms of this Agreement, if any, pertaining to benefits from CHP to persons with mobility impairments shall not prejudice CHP in arguing in the Litigation that it is not the party liable for Plaintiffs' attorney's fees and costs pertaining to persons with mobility impairments.
  1. Non-interference. Each Party agrees not to take any action which would interfere with the performance of this Agreement by any of the Parties hereto or of the prior Settlement Agreement by any of the parties thereto or which would adversely affect any of the rights provided for herein.
  1. Settlement. This Agreement is intended to effect the settlement of claims which are denied and contested. Nothing contained herein shall be construed as an admission by any Party of any liability of any kind to any other party or to any other natural or juridical person, all such liability being expressly denied (without limitation on the generality of the foregoing CHP specifically denies that it has any duty with respect to the Call Boxes under any of the laws relied upon in Plaintiffs' complaint); provided that nothing in this Paragraph 18 shall in any way limit Plaintiffs' rights to recover their attorney's fees or costs in the Litigation and settlement thereof, as further specified herein and/or in the Prior Settlement Agreement.
  1. Termination of CHP Obligations. All CHP obligations hereunder shall terminate six (6) years after the later of (a) the installation of the final TTY required to be installed pursuant to the Prior Settlement Agreement, and (b) CHP's discharge of its obligations, if any, under Paragraph 3.a herein.
  1. Governing Law. This Agreement shall be construed in accordance with, and be governed by, the laws of the State of California for contracts entered into and performed wholly within the State of California.
  1. Authority To Execute. Each person signing below represents that he or she has authority to execute this Agreement on behalf of his or her respective Party or Parties.
  1. Successors. This Agreement shall inure to the benefit of and be binding upon each of the Parties, as well as its/his/her respective successors and assigns.
  1. Entire Agreement. This Agreement (read in conjunction with the Prior Settlement Agreement, where applicable) is the only, sole, entire and complete agreement between the Plaintiffs and CHP relating in any way to its subject matter. No statements, promises or representations have been made by one side to the other, and no consideration has been offered, promised, expected or held out other than as expressly provided herein..

IN WITNESS WHEREOF, the Parties have approved and executed this Agreement on the dates set forth opposite their respective signatures.

DATED: PLAINTIFFS

By_____________________________

WESTERN LAW CENTER FOR DISABILITY RIGHTS
MUNGER, TOLLES & OLSON LLP
NEWMAN.AARONSON.VANAMAN
BRYAN CAVE, LLP

Attorneys for Plaintiffs

DATED: California Department of Highway Patrol

By __________________________

Jonathan Rothman
Its General Counsel

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