[ Legal ]

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 are asserted against any of the Defendants defined in Paragraph 1.b herein. 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.

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, (1) the Los Angeles County Service Authority For Freeway Emergencies ("LA SAFE"), (2) the Los Angeles County Metropolitan Transportation Authority ("MTA"), (3) the California Department of Transportation ("Caltrans") (collectively, "Defendants" or, individually, a "Defendant").

2. Accessibility Of Call Box Program To Those With Hearing And/Or Speech Impairments.
   3. LA SAFE Obligation To Provide Accessible Call Boxes. LA SAFE shall make each Call Box accessible to motorists who are deaf or who have hearing and/or speech impairments. LA SAFE shall fulfill this obligation as further specified herein.
   4. Contract No. LAT-053-96. LA SAFE has entered into contract No. LAT-053-96 with Comarco Wireless Technologies, Inc. (the "Contract"). Concurrently with the execution of this Agreement, LA SAFE will provide Plaintiffs with any non-proprietary portions of the Contract, including appendices, addenda, attachments, and the like, other than those that Plaintiffs inform LA SAFE that they already possess. The Contract specifies, among other things, certain telecommunications devices for the deaf for use with the Call Boxes ("TTYs").
   5. Crash Testing. On September 28, 1998, LA SAFE approved a contractor and protocol for crash testing of the TTYs as required by Caltrans. Caltrans has participated in development of the protocol. LA SAFE has ensured that a full round of crash testing (including any necessary high speed and low speed tests) was completed by October 31, 1998. Caltrans has preliminarily approved the crash testing. If further redesign and crash testing of the TTYs and/or Call Boxes is necessary to obtain final approval by Caltrans, LA SAFE shall perform such further redesign and/or crash testing within twenty (20) calendar days of learning of such necessity and promptly submit the results to Caltrans. LA SAFE will repeat the process referenced in the previous sentence as many times as necessary and on the same schedule to obtain final crash testing approval from Caltrans. If, for any required retest, it is not possible to perform the test within twenty (20) calendar days because the test facility is in use, LA SAFE will so notify Plaintiffs and request an extension until the first succeeding day the test facility is available. Plaintiffs will not unreasonably refuse to consent to said request.
   6. Caltrans Review Of Crash Testing Results. Caltrans will employ an expedited schedule in formally reviewing the results of the crash testing. Within thirty (30) calendar days of receipt of the crash testing results, Caltrans will approve the crash testing results if they comply with the crash testing standards promulgated by the United States Department of Transportation ("Standards"). If Caltrans disapproves the crash testing results, or otherwise fails to approve the crash testing results within the period specified in this Subparagraph 2.d, Caltrans will immediately so notify all parties hereto by facsimile, stating its reasons in meaningful detail.
   7. Remedies For Caltrans' Failure To Approve Crash Testing. If Caltrans disapproves the crash testing results submitted to it by LA SAFE, or otherwise fails to approve the crash testing results within the period specified in Subparagraph 2.d herein, any Party may at its sole option challenge LA SAFE's design for installation of the TTYs in the Call Boxes and/or Caltrans's failure to approve the crash testing results. Such a challenge shall be made in accordance with the procedures specified in Paragraph 7 hereof, and will toll such further deadlines in this Paragraph 2 as the Mediator determines until the challenge is resolved.
   8. Installation Of TTYs In Call Boxes. Notwithstanding the time schedule for crash-testing set forth in Paragraphs 2.c and 2.d herein, not later than April 19, 1999, LA SAFE will begin installing TTYs for use with the Call Boxes (the "TTY Start Date"). Concurrently with the installation of a TTY for use with a Call Box, LA SAFE shall install signage that can be readily seen from the roadway and indicates the presence of the TTY. Six weeks after the TTY Start Date, and every week thereafter, LA SAFE shall have installed a rolling average of no fewer than seventy-five (75) TTYs in Call Boxes per week, beginning on the TTY Start Date, and measured six weeks after the TTY Start Date and every week thereafter. Without limitation on the obligations imposed by the previous two sentences, LA SAFE shall install TTYs in every Call Box within 60 weeks of the TTY Start Date. For good cause (including but not limited to events that would constitute force majeure and Caltrans crash testing final disapproval), LA SAFE may ask Plaintiffs to extend for up to eight (8) weeks (or, in the event Caltrans finally disapproves crash testing, the period of time until receipt of Caltrans final approval following redesign, whichever is greater) the deadlines specified in this Subparagraph 2.f for installation of up to three hundred (300) Call Boxes, and Plaintiffs shall not unreasonably refuse to consent to said request. LA SAFE shall appropriately maintain all TTYs installed in Call Boxes and related signage.
   9. LA SAFE Obligations Regarding Response To TTY Calls. LA SAFE shall contract in writing with a responsible entity to receive and respond to calls made utilizing TTYs in Call Boxes. The entity shall be the same entity with whom LA SAFE at the time contracts to receive and respond to voice calls placed from Call Boxes. The written contract shall require that the entity respond to calls made utilizing TTYs with the same priority, information and assistance, and substantially the same speed, as the entity at the time receives and responds to voice calls placed from 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. LA SAFE's written contract shall specifically include requirements that the entity (1) install a TTY or other equipment capable of receiving and responding to TTY calls at every dedicated Call Box call-taking position, (2) ensure that any enhanced features used for voice calls are also used for TTY calls, (3) ensure that TTYs are maintained in good working order and backup TTYs are available, (4) ensure that call takers are trained to switch from TTY mode to voice mode easily during a call, and (5) ensure that call takers are adequately trained to use TTY equipment, to query all open line calls with a TTY, and not to require TTY callers to press keys to notify call takers of TTY calls. The written contract shall also give LA SAFE the right periodically to place test calls from TTYs installed in Call Boxes in order to test the entity's compliance with the requirements for receiving and responding to calls made utilizing the TTYs. LA SAFE shall place such test calls at least monthly and, during the period in which LA SAFE is required to make Interim Status Reports pursuant to Paragraph 5 herein, report in meaningful detail on the results of those test calls in its Interim Status Reports. LA SAFE shall comply with all of its obligations under the contract (including without limitation any payment obligations). LA SAFE shall reimburse the California Department of Highway Patrol ("CHP") for all costs that are required to be reimbursed pursuant to Section 2421.5 of the Vehicle Code. Unless the entity with whom LA SAFE contracts is CHP, LA SAFE shall be a guarantor of the entity's performance of its obligations under the contract.
   10. Community Outreach. Beginning no later than the Effective Date, LA SAFE will begin a community outreach program to inform the deaf and hearing and speech impaired communities of the installation of TTYs in Call Boxes. The program will consist of the following: (1) a one-time mailing of meaningful information concerning the installation of the TTYs in the Call Boxes, and use of the TTYs so installed, through the California Department of Motor Vehicles ("DMV"), by regular mail to be included in the DMV's annual vehicle registration notice, to every person who owns a vehicle registered in Los Angeles County, (2) the placement of demonstration call boxes, with written instructions, at the GLAD headquarters, the National Center on Deafness at California State University at Northridge and at one additional location to which Plaintiffs and LA SAFE shall in the future agree, (3) causing the publication of notice of the installation of TTYs in Call Boxes, and the presence of demonstration units as specified in (2) above, in Silent News, Deaf Life, GLAD News, and the SHHH newsletter (the time and frequency of said publications to be agreed upon between LA SAFE and Plaintiffs so as to maximize impact on the relevant communities and cost no more than a total of $5000); (4) on-going advertisements in the Internet sites of, or links to any Internet sites of MTA or LA SAFE, and (5) distribution of notices agreed to among Plaintiffs and Defendants to all offices of the Los Angeles County Department of Public Social Services and to those entities listed in Exhibit D of the Order Regarding Class Certification And Methods And Form Of Notice filed June 26, 1996 in the Litigation, except for offices of those entities which are primarily under the jurisdiction of the State of California.

3. Physical Accessibility Of Call Boxes.
   11. LA SAFE Obligation To Provide Physically Accessible Call Boxes. LA SAFE shall make the Call Boxes physically accessible to people with mobility impairments who may use Los Angeles County Freeways, including those who use wheelchairs (collectively, "People with Mobility Impairments"). As specified further herein, either (1) LA SAFE shall make all modifications necessary to make all Call Boxes accessible to People with Mobility Impairments, or (2) if making all such modifications would require LA SAFE to incur direct costs of more than seven million, five hundred thousand dollars ($7,500,000), LA SAFE shall make those modifications that would make the Call Boxes accessible to the maximum subset of People with Mobility Impairments consistent with the direct costs of such modifications not exceeding of seven million, five hundred thousand dollars ($7,500,000).
   12. Accessibility Study.
       1. On or before April 19, 1999, LA SAFE will enter into a contract with Meyer, Mohaddes Associates, Inc. ("Meyer") to determine the steps, and to assist LA SAFE in obtaining the reviews and approvals, necessary to make each Call Box accessible to People with Mobility Impairments, as well as the cost of the steps necessary to make each Call Box accessible to People with Mobility Impairments (the "Assessment"). Such accessibility shall be deemed to include, without limitation, ensuring (a) that each of the Call Boxes is reachable and useable without assistance by People with Mobility Impairments, and (b) that each of the Call Boxes meets the requirements of the Americans with Disabilities Act, including to the extent applicable the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (specifying such requirements as accessible routes, clear space, reach ranges and operating mechanisms). LA SAFE shall ensure that Meyer retains a qualified accessibility specialist in conjunction with performing the Assessment. Plaintiffs may appoint a representative with respect to the performance of the Assessment. Plaintiffs' representative and LA SAFE shall jointly develop criteria to determine the modifications necessary to render any particular Call Box accessible.
       2. LA SAFE shall ensure that the Assessment is completed on or before August 16, 1999, it being understood that completion of the Assessment will also be dependent upon Caltrans' timely performing its obligations under Subparagraph 3.f herein. The Assessment shall be delivered to all Parties immediately upon its completion.
       3. Plaintiffs and LA SAFE shall promptly meet and confer about the Assessment and, within 30 days of its delivery to Plaintiffs, mutually agree upon an implementation plan for modification of the Call Boxes so as to make them accessible to the maximum number of People with Mobility Impairments consistent with the direct costs of the modifications not exceeding seven million, five hundred thousand dollars ($7,500,000) ("Implementation Plan"). If Plaintiffs and LA SAFE cannot timely agree upon such an Implementation Plan, whether because Plaintiffs object to all or part of the Assessment or for any other reasons, Plaintiffs and/or LA SAFE may invoke dispute resolution in accordance with the procedures set forth in Paragraph 7 herein.
       4. As soon as reasonably practicable but in no event more than thirty (30) days after Plaintiffs' and LA SAFE's agreement upon an Implementation Plan, LA SAFE will advertise for a firm, fixed price contract ("Procurement") to render the Call Boxes physically accessible to People with Mobility Impairments in accordance with the Implementation Plan. The Procurement shall include LA SAFE's standard contract terms and conditions as applicable, and also require, inter alia, that (1) bids be submitted within thirty (30) days, (2) the selected contractor start work within sixty (60) days of execution of the contract, and (3) the selected contractor meet the deadlines agreed upon by Plaintiffs and LA SAFE pursuant to Subparagraph 3.d. herein. LA SAFE will advise and consult with Plaintiffs on selection of the bid (or portions thereof) from the lowest responsive and responsible bidder consistent with making the Call Boxes physically accessible to the maximum number of People with Mobility Impairments and direct costs of no more than seven million, five hundred thousand dollars ($7,500,000) (less any adjustment pursuant to Subparagraph 3.e below), and recommend such bid (or portions thereof) to the LA SAFE Board as soon as reasonably practicable but in no event more than thirty (30) days after the deadline for responses to the Procurement. As used in this Agreement, the term "direct costs" means (1) material costs, (2) contractor labor costs, and (3) contractor profit, all measured in current dollars as of the Effective Date; it excludes (1) employee and/or general and administrative costs of any Defendant, (2) Call Box operation and maintenance costs and (3) the costs of the Assessment. "Direct costs" also excludes inspection and permitting costs, Caltrans having agreed not to charge for inspections and permits as further specified in Subparagraph 3.f.i herein.
       5. As soon as reasonably practicable but in no event more than seventy-five (75) days after LA SAFE has recommended a bid (or portions thereof) as specified in Subparagraph 3.b.iv herein, to the Board of LA SAFE, said Board shall, consistent with applicable law, approve LA SAFE's executing a fixed price contract with the contractor(s) specified in the chosen bid for the work specified therein (the "Physical Accessibility Contract"). The Physical Accessibility Contract will contain all of the usual safeguards incorporated by LA SAFE in its contracts. LA SAFE shall enter into the Physical Accessibility Contract as soon as reasonably practicable but in no event more than thirty (30) days after the approval of the Board of LA SAFE as specified in the first sentence of this Subparagraph 3.b.v.
   13. Implementation Of Modifications To Call Boxes. As soon as reasonably practicable, but in no event more than sixty (60) days after LA SAFE's executing the Physical Accessibility Contract, LA SAFE shall have obtained the reviews, approvals and permits necessary to make each Call Box accessible to People with Mobility Impairments and LA SAFE shall begin to modify the Call Boxes in accordance with the Physical Accessibility Contract (the "Mobility Start Date").
   14. Schedule For Implementation Of Modifications To Call Boxes. As part of Plaintiffs' and LA SAFE's agreeing upon the Implementation Plan pursuant to Subparagraph 3.b.iii herein, Plaintiffs and LA SAFE shall agree upon a schedule for performance of the modifications of the Call Boxes. The Physical Accessibility Contract shall require the contractor(s) to meet said schedule, which shall provide for: (1) completion of the modifications to all Call Boxes within 36 months of the Mobility Start Date, (2) monthly deadlines by which modifications will be completed on specified numbers of Call Boxes, starting no more than three months after the Mobility Start Date, (3) a substantially steady pace of modifications to the Call Boxes, starting no more than three months after the Mobility Start Date, and (4) for good cause (including but not limited to events that would constitute force majeure), Plaintiffs' agreeing to an LA SAFE request to extend for up to two (2) months the otherwise agreed-upon deadlines for up to two hundred (200) Call Boxes.
   15. Cellular Program. LA SAFE and Plaintiffs will forthwith meet and confer concerning the costs and benefits of implementing a program of cellular telephone service to serve as a supplement for People with Mobility Impairments to use the Call Box program (the "Cellular Program"). Following the meet and confer process, Plaintiffs will notify LA SAFE in writing of whether they desire implementation of a Cellular Program. If Plaintiffs so notify LA SAFE, (1) Plaintiffs will specify the general parameters for their desired Cellular Program, (2) LA SAFE and Plaintiffs will attempt to reach agreement on the details of such Cellular Program, and (3) LA SAFE will implement the agreed-upon Cellular Program, or, in the absence of agreement, implement the Cellular Program requested by Plaintiffs or may invoke dispute resolution in accordance with the procedures set forth in Paragraph 7 herein. Notwithstanding clause (3) of the previous sentence, (a) LA SAFE shall not be required to spend more than five hundred thousand dollars ($500,000) on implementation and operation of a Cellular Program, and (b) the seven million, five hundred thousand dollar ($7,500,000) cap specified in Subparagraph 3.b.i, iii and iv herein for the direct costs of making the Call Boxes accessible to People with Mobility Impairments shall be adjusted downward, dollar for dollar but in no event to less than seven million dollars ($7,000,000), based upon the cost of implementation and operation of a Cellular Program.
   16. Caltrans Obligations.
       1. To the extent required for the modifications of the Call Boxes specified in the Assessment to be made, Caltrans shall expeditiously review for approval each and every modification of the Call Boxes specified in the Assessment. Caltrans will process in good faith every application for encroachment permit within forty-five (45) calendar days. Caltrans will process in good faith any other request made to it, relating to the Assessment as soon as possible, but in any event within forty-five (45) days of the request. To the maximum extent consistent with applicable legal requirements, Caltrans shall approve each and every modification, issue permits and grant requests made to it, relating to the Assessment. Caltrans shall not charge for reviews, approvals, disapprovals (if any), inspections or issuance of permits related to any modifications of the Call Boxes specified in the Assessment.
       2. Caltrans shall not (1) impair the accessibility of any Call Boxes without reasonable prior notice to Plaintiffs and Defendants, or (2) impair the accessibility of any Call Boxes so as to prevent equal access by People with Mobility Impairments. If Caltrans breaches any obligation specified in the prior sentence, Caltrans shall expeditiously restore access to the Call Boxes in question at Caltrans' sole expense. Nothing in this Subparagraph shall relieve LA SAFE of its obligation to Caltrans under any existing agreement relating to call boxes to remove Call Boxes upon reasonable notice by Caltrans due to Caltrans work.
   17. Caltrans Failure to Approve Plans, Issue Permits, or Grant Requests. To the extent Caltrans does not approve modifications, issue permits or grant requests made to it by LA SAFE or its successors or assigns, relating to the Assessment, Caltrans shall forthwith notify all Parties in writing by facsimile, stating in meaningful detail the reasons therefor. In addition, any Party 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 7 hereof, and will toll such related deadlines in this Paragraph 3 as the Mediator determines until the challenge is resolved.
   18. Community Outreach. Beginning no later than the Mobility Start Date, LA SAFE will publicize its program to improve the physical accessibility of the Call Boxes and the Cellular Program, if any. The publicity will include, but not be limited to (1) causing the one-time mailing of meaningful information concerning each program through the California Department of Motor Vehicles, by regular mail, to be included in the DMV's annual vehicle registration notice, to every person who owns a vehicle registered in Los Angeles County, (2) issuing press releases to all major publications which focus on Los Angeles County to whom LA SAFE has issued press releases in the previous 12 months, (3) causing the publication of meaningful notice of each program in publications reasonably calculated to reach motorists with mobility impairments who reside in Los Angeles County (the time and frequency of said publications to be agreed upon between LA SAFE and Plaintiffs so as to maximize impact on the relevant communities and cost no more than a total of $5000), (4) information on, or on a link to, any MTA or LA SAFE Internet site, (5) establishing reasonable methods of applying for cellular telephones under the Cellular Program (if any), including, without limitation, Internet or email applications, and (6) distribution of notices of each program to all offices of the Los Angeles County Department of Public Social Services and to those entities listed in Exhibit D of the Order Regarding Class Certification And Methods And Form Of Notice filed June 26, 1996 in the Litigation, except for offices of those entities which are primarily under the jurisdiction of the state of California.

4. MTA Obligations. MTA shall not interfere with LA SAFE's performance of its obligations under this Agreement.

5. Status Reports. Beginning on July 1, 1999 and quarterly thereafter, each Defendant other than MTA 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, a Defendant will also provide meaningful written notice of the delay to Plaintiffs. Defendants' respective obligations to make Interim Status Reports under this Paragraph 5 shall terminate as follows:
   19. LA SAFE -- Six months after the latest of (a) the installation of the final TTY required to be installed pursuant to this Agreement, (b) the modification of all Call Boxes as specified in the Physical Accessibility Contract, and (c) the commencement of the Cellular Program (if any).
   20. Caltrans -- Six months after the later of (a) final approval by Caltrans of TTY crash testing results pursuant to Subparagraph 2.b or 2.c herein, and (b) the modification of all Call Boxes as specified in the Physical Accessibility Contract.

One month prior to the date on which its obligation to make Interim Status Reports is scheduled to terminate, each Defendant 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.

6. 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 said Party 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. The attorney's fees and costs awarded to Plaintiffs shall be paid to Plaintiffs' counsel as further specified herein.
   2. Within five (5) business days of the Effective Date, Plaintiffs' counsel shall establish an escrow account and so notify Defendants. Within ten (10) business days of the Effective Date, LA SAFE shall 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. If and when the Approval Date occurs, all funds in the escrow account, including interest but less escrow expenses, shall be immediately disbursed to Plaintiffs' counsel, except that if the Court in the Litigation awards less than nine hundred ten thousand dollars ($910,000), a pro rata adjustment and refund to LA SAFE of principal and interest held in the escrow account shall be made. If and when the Disapproval Date occurs, (1) all funds in the escrow account, including interest but less escrow expenses, shall be immediately returned to LA SAFE, and (2) all funds previously disbursed to Plaintiffs' counsel from the escrow account shall be repaid by the particular law firm or entity (in the case of the Western Law Center for Disability Rights) ("Law Firm") that actually received said funds. No Law Firm shall have any obligation relating to funds received by another Law Firm.
   3. Plaintiffs will submit bimonthly invoices to LA SAFE for Plaintiffs' attorney's fees and costs relating to work performed after March 4, 1999 in conjunction with (1) monitoring and enforcing (a) Defendants' performance of their obligations under this Agreement or any Stipulation of Settlement filed with the Court in the Litigation (including without limitation costs for Plaintiffs' representative under Subparagraph 3.b herein) and (b) in the event plaintiffs enter into a CHP Settlement Agreement (as defined in Paragraph 20 herein), CHP's performance of any obligations under any contract that LA SAFE enters into with CHP in performance of LA SAFE's obligations under Paragraph 2.g herein, (collectively, "Monitoring Costs"), and/or (2) negotiating or obtaining Court approval of this Agreement or the Stipulation of Settlement (collectively, "Settlement Costs"). Such invoices shall be paid by LA SAFE within thirty (30) days of receipt, except that, if there is a dispute about the reasonableness of any portion of the fees and costs reflected in the invoice, LA SAFE shall pay all undisputed amounts within thirty (30) days and the reasonableness dispute regarding any additional amounts shall be resolved in accordance with the procedures specified in Paragraph 7 herein. Absent exigent circumstances, which shall include, without limitation, the filing of an objection to the settlement embodied in this Agreement, Plaintiffs' Settlement Costs shall not exceed the aggregate amount of twenty-five thousand dollars ($25,000). Absent exigent circumstances, which shall include, without limitation, any objection to the Assessment or failure timely to agree to an Implementation Plan under Subparagraph 3.b.iii herein, Monitoring Costs shall not exceed twenty-five thousand dollars ($25,000) per year for the first two (2) years and fifteen thousand dollars ($15,000) per year thereafter, and an additional fifteen thousand dollars ($15,000) associated with Plaintiffs' participation in preparation and review of the Assessment and Implementation Plan, and consultation regarding the Physical Accessibility Contract, as provided in Paragraph 3.b herein. Attorney's fees and costs paid pursuant to this Subparagraph 6.c shall be paid into the escrow account specified in Subparagraph 6.b if paid prior to the Approval Date and directly to Plaintiffs' counsel if paid thereafter.
   4. Seven thousand five hundred dollars ($7,500) of the attorney's fees and costs to be disbursed from the escrow account specified in Subparagraph 6.b on the Approval Date shall upon disbursal be deposited into a separately-created bank account established and maintained by the Western Law Center for Disability Rights (the "Fee Set-Aside") if, on the disbursement date Defendants' obligations to make status reports under Paragraph 5 herein have not terminated. Except to the extent required by the Mediator pursuant to Subparagraph 7.c herein, the Fee Set-Aside shall be left in such account until the termination of Defendants' obligations to make status reports under Paragraph 5 herein.
   5. Court disapproval of any attorney's fees and costs sought shall not affect the remainder of this Agreement.
   6. If LA SAFE does not timely comply with any of its obligations under Subparagraph 6.b herein, Plaintiffs may at their sole option (and in addition to the remedies provided in Paragraph 8 herein) move the Court in the Litigation for an order providing (1) that Plaintiffs' attorney's fees and costs be borne in whole or in part by any other Defendant(s), or (2) that LA SAFE be compelled immediately to comply with its obligations under Subparagraph 6.b herein. Plaintiffs may at their sole option chose in their motion between the remedies specified in clauses (1) and (2) of the previous sentence, or seek both of the specified remedies, that specified in clause (1) to apply only if LA SAFE disobeys an order under clause (2). No Defendant will oppose such a motion on grounds in any way contrary to any of its agreements as stated in Subparagraph 6.a. herein. The Court may decide such a motion based upon the Parties' respective written submissions. If the Court orders that Plaintiffs' attorney's fees and costs be borne in whole or in part by any Defendant(s) other than LA SAFE, the payment procedures specified in Subparagraphs 6.b and 6.c herein shall apply to each such other Defendant with respect to the portion(s) of Plaintiffs' attorney's fees and costs that is ordered to be borne by it.
7. 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 7) shall in the first instance be submitted to a mediator (the "Mediator") for assistance in reaching a consensual resolution, except as otherwise specified in Subparagraphs 7.e and/or 7.f 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 involved in the mediated dispute, in such proportions to which those Defendants agree (or, if those Defendants cannot agree, the Mediator shall set the allocation among those Defendants pursuant to the provisions of this Paragraph 7); 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.
   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 7.d to wait to submit that dispute to the Court in the Litigation for resolution.
   6. Mediation shall not be a prerequisite to Plaintiffs' (1) filing a motion as specified in Subparagraph 6.f herein, or (2) moving for entry of judgment as specified in Paragraph 8 herein based upon a failure by LA SAFE timely to fulfill its obligations under Subparagraph 6.b herein.

8. 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 any Defendant (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 7 herein (unless (1) the Mediator has relieved them of that obligation pursuant to Subparagraph 7.e, or (2) the motion for entry of judgment relates to a failure by LA SAFE timely to fulfill its obligations under Subparagraph 6.b). No Defendant shall object, except on the basis of a failure by Plaintiffs to comply with a prerequisite specified in this Paragraph 8, to any motion by Plaintiffs for entry of judgment pursuant to the terms of this Agreement. No Defendant shall 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.

9. 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.

10. Class Notice. Defendants will pay for the cost of notice to the class of this Agreement and any necessary additional class notice in the Litigation. The cost of such notice will be allocated among Defendants. The Parties will work together to submit a joint proposal for any such notice to the Court and to ensure minimum cost and maximum practicable combination of notices and outreach in any mailing or publication.

11. Expansion of Benefits. The Parties recognize that this Agreement furnishes benefits to individuals who fall outside the currently-certified subclass of wheelchair users, such as those individuals who are otherwise mobility impaired, due, in part, to the fact that Plaintiffs and their attorneys have advanced the rights of all People with Mobility Impairments in the course of this Litigation and in negotiating this Agreement. Plaintiffs acknowledge that Defendants would not settle this class action if Defendants still faced the prospect of having to defend against one or more lawsuits from individuals who will be benefitted by this Agreement, but who may not technically fall within the current strict definition of the class or subclasses. Accordingly, to induce Defendants into executing this Agreement, Plaintiffs agree to the expansion of the releases provided herein, as well as the restriction against the prosecution of lawsuits covered by this Agreement, to all People with Mobility Impairments (the "Mobility Impaired Subclass"), and to participate in all actions necessary to accomplish that objective, including the filing of a motion to expand the subclass that is currently limited to California residents who may utilize Los Angeles County freeways and use wheelchairs.

12. 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) the motion referenced in Paragraph 11, (2) a Stipulation of Settlement in accordance with the terms of this Agreement, (3) 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 (4) 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. Except as otherwise agreed, Counsel to MTA (the law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP) will take primary responsibility in this regard and in preparing all papers required to be prepared pursuant to Paragraph 11 herein.

13. 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.

14. Effective Date. This Agreement shall become effective upon execution by all of the Parties and approval by the Board of MTA and the Board of LA SAFE (the "Effective Date"). However, if the Agreement is disapproved by the Court, or not approved by the Board of MTA and the Board of LA SAFE, the 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").

15. Dismissal of Lawsuit. At such time as the Court in the Litigation approves the settlement embodied in this 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 defendants LA SAFE, MTA and Caltrans, 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).

16. Release. Once the Approval Date has occurred, and the approval by the Court in the Litigation of the settlement embodied in this Agreement is no longer subject to challenge by appeal or otherwise, Defendants LA SAFE, MTA and Caltrans, and their respective 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 Defendants' 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.

17. Reservation of Rights Among Defendants.
    1. Notwithstanding anything else in this Agreement, each Defendant retains all rights, claims and/or defenses that it has or may have against any other Defendant and/or CHP for indemnity, contribution and/or allocation with respect to any of Defendants' obligations under this Agreement (including but not limited to payment of Plaintiffs' attorney's fees and costs).
    2. Any Defendant may seek to have the Court in the Litigation allocate liability for any of Defendants' obligations under this Agreement among the defendants in the Litigation (and any Defendant shall have the right to appeal from, or otherwise seek review of, such an allocation by the Court in the Litigation), provided that neither Plaintiffs nor their counsel shall (a) be parties to, or (b) in any way affected by, such allocation or any related proceedings (except that, upon request from Defendants' counsel, Plaintiffs' counsel shall provide copies of their Litigation billing records, redacted for information that is privileged or otherwise protected from disclosure). Without limitation on the generality of clauses (a) and (b) in the previous sentence, no allocation or related proceedings shall delay the disbursement of Plaintiffs' attorney's fees and costs to Plaintiffs' counsel or any other deadlines in this Agreement that in any way affect Plaintiffs or their counsel.

18. 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 which would adversely affect any of the rights provided for herein.

19. 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, MTA and Caltrans each 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 19 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.
    2. Coordination In Event Of Settlement With CHP. In the event that Plaintiffs enter into a written settlement agreement with CHP that resolves, subject to Court approval, Plaintiffs' claims against CHP in the Litigation ("CHP Settlement Agreement"), the Parties will work together and with CHP 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 CHP Settlement Agreement. The Parties also agree that, to the extent a CHP Settlement Agreement contains a dispute resolution provision analogous to Paragraph 7 herein and to the extent CHP so agrees in the CHP Settlement Agreement, any dispute resolution under Paragraph 7 of this Agreement may include CHP, and any dispute resolution under the CHP 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 CHP Settlement Agreement.
20. 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.

21. 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. Notwithstanding the foregoing, it is understood by each Party that this Agreement shall not become effective until and unless it is approved by the Board of MTA and the Board of LA SAFE as provided in Paragraph 14 herein.

22. 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.

23. Entire Agreement. This Agreement is the only, sole, entire and complete agreement between the Plaintiffs and the Defendants relating in any way to its subject matter, and supercedes the written agreement executed on or about March 4, 1999 by Plaintiffs' counsel, on the one hand, and representatives of MTA and LA SAFE, on the other hand. 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.

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