CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg1e o1fo2f323

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAULPECUNAS; SHONAEAKIN;

)

MARK ZAHAR, and

)

VOICES FOR INDEPENDENCE, INC. (VFI), ) Civil Action No.:

on behalf of themselves and all others

)

similarly situated

)

)

Plaintiffs,

)

v.

)

)

COMMONWEALTH OF PENNSYLVANIA

)

DEPARTMENT OF TRANSPORTATION;

)

ALLEN D. BIEHLER, P.E., in his official

)

capacity as Secretary of Transportation of

)

the Commonwealth ofPennsylvania;

)

COMPLAINT:

MILLCREEK TOWNSHIP, PA;

)

CLASS ACTION

)

Defendants.

)

*******************************************************

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT

1. Millcreek Township, Pennsylvania (hereinafter "Millcreek") is not accessible

to and readily usable by Plaintiffs and other persons with disabilities. Millcreek's street level

pedestrian walkways and intersections are not safe, and people using wheelchairs for mobility

are forced to travel in the streets.

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II

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2. The Department of Transportation of the Commonwealth of Pennsylvania, (hereinafter "PennDOT") and Millcreek have spent federal and state taxpayer dollars creating or

iI,l
! ~
I.

altering street level pedestrian walkways and street intersections and certain other facilities in

i;

II

Ii

II II
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CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg2e o2fo2f323
ways that are not readily usable to and accessible to Plaintiffs and others. Because Defendants have failed to make and to maintain these to be accessible, Plaintiffs and similarly situated class members with disabilities are denied access to Defendants' services, programs or activities, and must risk serious injury attempting to traverse Millcreek Township, or while attempting to use or participate in these services, programs and activities.
3. Beginning in 1973, under section 504 of the Rehabilitation Act, 29 U.S.C. §§701, et seq. ("Rehab Act") Congress prohibited Defendants-when receiving federal money-from discriminating in services, programs or activities against persons with disabilities. See, 29 US.c. §794. Later, in 1990 with the Americans With Disabilities Act of 1990,42 U.S.C. §§12101, et. seq. ("ADA"), Congress strengthened the law, prohibiting Defendants from disability discrimination even if they did not receive federal funds. Both the ADA and Rehab Act also contain provisions requiring cities to make modifications in their services, programs, activities and facilities to make them readily usable and accessible.
4. Defendants-through defective construction and alterations, combined with insufficient maintenance and enforcement-have continuously failed to ensure that their street level pedestrian walkways, intersections and certain other facilities, services, programs and activities are readily usable by and accessible to Plaintiffs and others who are similarly situated.
5. Defendants have engaged in a continuing pattern and practice of overarching discrimination against Plaintiffs and class members beginning at least in January 1992 and continuing each year to the present.
2.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg3e o3fo2f323 6. Plaintiffs file this class action lawsuit to seek court intervention to force
Defendants to live up to their federally mandated duties to ensure accessibility to their citizens with disabilities.
7. Plaintiffs ask the court to order Defendants to retrofit or remediate their intersections and street level pedestrian walkways, as required by the Rehab Act andlor the ADA, to make them readily usable and safe for people with disabilities. Plaintiffs also ask the court to order Defendants to put into place a detailed system to ensure that they comply with all federal accessibility law in the future so that the new construction and alterations, in addition to systemic maintenance, will ensure mandated access for people with disabilities.
II. JURISDICTION AND VENUE
8. This Court has jurisdiction of Plaintiffs' claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3).
9. Venue is proper under 28 U.S.C. § 1391(b) because each Defendant is located in the Western District of Pennsylvania and the events andlor omissions giving rise to Plaintiffs' claims occurred in this District.
3.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg4e o4fo2f323
III. PARTIES
10. Plaintiff, Voices for Independence, Inc. ("VFI"), is a membership organization that advocates to increase opportunities for independent living for persons with disabilities. It serves people with disabilities throughout Pennsylvania, including throughout Millcreek Township, Pennsylvania. VFI's mission is to promote access and inclusion of persons with disabilities into housing, employment and recreation. Defendants' failure to properly construct, alters, or maintain their services, programs and activities frustrates VFI's mission and purposes. VFI has diverted significant resources docmnenting violations by Defendants and in attempting to correct those illegal patterns of conduct.
11. Paul Pecunas, Shona Eakin and Mark Zahar-the named individual Plaintiffs-frequently travel throughout Millcreek Township, Pennsylvania. These Plaintiffs rely on wheelchairs to travel. Plaintiff Pecunas is a consumer of Plaintiff VFI, and Plaintiff Eakin is a consumer of and is the Executive Director of VFI. Each named individual Plaintiff is a person with a disability as defined by the ADA and the Rehab Act, and each is denied access to facilities, programs, services or activities of both Defendants as described herein.
12. Defendants PennDOT and Millcreek are each public entities as that term is defined under 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104. Defendant Allen D. Biehler, P.E., has been the Secretary of Transportation for the Commonwealth of Pennsylvania since 2003. He has ultimate decision and policy-making authority over the matters at issue in this lawsuit.
4.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg5e o5fo2f323
Defendants are discriminating against Plaintiffs and others by denying access to facilities, programs, services and activities located in Millcreek Township.
IV. CLASS ACTION ALLEGATIONS
13. Pursuant to Fed. R. Civ. P. 23 (b)(2), Plaintiffs bring this action on behalf of themselves and a class of all persons who live or will live in or who visit or will visit Millcreek Township, Pennsylvania, and who, because of a disability as defined by the Rehab Act or the ADA, have difficulties in unassisted ambulation or sight. Plaintiffs seek declaratory and injunctive relief only, but not damages, on behalf of themselves and the class.
(a). The class is so numerous that joinder of the individual members would be impracticable. According to the United States Census, Millcreek Township contains approximately 2,000 citizens defined in the category "Go Outside of Home-Disabled Residents, Noninstitutionalized", as well as more than 1,000 citizens defined in the category "Sensory-:Disabled Residents, Noninstitutionalized". See United States Census Information, attached hereto as Exhibit 1. Additionally, many non-residents of Millcreek with disabilities travel throughout, patronize businesses in, or visit family and friends in Millcreek. Plaintiffs and others similarly situated will travel in Millcreek more often if Defendants comply with the ADA and Rehabilitation Act and make their facilities, services, programs and activities in Millcreek accessible to persons with disabilities.
(b). The named Plaintiffs are adequate class representatives because they are directly impacted by Defendants' failure to build, alter or maintain Defendants' facilities, programs, services and activities to be accessible to Plaintiffs. The interests of the named
5.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg6e o6fo2f323

Plaintiffs are not antagonistic to, or in conflict with, the interests ofthe class as a whole. The

attorneys representing the class are experienced in representing clients in class actions involving

civil rights claims, including enforcement of the ADA, and other federal claims.

(c). Common questions of law and fact predominate, including questions posed

by Plaintiffs' allegations that Defendants have failed to operate their facilities, programs,

services or activities to be accessible to Plaintiffs and others.

(d). Claims of the named Plaintiffs are typical ofthe claims of the class because

all class members and the named Plaintiffs are affected by Defendants' discrimination against

I

Plaintiffs and others. (e). Defendants have acted on grounds generally applicable to the class, thereby

I

making appropriate final declaratory and injunctive relief with respect to the class as a whole.

(t). Notice of the pendency of this class action pursuant to Rule 23(b)(2) is not

required. It is contemplated that notice of any proposed dismissal or settlement shall be given to

all members of the class in such manner as the Court directs pursuant to Rule 23(e).

V. FACTS

14. Plaintiff Paul Pecunas lives by himself in Erie, Pennsylvania, adjacent to Millcreek Township. He uses a motorized wheelchair to travel, and is unable to drive a vehicle. Although he sometimes rides public transit, he is totally reliant on his wheelchair to move about Millcreek. In addition, when whether permits, he travels from his home solely by his wheelchair.

6.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg7e o7fo2f323
15. Plaintiff Shona Eakin lives in Erie, and frequently travels throughout Millcreek Township. She drives a modified van equipped with a lift for her wheelchair. At times, she uses a manual wheelchair, and at times she uses a motorized wheelchair. Upon leaving her van, she is totally reliant on her wheelchair to move about Millcreek.
16. Plaintiff Mark Zahar lives in Millcreek Township, and frequently travels throughout Millcreek Township. He drives a modified van equipped with a lift for his wheelchair. Upon leaving his van, he is totally reliant on his wheelchair to move about Millcreek.
17. Plaintiff VFI provides multiple services to many persons with disabilities throughout Millcreek and its adjacent municipalities. Plaintiff Eakin is the Executive Director of VFI, and Plaintiffs Pecunas and Eakin are consumers of VFI's services.
18. Many hundreds of persons similarly situated to Plaintiffs live in and/or desire to use Defendants' public facilities, programs, services and activities throughout Millcreek Township.
19. Millcreek has many miles of street level pedestrian walkways and intersection crossings, which are routinely used by its citizens who do not have disabilities. But, Plaintiffs and all others similarly situated are denied use of these walkways and intersections because they are inaccessible, and Plaintiffs are segregated from full participation in these public facilities, as well as numerous public facilities, services, programs and activities throughout
7.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg8e o8fo2f323
Millcreek. If the walkways and intersections were made accessible as required by law, Plaintiffs would make much more use ofthese activities, and participate more fully in Millcreek's facilities, services and programs.
20. Some of these walkways and intersections were built and are maintained by Millcreek Township, while others were built and are maintained by PennDOT. After these walkways and intersections were constructed, Millcreek and PennDOT retained jurisdiction over the walkways within their rights-of-way, and no modifications or repairs can be done without one or both of the Defendants' permission.
21. The areas under Defendants' jurisdiction are extensive. For example, within the last two years, Defendants have resurfaced many miles of streets, roads and highways and their intersections throughout Millcreek. Most of these facilities are adjacent to street level pedestrian walkways. A portion ofthese resurfacing projects involved building new sidewalks within Defendants' rights-of-way. Defendants spent millions of dollars on these resurfacing and sidewalk facilities, services, programs or activities. This presented an excellent opportunity to eradicate some of the denial of access to Plaintiffs arising from the inaccessible sidewalks and pedestrian walkways.
22. Unfortunately, due to several practices, acts and/or omissions of Defendants, Plaintiffs are wrongfully segregated from and denied participation in Defendants' public facilities, programs, services and activities. A sample of some of these discriminatory practices is as follows:
8.

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(a). The resurfacing of intersections where walking pedestrians are intended to cross to walkways, but Plaintiffs and others are denied crossing. In some cases, Defendants have removed existing curb ramps and built solid curbs in their place at these crossings. In other cases, Defendants have failed to install curb ramps. At other intersections, Defendants have installed new curb ramps that not readily usable or accessible to Plaintiffs. The result is that walking pedestrians have many places to cross intersections, but Plaintiffs have very few, if any. There are several hundred examples of this pattern and practice.
(b). Constructing new walkways that contain a series of many abrupt changes in running slope creating an "undulating" or "roller-coaster" walkway. Plaintiffs have to force their way up each ofthese slopes, then restrain their chairs down these slopes, which is exhausting, and often are at severe risk of tumbling off the side of these slopes and plunging into the street or parking lot adj acent and parallel to the walkway.
(c). Constructing or altering curb ramps and adjacent crossings with cross-slopes that are many times steeper than permitted, and which threaten Plaintiffs and others with loss of control of their wheelchairs, even to the point of falling over into directly adjacent traffic. For example, some cross slopes at newly altered crossing and curb ramps exceed 2% up to and exceeding 14%, which Plaintiffs cannot overcome;
(d). Constructing or altering curb ramps so that they have massive running slopes that deny access to Plaintiffs. For example, in year 2009, Defendants constructed a new curb ramp in Millcreek Township at a pedestrian crossing of Peninsula Drive. This new curb ramp has a running slope of 19%, and causes wheelchairs to tip over backwards into the intersection, making attempted use of this brand new curb ramp potentially deadly.
9.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg1e01o0fo2f323
Some Illustrations 23. Plaintiff Paul Pecunas wishes to travel from his home to the Millcreek Mall, which is located on State Route 19 (SR 19), also known as Peach Street, and which contains street level walkways. Approximately 20 months ago, Defendants resurfaced the entire stretch of State Route 19 in Millcreek. Walking pedestrians have been using these resurfaced intersections and walkways, but, unfortunately, Plaintiff Pecunas is denied the use of them. Instead, he is forced into a combination of traveling in the busy traffic on SR 19, and traveling on uneven, crowded parking lots parallel to SR 19, dodging vehicles entering and exiting from SR 19, and vehicles traversing the parking lots. This is because Defendants decided not to install curb ramps at many of these resurfaced intersections, and chose to leave in place very old, dangerous, defective and inaccessible curb ramps at all the other remaining intersections along SR 19 (Peach Street). In addition, many segments of the pedestrian walkways are in need of repairs, and/or suffer from inaccessible cross slopes and running slopes with unprotected dropoffs.
24. Plaintiff Shona Eakin wishes to use the brand new sidewalks that a few months ago Defendants constructed for several miles along SR 5 (West 12th Street) and along SR 20 (West 26th Street). Walking pedestrians have been using these intersections and walkways, but, unfortunately, Plaintiff Eakin is denied the use of them. There are many intersections along this several mile stretch where walking pedestrian are legally intended and permitted to cross State Routes 5 and 20. Yet, Defendants intentionally chose to not install curb ramps to allow Mrs. Eakin and others similarly situated to cross these State Routes along with walking pedestrians. Instead, Mrs. Eakin is segregated into using only three intersections to cross. This
10.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg1e11o1fo2f323
means that while a walking pedestrian can cross legally every few hundred feet, Mrs. Eakin must travel nearly one mile to safely cross the street. In addition, several portions of these newly constructed sidewalks suffer from multiple steep changes in running slope, creating a rollercoaster effect that exhausts Mrs. Eakin and makes these new sidewalks inaccessible for her.
25. Plaintiff Mark Zahar would like to use the sidewalks in Millcreek. At many newly resurfaced intersections near his house, the curb ramps are too steep and deficient for him to use, and many have drainage grates with large openings at the bottom of the ramp. As a result, he is forced to travel in the street in the flow of traffic, risking his and others' safety.
26. Plaintiffs Pecunas, Eakin, Zahar and all others similarly situated are similarly denied access to these and to many other intersections of Millcreek Township streets, roads, and highways and their adjacent street level pedestrian walkways resurfaced or constructed within the last two years. These include, but are not limited to, State Routes 5 (West 12th Street), 20 (West 26th Street), and 832 (Peninsula Drive).
27. Likewise, Plaintiffs and all others similarly situated are denied access to almost all of the Defendants' remaining streets, roads, and highways and their adjacent street level pedestrian walkways that have not been altered within the last two years. These intersections and their adj acent street level pedestrian walkways lack curb ramps, or contain old, dangerous, dilapidated, unusable and inaccessible transitions from intersections to adjacent street level pedestrian walkways.
11.

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28. Instead, Plaintiffs, and many other individuals with disabilities who use wheelchairs or scooters are forced into the heavy flow of traffic while also using adjacent parking lots and driveways. Any motorist driving on these busy roads, or entering or leaving these adjacent parking lots and driveways is at risk of colliding with Plaintiffs, or similarly situated members of the class on any given day. Mobility impaired citizens are left with a stark choice: either to risk sudden severe injury or even death, or to be totally denied from participating in Millcreek's programs, activities, services or facilities.
Intentional Discrimination A2ainst Persons with Disabilities 29. Recently, PennDOT, in consultation and/or agreement with Millcreek, has removed long-existing curb ramps, and has planted grass and built solid curbs in place of the previously existing curb ramps. Thus, at intersections that have long been previously equipped with curb ramps, all access now has been wrongfully denied. Thus, although walking pedestrians can still legally cross at these intersections, Defendants have intentionally denied Plaintiffs access at these intersections.
30. Recently, PennDOT, in consultation and agreement with Millcreek, has built brand new street level pedestrian walkways containing many intersections for walking pedestrians to cross legally. However, as a part ofthese projects, Defendants have intentionally refused to build curb ramps at the vast majority of these intersection crossings, and instead have built new solid curbs, which wrongfully deny Plaintiffs and others any access to these crossings. In some cases Plaintiffs are forced to travel nearly one mile to find a curb ramp that would
12.

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permit them to cross an intersection, while walking pedestrians may legally cross the intersections every few hundred feet.
31. Recently, PennDOT changed a long-standing requirement that curb ramps and intersection crossings have cross slopes ofless than 2%. Inexplicably, PennDOT's new written policy and instruction to contractors is to build curb ramps and street crossings with cross slopes up to and exceeding 11 %. As a direct result, curb ramps that should have cross slopes of less than 2%, are designed and built with massive cross slopes. Such cross slopes violate applicable law and render the ramps unsafe and inaccessible to Plaintiffs. Indeed, these newly constructed massive cross slopes threaten to cause Plaintiffs' wheelchairs to tip over sideways into oncoming traffic.
32. Through these newly enacted policies, directives and practices, Defendants have recently, and continue currently, to alter hundreds of intersection crossings and adjacent curb ramps or street level pedestrian walkways, making these inaccessible to Plaintiffs and all others similarly situated. This is no accident-Defendants have decided to remove these existing curb ramps, or to build solid curbs at these legal pedestrian crossings, denying Plaintiffs access, but sti11legally permitting all others to cross the intersection. Even ifPennDOT claims that it was acting to save money, or to "protect" Plaintiffs and all others with disabilities, defenses which are without support in the law, it does not change the fact that PennDOT has taken intentional steps to deny Plaintiffs access to hundreds of these street crossings, while permitting all others to cross legally. In violation ofthe Rehab Act and the ADA, Defendants are altering many intersections in ways to intentionally deny access and use by Plaintiffs and others.
13.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg1e41o4fo2f323
Future Effects of Inaction 33. Defendants PennDOT and Millcreek's discriminatory policies and practices during the last two years and earlier have exacerbated Plaintiffs' exclusion from use of Defendants' programs, services, activities and facilities. Ifthe Court does not intervene, over the next several years these facilities and services will become even more inaccessible. Also, due to the fact that each street and sidewalk remains unaltered for many years after construction or alteration, Plaintiffs' segregation will remain in force far into the future-perhaps for decades. Now is the time to act to ensure accessibility for Plaintiffs so that they can participate in Defendants' services, programs, activities and facilities fully with all other citizens.
Millcreek as a Defendant 34. Of course, throughout Millcreek, the Township's streets intersect with PennDOT's streets, roads and highways. For the reasons stated above, Plaintiffs and others similarly situated are denied access to these intersection crossings and adjacent street level pedestrian walkways.
35. Plaintiffs must include both Millcreek and PennDOT as defendants in this lawsuit for the Court to determine the legal responsibilities of each Defendant at the many intersections ofPennDOT with Millcreek streets, roads and highways. This is the identical action taken by Plaintiffs and others in their earlier federal lawsuits against the Cities of Erie and Meadville, and PennDOT, concerning PennDOT intersections in those cities. PennDOT required Erie and Meadville to be added to this prior lawsuit. Likewise, Erie and Meadville refused to
14.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg1e51o5fo2f323 install many curb ramps at intersections with PennDOT roads. The matter was resolved only after all parties were included in the lawsuit. Plaintiffs believe that is the case here as well.
36. In addition, Millcreek is wrongfully discriminating against Plaintiffs at intersections, which are under Millcreek's exclusive jurisdiction. For example, during the year 2010, Millcreek resurfaced several intersections along Westbury Ridge, Walnut Ridge, Abington Way, and Annendale. Millcreek failed to remediate or repair old,steep, dangerous curb ramps, some with cross slopes and running slopes approaching 15%. Additionally, Millcreek placed or failed to relocate large storm water drains where the curb ramps meet the resurfaced intersections. The grates covering these surface drains have openings that are so wide that they will catch and trap wheelchairs, walkers and canes, causing Plaintiffs to tip over or fall into the street or otherwise rendering the ramp inaccessible. Thus, these altered intersections and their adjacent sidewalks are not readily usable and accessible to Plaintiffs. Similar examples abound throughout Millcreek Township.
15.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg1e61o6fo2f323
VI. CAUSES OF ACTION FIRST CAUSE OF ACTION: CLASS-WIDE INJUNCTIVE RELIEF CLAIM UNDER
TITLE II OF THE AMERICANS WITH DISABILITIES ACT
37. Plaintiffs hereby incorporate by reference paragraphs 1-36 above, as if the same were again set forth herein.
38. Plaintiffs bring this count under Title IT of the Americans With Disabilities Act(ADA) for class-wide declaratory and injunctive relief.
39. Title IT ofthe ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title IT of the ADA defines each Defendant as a "public entity." 42 U.S.C. § 12131(1)(A) & (B).
40. Pursuant to the ADA, Plaintiffs are "qualified persons with disabilities" because "with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet[] the essential eligibility requirements for the receipt of services or the participation in programs, services or activities provided a public entity [Defendants]." 42 U.S.C. § 12131(2).
16.

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41. Congress envisioned that, among other things, the ADA would require that local and State governments maintain disability-accessible sidewalks. "The employment, transportation, and public accommodation sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets." H.R. Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. Thus, purely under the Act-Title II of the ADA-defendants have impermissibly discriminated against Plaintiffs.
42. In addition, Defendants have violated Title II's implementing regulations. Congress statutorily authorized the United States Department of Justice to create these implementing regulations. 42 U.S.C. §§ 12134(a), 12206; Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir. 1995) cert. den. 516 U.S. 813 (1995), (quoting Chevron, U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 844 (1984). In view of Congress' delegation, the DOJ's regulations should be accorded "controlling weight unless [they are] 'arbitrary, capricious, or
manifestly contrary to the statute,' " Babbitt v. Sweet Home Chapter ofCommunities for a Great
Oregon, 515 U.S. 687, 115 S. Ct. 2407, 2418, 132 L. Ed. 2d 597 (1995). The same is true of the preamble or commentary accompanying the regulations since both are part of the DOJ's official interpretation of the legislation. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 114 S. Ct. 2381,2386, 129 L. Ed. 2d 405 (1994)." Yeskey v. Pennsylvania Department ofCorrections, 118 F.3d 168, 171 (3fd Cir. 1997) aff'd 524 U.S. 206 (1998).
43. The Title II ADA access requirements are set forth in 28 C.F.R. § 149 (the general prohibition against discrimination); 28 C.F.R. § 150 (requiring accessibility of facilities
17.

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existing prior to January 26, 1992, the effective date of Title II); and, 28 C.F.R. § 151 (requiring that facilities newly constructed or altered after January 26, 1992 be fully accessible).
44. Section 28 C.F.R. §150(a) requires each Defendant to "operate each service, program, or activity, (so) when viewed in its entirety, (it) is readily accessible to and usable by individuals with disabilities. "[Title II's] regulations state that the statute's coverage extends to 'all services, programs and activities provided or made available by public entities.' This broad language is intended to 'appl[y] to anything a public entity does.'" (citing 28 C.F.R. § 35.201(a) and pt. 35, App. A)". Yeskey, 118 F.3d at 171; "The phrase 'services, programs, or activities' encompasses virtually everything that a public entity does." Johnson v. City ofSaline, 151 F.3d 564,569 (6th Cir.1998).
45. Beginning in at least 1992, and continuing up to the present, each Defendant has engaged in a continuing pattern and practice of over-arching discrimination against Plaintiffs and class members by operating several of its public facilities, services, programs, or activities which, when viewed in their entirety, are not readily usable by and accessible to Plaintiffs and other class members with disabilities. These public facilities, services, programs, or activities include, among others, Millcreek's street level pedestrian walkways, curb-ramps, and intersections. Indeed, because of Defendants' inaccessible street level pedestrian walkways, Plaintiffs are prevented from accessing Defendants' public facilities, programs, services and activities.
18.

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46. In addition, Title II of the Americans With Disabilities Act requires that when a public entity builds or alters any part of a facility after January 26, 1992, it shall to the maximum extent possible, be altered so that it is readily accessible to and usable by individuals with disabilities. 42 U.S.C. §12132; 28 C.F.R. § 35.151(a), (b) & (e). This includes, among other things, resurfacing of Defendants' intersections. Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir.1993) cert. denied sub nom Hoskins V. Kinney, 114 S.Ct. 1545 (1994). Many of the street level pedestrian crossings and walkways at issue in this lawsuit have been "altered" "by, on behalf of, or for the use" of each ofthe Defendants", but are not to the maximum extent possible readily usable by and accessible to Plaintiffs. Id. Indeed, as set forth in the facts above, Defendants' intersection crossings and street level pedestrian walkways deny access to Plaintiffs.
47. In sum, each Plaintiff has a qualifying disability, is being denied the benefits of Defendant's public facilities, services, programs, or activities for which Defendants are responsible, or is otherwise discriminated against by Defendants, and such discrimination is by reason of Plaintiffs' disabilities. By their actions complained of herein, Defendants have intentionally discriminated against Plaintiffs and class members due to their disabilities. Plaintiffs are entitled to declaratory relief, to injunctive relief ordering Defendants to bring these and future services, programs or activities into compliance, and to payment by Defendants of Plaintiffs' reasonable attorneys fees and costs.
19.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg2e02o0fo2f323
SECOND CAUSE OF ACTION: CLASS-WIDE CLAIM UNDER THE REHABILITATION ACT OF 1973
48. Plaintiffs hereby incorporate by reference paragraphs 1-47 above, as if the same were again set forth herein.
49. Plaintiffs bring this count for class-wide declaratory and injunctive relief. This Act provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a) (Section 504 of the Rehab Act). Upon information and belief, each Defendant receives Federal financial assistance. The Rehab Act defines "program or activity" as "all of the operations of' a qualifying local government. 29 U.S.C. § 794(B)(I)(A). The Rehab Act was "the first federal statute to provide broad prohibitions against discrimination on the basis of disability." Yeskey v. Pennsylvania Dep /t ofCorrections, 118 F. 3d 168, 170 (3d Cir. 1998). aff'd 524 Us. 206 (1998).
50. Given their similar language and related purposes, Congress has directed that Title IT of the ADA and Section 504 of the Rehab Act be construed and applied consistently. Yeskey, at 170. As a result, leading cases, including those in the Third Circuit, have interpreted these statutes in pari materia. Id.
20.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg2e12o1fo2f323
51. Each individual Plaintiff (1) has a disability; (2) is and has been otherwise qualified to participate in Defendants' federally funded programs or activities; and (3) was denied the benefits of the programs or activities or was otherwise subject to discrimination because of his or her disability.! See Chambers v. School District ofPhiladelphia, 587 F.3d 176, 189 (3Td Cir. 2009), quoting Nathanson v. Medical College ofPennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991) (quoting Strathie v. Department ofTransp., 716 F.2d 227,230 (3d Cir. 1983)).
52. As detailed above, beginning with the effective date of the Rehab Act, and continuing each year to the present, each Defendant has received federal money but has engaged in a continuing pattern and practice of over-arching discrimination against Plaintiffs and class members by denying the benefits of, or subjecting them to discrimination under several programs or activities receiving Federal financial assistance.
53. Plaintiffs are entitled to declaratory relief, to injunctive relief ordering each Defendant to bring these services, programs or activities into compliance, and Plaintiffs reasonable attorneys fees and costs.
1 Although the Rehab Act-passed in 1973-uses uses the term "handicapped", Congress in the late 1980s stopped using this term because "individuals with disabilities find the term 'handicapped' objectionable." Helen L. v. Didario, 46 F.3d 325, 333 n8 (3Td Cir.1995).
21.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg2e22o2fo2f323
VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiff class seeks judgment against Defendants as follows: 1. That the Court declare the rights and duties ofthe parties consistent with the relief sought by Plaintiffs; 2. To enjoin Defendants from the discrimination against Plaintiffs and the class through the complained of conduct resulting in denial of Defendants' public facilities, programs, services and activities; 3. That Plaintiffs recover an award of their reasonable attorneys fees, costs, and expenses. 4. Plaintiffs further pray for such additional relief as the interests of justice may reqUIre.
Respectfully submitted, HEBERLE & FINNEGAN PLLC
By /s/ J. Mark Finnegan, Esquire J. Mark Finnegan Denise M. Heberle 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 (734) 302-3233 hffirm@comcast.net
22.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8nt 1FilFeidle0d10/210/2/101/11PaPgaeg2e32o3fo2f323 ELDERKIN, MARTIN, KELLY & MESSINA By /s/ Craig A. Markham, Esquire Craig A. Markham, Esquire 150 East Eighth Street Erie, Pennsylvania 16501 (814) 456-4000 Attorneys for Plaintiffs
23.

CaCsaes1e:11:0-5cv-m-0c0-01260-2S5JMDoDcuomcuemnte8n-t11-1FilFeidle0d10/210/2/101/11PaPgaeg1e o1fo1f 1

http~I:!WWW.City..~ata.com/township/Mmcreek-Erie""PA~ html

Agflsnd x ofSensory.Disablfld R~~ (Noninstltutionalized)

A.sWsnd Sex ofPhysically..Disabled .F?esideflfs(Noninstitu~onaljzed)

Age and Sex;ofMen~ally-Di88bled Re.sidents (Nonjns~onalized)

.!l

I .:&msoty-dlsab!ed B.·SensQI}'~.isabled

mates

females.

AgfI-and·SexdSeff.()a$DJf$abled ReskJenf$(iiJ'j(JlnstitutiQn~lized) .

Age and Sex ofGo.outsJde..Home Diasbled Re.sidents (Noninstitutional/zed)

B Menlally-d!sabled
females
Age:lJnd Sex ofRe.sidents with Employment DisabJ1ifjt (Non/nSf.)

EXHIBIT 1

B

Ma.1es .wlta't
dis:aOility

emp.

B Females with
emp. disability

Case 1:11-cv-00016-SJM Document 1-2 Filed 01/20/11 Page 1 of 2

\ \- I b Case 1:05-mc-02025 Document 8-2 Filed 01/20/11 Page 1 of 1

'.).'>44 (Rev,12/0i)

CIVIL COVER SHEET

The IS 44 civil cover sheet and the infonnation contained herein neither replllce nor supplement the filill~ llJId service ofpleadings or olherpapers as required by law, except as provided by local rules ofcowt. This form, approved by the Judicial Conference oflhe United Stales in September 1974, is requITed for the use of the Clerk OfCOW1 for !lIe pUrp05C ofHllTiaring
the civil docket Sh:eI. (SEh IN:)TRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS PAUL PECUNAS; SHONA EAKIN; MARK ZAHAR. and VOICES FOR INDEPENDENCE. INC. (VFI). on behalf of themselves and all others Similarly situated
(b) County of Residence of First Listed Plaintiff ~E~r~ie=-_ _ _ _ _ _ __
(EXCEPT IN U S. PLAINTIFF CASES)

DEFENDANTS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATlON. at at.
Counly oCResidence ofFirslLisied Defendant ~D:;aoU:,POh"iCn,-_______
(IN U,S, PLAINTIFF CASES ONLY) NOTE: [N LAND CONDEMNATION CASES, USE THE LOCATION OFTHE
LAND INVOLVED .

. (C) Attorney's (FjQn N:upe, AddrefS, and Teleph()ne Number)
Craig A. Markham, I:.squlre

Elderkin, Martin, Kelly & Messina

1

14

II. BASIS OF JURISDICTION (Place IIJI "X" in 0tI~ Bn. OnIJl)

o I U.S, Goverrunen!
Plain,iff

I!II 3 Federal Quc$lion (U.S. Govelll/Jlcnt Not a I'arty)

o 2 U.S. Govennnem
Defendan,

LI 4 Diversity (Indieale Ci,izcnmip ofP~rtie§ in Item III)

Attorney$ (If Known) Unknown

HI. CITIZENSHIP OF PRINCIPAL PARTIES(place an "X'· in OM Bo~ for PllI.indff

(fm Diversity Cases Only)

IlUd OUf BQ.\ fQr O,fendam)

Citizen ofTbis Slate

o PT' DEF

0 I

1 [[]corporalCd or Principal Piau:

PTF DEF

:J

:J 4

of Business In This Sr.ale

Citizen of An()tber SI~I~

Incorporated arid Prin,ip~1 rlac~ of Business III AnOlher Sme

o ,

Cilizen or Subject of II. Forei n Countr

0 ) 0 3 Foreign Nation

o6 0 6

PERSONAL iNJURY 310 AinllllJle

PERSONAL INJURY
o 362 Personal [Iljury-

6[0 AGriculture 620 Other Food &; Drug

315 Airplane Product

o 140 Negotiable lustrumenl

Liability

o 150:;,:;;::;:~:.;:;.~:':I;:::t

320 Assault, L.ibel &. SlllIlder

Med. Malpractice ~ 365 PClOtlnal Injury •
Product Liability
o 368 AsbeSTns Personal

625 Drug R~lQted Seizure of Property 21 USC 881
6)0 Liquor Laws 640 tel{. &. Trnck

CI 151 Medicare Act
o 152 Recovery of Defaulted
Student Loans
(&c1. Vclcrani)
o 15J RecoveryofOveopayment
of Veteran's Bellcfits
o 160 Stockholders' Sui!.! o 1900therCOlltraCI

3JO Federal F:mployers'
Liability 340 Marine 345 Marine Producl

Ilijuty Pro~\.Jel
Liability
PERSONAL PROPERTY
o 370 Other Fraud
o 37[ Truth inLen~iJIl! o 380 Olher Peroonal
Pmp~rty namage
o 335 Prop~rt>, Damage

650 Airline Re8S. 660 Oc(upaliOIlllI
SafetyIHnlth
720 LaborlM~ml. Relatil\n~

Product Liability

730 LaborlMgmt.Reporting

'!!Ii!l!~~~!!i~~

& Discl()sur~ Act 741) RIliJway L.abDr ACt

791) Other Labor Lilisali,.>Il

o 230 Renl Lease & Ejectmenl o 240 Torl'i 10 Llmd

Sentence Hlbus Corpu5: 530 General

791 Empl. Ret InQ. Securiry ACI

o 24~ TortProductLiabllity
o 290 An Olher Real Property

44.'1 Amer, w!Di!labiliti~s­

,3!i Death Penl[ty 540 MllI\damul &: Oilier

Employment

550 Civil Rights

446 Amer. wfDisabililiei' 5SS Prison Condllion

Other

440 O~Jer Civil Righls

400 Slate: Reapportionmenl 4 [0 Anlitrust
4JO BwIb and BllI1klng 450 Commer(:e
460 Deportation 470 Racketeer Influenced Hnd
CDrruP! Organiu!i~ns 480 Consumer Credit 490 Cable/S61lV' 810 Selective Service 850 Securities/Commodities/
Exchange
87~ Customer Challenge 12 usc J410
S90 Olher Statutory Actions 891 Agricultural Am 892 Economic Stabilizalion Act
893 En\'imnmenlaJ Matters B94 Bntrgy Allocation A,r 895 Fr~cdom ()f[nfoml~!io"
A"
900Appe~1 of Fee DelCrtllin~tioll Under Equal Acces, !o Jll!ltice
9SQ Con.tituti()ll~jj!~ of Stale O:;larules

V. ORIGIN
ilIl Original Proceeding

(Place an "X" in One Box Only)

Ll 2 Removed from St<i(l;: Coun

0 J Remanded from
Appellate Court

o 4 Reinstated or 0
Reopened

5

TransfeIT~d ~rom a~oe~if dlsmct

0 6 Mu!tidistric!
Litigalion

Appenllo District

o 7

Judge from Magistrate

Jud em

(Do not cite Jurlsdlctlonlll sflltutes unless diversity):

VI. CAUSE OF ACTION ~";';i'~f~d~"-'~'i~pt~io~"=o~f~,~,"L,~,,""'J..>L!"':"~l.!!'-..1.L""_+,,;";'L<:J,,-,,------------------------

VII. REQUESTED IN COMPLAINT:

IiZI CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C,P. 23

VIII. RELATED eASElS)

IF ANY

(See inscruetions): JUDGE McLaughlin

DEMANDS

CHECK YES only if demanded in complaint: .TlJRY DEMAND: 0 Yes 0 No
DOCK'" NUMBER 06 - 78

/-

6 ll

RECEIPT 11 _ _ _ _ _ AMOUNT _ _ _ _ _ _ _ __

lUDGE _ _ _ __

MAG.1UDGE _ _ _ _ _ _ _ __

Case 1:11-cv-00016-SJEML1ERDKINocLAuWmFReMnt 1-2FaxF:8i1led-dd504-174/1210/11 PJaange20220o11f 212:50pm POOl/DOl

J~ 44AP~ISEO June, 2009 IN THE UNITED STATES D:;:STR,J:CT COUR':' FOR THE WE.9'l'BRW DISTR!cr Of' Ps-mS¥IN<'IN::CA
THIS CAS! DESli'.mA'I'ION SHEET MUS'!' :eli: COMPt.:e:"1."E:O

P1\lI:r A
This case belongs on the ( eErie

o Johnstown

() Plttsburgh) c~:end3r.

l.. EltlB CALmtDM - I f Cause of action arose. in t;.he C:Ol,mt~,e.s of c~awtord, Elk, Erie,
Forest., McKean. Ven.a.ng' or warren, OR plaintiff ox de£e:m:1iUlt resid.eS! in one ot 5&id

CountJ.I!I:S.

2. JOHNSTOWN ~AR - If cause of action ar~ge 1n the c~tieg of Bedfo~, Alai~,
ca.ml.l:t:ia, Clea..rheld. or S01.'llerae\: OR any pl.aintiff crr dl<:hndallt :t:.uddea in on.e of said Counties.

3. COIl".plete if en D.IB CALJ::t(DAlt: I certify :::..b.at:. the cause of "'ctl.OQ arose in erie

C:::n:nty and that the Plantiff

resicleo$ in Er1/;'1

cour"""C,c-x-'-,- - - -

4. Complete if On JOHNSTOWN CAr..Jmt)ARJ I certify that: the ¢~\l"(1 of action aroSle. in

_ _ _ _ _ _-'County aud that:. the.

resides in

CO'l.l.1.ty.

PART E (You <U:'e. tOo che..;::k:, 0'N'f.: uf the tollow1ngJ

<:> 1.

-:::nls case ie related to Number 06·713

. .!lhort capt;:ionVFlv$. PennDOT

0 ~.

This C;;L$e is: not relatE!:C to 9. per.d:J.ng or tel..1Ul,na.ted caSE.

D~FIN1TION8 OF aELA~EP CASES:
CIVILl Civ~l case a are deemed related when a ca$~ filed relat&s to property included in anothe.r suit. ell!' ;i.n....-olvea tc.e aa.we j.$SUl!IS of f'act: or 1t grol.lS out of t:!lel. sante tr-811sactioo.s ae another ~uic or involves the validity or irt~~ingement of a p~te~t invOlved in aaother suit EMINENT OO~INI Ca••a in cuuciguoua closely located groups and in common cwnership ~CU~g vhieh wi:l l~nd th~~elvc. ~o conaoll6ation for trial shall be de~ed related.
B103EJ\S CDkpUS &ClVIL RIGHTS: All habea.s corpus petit-lons. filed by the sa.tIlQ inai,vidl.l.al
sna~l be aeeruad relateo. A~l ~ro se Civil Rights actions by the same individun: 8ha~1 be d~emed rela.ted.

t'8L PARTe
1.

CAtEGORY (Pla.ce x ill only a.pplic:.1bl,e category). Ancit~st and g~cu~iti$a Act Cases

,0 4,0 5 0 ·,0 78<,:0>

L~Or~M&UAgQ~enb Relat~ous
JlMEoa.::;cc:::>rpUI!I
Civil I:ti~ht:.s
P1'Il.i:;ent. copyright, and Trademark
Eminent. DOfllain ~ll other federal question cas.s .~l pe.X'sonal aod prol,)erty dama.ge tort case.;:;, including marl.t:,im$~ JrElA, Joues Act, MOLO~ ve~icle, productA l1aoility, aaaaul~. de!amaCion, malicious

"g10,

prosacutlan, ~d false ~rest
Insura.nce 1nderrm..itYI ClOn,tl:."IlH::C. and other diversity C4.!H.!:oi_ GoVCnutlellt c:ol;lectian Cases (sh.all includIA liEW Stude):)t LOi3lllu (idacat:iQ,l)l,

V A cye~yment, Overpayt'\'LE':l;),t of Socid SQcul.'.ity, Bnli.tOl.6iu.t oVcl.-payment: (Arnty, ::iavy, e-::c: . 1 , HlJD LoarJe, rm.O l.J)ans (Mia". "t"ypes). MOrtgaga Foreclos\l.l.·es, S .:eA. Loans, Civil Pe,r.alt.i.ea a».d Coal Mine Penalty and Re~lamatio~ Fees.)

:r: c:e:rt:i.£y that co the beat Clf trly knowlodge the er.t:Z-ieS ern thi.9 c...~ ... Del!!lign~t;i¢n
S~eet ~~e true and correct
nate' 1-20-2011

NOTE: ALL SECTIONS OF BOTI{ SlOBS MUST BE COMPLETE::> :BaFORE CASi: CAN B.E: pROCaSslID.

 
 Case 1:11-cv-00016-SJM Document 16 Filed 10/04/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, SHONA EAKIN,

)

MARK ZAHAR and VOICES FOR

)

INDEPENDENCE, INC. (VFI), on behalf

)

of themselves and all other similarly situated, )

Plaintiffs

)

) Civil Action No.1: 11-CV-00016

v.

) Hon. Sean J. McLaughlin

)

COMMONWEALTH OF

)

PENNSYLVANIA DEPARTMENT OF

)

TRANSPORTATION, ALLEN D. BIEHER, )

P.E., in his official capacity as Secretary of )

Transportation of the Commonwealth of

)

Pennsylvania, MILLCREEK TOWNSHIP,

)

PA,

)

Defendants

) ELECTRONICALLY FILED

MOTION TO APPROVE CONSENT DECREE AND PARTIAL SETTLEMENT AMONG DEFENDANT MILLCREEK TOWNSHIP, PA AND PLAINTIFFS

Defendant MILLCREEK TOWNSHIP, PA, by and through its attorneys, MacDonald, Illig, Jones & Britton LLP, and plaintiffs PAUL PECUNAS, SHONA EAKIN, MARK ZAHAR and VOICES FOR INDEPENDENCE, INC. (VFI), by and through their attorneys, Heberle & Finnegan, Ltd. and Elderkin, Martin, Kelly & Messina, file this Motion to Approve Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs and state as follows:

Case 1:11-cv-00016-SJM Document 16 Filed 10/04/11 Page 2 of 4
1. This civil action involves claims by plaintiffs Paul Pecunas, Shona Eakin, Mark Zahar and Voices for Independence, Inc. (VFI) (hereinafter "Plaintiffs") against defendants the Commonwealth of Pennsylvania Department of Transportation (hereinafter "PennDOT"), Allen D. Biehler in his official capacity as Secretary of Transportation of the Commonwealth of Pennsylvania, and Millcreek Township, PA (hereinafter "Millcreek") for alleged violations of Title II of the Americans With Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.
2. On September 28, 2011, defendant Millcreek and Plaintiffs agreed to a Consent Decree and Partial Settlement with respect to some, but not all, of the claims set forth in the Complaint filed by Plaintiffs. A true and correct copy of the Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs is attached hereto as Exhibit A.
3. Defendant Millcreek and Plaintiffs now jointly seek this Honorable Court's approval of the agreed upon Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs.
WHEREFORE, defendant Millcreek and Plaintiffs respectfully request this Honorable Court approve, order and enter the Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs in the form attached hereto.

Case 1:11-cv-00016-SJM Document 16 Filed 10/04/11 Page 3 of 4

sav/1263618

Respectfully submitted,
/s/ Mark J. Shaw Mark J. Shaw Pa. Bar J.D. No. 50763 Marissa Savastana Watts Pa. Bar J.D. No. 91201 MacDONALD, ILLIG, JONES & BRITTON LLP 100 State Street, Suite 700 Erie, Pennsylvania 16507-1459 (814) 870-7607 FAX (814) 454-4647 mshaw@mijb.com
Attorneys for Defendant, Millcreek Township, PA

Case 1:11-cv-00016-SJM Document 16 Filed 10/04/11 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on October 4 2011, the foregoing Motion to Approve Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs was filed electronically with the Clerk of Court, using the CM/ECF system. Notice of this filing will be sent to all parties by operation of the Court's ECF system and constitutes service of this filing under Rule 5(b)(2)(E) of the Federal Rule s of Civil Procedure. Parties may access this filing through the Court's ECF system.
lsi Mark J. Shaw Mark J. Shaw

Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, SHONA EAKIN,

)

MARK ZAHAR and VOICES FOR

)

INDEPENDENCE, INC. (VFI), on behalf

)

of themselves and all other similarly situated, )

Plaintiffs

)

) Civil Action No.1 :11-CV-000I6

v.

) Hon. Sean J. McLaughlin

)

COMMONWEALTH OF

)

PENNSYLVANIA DEPARTMENT OF

)

TRANSPORTATION, ALLEN D. BIEHER, )

P.E., in his official capacity as Secretary of )

Transportation of the Commonwealth of

)

Pennsylvania, MILLCREEK TOWNSHIP, )

PA,

)

Defendants

) ELECTRONICALLY FILED

CONSENT DECREE AND PARTIAL SETTLEMENT AMONG DEFENDANT MILLCREEK TOWNSHIP. PA AND PLAINTIFFS

WHEREAS Plaintiffs filed this lawsuit against Millcreek Township, Pennsylvania ("Millcreek") alleging certain violations of Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973; and,
WHEREAS the Plaintiffs and Millcreek entered into significant settlement negotiations and have reached a partial resolution of Plaintiffs' claims;
THEREFORE, the Plaintiffs and Millcreek agree and the Court hereby enters the following Consent Decree and Partial Settlement.

EXHIBIT A

Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 2 of 10
I. Future Construction or Alteration
During the calendar year 20 II and thereafter: A. Millcreek shall ensure that newly constructed or altered streets, roads and highways shall contain curb ramps or other sloped areas at any intersections having curb ramps or other barriers to entry from a street level pedestrian walkway. 28 C.F.R. §§ 35.151(a)(1) and (b)(l). B. Millcreek shall ensure that newly constructed or altered street level pedestrian walkways shall contain curb ramps or other sloped areas at intersections to streets, roads, and highways. 28 C.F.R. § 35.151(a)(1) and (b)(I). C. Millcreek shall ensure that each such curb ram p or other sloped area newly constructed by, on behalf of, or for the use of Millcreek shall be designed and constructed in such manner that the curb ramp or other sloped area is readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.15 1(a)(1). D. Millcreek shall ensure that each such curb ramp or other sloped area altered by, on behalf of, or for the use of Millcreek in a manner that affects or could affect the usability by individuals of the curb ramp or other sloped area shall, to the maximum extent feasible, be altered in such manner that the curb ramp or other sloped area is readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.l51(b)(1). E. Millcreek shall ensure that when curb ramps or other sloped areas must be modified under Paragraphs A or B of this Section, any parallel curb ramp or other sloped area on that same comer is also readily accessible to and usable by individuals with disabilities.
- 2-

Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 3 of 10
F. For purposes of this Consent Decree, any curb ramps and/or blended transitions constructed or modified during the 2011 construction season shall comply with the 2005 draft Public Right-of-Way Accessibility Guidelines ("PROWAG"). Following the 2011 construction season, the Plaintiffs and Millcreek agree that curb ramps and blended transitions located in the public right-of-way shall meet the measurements set forth in the 2011 PROWAG. Millcreek shall inspect and ensure that these requirements are met at the time of construction or alteration.
G. Millcreek shall not be responsible for ensuring that any new construction or alteration of streets, roads, highways or street level pedestrian walkways performed on private roads by private persons or entities comply with the ADA standards that would be triggered by such construction or alteration. However, Millcreek shall ensure compliance with the ADA standards that would be triggered by such construction or alteration when any such private street, road, highway or street level pedestrian walkway is either (a) dedicated to and accepted by Millcreek, or (b) otherwise conveyed or transferred to Millcreek. Nothing in this Consent Decree affects Millcreek's rights, claims and/or defenses related to any new construction or alteration of streets, roads, highways or street level pedestrian walkways performed by the Pennsylvania Department of Transportation ("PennDOT"). This paragraph does not eliminate or otherwise affect Millcreek's obligations under Paragraph I.A.
-3-

Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 4 of 10
II. Process for Change of Interim Accessibility Standards
The Plaintiffs and Millcreek recognize that in the future, the USDOJ, FHWA or PennDOT may promulgate new, legally binding accessibility standards or guidelines for pedestrian routes in the public right-of-way. If, in the future, either party believes that this has occurred in full or in any part, that party shall so notify counsel for all other parties via email and via certified mail, and include a detailed statement of what changes the party believes have occurred, all reasons the party believes the standard or guidelines must apply, and include the document(s) and guidance relied upon. The parties shall allow at least fifteen (15) days to agree upon any modification. If the parties agree, then they shall cooperate· to file a Second Consent Decree with the agreed upon changes. If the parties cannot agree, then any party shall submit a Motion to the Court asking the Court to resolve the dispute. All determinations disputed shall be included in such Motion. The Motion and any response shall be handled in accordance with the Federal Rules of Civil Procedure, including any applicable local rules. These parties expressly agree that the Court shall have jurisdiction to resolve these disputes.
III. Reports to the Court and to Plaintiffs' Counsel
A. On or before January 31 st of each year during the life of this Consent Decree, as more specifically set forth in the termination clause set forth at Section V.D. below, Millcreek shall file a written report with the Court and with Plaintiffs' counsel, listing each street, road and highway intersection or portion thereof that was constructed, altered or resurfaced during the previous calendar year by, on behalf of, or for the use of Millcreek, and stating where any new
-4-

Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 5 of 10
curb ramps or blended transitions have been installed as a part of these projects. The report shall also list each newly constructed or altered street level pedestrian walkway that was constructed during the previous calendar year by, on behalf of, or for the use of Millcreek at any intersections, with streets, roads and highways, and state whether any curb ramps or blended transitions have been installed as part of the projects. The pedestrian walkway list shall include those walkways constructed or altered at intersections of streets, roads and highways by private persons or entities pursuant to Millcreek Ordinance or other rule. Each report will contain a sworn certification that Millcreek has inspected each such project including any pedestrian crossing, pedestrian walkway section, curb ramplblended transition and corner in each listing. The written report shall contain all accurate measurements necessary to determine if those projects have met all standards set out in Section I, above. Millcreek shaUlist all of the work in the written report, and shaU segregate the different categories of work under separate headings.
B. . The Plaintiffs and Millcreek agree that any work performed beyond merely filling potholes will be included by Millcreek in these written reports. By listing the work performed and the locations of that work, Millcreek does not, thereby admit that the listed work is an "alteration" rather than "routine maintenance," and Plaintiffs do not waive any claims regarding the status of listed work. The written report is merely to permit Plaintiffs to learn the locations of all work in Millcreek beyond merely filling potholes, and to facilitate discussions between Plaintiffs and Millcreek about what coverage by federal law, ifany, is implicated.
-5-

Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 6 of 10
IV. Potential Exceptions for "Technical Infeasibility" or "Structural Impracticability"
If, during the course of new construction or alteration during calendar year 2011 and thereafter, in the rare circumstance that Millcreek believes that any particular intersection, curb ramp, pedestrian crossing or pedestrian walkway portion prohibits construction or alteration in
,
full compliance with the standards 'set forth in Section I above, Millcreek shall notify Plaintiffs' counsel in writing via email and via certified mail. This written notification shall list which engineer(s) has reviewed the intersection, crossing, walkway or curb ramp, the location of each, and a statement of which standard(s) allegedly cannot be met and all alleged reasons why not, and how much of a deviation from the standard(s) is contemplated.) The parties shall allow at least fifteen (15) days from the postmark of the written notification to attempt to resolve the matter.
If the Plaintiffs and Millcreek are unable to resolve the matter, then either party shall submit a Motion to the Court asking the Court to resolve the dispute. All determinations disputed shall be included in said Motion. The Motion and any response thereto shall be filed and disposed of in accordance with the applicable Federal Rules of Civil Procedure, including any applicable local rules. The Plaintiffs and Millcreek expressly agree that the Court shall have jurisdiction to resolve these disputes.
Special attention shall be given to the measurements of the direct slope and the cross-slope of the walkway, crossing, curb ramp or ramp, and the juncture of the pe~estrian crossing with the ramp and the ramp with the pedestrian walkway, and the level landing at the top and bottom of each ramp.
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Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 7 of 10
V. Listing of Projects Undertaken After January 1992
A. On or before October 15,2011, Millcreek will file with the Court and provide via email to Plaintiffs' Counsel a written report listing all locations of all newly constructed or altered streets, roads, highways or street level pedestrian walkways by, on behalf of, or for the use of Millcreek between January 1992 through 2010, stating by year when each item was constructed. or altered. This listing shall identify each aforesaid location that does not meet the current ADAIPROWAG 2011 standards and measurements, and, if they do not, the ways in which Millcreek believes that they do not. Millcreek shall also state whether or not it intends to replace any listed portion or to leave it in place. The listing will also state the locations where there are no curb ramps and/or pedestrian walkways at these intersections. This listing shall also include a signed sworn certification that Millcreek has researched its records and that the listing is true and correct. Millcreek shall list all of the work in the written report, and shall segregate the different categories of work under separate headings.
B. The Plaintiffs and Millcreek shall meet and confer as to the list prepared in accordance with Paragraph A above, and attempt to agree to a timetable under which portions shall be retrofitted, if any. If the parties are not able to agree upon the contents of the listing, or to the timetable for retrofitting, then any party shall submit a Motion to the Court asking the Court to resolve the dispute. All determinations disputed shall be included in such Motion. The Motion and any response shall be handled in accordance with the applicable "Federal Rules of Civil Procedure, including any applicable local rules. The Plaintiffs and Millcreek expressly agree that the Court shall have jurisdiction to resolve these disputes.
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Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 8 of 10
C. The Plaintiffs and Millcreek agree that any work performed beyond merely filling potholes will be included by Millcreek in the written reports. By listing the work performed and the locations of that work, Millcreek does not thereby admit that the listed work is an "alteration" rather than "routine maintenance," and Plaintiffs do not waive any claims regarding the status of listed work. The written report is merely to permit Plaintiffs to learn the locations of all work in Millcreek beyond merely filling potholes, and to facilitate discussions between Plaintiffs and Millcreek about what coverage by federal law, if any, is implicated.
D. If Millcreek concludes that all of the retrofit work it is required to perform pursuant to Paragraphs A and B of this Section V has been completed, it may submit a written notification to Plaintiffs counsel, via email, informing them of the completion of the work at any time following Millcreek's submission of its last annual report covering such work. Upon receipt of such written notice, Plaintiffs shall have 120 days to inform Millcreek, in writing, if they agree or disagree with Millcreek's conclusion. If Plaintiffs agree with Millcreek's conclusion and/or do not respond to Millcreek's written notice within 120 days, this Consent Decree shall terminate upon the expiration of the 120 day time period. If Plaintiffs disagree with Millcreek's conclusion, they must submit to Millcreek, prior to the expiration of the 120 day time period, a detailed written explanation of the items that need to be completed in order to satisfy Millcreek's obligation under this Consent Decree. If Millcreek disagrees with Plaintiffs' position, it may file a motion to terminate this Consent Decree with the court; otherwise, it shall complete the work identified by Plaintiffs and submit a new notice at the completion of said work.
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Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 9 of 10
VI. Attorneys Fees and Costs·
Within fifteen (15) days of the entry of this Order, Millcreek shall pay $20,478.47 to Heberle & Finnegan, PLLC and $6,801.50 to the Elderkin Firm. These amounts will be payment in full for all fees and costs claimable by Plaintiffs in this matter from the beginning of this matter through July 29, 2011. By paying these fees and/or costs, Millcreek in no way admits liability for any future payments, and Plaintiffs do not waive any claims for payments for future fees and costs that may be incurred.
VII. Consideration for this Consent Decree
The parties understand that this Consent Decree is not intended as a resolution of the entire lawsuit, but rather only as to a part of it. the Plaintiffs and Millcreek, by entering into this Consent Decree, expressly agree that in exchange for the successful completion of each of the terms of the Consent Decree, Plaintiffs shall forebear from seeking preliminary injunctive relief for these issues.
VIII. Retention of Jurisdiction
The Plaintiffs and Millcreek agree that, and the Court expressly Orders, the Court shall retain jurisdiction to enforce any and all of the terms of this Consent Decree.
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Case 1:11-cv-00016-SJM Document 16-1 Filed 10/04/11 Page 10 of 10
Read on This 4th Day of October, 2011 and Approved for Form by:
/s/ Mark J. Shaw
MarkJ. Shaw Marissa Savastana Watts MacDONALD, ILLIG, JONES & BRITTON LLP 100 State Street, Suite 700 Erie, Pennsylvania 16507-1459 (814) 870-7607 (814) 454-4647 Attorneys for Defendant, Millcreek Township
/s/ J. Mark Finnegan J. Mark Finnegan (40261) Denise M. Heberle (42453) HEBERLE & FINNEGAN, PLLC 2580 Craig Road Ann Arbor, MI 48103 (734) 302-3233 (734) 302-3234 (fax)
/s/ Craig A. Markham Craig A. Markham (38531) ELDERKIN, MARTIN, KELLY & MESSINA 150 East Eighth Street Erie, PA 16501 (814) 456-4000 (814) 454-7411 (fax) Attorneys for All Plaintiffs
- 10-

Case 1:11-cv-00016-SJM Document 16-2 Filed 10/04/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, SHONA EAKIN,

)

MARK ZAHAR and VOICES FOR

)

INDEPENDENCE, INC. (VFI), on behalf

)

of themselves and all other similarly situated, )

Plaintiffs

)

) Civil Action No.1: 11-CV-00016

v.

) Hon. Sean 1. McLaughlin

)

COMMONWEALTH OF

)

PENNSYLVANIA DEPARTMENT OF

)

TRANSPORTATION, ALLEN D. BIEHER, )

P.E., in his official capacity as Secretary of )

Transportation of the Commonwealth of

)

Pennsylvania, MILLCREEK TOWNSHIP,

)

PA,

)

Defendants

)

ORDER

All parties having agreed, and the Court having reviewed it and found it equitable, IT IS HEREBY ORDERED that this Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs is ORDERED AND ENTERED this _ _ day of October, 2011. The Court will retain jurisdiction to enforce all terms of this Consent Decree.

JUDGE SEAN 1. McLAUGHLIN UNITED STATES DISTRICT COURT

 
 Case 1:11-cv-00016-SJM Document 17 Filed 10/12/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT 
 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


PAUL PECUNAS, SHONA EAKIN,

)

MARK ZAHAR and VOICES FOR

)

INDEPENDENCE, INC. (VFI), on behalf )

ofthemselves and aU other similarly situated, )

Plaintiffs

)

) Civil Action No.1: ll-CV-00016

v.

) Hon. Sean J. McLaughlin

)

COMMONWEALTH OF

)

PENNSYLVANIA DEPARTMENT OF

)

TRANSPORTATION, ALLEN D. BIEHER, )

P.E., in his official capacity as Secretary of )

Transportation of the Commonwealth of

)

Pennsylvania, MILLCREEK TOWNSHIP, )

PA,

)

Defendants

)

ORDER

All parties having agreed, and the Court having reviewed it and found it equitable, IT IS

HEREBY ORDERED that this Consent Decree and Partial Settlement Among Defendant
l.d- Millcreek Township, PA and Plaintiffs is ORDERED AND ENTERED this "1ay of

October, 2011. The Court will retain jurisdiction to enforce all terms of this Consent Decree.

Honorable

Digitally signed by Honorable Judge Sean J. McLaughlin

Judge Sean J.

DN: cn=Honorable Judge Sean J. McLaughlin, o, ou, email=Judge_Sean_J_McLaughlin@pa

McLaughlin

wd.uscourts.gov, c=US Date: 2011.10.12 09:55:48 -04'00'

JUDGE SEAN J. McLAUGHLIN

UNITED STATES DISTRICT COURT

 
 Case 1:11-cv-00016-MRH Document 162 Filed 11/21/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, ET AL.,

}

}

Plaintiffs,

}

} No. 1:11-cv-00016-MRH

vs.

}

} Judge Hornak

COMMONWEALTH OF PENNSYLVANIA }

DEPARTMENT OF TRANSPORTATION, }

ALLEN D. BIEHLER and MILLCREEK

}

TOWNSHIP, PA

}

} Electronically Filed.

Defendants.

}

JOINT MOTION TO APPROVE JOINT PARTIAL SETTLEMENT AGREEMENT AMONG ALL PARTIES

1. In this action, Plaintiffs Paul Pecunas, Shona Eakin, and Voices for Independence (each a "Plaintiff" and collectively, "Plaintiffs") assert that Defendants the Commonwealth of Pennsylvania Department of Transportation ("PennDOT") and Millcreek Township (collectively, "Defendants") violated provisions of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., with regard to street level pedestrian walkways, intersections and other facilities.
2. Plaintiffs and Millcreek Township have entered into four separate Consent Decrees and Partial Settlements, see (Docs. # 17, 82, 106, and 120), resolving many issues but leaving some unresolved and subject to further litigation.
3. Likewise, Plaintiffs and PennDOT have entered into three separate partial settlements and orders, see (Docs. # 93-94, 103, 109, and 124-126), resolving many issues but leaving some unresolved and subject to further litigation.

Case 1:11-cv-00016-MRH Document 162 Filed 11/21/16 Page 2 of 4
4. Plaintiffs, Millcreek Township, and PennDOT (collectively, the "Parties") have continued discussions and negotiations regarding several unresolved additional issues. The Parties now have reached agreement to resolve potential claims and issues raised by Plaintiffs regarding the accessibility of roadway shoulders and bus stops in Millcreek Township. Consequently, the Parties have entered into a Joint Partial Settlement Agreement Among All Parties (the "Settlement Agreement", attached hereto as Exhibit 1), and the Parties request that the Court order that the Settlement Agreement is enforceable by the Court and retain jurisdiction in the matter and over the Settlement Agreement.
5. PennDOT is unable to enter into any consent decree in any legal matter without express prior authority of the legislature of the Commonwealth of Pennsylvania. However, PennDOT may be made subject to settlement agreements without express authority of the legislature. The Parties desire to resolve certain issues arising in this lawsuit in an expeditious and economical manner that addresses the interests of the Plaintiffs and the concerns of all other parties. The Parties do not desire to permit the legal limitations upon the ability of PennDOT to participate in a consent decree to delay their resolution of the pending dispute.
6. Therefore, the Parties respectfully submit this joint request that this Honorable Court issue an order approving the Settlement Agreement attached hereto as Exhibit 1 and that the Court expressly retain jurisdiction to enforce the Settlement Agreement.
- 2 -

Case 1:11-cv-00016-MRH Document 162 Filed 11/21/16 Page 3 of 4

Respectfully submitted,

s/ Mark T. Pavkov Mark J. Shaw, Esq. Mark T. Pavkov, Esq. MACDONALD, ILLIG,
JONES & BRITTON 100 State Street, Suite 700 Erie, PA 16507-1459 (814) 870-7613 (814) 454-4647 fax
Attorneys for Defendant Millcreek
s/ J. Mark Finnegan, Esquire (with consent) J. Mark Finnegan (40261) Denise M. Heberle (42453) HEBERLE & FINNEGAN, PLLC. 2580 Craig Road Ann Arbor, Ml 48103 (734) 302-3233 (734) 302-3234 fax
Attorneys for All Plaintiffs

s/ Craig A. Markham, Esquire (with consent) Craig A. Markham (38531) ELDERKIN LAW FIRM Jones School Square 150 East Eighth Street Erie, PA 16501 (814) 456-4000
Attorneys for All Plaintiffs
s/ Scott A. Bradley (with consent) Scott A. Bradley, SDAG Litigation Section Office of Attorney General 6th Floor Manor Complex 564 Forbes Avenue Pittsburgh, PA 15219 (412) 565-3586
Attorney for PennDOT

- 3 -

Case 1:11-cv-00016-MRH Document 162 Filed 11/21/16 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on November 21, 2016, the foregoing Joint Motion to Approve Joint Partial Settlement Agreement Among all Parties was filed electronically with the Clerk of Court, using the CM/ECF system. Notice of this filing will be sent to all parties who have appeared of record by operation of the Court's ECF system and constitutes service of this filing under Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure. Those parties may access this filing through the Court's ECF system.
s/ Mark T. Pavkov Mark T. Pavkov

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 1 of 96
$,()&)+ #
$0,/3 &(13,(- '*33-*.*/3 #+1**.*/3 #.0/+ #-- &(13,*2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 2 of 96

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, ET AL.,

}

}

Plaintiffs,

}

}

vs.

}

}

COMMONWEALTH OF PENNSYLVANIA }

DEPARTMENT OF TRANSPORTATION,

}

ALLEN D. BIEHLER and MILLCREEK

}

TOWNSHIP, PA

}

}

Defendants.

}

No. 1:11-cv-00016-MRH Judge Hornak
Electronically Filed.

******************************************************************************
JOINT PARTIAL SETTLEMENT AGREEMENT AMONG ALL PARTIES

SETTLEMENT AGREEMENT

I. BACKGROUND Plaintiffs Paul Pecunas, Shona Eakin, Mark Zahar, and Voices for Independence (each a

"Plaintiff' and collectively, "Plaintiffs") and Defendant Millcreek Township (a "Defendant") have

entered into four separate Consent Decrees and Partial Settlements, see (Docs. # 17, 82, 106, and

120), resolving many issues but leaving some unresolved and subject to further litigation in the

above-captioned case alleging violations of the Americans with Disabilities Act and the

Rehabilitation Act of 1973 (collectively, the "ADA"). Likewise, Plaintiffs and Defendant

Commonwealth of Pennsylvania Department of Transportation ("PennDOT" or a "Defendant",

and collectively with Millcreek Township, "Defendants") have entered into three separate partial

settlements and orders, see (Docs. # 93-94, 103, 109, and 124-126), resolving many issues but

leaving some unresolved and subject to further litigation. In the meantime, Plaintiffs, Millcreek

Township, and PennDOT (collectively, the "Parties") have continued discussions and negotiations

regarding several unresolved additional issues. The Parties now have reached agreement to resolve

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 3 of 96

potential claims and issues raised by Plaintiffs regarding the accessibility of roadway shoulders

and bus stops in Millcreek Township. Consequently, the Parties now enter into this Joint Partial

Settlement Agreement Among All Parties (the "Settlement Agreement"), which the Parties

acknowledge and the Court orders is enforceable by the Court, which retains jurisdiction in the

matter and over this Settlement Agreement.

PennDOT is unable to enter into any consent decree in any legal matter without express

prior authority of the legislature of the Commonwealth of Pennsylvania. However, PennDOT may

be made subject to settlement agreements without express authority of the legislature. The Parties

desire to resolve certain issues arising in this lawsuit in an expeditious and economical manner

that addresses the interests of the Plaintiffs and the concerns of all other parties. The Parties do

not desire to permit the legal limitations upon the ability of PennDOT to participate in a consent

decree to delay their resolution of the pending dispute. Therefore, this Court, by this Settlement

Agreement, resolves certain issues in this lawsuit as follows, and expressly retains jurisdiction to

enforce this Settlement Agreement.

II. SETTLEMENT AGREEMENT A. Scope of Settlement Agreement.

1. Claims Resolved. This Settlement Agreement resolves Plaintiffs' two claims

generally characterized as the Road Shoulder Claim and the Bus Stop Claim.

1.

Road Shoulders. Under the Road Shoulder Claim, Plaintiffs allege that the

roadways within the boundaries of Millcreek Township that do not have

ADA compliant sidewalks constitute Pedestrian Access Routes ("PARs")

that must comply with the ADA requirements for PARs. This claim covers

two scenarios: roads within Millcreek Township where there are no or

incomplete sidewalks and roads within Millcreek Township where there are

sidewalks but the sidewalks do not comply with the ADA. Plaintiffs' were

seeking, among other things, that the edge/shoulder of the impacted roads

meet the ADA specifications for PARs, including, but not limited to, the

2% cross slope requirement, ADA compliant storm sewer covers and curb

ramps and blended transitions at intersections. The Road Shoulder Claim

-2-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 4 of 96

also sought to require the Defendants to install curb ramps or blended transitions connecting the sidewalk to the road shoulder at locations where a sidewalk terminates at a location other than an intersection. Plaintiffs also claimed that each time a road in Millcreek Township is/was resurfaced since 1991, it triggers/triggered the obligation to ensure that the PARs within the roads complied with the ADA. These claims shall be referred to in this Settlement Agreement as the "Road Shoulder Claims."

11.

Road Shoulder Claims do not include claims arising from existing

sidewalks or from the construction of sidewalks in the future, including but

not limited to the matters to be addressed by the parties as described in the

Fourth Consent Decree with Millcreek Township,(ECF Doc 118) and in the

Third Settlement Agreement with PennDOT (ECF Doc 124).

iii.

Bus Stops. Under the Bus Stop Claim, Plaintiffs allege that the bus stops

within the boundaries of Millcreek Township are "Programs, Services, or

Activities" of the Township and/or PennDOT under the ADA. Plaintiffs

also claim that Millcreek Township and PennDOT are responsible for the

accessibility of bus stops because they are located within the public rights-

of-way of each. Plaintiffs allege that they cannot use and/or get to and from

the bus stops located in Millcreek Township. Plaintiffs' Bus Stop Claims

consist of two parts. First, Plaintiffs claim that each bus stop must comply

with the requirements for bus/transit stops and bus/transit shelters under the

ADA. Second, Plaintiffs claim that the PAR to and from each bus stop must

comply with the ADA and/or that there must be a PAR to and from each

bus stop and between each bus shelter or waiting areas and the bus boarding

and alighting areas. These claims shall be referred to in this Settlement

Agreement as the "Bus Stop Claims."

2. Earlier Settlement Orders or Consent Decrees Remain in Effect. The

requirements of prior Consent Decrees between Millcreek Township and the Plaintiffs and the

requirements of the prior Partial Settlement Agreements and Orders between PennDOT and the

Plaintiffs remain in full force and effect, except to the extent expressly modified in this Settlement

Agreement as set forth below.

3. Limited to Inside Millcreek Township. This Settlement Agreement is limited

geographically to Millcreek Township. Plaintiffs along with PennDOT and Millcreek Township

enter into this Settlement Agreement merely to amicably resolve only the Road Shoulder Claims

-3-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 5 of 96
and Bus Stop Claims by Plaintiffs against PennDOT and Millcreek Township arising within the boundaries of Millcreek Township.
4. No Admission of Liability. It is acknowledged and agreed that this Settlement Agreement is in compromise of a disputed claims embodied in or encompassed by the underlying case and is being entered into to avoid further protracted litigation of the matter and to buy peace. This Settlement Agreement is not to be construed as any form of admission, either of liability or of any disputed fact or issue, on the part of anyone or any Defendant being released hereunder, or understood to be one in any sense. No consideration assumed or provided by Defendants under this Settlement Agreement shall be construed to establish liability or otherwise construed as any form of admission or wrongdoing on the part of any Defendant, and all liability or wrongdoing is expressly denied. Defendants specifically deny that either has any obligation, liability, or duties under or arising from the ADA with respect to the accessibility of bus stops or the accessibility of roadways or roadway shoulders within Millcreek Township or that such roadways or roadway shoulders are PARs. B. Construction of Sidewalks and/or Pedestrian Access Routes.
1. In consideration of the Parties' execution of this Settlement Agreement, their undertakings, releases, and agreements herein, and intending to be legally bound, the Parties agree as follows:
(a) PennDOT will remediate any non-compliant sections of sidewalk that were installed by PennDOT during prior PennDOT construction projects in Millcreek Township, SR 0005 A02 ECMS #57836 (West 12th Street from Asbury Road to east of Harper Drive and from Fillmore Ave to just east of Yorktown Center/Cancer Center Drive) and the SR 832 A03 ECMS #68271 (West 26th Street from James/Angle Street to Legion Road and on West 12th Street from east of Harper Drive to Fillmore Ave) projects, where such non-compliance was the result of prior PennDOT work.
-4-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 6 of 96
(b) PennDOT will address connectivity issues on Peninsula Drive (SR0832) from West 26th Street (SR0020) North to West 12th Street (SR0005) by installing sidewalk along the East side of Peninsula Drive, as further described in the Sidewalk Reimbursement and Maintenance Agreement to be entered into between Millcreek Township and PennDOT attached hereto as Exhibit A.
(c) - PennDOT will address accessibility issues on West 12th Street (SR0005), in any areas where sidewalks were not previously installed and that are not covered by Paragraph (a) above, from Asbury Road to just east ofYorktown Center/Cancer Center Drive by providing an ADA accessible path in those areas where an ADA accessible path oftravel does not exist along both sides of West 12th Street; as further described in the Sidewalk Reimbursement and Maintenance Agreement to be entered into between Millcreek Township and PennDOT attached hereto as Exhibit A.
(d) PennDOT will address connectivity issues on West 26th Street (SR0020) from James Ave/Angle St to Zuck Road by installing sidewalk in those areas where no sidewalk or pedestrian access is present along both sides of West 26th Street, as further described in the Sidewalk Reimbursement and Maintenance Agreeme-nt to be entered into between Millcreek Township and PennDOT attached hereto as Exhibit A.
(e) Along Caughey Road between West 26th Street and Sterrettania Road where there are no sidewalks on either side of the road, Millcreek Township will install sidewalk as needed along that stretch of Caughey Road so that there is a single Pedestrian Access Route ("PAR") that will extend along Caughey Road from Sterrettania Road to West 26th Street. The single PAR may be located on either the West or East side of Caughey Road, crossing between the two sides as needed or appropriate. Millcreek Township's engineer shall have sole discretion to determine which side of Caughey Road along the various segments between intersections shall contain the PAR and to determine at which intersections the PAR may cross Caughey Road to then continue along the other side. While not limiting Millcreek Township's discretion if a different design is later determined to be necessary or more feasible or desirable, Millcreek Township presently anticipates that the path of the PAR will be as follows: (i) the PAR will run on the East side of Caughey Road between Sterrettania Road and Meadow Drive; (ii) the PAR will cross Caughey Road at the intersection of Caughey Road and Meadow Drive; and (iii) the PAR will run on the West side of Caughey Road between Meadow Drive and West 26th Street.
(f) Millcreek Township will participate in the funding of the foregoing projects identified in Paragraphs (b), (c), and (d) above by providing a 20% match in local funding via a Sidewalk Reimbursement and Maintenance
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Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 7 of 96
Agreement to be entered into between Millcreek Township and PennDOT, a form of which is attached hereto as Exhibit A.
(g) For the project identified in Paragraph (e) above, Millcreek Township and PennDOT will both seek approval of federal transportation improvement project ("TIP") funding for the project, and if approved for TIP funding, Millcreek and PennDOT will enter into a General Reimbursement Grant Agreement For Federal-Aid Highway Projects, a form of which is attached hereto as Exhibit B, pursuant to which PennDOT, using funds allocated by the Federal Highway Administration, will pay to Millcreek Township 80% of the total costs of the project and Millcreek Township will be responsible for the remaining 20% of the costs of the project.
(h) The obligations and work to be undertaken pursuant to this Agreement are not dependent upon, nor contingent upon, the receipt of any specific funding or upon the compliance or fulfillment of the cost-sharing described herein.
2. Barring any unforeseen delays, the work identified in Paragraphs (b), (c), and (d)
above is anticipated to be completed by PennDOT by December 31, 2019. Barring any unforeseen
delays and subject to the provisions of this Settlement Agreement, the work identified in
Paragraph (e) above is anticipated to be completed by Millcreek Township by December 31,2020.
The Parties will agree that if PennDOT or Millcreek Township encounter any delays prior to the
stated completion dates, for good cause shown, the Plaintiffs will negotiate in good faith for
extension(s) of these dates if requested by PennDOT or Millcreek Township.
3. To the extent required, PennDOT and Millcreek Township shall work
cooperatively to obtain the funding necessary to support these projects.
4. It is understood and agreed by the Parties that any sidewalk construction or other
work undertaken by PennDOT and/or Millcreek Township pursuant to this Settlement Agreement
is being done pursuant to this Settlement Agreement to avoid further litigation and should not be
viewed as committing PennDOT and/or Millcreek Township to any other future sidewalk
construction in Millcreek Township and should not be considered as setting any sort of precedent
with respect to future sidewalk construction in Millcreek Township. Rather, PennDOT and/or
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Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 8 of 96
Millcreek Township are simply making an effort to resolve the current portion of the instant litigation. C. Design and Construction Standards Inside Millcreek Township.
I
Any sidewalk construction inside Millcreek Township by PennDOT will comply with the standards for sidewalk construction in the Proposed Gaidelines for Pedestrian Facilities in the Public Right-of-Way (PROWAG 2011), as amended in the Second Partial Settlement Agreement between PennDOT and the Plaintiffs. Any sidewalk construction inside Millcreek Township by Millcreek Township will comply with the standards for sidewalk construction in the Proposed Guidelines for Pedestrian Facilities in the Public Right-of-Way (PROWAG 2011). D. Partial Release and Indemnification.
1. Plaintiffs, Paul Pecunas, Shona Eakin, Mark Zahar, and Voices for Independence, .for themselves and on behalf of their predecessors, successors, affiliates, parents, subsidiaries, officers, directors, insurers, representatives, agents, employees, descendants, dependents, heirs, executors, administrators and assigns, and all others claiming by, through or under them, shall, and do hereby, release and forever discharge with prejudice Millcreek Township and PennDOT and their successors, subsidiaries, supervisors, officers, insurers, representatives, agents, employees and assigns, of and from: (i) any and all claims and causes of action, asserted or unasserted, legal or equitable including any claims or causes of action for declaratory or injunctive relief that were, or could have been, raised in this action relating to or regarding the Road Shoulder Claims; and (ii) any and all claims and causes of action, asserted or unasserted, legal or equitable including any claims or causes of action for declaratory or injunctive relief that were, or could have been, raised in this action relating to or regarding the Bus Stop Claims.
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Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 9 of 96
2. The release of the Road Shoulder Claims and the/Bus Stop Claims includes claims which a Plaintiff does not know or suspect to exist in his or her favor against either Defendant as of the Effective Date of this Settlement Agreement. The Plaintiffs each waive all rights and benefits afforded by any statutory law as to known or unknown claims which fall within the definitions of Road Shoulder Claims or Bus Stop Claims, and do so understanding the significance of said waiver. Each Plaintiff hereby confirms that he understands that facts relating to the allegations that are the subject of this lawsuit may turn out to be other than or different from the facts now known or believed by such Plaintiff to be true, and each Plaintiff knowingly assumes that risk and acknowledges and agrees that this Settlement Agreement shall remain in effect and shall not be subject to termination or revocation by reason of any such different facts.
3. In the event that Plaintiffs, Paul Pecunas, Shona Eakin, Mark Zahar or Voices For Independence file a lawsuit against Erie Metropolitan Transit Authority, its successors, assigns, officers and/or employees and/or any other entity operating public transportation services with bus stops within Millcreek Township (collectively, "EMTA") and
a. Plaintiffs assert in that lawsuit any liability against EMTA for bus stop claims relating or regarding the accessibility or ADA compliance of any bus stop within Millcreek Township that were or could have been brought in this action against Millcreek Township and/or PennDOT ("EMTA Bus Stop Claims"); and
b. thereafter EMTAjoins or sues Millcreek Township and/or PennDOT based upon the claim that Millcreek Township and/or PennDOT is liable to Plaintiffs for the EMTA Bus Stop Claims; and
c. any judgment is entered against Millcreek and/or PennDOT in favor ofEMTA and/or Plainitffs on the EMTA Bus Stop Claims;
-8-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 10 of 96
then and in that event this Agreement shall operate as a full and complete release of Millcreek Township and/or PennDOT for all such EMTA Bus Stop Claim liability asserted by the EMTA against Millcreek Township and/or PennDOT and Plaintiffs shall satisfy or release any judgment entered in favor of Plaintiffs and against EMTA to the extent necessary to satisfy or release any judgment entered in favor of EMTA against Millcreek Township and/or PennDOT on the EMTA Bus Stop Claims. It is the intent of this Agreement that Millcreek Township and PennDOT shall have no liability to Plaintiffs for any EMTA Bus Stop Claims.
4. Plaintiffs, Paul Pecunas, Shona Eakin, Mark Zahar, and Voices for Independence further agree not to take any action following the execution of this Settlement Agreement that is taken with the specific intent to support or assist the filing of a lawsuit or the maintenance of such a lawsuit by other parties against Millcreek Township and/or PennDOT relating in any way to the Road Shoulder Claims and/or the Bus Stop Claims, including but not limited to sharing any information obtained through discovery in this lawsuit, unless compelled by order of court to do so. If Plaintiffs are determined to have taken such action, Plaintiffs shall pay the amount of $37,843.55 to Millcreek and the amount of $34,693.59 to PennDOT, which is equal to the amount of attorneys' fees and costs paid by each as part of this settlement, including and all attorney's fees and costs incurred in recovering such amounts, and Millcreek and/or PennDOT also may seek such other relief as the court may deem appropriate. In any action filed to enforce this paragraph or to recover damages for a breach of this paragraph, the prevailing party shall be entitled to an award of reasonable attorney's fees and costs of litigation in addition to any other recoverable damages. Lawsuits, which relate in any way to the Road Shoulder Claims and/or the Bus Stop Claims, that are filed and maintained against Millcreek Township and/or PennDOT by a third party as a result
-9-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 11 of 96
of Plaintiffs filing of a lawsuit against such third party are not intended· to be covered by this Paragraph. E. Attorneys Fees and Costs
Within fifteen days of the Court's approval of this Settlement Agreement, Millcreek Township shall pay $29,901.05 to Heberle & Finnegan, PLLC and $7,942.50 to the Elderkin Firm. Within eight weeks of the Court's approval of this Settlement Agreement, PennDOT shall pay $25,355.99 to Heberle & Finnegan, PLLC and $9,337.60 to the Elderkin Firm. These amounts will be payment in full for all fees and costs claimable by Plaintiffs or Plaintiffs' counsel in thrs matter from the beginning of this matter up to September 23, 2016 for the Elderkin Firm and October 6, 2016 for Heberle & Finnegan, PLLC. By paying these amounts, Millcreek Township and PennDOT in no way admit liability for any future payments, and Plaintiffs do not waive any claims for payments for future fees and costs that may be incurred. F. Nonwaiver of Defenses.
Except as otherwise expressly provided in this Settlement Agreement or in the Parties' earlier respective Partial Settlement Agreements and Orders or Consent Decrees, neither Plaintiffs nor PennDOT nor Millcreek Township waive any defenses or rights they may have to any presently stated or future claims as the result of negotiating and executing the present Settlement Agreement or as the result of any actions taken pursuant thereto. G. Effective Date.
The Effective Date of this Settlement Agreement shall be the date indicated below that the Settlement Agreement was read and approved by the Parties.
-10-

Case 1:11-cRvec-e0iv0ed0:16-MRH Document 162-1 FNoivled9 210116/2031:5/61pm6 Page 12 of 96

11/09/2016 17:08 8148743497

VOICES FOR INDEPEND

PAGE 02/02

IN WITNESS WHEREOF, intending to be legally bolll).d hereby, Plaintiffs individually or by is duly authori~ representative, h~ve executed this Settlement Agreement effective as of the date set forth below.

Dated:

By ______________________________
Paul Pecunas
By.. ~ tQ}j·n ·
Shona Eakin

Voices for Independence

Dated:

By~E<AR·~

~ ~V\~v') 1\ EO..tl~

[Printed

Name;

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 13 of 96

IN WI1NESS WHEREOF, intending to be legally bound hereby, Plaintiffs individually
or by is duly authorized representative, have executed this Settlement Agreement effective as of
-----the-date-setfo:rtlrbelo,w·:-.- - - - - - - - - - - - - - - - - - - - - - - - - - 1 - - - 1 -
PauiPecunas
Dated:

Dated:

By ______________________________ ShonaEakin

Dated:

-11-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 14 of 96

-1.0 .60 *8897=10 76 <34; %'<3 0.> 72 ,7=15/19# &$%(# />)

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#,0+0-+4

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 15 of 96
REIMBURSEMENT & MAINTENANCE AGREEMENT PURSUANT TO SETTLEMENT AGREEMENT
THIS REIMBURSEMENT & MAINTENANCE AGREEMENT ("AGREEMENT"), is made and entered into by and between the Commonwealth of Pennsylvania, acting throug~ the Pennsylvania Department of Transportation (PENNDOT), hereinafter called the COMMONWEALTH,
and
MILLCREEK TOWNSHIP, a political subdivision duly and properly formed under the laws of the Commonwealth of Pennsylvania, acting through its proper officials, hereinafter called the MUNICIPALITY.
W I TN E S S E T H:
WHEREAS, the COMMONWEALTH has under its jurisdiction SR0832, SR0005, and SR0020, located in Millcreek Township, Erie County;
WHEREAS, pursuant to Section II.B.(b), (c), and (d) of the Joint Partial Settlement Agreement Among All Parties entered in the lawsuit captioned, Pecunas, et al. v. Commonwealth ofPennsylvania, Department ofTransportation, et al., W.D. Pa. Case No. 1:11cv-00016-MRH (the "Settlement Agreement"), the COMMONWEALTH is required to design, construct and install sidewalks or other pedestrian facilities ("PEDESTRIAN FACILITIES") along SR0832, from Segments 0220 and 0221 Offsets 0000 and 0000 to Segments 0240 and 0241 Offsets 0000 and 0000, SR0005, from Segments 0400 and 0401 Offsets 0650 and 0650 to Segments 0480 and 0481 Offsets 1349 and 1335, and SR0020, from Segments 0500 and 0501 Offsets 1031 and 1027 to Segments 0510 and 0511 Offsets 1675 and 1692, hereinafter referred to as the COMMONWEALTH PROJECT, as shown on R & M Exhibits "A," "B," and "C," which are attached hereto and made part of this Agreement;
EXHIBIT A

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 16 of 96
WHEREAS, the PEDESTRIAN FACILITIES will be installed to serve pedestrian traffic and must meet the design guideline standards for pedestrian accessibility required by the Americans with Disabilities Act (ADA), as further specified in the Settlement Agreement;
WHEREAS the COMMONWEALTH and the MUNICIPALITY intend to fund the COMMONWEALTH PROJECT using money from the Transportation Improvement Program, which requires a 20% match, and have agreed to cooperate in seeking such funding;
WHEREAS, under the Transportation Improvement Program funding, the COMMONWEALTH is the entity that is responsible for constructing the COMMONWEALTH PROJECT, and in this case, the MUNICIPALITY is providing the twenty percent (20%) match; and
WHEREAS, the parties desire to enter into this Agreement to set forth the construction, inspection, financial and maintenance obligations for the COMMONWEALTH PROJECT and the PEDESTRIAN FACILITIES.
NOW THEREFORE, for and in consideration of the foregoing premises and the mutual promises set forth below, the parties agree, with the intention of being legally bound, to the following:
1. The recitals set forth above are incorporated by reference as a material part of this Agreement.
2. The COMMONWEALTH, with the support ofthe MUNICIPALITY, shall seek funding from the Transportation Improvement Program for the COMMONWEALTH PROJECT, such that the COMMONWEALTH PROJECT can be completed within the time frame contained in the Settlement Agreement.
3. The COMMONWEALTH, by contract or with its own forces, will design and construct the COMMONWEALTH PROJECT in compliance with the ADA and in accordance with
-2-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 17 of 96
the plans, specifications, and drawings prepared by or for the COMMONWEALTH, which are incorporated herein by reference as if physically attached hereto.
4. While the parties are seeking funding from the Transportation Improvement Program, the COMMONWEALTH PROJECT is not dependent on this funding, and shall be completed and funded as described below if such funding is not provided.
5. The COMMONWEALTH shall be responsible for eighty percent (80%) of all costs of the COMMONWEALTH PROJECT and the MUNICIPALITY shall be responsible for twenty percent (20%) of all costs ofthe COMMONWEALTH PROJECT, as provided below.
6. The MUNICIPALITY shall pay to the COMMONWEALTH, by way of reimbursement, for twenty percent (20%) of all actual costs associated with construction of the COMMONWEALTH PROJECT, including construction inspection costs, as tabulated on R & M Exhibit "D," which is attached to and made part of this Agreement, estimated to be Two Hundred and Thirty-Seven Thousand, Three Hundred and Twenty-Four Dollars ($237,324.00); and,
7. Upon completion ofthe COMMONWEALTH PROJECT, the COMMONWEALTH shall send the MUNICIPALITY a written notice of completion and an invoice specifying the total cost of the PEDESTRIAN FACILITIES for which MUNICIPALITY is responsible in accordance with Paragraphs 5 and 6 above. The MUNICIPALITY shall make payment to the COMMONWEALTH in full through the Option circled below: Option A: The MUNICIPALITY shall make payment to the COMMONWEALTH in full within thirty (30) days of receipt of such invoice.
-3-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 18 of 96
Option B: The MUNICIPALITY shall, after receipt of such invoice, make monthly payments to the COMMONWEALTH for a period of one (1) year. The payments will be in equal amounts and total all costs due hereunder.
Option C: The MUNICIPALITY shall make payment to the COMMONWEALTH in full after receiving the necessary funds from a Pennsylvania Infrastructure Bank (PIB) loan. The MUNICIPALITY shall make payment to the COMMONWEALTH in full within thirty (30) days of receipt of such loan, which must be no longer than sixty (60) days after completion of the Project.
Option D: The MUNICIPALITY authorizes the COMMONWEALTH to withhold and apply so much of the MUNICIPALITY's Liquid Fuels Tax Fund allocation as necessary to reimburse the COMMONWEALTH in full for all costs due hereunder.
8. Upon completion of the COMMONWEALTH PROJECT, responsibility for future maintenance of and removal of snow and ice from the PEDESTRIAN FACILITIES installed or constructed under the COMMONWEALTH PROJECT shall be governed by MUNICIPALITY's ordinances and the State Highway Law. Nothing contained in this Agreement must be construed as an assumption or acknowledgment by the COMMONWEALTH or MUNICIPALITY of responsibility for the maintenance and future repair of the said PEDESTRAIN FACILITIES. If MUNICIPALITY proposes to change the language of Section 121.5(A) of Millcreek Township Code in a manner that modifies or eliminates the responsibility of the owner for the proper care, maintenance and condition of a sidewalk within the right of way of a State highway, MUNICIPALITY shall provide written notice to COMMONWEALTH of such proposed change at the same time MUNICIPALITY is required to provide public notice of such proposed change.
-4-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 19 of 96
MUNICIPALITY's failure to provide such notice shall in no way delay or void the effectiveness of any change, and shall not constitute a breach of this Agreement.
9. 'The MUNICIPALITY, by executing this Agreement, certifies that it has on hand or will acquire sufficient funds to meet all of its obligations for the PEDESTRIAN FACILITIES to be constructed/installed under this Agreement.
10. If the MUNICIPALITY fails to perform any of the terms, conditions or provisions of this Agreement, including, but not limited to, any default of payment for a period of forty-five (45) days, the MUNICIPALITY authorizes the COMMONWEALTH to withhold so much of the MUNICIPALITY's Liquid Fuels Tax Fund allocation as may be necessary to reimburse the COMMONWEALTH in full for all costs due hereunder; and the MUNICIPALITY does hereby and herewith authorize the COMMONWEALTH to withhold such amount and to apply such funds or portion thereof, to remedy such default.
11. The MUNICIPALITY shall enact and/or adopt such ordinances and/or resolutions as may be necessary to effect the purposes of this Agreement.
12. The actions that the COMMONWEALTH is either required or authorizedto perform pursuant this Agreement are not intended to enlarge, and must not be construed as enlarging, its obligations regarding maintenance and operation of the state highway system under either the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-101 et seq., or the Act of September 18, 1961, P.L. 1389, No. 615, as amended, 36 P.S. § 1758-101 et seq.
13. This Agreement will not be effective until all necessary COMMONWEALTH officials as required by law have executed it, and the Court in Pecunas, et al. v. Commonwealth of Pennsylvania, Department ofTransportation, eta!., W.D. Pa. Case No. 1:11-cv-00016MRH has approved the Settlement Agreement. The date of the Court's approval shall be the effective date of this Agreement.
-5-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 20 of 96

14. Although the parties recognize that this provision may not be applicable because the COMMONWEALTH, by contract or with its own forces, will design and construct the COMMONWEALTH PROJECT, to the extent applicable the MUNICIPALITY agrees to comply with the Contractor Integrity Provisions, the Commonwealth Nondiscrimination/Sexual Harassment Clause, the Provisions Concerning the Americans with Disabilities Act, and the Right-to-Know Law Provisions which are attached hereto and made part hereof as Exhibits "E," "F," "G," and "H", respectively.

IN WITNESS WHEREOF, the parties have executed this Agreement the date first above written.

ATTEST

MUNICIPALITY

Title:

DATE

BY- - - - - - - - - - - - - - - - - - - - - - - - -

Title:

DATE

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION

BY________________________________

Deputy Secretary for

DATE

Highway Administration

APPROVED AS TO LEGALITY AND FORM

BY________________________

for Chief Counsel

Date

FUNDS COMMITMENT DOC. NO._ _ __
CERTIFIED FUNDS AVAILABLE UNDER
SAP NO.
SAPCOSTCENTER~---------------
G L A C C O U N T _ _ _ _ _ _ _ _ _ _~--------AMOUNT_________________________

BY_________________________ BY__________________~--~-------

Deputy General Counsel

Date [or Comptroller

Date

-6-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 21 of 96

BY_________________________

Deputy Attorney General

Date

#1485908

-7-

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 22 of 96
LOCATION MAP
SR 5 9 WEST TWELFTH STREET
LIM! T OF WORK 0.2 MI. WEST OF 1-79 SEG.0480 OFFSET 1349 SEG.0481 OFFSET 1335 S.R.0005 SECTION A02 CITY OF ERIE ERIE COUNTY STOP WORK SR 5-A03/ START WORK SR 5-A02 SEG. 0460 OFFSET 2522 SEG. 0461 OFFSET 2508 STOP WORK SR 5-A02/ START WORK SR 5-A03 SEG. 0460 OFFSET 0914 SEG. 0461 OFFSET 0900 LIMIT OF WORK 0. 1 MI. EAST OF ASBURY RD. SEG.0400 OFFSET 0650 SEG.0401 OFFSET 0650 S.R.0005 SECTION A02 MILLCREEK TWP. ERIE COUNTY
LEGEND eJ U.S. TRAFFIC ROUTE
CJ INTERSTATE ROUTE
() P.A.TRAFFIC ROUTE ----STATE ROUTE
TOWNSHIP ROAD
E:) PROJECT- SIDEWALK ACCESSIBILITY
SCALE
0 0. 5 1 MILES
R & M EXHIBIT A

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 23 of 96

LOCATION MAP
SR 832 1 PENINSULA DRIVE

LIMIT OF WORK INTERSECTION OF SR 0832 & SR 0005 ( WEST 12TH STl SEG. 0240 OFFSET 0000 SEG. 0241 OFFSET 0000 MILLCREEK TWP. ERIE COUNTY

Ll MIT OF WORK INTERSECTION OF SR 0832
& SR 0020 <WEST 26TH STl
SEG. 0220 OFFSET 0000 SEG. 0221 OFFSET 0000 MILLCREEK TWP. ERIE COUNTY

LEGEND

-~:--@+--- INTERSTATE ROUTE -+-0+--- U.S. TRAFFIC ROUTE
-t-Q+--- P. A. TRAFFIC ROUTE ----STATE ROUTE - - - - TOWNSHIP ROAD

0

PROJECT- SIDEWALK CONNECTIVITY (EAST SIDEl PROJECT- SIDEWALK CONNECTIVITY (WEST SIDE FROM 12TH

TO 15TH STREET ONLY)

SCALE

0

0. 5

1 MILES

R & M EXHIBIT B

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 24 of 96

LOCATION MAP

SR

WEST TWENTY SIXTH STREET

L!MIT OF WORK INTERSECTION OF SR 0020 (WEST 26TH STl & ZUCK RD. SEG.0510 OFFSET 1675 SEG.051 1 OFFSET 1692 MILLCREEK TWP. ERIE COUNTY

L1 MI T OF WORK INTERSECTION OF SR 0020 (WEST 26TH STl & JAMES AVE/ANGLE ST SEG. 0500 OFFSET 1031 SEG.0501 OFFSET 1027 MILL CREEK TWP. ERIE COUNTY

LEGEND

-~,--.:@:t--- INTERSTATE ROUTE

CJ U.S. TRAFFIC ROUTE

-~Q:t--- P. A. TRAFFIC ROUTE

----STATE ROUTE TOWNSHIP ROAD

0

PROJECT- SIDEWALK CONNECTIVITY (BOTH SIDESl

SCALE

0

o. 5

1 MILES

R & M EXHIBIT C

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 25 of 96

PRELIMINARY CONSTRUCTION COST ESTIMATE

councy:~E~n~·~~----~~~--

S.R: 832 & 20

Section:----

Date: 12-0ct-16 ADT:____ Trucks: _____ %

SR 832 (Sr 20-SR 5) Loc_atlon: SR 20 !Angle St. ·Zuck) Seg./Offael: ----To Sog.IOffset: - - - - -

Typo of Project: Sidewalk and Curb Ramps

Scope of Work:

Construction Item

Pavement:

SR20

Sidewalk (Including Excavation)

SR20

Curb Ramps

SR 832

Sidewalk (Including Excavation)

SR 832

Curb Ramps

Widening S"B.C.B.C including Exc.

Widening 8"B.C.B.C Including Exc

Widening IQ"B C.8.C includmg Exc.

WMA Binder,2" min. Oeplh (220# I SY)

WMA Wear. Crse., 1 112" Oeplh (SRL L.M.G,H)

WMA Wear. Crse, 1-112" Depth (SRL E)

WMA Wear.· Crse. 1·112" Depth (SRL E 76-22)

Cold Miil Recycle 3" depth

Bituminous Matenal

Shoulders

Paved Shoulders Type 1·1

Paved Shouldera Type 6·1

Paved Shoulders Type 7

Guide Rail:

Reset Exist. Guide Rail

Removal of Guide Rail

Proposed Guide Rail

Perm. Impact A«enuators

End Anchorage

Strong Post End Trealm en!

Remove End Anchor

Drainage:

50,000/Mi.

Drlvee:

Gravel

Bil.(4" B.C.B C. & 1112" Weer)

Cone.

Mlscollanoous:

M & P Traffic

lnspeclo(s Fiald Offica

Cheek Well (18" average)

Curb Guller

Posted Speed: _ _ _ _ MPH Length: ____ L F
Longlh:~Miles
Prepared By: KDM

Qyruj!l!x !lnl! ~

£2.!!!

535 S.Y. 22 Each
.2.167 S.Y. 40 Eech SY
sx
S.Y. TON SY SY S.Y. S.Y. GALLON

80.00 5,000.00
80.00 S.OOO.QO
35.00 40.00 45.00 75.00
8.00 8.50 8.50 3.00 1.70

$42,800 $110,000 $173,360 $200;QOO
$Q $0 $0 $0 $0 $0 $0 $0 $0

S.Y.

30.00

$0

$.Y.

3000

so

S.Y.

7.00

$0

LF.

6.00

$0

LF.

2.00

so

L.F

2000

so

EACH 2,000.00

so

EACH

400.00

$0

EACH

900.00

$0

EACH

200.00

$0

0 LS.

0.00

$0

TON

50.00

$0

EACH

190.00

$0

EACH

600.00

$0

LS L.S 1,677 S.F. S.Y.

75.00 60.00

$40,000 $10,000 .$125.775
$0

Disclaimer: As Per JAW 2-12·13 Prices apply to 3R Bellermenl projects only For other types of projects, obtain prices from Contract Managomant

Conslruct1on Subtotal Mobilization 5% Conlin.gencies 40% Construction Engmeering 15%
TOTAL COST

$701,935 535,097
$294,813 S154.777 $1,186.621

Cost Sharing
PennDOT 80% Millcreek Township 20% TOTAL COST

$949,297 $237,324 $1,186,621

25% of L. F. of sidewalk

R & M Exhibit "D"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 26 of 96
January 14, 2015
CONTRACTOR INTEGRITY PROVISIONS
It is essential that those who seek to contract with the Commonwealth of Pennsylvania ("Commonwealth") observe high standards of honesty and integrity. They must conduct themselves in a manner that fosters public confidence in the integrity of the Commonwealth contracting and procurement process.
1. DEFINITIONS. For purposes of these Contractor Integrity Provisions, the following terms shall have the meanings found in this Section:
a. "Affiliate" means two or more entities where (a) a parent entity owns more than fifty percent of the voting stock of each of the entities; or (b) a common shareholder or group of shareholders owns more than fifty percent of the voting stock of each of the entities; or (c) the entities have a common proprietor or general partner.
b. "Consent" means written permission signed by a duly authorized officer or employee of the Commonwealth, provided that where the material facts have been disclosed, in writing, by prequalification, bid, proposal, or contractual terms, the Commonwealth shall be deemed to have consented by virtue of the execution of this contract.
c. "Contractor" means the individual or entity, that has entered into this contract with the Commonwealth.
d. "Contractor Related Parties" means any affiliates of the Contractor and the Contractor's executive officers, Pennsylvania officers and directors, or owners of 5 percent or more interest in the Contractor.
e. "Financial Interest" means either:
(1) Ownership of more than a five percent interest in any business; or
(2) Holding a position as an officer, director, trustee, partner, employee, or holding any position of management.
f. "Gratuity" means tendering, g1v1ng, or providing anything of more than nominal monetary value including, but not limited to, cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. The exceptions set forth in the Governor's Code of Conduct, Executive_ Order 1980-18, the 4 Pa. Code §7.153(b), shall apply.
g. "Non-bid Basis" means a contract awarded or executed by the Commonwealth with Contractor without seeking bids or proposals from any other potential bidder or offeror.
2. In furtherance of this policy, Contractor agrees to the following:
a. Contractor shall maintain the highest standards of honesty and integrity during the performance of this contract and shall take no action in violation of state or federal laws or regulations or any other applicable laws or regulations, or other requirements applicable to Contractor or that govern contracting or procurement with the Commonwealth.

ExhibitE Enclosure 1 to Management Directive 215.8 Amended

Page 1 of 3

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 27 of 96

b. Contractor shall establish and implement a written business integrity policy, which

includes, at a minimum, the requirements of these provisions as they relate to the

Contractor activity with the Commonwealth and Commonwealth employees and which is

made known to all Contractor employees. Posting these Contractor Integrity Provisions

conspicuously in easily-accessible and well-lighted places customarily frequented by

employees and at or near where the contract services are performed shall satisfy this

requirement.

·

c. Contractor, its affiliates, agents, employees and anyone in privity with Contractor shall not accept, agree to give, offer, confer, or agree to confer or promise to confer, directly or indirectly, any gratuity or pecuniary benefit to any person, or to influence or attempt to influence any person in violation of any federal or state law, regulation, executive order of the Governor of Pennsylvania, statement of policy, management directive or any other published standard of the Commonwealth in connection with performance of work under this contract, except as provided in this contract.

d. Contractor shall not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material under this contract, unless, the financial interest is disclosed to the Commonwealth in writing and the Commonwealth consents to Contractor's financial interest prior to Commonwealth execution of the contract. Contractor shall disclose the financial interest to the Commonwealth at the time of bid or proposal submission, or if no bids or proposals are solicited, no later than Contractor's submission of the contract signed by Contractor.

e. Contractor certifies to the best of its knowledge and belief that within the last five (5) years Contractor or Contractor Related Parties have not:

(1) been indicted or convicted of a crime involving moral turpitude or business honesty or integrity in any jurisdiction;

(2) been suspended, debarred or otherwise disqualified from entering into any contract with any governmental agency;

(3) had any business license or professional license suspended or revoked;

(4) had any sanction or finding of fact imposed as a result of a judicial or administrative proceeding related to fraud, extortion, bribery, bid rigging, embezzlement, misrepresentation or anti-trust; and

(5) been, and is not currently, the subject of a criminal investigation by any federal, state or local prosecuting or investigative agency and/or civil anti-trust investigation by any federal, state or local prosecuting or investigative agency.

If Contractor cannot so certify to the above, then it must submit along with its bid, proposal or contract a written explanation of why such certification cannot be made and the Commonwealth will determine whether a contract may be entered into with the Contractor. The Contractor's obligation pursuant to this certification is ongoing from and after the effective date of the contract through the termination date thereof. Accordingly, the Contractor shall have an obligation to immediately notify the Commonwealth in writing if at any time during the term of the contract if becomes aware of any event which would cause the Contractor's certification or explanation to change. Contractor acknowledges that the Commonwealth may, in its sole discretion, terminate the contract for cause if it learns that any of the certifications made herein are currently false due to intervening factual circumstances or were false or should have been known to be false when entering into the contract.

Exhibit E Enclosure 1 to Management Directive 215.8 Amended

Page 2 of 3

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 28 of 96
f. Contractor shall comply with the requirements of the Lobbying Disclosure Act (65 Pa.C.S. §13A01 et seq.) regardless of the method of award. If this contract was awarded on a Non-bid Basis, Contractor must also comply with the requirements of the Section 1641 of the Pennsylvania Election Code (25 P.S. §3260a).
g. When Contractor has reason to believe that any breach of ethical standards as set forth in law, the Governor's Code of Conduct, or these Contractor Integrity Provisions has occurred or may occur, including but not limited to contact by a Commonwealth officer or employee which, if acted upon, would violate such ethical standards, Contractor shall immediately notify the Commonwealth contracting officer or the Office of the State Inspector General in writing.
h. Contractor, by submission of its bid or proposal and/or execution of this contract and by the submission of any bills, invoices or requests for payment pursuant to the contract, certifies and represents that it has not violated any of these Contractor Integrity Provisions in connection with the submission of the bid or proposal, during any contract negotiations or during the term of the contract, to include any extensions thereof. Contractor shall immediately notify the Commonwealth in writing of any actions for occurrences that would result in a violation of these Contractor Integrity Provisions. Contractor agrees to reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of the State Inspector General for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the Commonwealth that results in the suspension or debarment of the Contractor. Contractor shall not be responsible for investigative costs for investigations that do not result in the Contractor's suspension or debarment.
i. Contractor shall cooperate with the Office of the State Inspector General in its investigation of any alleged Commonwealth agency or employee breach of ethical standards and any alleged Contractor non-compliance with these Contractor Integrity Provisions. Contractor agrees to make identified Contractor employees available for interviews at reasonable times and places. Contractor, upon the inquiry or request of an Inspector General, shall provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by the Office of the State Inspector General to Contractor's integrity and compliance with these provisions. Such information may include, but shall not be limited to, Contractor's business or financial records, documents or files of any type or form that refer to or concern this contract. Contractor shall incorporate this paragraph in any agreement, contract or subcontract it enters into in the course of the performance of this contract/agreement solely for the purpose of obtaining subcontractor compliance with this provision. The incorporation of this provision in a subcontract shall not create privity of contract between the Commonwealth and any such subcontractor, and no third party beneficiaries shall be created thereby.
j. For violation of any of these Contractor Integrity Provisions, the Commonwealth may terminate this and any other contract with Contractor, claim liquidated damages in an amount equal to the value of anything received in breach of these Provisions, claim damages for all additional costs and expenses incurred in obtaining another contractor to complete performance under this contract, and debar and suspend Contractor from doing business with the Commonwealth. These rights and remedies are cumulative, and the use or non-use of any one shall not preclude the use of all or any other. These rights and remedies are in addition to those the Commonwealth may have under law, statute, regulation, or otherwise.

Exhibit E Enclosure 1 to Management Directive 215.8 Amended

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February 24, 2015
NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE [Contracts]
The Contractor agrees:
1. In the hiring of any employee(s) for the manufacture of supplies, performance of work, or any other activity required under the contract or any subcontract, the Contractor, each subcontractor, or any person acting on behalf of the Contractor or subcontractor shall not discriminate in violation of the Pennsylvania Human Relations Act (PHRA) and applicable federal laws against any citizen of this Commonwealth who is qualified and available to perform the work to which the employment relates.
2. Neither the Contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate in violation of the PHRA and applicable federal laws against or intimidate any employee involved in the manufacture of supplies, the performance of work, or any other activity required under the contract.
3. The Contractor and each subcontractor shall establish and maintain a written nondiscrimination and sexual harassment policy and shall inform their employees of the policy. The policy must contain a provision that sexual harassment will not be tolerated and employees who practice it will be disciplined. Posting this Nondiscrimination/Sexual Harassment Clause conspicuously in easily-accessible and well...:lighted places customarily frequented by employees and at or near where the contract services are performed shall satisfy this requirement.
4. The Contractor and each subcontractor shall not discriminate in violation of PHRA and applicable federal laws against any subcontractor or supplier who is qualified to perform the work to which the contract relates.
5. The Contractor and each subcontractor represents that it is presently in compliance with and will maintain compliance with all applicable federal, state, and local laws and regulations relating to nondiscrimination and sexual harassment. The Contractor and each subcontractor further represents that it has filed a Standard Form 100 Employer Information Report ("EE0-1") with the U.S. Equal Employment Opportunity Commission ("EEOC") and shall file an annual EE0-1 report with the EEOC as required for employers subject to Title VII, of the Civil Rights Act of 1964, as amended, that have 100 or more employees and employers that have federal government contracts or first-tier subcontracts and have 50 or more employees. The Contractor and each subcontractor shall, upon request and within the time periods requested by the Commonwealth, furnish all necessary employment documents and records, including EE0-1 reports, and permit access to their books, records, and accounts by the contracting agency and the Bureau of Small Business Opportunities (BSBO), for purpose of ascertaining compliance with provisions of this Nondiscrimination/Sexual Harassment Clause.

Exhibit F Enclosure 1 to Management Directive 215.16 Amended

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February 24, 2015
6. The Contractor shall include the prov1s1ons of this Nondiscrimination/Sexual Harassment Clause in every subcontract so that those provisions applicable to subcontractors will be binding upon each subcontractor.
7. The Contractor's and each subcontractor's obligations pursuant to these provisions are ongoing from and after the effective date of the contract through the termination date thereof. Accordingly, the Contractor and each subcontractor shall have an obligation to inform the Commonwealth if, at any time during the term of the contract, it becomes aware of any actions or occurrences that would result in violation of these provisions.
8. The Commonwealth may cancel or terminate the contract and all money due or to become due under the contract may be forfeited for a violation of the terms and conditions of this Nondiscrimination/Sexual Harassment Clause. In addition, the agency may proceed with debarment or suspension and may place the Contractor in the Contractor Responsibility File.

Exhibit F Enclosure 1 to Management Directive 215.16 Amended

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October 14, 2011

PROVISIONS CONCERNING THE AMERICANS WITH DISABILITIES ACT
For the purpose of these provisions, the term contractor is defined as any person, including, but not limited to, a bidder, offeror, supplier, or grantee, who will furnish or perform or seeks to furnish or perform, goods, supplies, services, construction or other activity, under a purchase order, contract, or grant with the Commonwealth of Pennsylvania (Commonwealth).
(
During the term of this agreement, the contractor agrees as follows:

1. Pursuant to federal regulations promulgated under the authority of the Americans with

Disabilities Act, 28 C. F. R. § 35.101 et seq., the contractor understands and agrees that

no individual with a disability shall, on the basis of the disability, be excluded from

participation in this agreement or from activities provided for under this agreement. As a

condition of accepting and executing this agreement, the contractor agrees to comply with

the "General Prohibitions Against Discrimination," 28 C. F. R. § 35.130, and all other

regulations promulgated under Title II of the Americans with Disabilities Act which are

applicable to the benefits, services, programs, and activities provided by the

Commonwealth

through

contracts

with

outside

contractors.

2. The contractor shall be responsible for and agrees to indemnify and hold harmless the Commonwealth from all losses, damages, expenses, claims, demands, suits, and actions brought by any party against the Commonwealth as a result of the contractor's failure to comply with the provisions of paragraph 1.

EXHIBIT G
Enclosure 1 to Management Directive 215.12 Amended

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Contract Provisions -Right to Know Law
a. The Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-3104, ("RTKL") applies to this Contract. For the purpose of these provisions, the term "the Commonwealth" shall refer to the contracting Commonwealth agency.
b. If the Commonwealth needs the Contractor's assistance in any matter arising out of the RTKL related to this Contract, it shall notify the Contractor using the legal contact information provided in this Contract. The Contractor, at any time, may designate a different contact for such purpose· upon reasonable prior written notice to the Commonwealth.
c. Upon written notification from the Commonwealth that it requires the Contractor's assista,nce in responding to a request under the RTKL for information related to this Contract that may be in the Contractor's possession, constituting, or alleged to constitute, a public record in accordance with the RTKL ("Requested Information"), the Contractor shall:
1. Provide the Commonwealth, within ten ( 10) calendar days after receipt of written notification, access to, and copies of, any document or information in the Contractor's possession arising out of this Contract that the Commonwealth reasonably believes is Requested Information and may be a public record under the RTKL; and
2. Provide such other assistance as the Commonwealth may reasonably request, in order to comply with the RTKL with respect to this Contract.
d. If the Contractor considers the Requested Information to include a request for a Trade Secret or Confidential Proprietary Information, as those terms are defined by the RTKL, or other information that the Contractor considers exempt from production under the RTKL, the Contractor must notify the Commonwealth and provide, within seven (7) calendar days of receiving the written notification, a written statement signed by a representative of the Contractor explaining why the requested material is exempt from public disclosure under the RTKL.
e. The Commonwealth will rely upon the written statement from the Contractor in denying a RTKL request for the Requested Information unless the Commonwealth determines that the Requested Information is clearly not protected from disclosure under the RTKL. Should the Commonwealth determine that the Requested Information is clearly not exempt from disclosure, the Contractor shall provide the Requested Information within five (5) business days of receipt of written notification of the Commonwealth's determination.
f. If the Contractor fails to provide the Requested Information within the time period required by these provisions, the Contractor shall indemnify and hold the Commonwealth harmless for any damages, penalties, costs, detriment or harm that the Commonwealth may incur as a result of the Contractor's failure, including any statutory damages assessed against the Commonwealth.
EXHIBITH
Revised February 1, 2010

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g. The Commonwealth will reimburse the Contractor for any costs associated with complying with these provisions only to the extent allowed under the fee schedule established by the Office of Open Records or as otherwise provided by the RTKL if the fee schedule is inapplicable.
h. The Contractor may file a legal challenge to any Commonwealth decision to release a record to the public with the Office of Open Records, or in the Pennsylvania Courts, however, the Contractor shall indemnify the Commonwealth for any legal expenses incurred by the Commonwealth as a result of such a challenge and shall hold the Commonwealth harmless for any damages, penalties, costs, detriment or harm that the Commonwealth may incur as a result of the Contractor's failure, including any statutory damages assessed against the Commonwealth, regardless of the outcome of such legal challenge. As between the parties, the Contractor agrees to waive all rights or remedies that may be available to it as a result of the Commonwealth's disclosure of Requested Information pursuant to the RTKL.
i. The Contractor's duties relating to the RTKL are continuing duties that survive the expiration of this Contract and shall continue as long as the Contractor has Requested Information in its possessiOn.

Revised February 1, 2010

EXHIBIT H

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Federal Aid Highway- MUNI Acquisition ofROW

EFFECTIVE DATE
(Department will insert)
COUNTY MUNICIPALITY DISTRICT ORG CODE

REIMBURSEMENT AGREEMENT NO. FIDNO. SAP VENDOR NO. MPMSNO. RELATED ECMS AGREEMENT NO .___

GENERAL REIMBURSEMENT GRANT AGREEMENT FOR FEDERAL-AID HIGHWAY PROJECTS.

THIS AGREEMENT is made by and between the Commonwealth of Pennsylvania, acting

through the Department of Transportation ("DEPARTMENT"),

and

Millcreek Township, a political subdivision in the County of Erie, of the Commonwealth of Pennsylvania, acting through its proper officials ("MUNICIPALITY").

RECITALS: WHEREAS, the MUNICIPALITY has under its jurisdiction Caughey Road between W. 26th Street (SR0020) and Sterrettania Road (SR0832); and WHEREAS, pursuant to the Joint Partial Settlement Agreement Among All Parties entered in the lawsuit captioned, Pecunas, et al. v. Commonwealth of Pennsylvania, Department of Transportation, et al., W.O. Pa. Case No. 1:11-cv-00016-MRH (the "Settlement Agreement"), the MUNICIPALITY is required to construct and install PEDESTRIAN FACILITIES on Caughey Road between W. 26th Street and Sterrettania Road, hereinafter referred to as the PROJECT.

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WHEREAS, the PEDESTRIAN FACILITIES will be installed to serve pedestrian traffic and must meet the design guideline standards for pedestrian accessibility required by the Americans with Disabilities Act (ADA), as further specified in the Settlement Agreement; and,
WHEREAS the DEPARTMENT and the MUNICIPALITY intend to fund the PROJECT using monies awarded through the Transportation Improvement Program process, which requires a 20% local match, and have agreed to cooperate in seeking such funding; and
WHEREAS, the Congress of the United States has found it to be in the national interest to promote through the states a continuing federal-aid highway program ("Program") to improve public roads both on and off federal-aid systems within the states for the purpose of enhancing the safety and traffic flow on these roads, and has provided funds to be administered in accordance with the provisions of the various federal-aid highway acts, as amended, by the United States Department of Transportation, Federal Highway Administration ("FHWA"); and,
WHEREAS, the DEPARTMENT has adopted policies and procedures for the initiation and conduct of improvements by political subdivisions of the Commonwealth within such a Program for those public roads, pursuant to the requirements set forth in FHWA regulations implementing the provisions of the federal-aid highway acts and amendments to them, as set forth in the applicable provisions ofTitle 23 ofthe United States Code; and,
WHEREAS, the MUNICIPALITY has signified its willingness to participate in the Program by undertaking the improvements described in Paragraph 2(a) in accordance with the terms, conditions and provisions contained in this Agreement and the Settlement Agreement.
NOW, THEREFORE, the parties, intending to be legally bound, agree to the following:
1. INCORPORATION BY REFERENCE The recitals set forth above are incorporated by reference as a material part of this Agreement. 2 EXHIBITB

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2. GENERAL PROVISIONS (a) The MUNICIPALITY shall participate in the preliminary engineering, including environmental studies, final design, utility relocation, right-of-way acquisition and construction of sidewalks (collectively, "Project") at the following locations in accordance with policies, procedures and specifications prepared or approved by the DEPARTMENT and the FHWA, where applicable:
Caughey Road between W. 26th Street (SR0020) and Sterrettania Road (SR0832)
(b) The MUNICIPALITY shall participate in the administration of the Project in accordance with the provisions of this Agreement and more specifically with the most current version of DEPARTMENT Publication No. 740, Local Project Delivery Manual, incorporated into this Agreement as though physically attached to it.
(c) The Project cost estimate, attached to and made a part of this Agreement as Exhibit "A," sets forth the phases being reimbursed, the estimated costs and the reimbursement percentages.
3. AMENDMENTS AND SUPPLEMENTS (a) If the cost for any phase of the Project listed in Exhibit "A" is blank, or the cost of any phase increases, causing the overall Agreement cost to increase, the parties must execute a letter of amendment that will include a revised Exhibit A. The DEPARTMENT cannot pay or reimburse the MUNICIPALITY for the costs of these phases until the parties execute the letter of amendment. Adequate federal and/or state funds must be available before the parties execute a letter of amendment. The letter of amendment is not effective until duly authorized representatives of the
3 EXHIBITB

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DEPARTMENT, the MUNICIPALITY, the Office of Chief Counsel, and the Office of Comptroller Operations sign and date the letter of amendment. A sample letter of amendment is attached as Exhibit "0" and made part of this Agreement.
(b) If the DEPARTMENT determines that the cost for any phase listed on Exhibit "N' should be redistributed, and the redistribution does not result in an increase or decrease in total Project costs or any increase in costs to the MUNICIPALITY, the DEPARTMENT will redistribute such costs by sending the MUNICIPALITY notification via a letter of adjustment that will include a revised Exhibit A. The DEPARTMENT cannot pay or reimburse the MUNICIPALITY for the costs of these phases until the Office of Comptroller Operations signs and dates the letter of adjustment. The MUNICIPALITY's signature is not required for the letter of adjustment to be effective. A sample letter of adjustment is attached as Exhibit "P" and made part of this Agreement.
(c) If there are changes to any Standard Provisions that need to be addressed at the time of a letter amendment, as described in subparagraph (a), the parties can incorporate those revised and/or updated Standard Provisions by noting the incorporation and attachment of such Standard Provisions to such letter amendment. For the purposes of this subparagraph, Standard Provisions consist of those provisions, exhibits or clauses required to be included in Commonwealth agreements pursuant to federal or state law or Commonwealth Management Directives, including, but not limited to: Americans with Disabilities Act, Right-to-Know Law, Contractor Integrity, Contractor Responsibility, Offset, Federal Nondiscrimination; Commonwealth Nondiscrimination, Disadvantaged Business Enterprise Regulatory Compliance Requirements, Disadvantaged Business Enterprise Assurance, Lobbying, Federal 4 EXHIBITB

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Funding Accountability and Transparency Act, and Federal Audit Requirements. Changes that would otherwise require only a letter adjustment as detailed in subparagraph (b) will need a letter amendment as detailed in subparagraph (a) if one of these Standard Provisions described herein needs updating.
(d) If the MUNICIPALITY proceeds to construction before funds are made available, either through this Agreement; or a letter of amendment or letter of adjustment, signed by the appropriate parties, the DEPARTMENT may reimburse the MUNICIPALITY for the state funded portion of the Project. Retroactive reimbursement of federal funds will not be permitted unless the Federal Form 4232, authorizing federal funds for latter phases of the Project, was in place prior to performance of any work,
(e) All other changes to terms and conditions of this Agreement must be in the form of a fully executed supplemental agreement signed by all the same entities that executed the original agreement.

4.

DESIGN

(a) The MUNICIPALITY, with its own forces or by contract, shall design the Project. The design shall be in accordance with the Americans with Disabilities Act ("ADA") and specifically the proposed 2011 Public Right of Way Access Guidelines ("PROWAG") and. to the extent applicable and not inconsistent with the ADA and PROWAG, the policies, procedures and specifications prepared or approved by the DEPARTMENT and the FHWA, including, but not limited to, the most current versions of the following: (i) DEPARTMENT Publication No. 70M, Guidelines for Design of Local Roads and Streets;

5 EXHffiiTB

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(ii) DEPARTMENT Publication No. 740, Local Project Delivery Manual; (iii) DEPARTMENT Design Manuals (Publication Nos. 10, lOA, 13M, 14M,
15M, 16M and 24);
(iv) DEPARTMENT Policy Letters; (v) DEPARTMENT Form No. 442, Bureau of Design Specifications for
Consultant Agreements, Division I; and
(vi) DEPARTMENT Publication No. 408, Specifications, its supplements and amendments.
(b) The MUNICIPALITY shall secure all necessary approvals, permits and licenses from all other governmental agencies as may be required to complete the Project. This obligation includes preparing or revising environmental reports or other documents such as environmental impact statements, environmental assessments or categorical exclusions required by law, environmental litigation or both; and the defense of environmental litigation resulting from the planning, design or construction of the Project. At the DEPARTMENT's request, the MUNICIPALITY, prior to advertising and letting the Project, shall furnish the DEPARTMENT with evidence of the approvals, permits, licenses and approved environmental documents.
5. UTILITY CONSIDERATIONS FOR ALL LOCATIONS (a) Prior to advertising the Project for letting, the MUNICIPALITY, on forms provided by the DEPARTMENT, shall furnish a Utility Clearance Certification, attesting that all arrangements have been made for the relocation of all known utility facilities affected by the Project to the extent necessary. The MUNICIPALITY shall support this
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statement with a description of any written arrangements, Utility Clearance Form D419, made with the utilities for the relocation of facilities in a manner that will not impede Project construction. (b) The MUNICIPALITY agrees that all utility facilities transferred to or remaining at a location within the right-of-way of a federal-aid highway shall be accommodated in accordance with the most current version of the Federal Regulations, 23 CFR Part 645; the Federal-Aid Policy Guide, Chapter I, Subchapter G, Part 645, Subpart B, Accommodation of Utilities, and all subsequent amendments; and 67 Pa. Code Chapter 459, if the utility facilities are being transferred to a location within the right-of-way of a state federal-aid highway.
6. UTILITY CONSIDERATIONS (ON STATE HIGHWAYS)
(a) The MUNICIPALITY, in liaison with the DEPARTMENT, shall coordinate the relocation or adjustment of any existing utility facilities as required by the Project.
(i) This coordination shall include:
Obtaining written arrangements with all utilities located on the Project;
Furnishing the DEPARTMENT with estimated relocation costs, including:
The total estimated utility relocation costs to be incurred by each utility; and
Estimated amounts, if any, eligible for reimbursement by the MUNICIPALITY to each affected utility.
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(ii) All utility relocation activities shall be in accordance with:
(1) The DEPARTMENT's established procedures as defined in the most current version of DEPARTMENT Publication No. 16M, Design Manual Part 5-Utility Relocation, DEPARTMENT Publication No. 740, Local Project Delivery Manual and 67 Pa Code Chapter 459; and
(2) All applicable Federal Regulations, 23 CFR Part 645, and Federal-Aid Policy Guide guidelines relating to the relocation and accommodation of utilities on federal-aid highway projects.
(b) The costs incurred by a utility, municipal authority, or the MUNICIPALITY in relocating or adjusting existing facilities affected by the Project shall be eligible for reimbursement only under the following conditions:
If the utility or municipal authority documents that it has a real property interest compensable in eminent domain;
If the Public Utility Commission allocates utility relocation costs on rail highway crossing projects pursuant to Section 2704 of the Public Utility Code, as amended (66 Pa. C.S. § 2704);
If the existing facilities affected are owned or operated by the MUNICIPALITY then the cost of the relocation of the facilities is a Project cost; or
If a utility or municipal authority owns or\ operates the affected existing facilities, and the MUNICIPALITY attests that it normally pays for or assumes the costs of adjusting the facilities on projects undertaken by the. MUNICIPALITY pursuant to existing law or ordinance; or
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If a utility or municipal authority owns or operates the affected existing facilities, and the MUNICIPALITY attests that it does NOT normally pay for or assume the costs of adjusting the facilities on projects undertaken by the MUNICIPALITY, then, if the utility or municipal authority has a compensable interest, the procedures in subparagraph (c)(i) shall apply.
(c) The reimbursement of eligible utility relocation costs shall be made in accordance with the following:
If reimbursing the MUNICIPALITY for utility relocation costs under subparagraphs (b)(i), (b)(ii), or (b)(v), the DEPARTMENT shall draft a reimbursement agreement to be executed by the MUNICIPALITY and the utility/municipal authority. The MUNICIPALITY will provide the DEPARTMENT with a copy of the agreement and Form 4181-A, Preliminary Estimate for Utility Relocation.
If the utility relocation costs incurred fall under subparagraph (b) and the utility or municipal authority wishes to incorporate the utility relocation work into the Project's construction contract to be performed by the prime contractor or its subcontractor, the MUNICIPALITY shall prepare and submit to the DEPARTMENT the agreement addressing the incorporation of work, provided by the DEPARTMENT for this purpose, along with the required supplementing documentation in accordance with the most current version of DEPARTMENT Publication No. 16M.
If the utility relocation cost incurred falls under subparagraph (b) and the relocation work is not incorporated into the Project's construction contract, the MUNICIPALITY shall furnish the DEPARTMENT a detailed cost estimate package complying with the requirements of the most current version of DEPARTMENT Publication No. 16M together with the standard document provided by the
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DEPARTMENT, plus the required supplementing documentation m accordance with current procedures.
The MUNICIPALITY agrees to accept, as its payment in full, the portion of the actual utility relocation cost eligible for federal-aid participation, that amount being the percentage set forth in Exhibit "A."
If the MUNICIPALITY exercises its option under Paragraph 18 of this Agreement and abandons the Project after any utility has been authorized to proceed with its utility relocation work, the MUNICIPALITY, at its sole cost and expense, shall reimburse the utility for its actual and related indirect costs of work completed at the time of notification of the abandonment, plus any additional expenses incurred by the utility in restoring its system to normal operating conditions.
UTILITY CONSIDERATIONS (ON LOCAL ROADS) (a) The MUNICIPALITY shall furnish Project plans to utilities known to have facilities
within the Project limits and to all other utilities subsequently discovered within the Project limits. (b) The MUNICIPALITY shall arrange for any necessary relocation or adjustment of all utility facilities and notify each utility company to relocate any affected facilities to accommodate the construction of the Project. The MUNICIPALITY, with the DEPARTMENT's guidance, shall make these arrangements in accordance with FHWA and DEPARTMENT requirements, as applicable. If any affected utility claims that the MUNICIPALITY is responsible for reimbursing the affected utility for its utility relocation costs pursuant to applicable state or local laws in effect when this Agreement is executed, the MUNICIPALITY shall furnish the DEPARTMENT with Form 4181-A, Preliminary Estimate for Utility Relocation. The utility shall prepare
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the form, which shall be accompanied by documentation justifying the

MUNICIPALITY's legal obligation to reimburse the utility for utility relocation costs

actually incurred by the utility. The DEPARTMENT, after review and approval of

the cost estimates and documentation, will draft the necessary reimbursement

agreement into which the MUNICIPALITY and the utility will enter. The

DEPARTMENT will submit the agreement to the MUNICIPALITY for execution by

the parties.

(c)

If the utility or municipal authority wishes to incorporate the utility relocation work

into the Project's construction contract to be performed by the prime contractor or its

subcontractor, the MUNICIPALITY shall prepare and submit to the DEPARTMENT

the agreement addressing the incorporation of work, provided by the

DEPARTMENT for this purpose, along with the required supplementing

documentation in accordance with the most current version of DEPARTMENT

Publication No. 16M.

(d) If the MUNICIPALITY owns or operates the existing utility facilities, the MUNICIPALITY shall request the DEPARTMENT prepare a supplement to this Agreement to address the costs associated with the relocation of said facilities. This supplemental agreement acknowledges that the utility facilities are located in the project limits and that the relocation costs are Project-eligible costs.

(e)

Ifthe MUNICIPALITY exercises its option under Paragraph 18 ofthis Agreement and

abandons the Project after authorizing a utility to proceed with its utility relocation

work, the MUNICIPALITY, at its sole cost and expense, shall reimburse the utility

for its actual and related indirect costs of work completed at the time of notification

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of the abandonment, plus any additional expenses incurred by the utility in restoring its system to normal operating conditions.

7.

APPLICATION TO PENNSYLVANIA PUBLIC UTILITY COMMISSION

The MUNICIPALITY, as necessary, shall make such applications to the Pennsylvania Public Utility Commission ("PUC") as are required for the construction and completion of the Project.

If the Project contains a rail-highway crossing under the jurisdiction of the PUC, the DEPARTMENT and the MUNICIPALITY agree to the following:

The DEPARTMENT shall apply any costs contributed voluntarily by a railroad to help defray the cost of the Project to the MUNICIPALITY's share of the Project cost. If the railroad share exceeds the . MUNICIPALITY's share, the excess shall be applied to the DEPARTMENT's share.

If the PUC allocates costs to a railroad, and the railroad does not voluntarily agree to contribute the costs allocated to it by the PUC, these costs shall be shared as specified in Paragraph 15 of this Agreement.

Ifthe PUC allocates costs to the DEPARTMENT in excess of the DEPARTMENT'S share provided for in Paragraph 15 of this Agreement, the MUNICIPALITY agrees to pay these excess costs.

8.

RAILROAD CONSIDERATIONS

The MUNICIPALITY shall furnish Project plans to any railroads known to have facilities

(a)

within the Project limits. The MUNICIPALITY shall coordinate with the railroad(s)

to determine railroad de~ign criteria, arrange for protective services as needed and determine levels of

insurance that will be required for the completion of the Project.

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(b)

The MUNICIPALITY shall coordinate with the railroad(s) to ensure that

DEPARTMENT forms D-4279 and D-4279A are completed by the railroad(s) and returned to the

DEPARTMENT.

(c)

The MUNICIPALITY shall include all railroad special provisions, including, but not

limited to, insurance requirements, right-of-entry requirements and private crossing requirements, in

'the Project bid package.

(d)

If there are railroad costs that are Project eligible, they shall be addressed through either

a letter of amendment or a letter of adjustment, as provided in Paragraph 3 of the Agreement.

(e)

The DEPARTMENT, after review and approval of the cost estimates and

documentation, shall draft the necessary reimbursement agreement to be entered into between the

MUNICIPALITY and the railroad and will forward the agreement to the MUNICIPALITY for

execution. A copy of the executed agreement shall be returned to the DEPARTMENT.

9. RIGHT-OF-WAY ACQUISITION The MUNICIPALITY certifies that it shall acquire all right-of-way necessary to construct this
Project in accordance with all of the applicable federal and state laws and policies and procedures pertinent to right-of-way acquisition; the most current version of DEPARTMENT Publication No. 740, Local Project Delivery Manual; and Procedures for Right-of-Way Acquisition by MunicipalityFederal-Aid Highway Projects, the latter of which is attached to and made a part of this Agreement as Exhibit "B."
(a) Ifthe MUNICIPALITY must acquire right-of~way to accommodate the Project and the DEPARTMENT determines that the involved costs are eligible for federal-aid participation, the MUNICIPALITY and the DEPARTMENT shall include the eligible costs for the right-of-way phase in this Agreement, or in a letter of amendment or a

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letter of adjustment, as appropriate. If the right-of-way being acquired for the Project includes donated right-of-way, the DEPARTMENT shall utilize the federallyapproved amount for donated credits in determining the eligible costs for the right-ofway phase.
(b) The MUNICIPALITY may not begin to acquire the necessary right-of-way until the District Right~of-Way Administrator has certified that the MUNICIPALITY has the facilities and qualified personnel to proceed with right-of-way acquisition. If the MUNICIPALITY cannot satisfy the District Right-of-Way Administrator's requirements using the MUNICIPALITY's personnel, it must make alternative arrangements to the satisfaction of the District Right-of- Way Administrator prior to beginning right-of-way acquisition.
10. AVAILABILITY OF MUNICIPAL FUNDS The MUNICIPALITY, by executing this Agreement, certifies that it has on hand sufficient
funds to meet all of its obligations under the terms of this Agreement. Further, the MUNICIPALITY, and not the DEPARTMENT, shall bear and provide for all costs incurred in excess of those costs eligible for federal-aid participation.
11. CONTRACT DEVELOPMENT (a) The MUNICIPALITY, by contract or with its own forces, shall be. responsible for all work involved with contract development, including preparation of all plans, specifications, estimates ("PS&E") and bid proposal documents required to bid the Project. The essential documents to be prepared are listed in Exhibit "C," which is attached to and made part of this Agreement. All work shall conform with applicable federal and state laws and requirements including, but not limited to, those outlined in the most current version of the Federal-Aid Policy Guide, Chapter I, Subchapter G, 14 EXHIBITB

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 48 of 96
Part 633, Subpart C, Direct Federal Construction Contracts, the most current version of the Stewardship and Oversight Agreement Between the FHWA and the DEPARTMENT, and the most current version of DEPARTMENT Publication 740, . Local Project Delivery Manual. (b) The MUNICIPALITY, upon completion, shall submit all required bid documents to the DEPARTMENT for review and approval. The DEPARTMENT, subject to reimbursement by the MUNICIPALITY for preparation costs, shall prepare the bid proposal documents required to bid the Project and issue an authorization to advertise for bid, upon FHWA authorization of the Project;
(i) Approval of a right-of-way certification (if applicable); (ii) Approval of a Utility Clearance Assurance Statement; (iii) Completion of the PS&E review; and (iv) Satisfactory resolution of any comments. (c) The DEPARTMENT, prior to issuance to prospective bidders, must review and approve any addenda to the approved bid documents. The MUNICIPALITY shall issue addenda no later than three (3) calendar days before the proposed bid opening. (d) All bid documents shall require that the contractor be prequalified by the DEPARTMENT pursuant to 67 Pa. Code Chapter 457, Prequaliflcation ofBidders. (e) All bid documents shall require that the prospective bidders name the MUNICIPALITY as an additional insured on the certificate of insurance.
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11. LETTING AND AWARD (a) Except as provided m subparagraph (c) below, relating to paper lets, the DEPARTMENT shall advertise for bids, open bids and with the concurrence of the MUNICIPALITY (which will indicate its concurrence electronically) award the construction contract in the name of the MUNICIPALITY, all in accordance with DEPARTMENT Publication No. 526, ELMS Municipal/Sponsor Guidance. The MUNICIPALITY shall enter into and execute the contract with the successful bidder electronically through the DEPARTMENT'S Engineering and Construction Management System ("ECMS"). Following coordination with the MUNICIPALITY, the DEPARTMENT shall issue the notice to proceed through ECMS to the contractor. (b) If the MUNICIPALITY has not already executed a Business Partner Agreement and registered with the DEPARTMENT as a business partner in order to access ECMS, the MUNICIPALITY must execute a Business Partner Agreement with the DEPARTMENT in order to obtain such access prior to the Project's being advertised. (c) In those limited instances where the MUNICIPALITY has requested and received from the DEPARTMENT approval to conduct a paper let instead of having the Project administered through ECMS, letting and award shall be in accordance with DEPARTMENT policies and procedures applicable to projects not administered in ECMS.
12. CONSTRUCTION INSPECTION (a) The MUNICIPALITY, with its own forces or by contract, shall provide staff to inspect and supervise adequately all construction work in accordance with the approved plans and specifications, including, but not limited to, the most current version of
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DEPARTMENT Publication No. 408, and its supplements and amendments. The MUNICIPALITY shall provide the proper supervision and construction inspection to ensure that all work is in accordance with the most current versions of the Federal-Aid Policy Guide, Chapter I, Subchapter G, Parts 633, 635, and 637, Required Contract Provisions, Construction and Maintenance, and Construction Inspection a11:d Approval,. and DEPARTMENT Publication No.9, Policies and Proceduresfor the Administration ofthe County Liquid Fuels Tax Act of1931 and the Liquid Fuels Tax Act 655 Dated 1956 and as Amended. The DEPARTMENT, based on requirements of the most current version of DEPARTMENT Publication No. 740, Local Project Delivery Manual, will determine the level of inspection and the number of inspectors required for the Project, as well as the qualifications required for the MUNICIPALITY's inspectors. Normally at least one full-time inspector is required for each project. The DEPARTMENT will oversee the Project but will not provide inspection services. (b) Allowable construction engineering costs may include such work items as inspection, certification, and test of materials and surveys in accordance with the Federal-Aid Policy Guide, Chapter I, Subchapter B, Part 140, and 23 C.P.R.§ 1.11. Such costs are eligible for federal participation only to the extent that they are directly attributable and properly allocable to the Project.
13. PAYMENT PROCEDURES AND RESPONSIBILITIES (a) The MUNICIPALITY, within seven (7) days ofthe established estimate dates, shall submit to the DEPARTMENT certified periodic (maximum of two (2) per month) invoices for the following items:
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(i) Allowable costs for work performed by the MUNICIPALITY's forces on the Project;
(ii) The MUNICIPALITY's payments made on current estimates of the construction or design work performed on the Project by the MUNICIPALITY or the MUNICIPALITY's consultant(s) or contractor(s). At its discretion, the MUNICIPALITY may withhold a percentage of the amount invoiced by the design consultant as retainage, pending completion and acceptance by the DEPARTMENT and the FHWA of the Project; provided, however, that the MUNICIPALITY shall not request federal-aid participation for any amounts under retainage until such amounts are released; and
(iii) Allowable costs incurred in the acquisition of right-of-way and utility relocations.
The DEPARTMENT shall submit these certified invoices to the FHWA for payment. As FHWA funds are made available, the DEPARTMENT shall pay the MUNICIPALITY for the proportionate share ofthe approved charges.
(b) Subject to the terms ofthis Agreement, the DEPARTMENT, from funds allocated for this purpose by the FHWA, shall pay the MUNICIPALITY for eighty percent (80%) of the total allowable Project costs, as detailed in Exhibit "A." The MUNICIPALITY shall be responsible for the remaining twenty percent (20%) of the total Projects costs. This subparagraph shall not preclude the MUNICIPALITY from reducing the scope ofthe Project, with the approval ofthe DEPARTMENT, ifthe costs exceed the available funds. The MUNICIPALITY shall also be responsible for all costs
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incurred in excess of those eligible for federal-aid participation including, but not limited to, the following:
(i) Any and all costs relating to or resulting from changes made to the approved plans or specifications;
(ii) Time delays and extensions of time or termination of construction work; (iii) Interest for late payments; (iv) Interest incurred by borrowing money; (v) Unforeseen right-of-way and other property damages and costs resulting from
the acquisition or condemnation, or both, of lands for the Project or the construction ofthe improvements; (vi) Unforeseen utility relocations costs;
(vii) Unforeseen costs for environmental litigation and reports; and (viii) All other unforeseen costs and expenses not included in the estimates of
preliminary engineering, final design, utility relocation, right-of-way acquisition and construction costs, but which are directly related to or caused by the planning, design or construction of the Project. (c) The MUNICIPALITY is obligated to submit to the DEPARTMENT invoices from its consultant(s) and contractor(s) as it receives· them, in accordance with the periodic schedule set forth above, to assure prompt payment of the consultant(s) and contractor(s) for work performed to date. (d) The MUNICIPALITY shall pay the federal and the MUNICIPALITY shares to its consultant(s) or contractor(s) within ten (1 0) calendar days of the date of the DEPARTMENT's payment. The MUNICIPALITY, as part of its record-keeping
19 EXHIBIT B

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obligation, shall maintain records of receipt and payment of such funds. If the MUNICIPALITY fails to comply with this subparagraph or with the requirements of subparagraph (c) relating to submission of invoices, the MUNICIPALITY shall be in default pursuant to Paragraph 21; and the DEPARTMENT shall have the further right to change payment procedures unilaterally to a reimbursement basis. (e) If the DEPARTMENT changes payment procedures unilaterally to a reimbursement basis, as provided in subparagraph (d), the following procedures shall apply: (i) The MUNICIPALITY, within seven (7) days ofthe established estimate dates,
shall submit to the DEPARTMENT certified periodic (maximum of two (2) per month) invoices for reimbursement. (ii) The MUNICIPALITY shall include with the invoices verification of payment of the consultant(s) or contractor(s) by means of a copy ofthe cancelled check or a certified letter from the cohsultant(s) or contractor(s) acknowledging payment. (iii) After reviewing the verification concerning payment of the consultant(s) or contractor(s) and material certifications and determining them to be satisfactory,.the DEPARTMENT shall approve the invoices for payment. (iv) Upon approval of the invoices, the DEPARTMENT shall forward to the Office of Comptroller Operations a cover letter containing the agreement number, federal project number, federal percentage, and invoice amount, together with a copy of the payment estimate. (v) The DEPARTMENT shall submit these certified invoices to the FHWA for payment of the federal share. As FHWA funds are made available, the
20 EXHIBIT B.

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DEPARTMENT shall reimburse the MUNICIPALITY for the proportionate share of the approved charges.
(f) The DEPARTMENT shall not reimburse the MUNICIPALITY for additional or extra
work done or materials furnished that are not specifically provided for in the approved plans and specifications unless the DEPARTMENT has issued prior written approval of the additional or extra work or materials. If the MUNICIPALITY performs any work or furnishes any materials without the DEPARTMENT's prior written approval, the MUNICIPALITY does so at its own risk, cost and expense. The MUNICIPALITY shall not interpret the DEPARTMENT's approval as authority to increase the maximum amount of reimbursement as specified in subparagraph (b) above. (g) For services performed by the DEPARTMENT, including, but not limited to, all required contract development, liaison and supervisory services, the MUNICIPALITY shall directly reimburse the DEPARTMENT for 20% of the DEPARTMENT's incurred costs. The DEPARTMENT will submit invoices to the FHWA for reimbursement of the federal share of such costs. The estimated cost of
these services is set forth in Exhibit "A."
(h) The DEPARTMENT shall invoice the MUNICIPALITY on a monthly basis for those costs set forth in subparagraph {g). If the MUNICIPALITY fails to reimburse the. DEPARTMENT within forty-five (45) days, the MUNICIPALITY shall be in default of payment; and the DEPARTMENT shall take necessary action in accordance with Paragraph 21 of this Agreement.
(i) The MUNICIPALITY shall submit its final invoices for payment or reimbursement, as the case may be, of the items set forth in subparagraph (a) to the DEPARTMENT within one ( 1) year of the acceptance of the Project. If the MUNICIPALITY fails to
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submit its final invoices within this one- (1-) year period, it may forfeit all remaining federal financial participation in the Project.
14. RECORDS The MUNICIPALITY shall maintain, and shall require its consultant(s) and contractor(s) to
maintain, all books, documents, papers, records, supporting cost proposals, accounting records, employees' time cards, payroll records and other evidence pertaining to costs incurred in the Project and shall make these materials available at all reasonable times during the contract period and for three (3) years from the date of submission of the final voucher to the FHWA, for inspection or audit by the DEPARTMENT, the FHWA, or any other authorized representatives of the federal or state government; and copies thereof shall be furnished, if requested. Time records for personnel performing any work shall account for direct labor performed on the Project as well as the time of any personnel included in the computation of overhead costs. In addition, the MUNICIPALITY shall keep, and shall require its consultant(s) or contractor(s), as applicable, to keep, a complete record oftime for personnel assigned part-time to the Project. A record of time limited to only their work on this Project will not be acceptable.
15. AUDIT REQUIREMENTS As specified by the Federal Office of Management and Budget, the MUNICIPALITY agrees
to satisfy the audit requirements contained in the Single Audit Act of 1984, 31 U.S.C. § 7501 et seq., and, for this purpose, to comply with the current version of the Audit Clause to Be Used in Agreements with Entities Receiving Federal Awardsfrom the Commonwealth, which is attached as Exhibit "D" and made a part of this Agreement. As used in the Audit Clause, the term "Subrecipient" means the MUNICIPALITY.
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16. ABANDONMENT OR POSTPONEMENT OF PROJECT (a) If the MUNICIPALITY abandons or indefinitely postpones the Project, the MUNICIPALITY may terminate this Agreement by sending to the DEPARTMENT a thirty- (30-) day written notice of termination. By sending the written notice of termination, the MUNICIPALITY acknowledges that the FHWA will not participate in any costs of a project that is not completed and that the MUNICIPALITY must reimburse the DEPARTMENT for all costs incurred by the DEPARTMENT for the Project, with the exception of state-funded design costs. The MUNICIPALITY shall reimburse the DEPARTMENT, within forty-five (45) days of receipt of a statement from the DEPARTMENT, in an amount equal to the sum ofthe following: (i) All FHWA funds received by the MUNICIPALITY for return to the FHWA; (ii) All FHWA funds paid to the DEPARTMENT for work performed under this Agreement for return to the FHWA; and (iii) All costs incurred by the DEPARTMENT under this Agreement prior to receipt of notice of termination that the FHWA or the MUNICIPALITY has not reimbursed. (b) If the MUNICIPALITY fails to reimburse the DEPARTMENT or the FHWA within the time period set forth in subparagraph (a) above, the MUNICIPALITY shall be in default pursuant to Paragraph 21 of this Agreement.
17. MAINTENANCE OF THE FACILITY
(a) Under Section 121-5 of the Millcreek Township Code, the owners of all properties which abut a street within whose right of way a sidewalk has been constructed shall be responsible for the proper care, maintenance and condition of said sidewalk. The
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property owner's duty extends to, but is not limited to, removal of snow, ice, debris or obstructions and to repair, reconstruction and replacement as necessary to ensure that said sidewalks are in reasonably good and safe condition for the use of pedestrians. (b) Millcreek agrees that it shall enforce the maintenance provisions of its sidewalk Ordinance as they apply to this Project. Under Section 121-7 of the Millcreek Township Code, ifthe property owner refuses to maintain the sidewalk in accordance with the Code, Millcreek agrees to use such remedies available under the Code as are appropriate, including performing the maintenance itself and seeking reimbursement from the property owner. (c) The MUNICIPALITY and the DEPARTMENT agree that each party shall administer, enforce and maintain any statutes, regulations or ordinances within its jurisdiction necessary for the operation of the improvements. The parties further agree that the enforcement obligations relating to the regulations are governed by the statutes of the Commonwealth of Pennsylvania, and more particularly by those statutes relating to municipalities; the Vehicle Code, as amended; and the State Highway Law, as amended; as well as those ordinances, rules and regulations issued by appropriate governmental agencies in implementation ofthese statutes. (d) The MUNICIPALITY acknowledges that the DEPARTMENT may disqualify the MUNICIPALITY from future federal-aid or state participation on MUNICIPALITYmaintained projects if the MUNICIPALITY fails to: (i) Provide for the proper maintenance of the Project; or (ii) Maintain and enforce compliance with any statutes, regulations or ordinances
under its jurisdiction necessary for the maintenance of the Project.
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(g) The MUNICIPALITY agrees that the DEPARTMENT shall withhold federal-aid or state funds, or both, until one or both of the following (as applicable) have taken place: (i) The MUNICIPALITY has corrected the maintenance issue(s).
18. SAVE HARMLESS · (a) The MUNICIPALITY shall indemnify, save harmless and defend (if requested) the FHWA (if applicable), the Commonwealth of Pennsylvania, the DEPARTMENT, and all of their officers, agents and employees, from all suits, actions or claims of any character, name or description, relating to personal injury, including death, or property damage, arising out of the preliminary engineering, final design, right-of-way acquisition, utility relocation, construction, or maintenance of the Project, performed by the MUNICIPALITY, its consultant(s) or contractor(s), their officers, agents and employees, whether the same be due to the use of defective materials, defective workmanship, neglect in safeguarding the work, or by or on account of any act, omission, neglect or misconduct of the MUNICIPALITY, its consultant(s) or contractor(s), their officers, agents and employees, during the performance of said work or thereafter, or to any other cause whatever. (b) It is not intended by any of the provisions of this Agreement or any documents, publications or other written materials referenced herein or related to the Project to benefit any third party nor to create any third party beneficiary hereunder nor to authorize any person or entity not a signing party to this Agreement to maintain a claim or lawsuit of any kind against the DEPARTMENT or the Commonwealth.
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19., DEFAULT CLAUSE
If the MUNICIPALITY fails to perform any of the terms, conditions or provisions of this
I
Agreement, including, but not limited to, any default of payment for a period of forty-five (45) days, the MUNICIPALITY authorizes the DEPARTMENT to withhold so much ofthe MUNICIPALITY's Liquid Fuels Tax Fund allocation as may be necessary to complete the Project or reimburse the DEPARTMENT in full for all costs due under this Agreement; and the MUNICIPALITY authorizes the DEPARTMENT to withhold such amount and to apply such funds, or portion thereof, to remedy such default.
20. FHWAAPPROVAL The parties agree that their responsibilities under this Agreement shall be made contingent
upon the approval, prior to commencement of work, of the Project's eligibility for participation in federal funds to the e~tent of the proportionate share detailed in Exhibit "A," limited to the maximum dollar amount shown there; and, ifthis approval is not obtained, neither of the parties shall be further obligated by the terms of this Agreement.
21. REQUIRED CONTRACT PROVISIONS The parties agree, and the MUNICIPALITY shall also provide in its contracts for the Project,
that all designs, plans, specifications, estimates of cost, construction, utility relocation work, rightof-way acquisition procedures, acceptance of the work and procedures in general shall at all times conform to all applicable federal and state laws, rules, regulations, orders and approvals, including specifically the procedures and requirements relating to labor standards, equal employment opportunity, nondiscrimination, antisolicitation, information, auditing and reporting provisions. The MUNICIPALITY shall comply, and shall cause its consultant(s) and contractor(s) to comply, with
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the conditions set forth in the current version of the Federal Nondiscrimination and Equal Employment Opportunity Clauses, which are attached as Exhibit "G" and made a part of this Agreement. As used in this clause, the term "Contractor' means the MUNICIPALITY. 22. CONTRACTOR INTEGRITY PROVISIONS
The MUNICIPALITY shall comply, and shall cause its consultant(s) and contractor(s) to comply, with the current version of the Contractor Integrity Provisions, which are attached as Exhibit
"H" and made a part of this Agreement. As used in these provisions, the term "Contractor" means the
MUNICIPALITY.
23. OFFSET PROVISION The MUNICIPALITY agrees that the Commonwealth of Pennsylvania
("Commonwealth") may set off the amount of any state tax liability or other obligation of the MUNICIPALITY or its subsidiaries to the Commonwealth against any payments due the MUNICIPALITY under any contract with the Commonwealth.
24. TERMINATION OF AGREEMENT FOR LACK OF FUNDS The DEPARTMENT may terminate this Agreement if the DEPARTMENT does not receive
the necessary federal or state funds allocated for the purpose stated in this Agreement. Termination shall become effective as ofthe termination date specified in the DEPARTMENT's written notice of termination to the MUNICIPALITY specifying the reason for termination. The DEPARTMENT shall reimburse the, MUNICIPALITY for all eligible work performed under this Agreement up to the date of the notice of termination, or such other date that the notice oftermination shall specify.
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25. DISADVANTAGED BUSINESS ENTERPRISE REGULATORY COMPLIANCE REQUIREMENTS The MUNICIPALITY shall take the following steps, where applicable, in order to comply
with the Disadvantaged Business Enterprise ("DBE") requirements of current federal highway funding authorizations and regulations adopted pursuant thereto:
(a) For federally-assisted transportation-related projects, the DEPARTMENT may establish a percentage participation goal. The MUNICIPALITY shall work with the DEPARTMENT's District Office concerning the necessity of establishing a goal for this Project. If a DBE goal is not applicable, the MUNICIPALITY shall comply with the Disadvantaged Business Enterprise and Small Business Concern Involvement provision, which is attached as Exhibit "I" and made a part ofthis Agreement. If a goal is established, this goal must be attained by the MUNICIPALITY's contractor or, in the alternative, a showing of good faith effort must be made. Determination of good faith effort shall be made by the MUNICIPALITY and is subject to the concurrence ofthe DEPARTMENT. The MUNICIPALITY shall comply with the following provisions, as applicable: (i) lfthe Project requires prequalification, the MUNICIPALITY shall comply with "Designated Sp~cial Provision 7" ofthe Publication 408 Specifications, (current edition), accessible online at: ftp://ftp.dot.state.pa.us/public/bureaus/design/pub408/Pub%20408%2020 ll %20IE /DSP7-final. pdf. (ii) If the Project is prequalification exempt, the MUNICIPALITY shall comply with the Disadvantaged Business Enterprise Requirements-Prequalification Exempt, which are attached as Exhibit "J" and made a part of this Agreement.
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(iii) If the Project includes a design component, the MUNICIPALITY shall comply with the DEE Special Requirements Engineering, which are attached as Exhibit "K" and made a part of this Agreement.
(b) All DBE's must be certified by the Pennsylvania Unified Certification Program CPA UCP") before the bid submission date.
26. REQUIRED DISADVANTAGED BUSINESS ENTERPRISE ASSURANCE PROVISION
(a) The MUNICIPALITY shall not discriminate on the basis ofrace, color, national origin or sex in the performance of this Agreement. The MUNICIPALITY shall carry out applicable requirements of49 C.F.R. Part 26 in the award and administration ofU nited States Department of Transportation-assisted contracts. Failure by the MUNICIPALITY to carry out these requirements is a material breach of this Agreement, which may result in either the termination ofthis Agreement or such other remedy the DEPARTMENT deems appropriate.
(b) As a recipient of funds from the DEPARTMENT, the MUNICIPALITY must include the assurance set forth in subparagraph (a) in each contract into which it enters to carry out the Project or activities being funded by this Agreement.
27. LOBBYING CERTIFICATION DISCLOSURE Public Law 101-121, Section 319,31 U.S, Code Section 1352, prohibits the recipient or any
lower tier subrecipients of a federal contract, grant, loan or cooperative agreement from expending federal funds to pay any person for influencing or attempting to influence a federal agency or Congress in connection with the awarding of any federal contract, the making of any federal grant or loan or the
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entering into of any cooperative agreement. The MUNICIPALITY agrees to comply with the Lobbying Certification Form attached to and made part of this Agreement as Exhibit "L," which an authorized official ofthe MUNICIPALITY has executed.
28. PROVISIONS CONCERNING THE AMERICANS WITH DISABILITIES ACT The MUNICIPALITY shall comply, and shall cause its consultant(s) and contractor(s) to
comply, with the current version of the Provisions Concerning the Americans with Disabilities Act, which are attached as Exhibit "M" and made a part of this Agreement. As used in these provisions, the term "Contractor" means the MUNICIPALITY.
29. CONTRACTOR RESPONSIBILITY PROVISIONS The MUNICIPALITY shall comply, and shall cause its consultant(s) and contractor(s) to
comply, with the current version of the Contractor Responsibility Provisions, which are attached as Exhibit "N" and made a part of this Agreement. As used in these provisions, the term "Contractor" means the MUNICIPALITY.
30. AUTOMATED CLEARING HOUSE PROVISIONS Because the DEPARTMENT will be making payments under this Agreement through the
Automated Clearing House ("ACH") Network, the MUNICIPALITY shall comply with the following provisions governing payments through ACH:
(a) The DEPARTMENT will make payments to the MUNICIPALITY through ACH. Within 10 days of the execution of this Agreement, the MUNICH>ALITY must submit or must have already submitted its ACH information on an ACH enrollment form (obtained at www. vendorregistration.state.pa.us/cvmu/paper/Forms/ACHEFTenrollmentform.pdf) and electronic addenda information, if desired, to the
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Commonwealth of Pennsylvania's, Payable Service Center, Vendor Data Management Unit at 717-214-0140 (FAX) or by mail to the Office of Comptroller Operations, Bureau of Payable Services, Payable Service Center, Vendor Data Management Unit, 555 Walnut Street- 9th Floor, Harrisburg, PA 17101. (b) . The MUNICIPALITY must submit a unique invoice number with each invoice submitted. The unique invoice number will be listed on the Commonwealth of Pennsylvania's ACH remittance advice to enable the MUNICIPALITY to properly apply the state agency's payment to the respective invoice or program. (c) It is the responsibility of the MUNICIPALITY to ensure that the ACH information contained in the Commonwealth's Central Vendor Master File is accurate and complete. Failure to maintain accurate and complete information may result in delays in payments.
31. RIGHT-TO-KNOW LAW The Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-3104, applies to this Agreement.
Therefore, this Agreement is subject to, and the MUNICIPALITY shall comply with, the clause
entitled Contract Provisions- Right to Know Law, attached as Exhibit "Q" and made a part ofthis
Agreement. As used in this exhibit, the term "Contractor" refers to the MUNICIPALITY.
32. FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT OF 2006 As a subrecipient of federal funding, the MUNICIPALITY shall provide to the
Commonwealth the information specified in the document entitled Federal Funding Accountability and Transparency Act of2006- Grantee Information, attached as Exhibit "R" and made a part of this Agreement, to ensure that the Commonwealth meets the reporting requirements imposed on it by the
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Federal Funding Accountability and Transparency Act of 2006. As used in this exhibit, the term "Grantee' refers to the MUNICIPALITY.
33. EFFECTIVE DATE This Agreement will not be effective until it has been executed by all necessary
Commonwealth officials as required by law. Following full execution, the DEPARTMENT will insert the effective date at the top of Page 1. This Agreement shall remain in effect until the Project is abandoned or completed, whichever occurs first.
34. APPLICABILITY OF CERTAIN SECTIONS The Parties understand and agree that certain provisions in this Agreement are standard form
terms included in every GENERAL REIMBURSEMENT GRANT AGREEMENT FOR FEDERAL-AID HIGHWAY PROJECTS that is entered into by the DEPARTMENT regardless of applicability, and the Parties understand and agree that certain of these terms included in this Agreement are inapplicable and do not pertain to the Project, including but not limited to all or portions of Section 4(b), Section 6, and Section 7.

IN WITNESS WHEREOF, the parties have executed this Agreement the date first above written.
MUNICIPALITY*

BY

Title

Date

*MUNICIPALITY's resolution authorizing execution and attestation must accompany this Agreement; please indicate the signers' titles in the blanks provided and date all signatures.

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DO NOT WRITE BELOW THIS LINE- FOR COMMONWEALTH USE ONLY COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION

BY

District Executive

Date

APPROVED AS TO LEGALITY AND FORM
BY _ _ _ _ _ _ _ _ __

Date

BY --------~---------------------

for Comptroller Operations

Date

Date

BY _ _ _ _ _ _ _ _ __

BY Deputy Attorney General

Date

Reimbursement Agreement No. _____ , is split _ _ %, expenditure amount of_ _ for federal

funds tor Chief Counsel and

%, expenditure amount of

----------- for state funds. The related federal assistance

program name and number is

. The state assistance program name and SAP fund is

Deputy General Counsel

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PROJECT ESTIMATED COSTS

Preliminary Engineering
Final Design
Utilities Right -of-Way Construction SUBTOTALS$

MunicipalityIncurred Costs

CommonwealthIncurred Costs

Phase Totals

$ 30,000.00

$

0

$ 35,000.00

$

0

$

0

$

0

$

0

$

0

~325,000.00

$ 10,000.00

$390,000.00

$ 10,000.00

COST SHARING (Municipality-Incurred Costs)

$30,000.00 $' 35,000.00 $ 0 $ 0 $335,000.00 $400,000.00

Federal (20 %)

State ( 0%)

Municipality (20 %)

Preliminary Engineering Final Design
Utilities Right-of- Way Construction
TOTALS

$ 24,000.00 $ 28,000.00
$
- - $ ,_,.............
$ 260,000.00 $ 312,000.00

$ $
$ ---·-··---
$ ---"--
$ --·····--~-~-

$ 6;000.00 $ 7,000.00
$ $ $65,000.00 $78,000.00

State Act 26 ( 0 %)
( I f Applicable)

Phase Subtotals

$
$
$ -""'···-·····~~···--·
$ -~--..- - N n · · • • ·
$ ··---·--·

$30,000.00

__ $ 35,000.00

$

....... -----···-

$

$ 325.000;00

$ 390,000.00

Preliminary Engineering Final Design
Utilities Right~of- Way Construction
TOTALS

COST SHARING (Commonwealth-Incurred Cost)

Federal

State

Municipality State Act 26

(80 %)

(0 %)

(20 %)

( 0 %)

(If Applicable)

$ --·••M_ _ _ _
$
______ $ ------·
$ ,
$ 8,000.00 .$ 8,000.00

$
$ ······--..· · - ·
$ - - - - -..
$ ~----··---·--
$ -"·---· $

____ $ _.,...,.
$ -.. ~~-------
$ $ $ 2;000.00 $2,000.00

$ ?···-..- - - - - -
$

- - $ ..........

.. ~--

$ - - -. -.-~----

- ____ $
$ ....,.,.

... ..-~ --~"-········-, ...... _______

Phase Subtotals

____ $ ____,,

$ ____ _ $ '"'··-·---~--··--·

................. ,.

....

$

$ 10,000.00

$ I 0,000~00

TOTAL COST

Federal

State

($320,000.00) ($.·_- - -

Municipality

Total

( $80,000.00) ( $400,000.00)

COUNTY: MUNCIPALITY: PROJECt' NAME:

ERIE MILLCREEK TWP. CAUGHEY RD. SIDEWALK
Exhibit "A" Page 1 of 1
35

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 68 of 96

PROCEDURES FOR

RIGHT-OF- WAY ACQUISITION BY MUNICIPALITY-FEDERAL-AID HIGHWAY

PROJECTS

a. The MUNICIPALITY shall acquire all necessary right-of-way for this Project by gift, agreement, purchase, condemnation, or any combination of these methods.
b. The MUNICIPALITY shall strictly comply with all applicable right-of-way acquisition procedures set forth in the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and the DEPARTMENT's current Right-of-Way

Manual and its amendments.

c. The MUNICIPALITY, subject to the supervision of the DEPARTMENT, shall be

responsible for all negotiations, defense of all claims, and initial payment of all property

damages resulting from the acquisition, condemnation or both, of right-of-way for this

Project. These acquisition costs shall include, but are not limited to:

·

(1) Payment of claims ofthe affected property owners;

(2) Photographic, appraisal and engineerjng services;

(3) Title reports;

(4) Counsel fees; (5) Expert witness fees required for the adjudication of all property damage claims;

(6) Transcripts oftestimony before a board of view; and (7) All record costs, including printing costs, in case of appeal to an appellate court. d. The DEPARTMENT, with funds allocated to it by the FHWA, shall reimburse the MUNICIPALITY for the Federal share of the right-of-way costs incurred by the MUNICIPALITY as provided in the PAYMENT PROCEDURES Paragraph of this

Agreement.

e. The DEPARTMENT shall not reimburse the MUNICIPALITY for:

(1) Right-of-way administrative costs; or

(2) Any items that are not compensable: (i) Under the Eminent Domain Code of 1964, Act of June 22, 1964, P.L. 84,

as amended; or (ii) Pursuant to appellate court order or agreement between the ·

DEPARTMENT and the MUNICIPALITY.

f.

by the DEPARTMENT to the MUNICIPALITY shall be further conditioned upon the

following terms for determining an acquisition price for the property to be acquired:

(1) If any parcel or property is to be acquired prior to a court of common pleas

verdict, an agreement for acquisition shall be executed only after the

MUNICIPALITY and the DEPARTMENT have agreed in writing on the

acquisition price, including all items of damage. (2) If the demands of time require (e.g., at a pretrial conference or at trial), the
MUNICIPALITY and the DEPARTMENT may agree orally, provided that such

agreement shall be confirmed in writing immediately thereafter. (3) The acquisition price shall not exceed the amount of court verdict, plus applicable
detention damages and other items of special damage, unless the DEPARTMENT

and the MUNICIPALITY shall have first agreed thereto in writing. (4) The MUNICIPALITY agrees to notify the DEPARTMENT promptly of all board
of view awards and verdicts of the court of common pleas. The parties agree that appeals will be taken from any award of judgment whenever either party deems it

necessary or advisable. g. The terms "right-of-way costs" and "other property damages," as used in this Agreement,

shall include, but are not limited to:

(1) Consequential damages;

(2) Damages from de facto or inverse takings;

(3) Special damages for displacement;

Exhibit "B" Page 1 of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 69 of 96 (4) Damages for the preemption, destruction, alteration, blocking and diversion of drainage facilities; and (5) Any other damages that may be claimed or awarded under the Eminent Domain Code or the State Highway Law, whether awarded or entered against the DEPARTMENT or the MUNICIPALITY.
h. Prior to advertisement for the receipt of bids, the MUNICIPALITY shall certify to the DEPARTMENT that all right-of-way acquired by the MUNICIPALITY for this Project was acquired in accordance with all applicable federal and state laws and policies, including, but not limited to, the most current version of DEPARTMENT Publication No. 740, Local Project Delivery Manual.
Exhibit "B" Page 2 of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 70 of 96
PLANS, SPECIFICATIONS, ESTIMATES AND BID PROPOSAL PACKAGE A. Plans and Estimates
Title Sheet Mylar or Vellum (for signatures) All Original Plan Sheets Engineer's Estimate (D-407) Federal Estimate Trainee Calculation B. Bid Proposal and Specifications (to prospective bidders) Standard Proposal/Contract Documents Proposal Cover Sheet Bidder's Understanding of Conditions Applicable to Proposal Bid Proposal Guaranty Bond Bidder Certification of Prequalification, Classification and Work Capacity List of Subcontractors Statement of Joint Venture Participation Affirmative Action Certification Signatures (Three (3) Pages) C. Special Provisions Pre~Bid Conference Award of Contract Anticipated Notice to Proceed Date Minority Business Enterprise Program Equal Employment Opportunity Reporting Requirements Affirmative Action Requirements Equal Employment Opportunity Sworn Affidavit Act 287 Act 247 Air Pollution Control Trainees Utilities Specifications General Contract Conditions D. Attachments D-476-Distribution of Contract Time Notice Prevailing Minimum Wage PR-47 (only required for projects over $500,000) F.A.R.-C.A. Required Contract Provisions Federal-Aid Construction Contracts Notice to Prospective Federal~Aid Construction Contractor Special Supplement-Anti~Pollution Measures Commonwealth Nondiscrimination/Sexual Harassment Clause
Exhibit "C"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 71 of 96
AUDIT CLAUSE TO BE USED IN AGREEMENTS WITH SUBRECIPIENTS RECEIVING FEDERAL AWARDS FROM THE COMMONWEALTH AUDIT REQUIREMENTS.
SINGLE AUDIT REPORT REQUIREMENTS. The [NAME OF SUBRECIPIENT] must comply with all federal and state audit requirements including: The Single Audit Act Amendments of 1996; Office of Management and Budget, Circular A~133, Audits of States, Local Governments, and Non-Profit Organizations, (OMB Circular A-133) as amended; and any other applicable law or regulation, and any amendment to such other applicable law or regulation which may be enacted or promulgated by the federal government. If the [NAME OF SUBRECIPIENT] is a local government or non-profit organization and expends total federal awards of $500,000 or more during its fiscal year, received either directly from the federal government or indirectly from a recipient of federal funds, the [NAME OF SUBRECIPIENT] is required to have an audit made in accordance with the provisions of OMB Circular A~133. If the [NAME OF SUBRECIPIENT] is a local government or non-profit organization and expends total federal awards of $500,000 or more during its fiscal year under one federal program, received either directly from the federal government or indirectly from a recipient of federal funds, the [NAME OF
SUBRECIPIENT] can submit a program~specific audit in lieu of a single audit in accordance with the
provisions of OMB Circular A~133. If the [NAME OF SUBRECIPIENT] expends total federal awards of less than $500,000 during its
fiscal year, it is exempt from these audit requirements, but is required to maintain auditable records of federal awards and any state funds which supplement such awards, and to provide access to such records by federal and state agencies or their designees.
If the [NAME OF SUBRECIPIENT] is a for~profit entity, it is not subject to the auditing and reporting requirements of OMB Circular A-133. However, the pass~through commonwealth agency is responsible for establishing requirements, .as necessary, to ensure compliance by for~profit subrecipients. The contract with the for-profit subrecipient should descri.be applicable compliance requirements and the for-profit subrecipient's compliance responsibility. Methods to ensure compliance for federal awards made to for~profit subrecipients may include pre-award· audits, monitoring during the contract and post-award audits. The post-award audits may be in the form of a financial audit in accordance with Government Auditing Standards, a single audit report or program-specific audit report in accordance with OMB Circular A-133. However, these post-award audits must be submitted directly to the affected commonwealth agency that provided the funding. Only single audit reports for local governmental and non-profit subreclplents are electronically submitted to the Office of the Budget, Office of Comptroller Operations, Bureau of Audits.
COMPONENTS OF THE SINGLE AUDIT REPORTING PACKAGE. The [NAME OF SUBRECIPIENT] must submit an electronic copy of the audit report package to the commonwealth, which shall include: 1. Auditor's reports
a. Independent auditor's report on the financial statements, which expresses an opinion on
whether the financial statements are presented fairly in all material respects in conformity with the stated accounting principles.
b. Independent auditor's report on the supplementary Schedule of Expenditures of Federal Awards (SEFA), which expresses an opinion on whether the SEFA is presented fairly in all material respects in relation to the financial statements taken as a whole. This report can be issued separately or cornbined with the independent auditor's report on the financial statements.
c. Report on internal control over financial reporting and on compliance and other matters based on an audit of financial statements performed in accordance with Government Auditing Standards.
d. Report on compliance for each major program and report on internal control over compliance.
e. Schedule of findings and questioned costs. 2. Financial statements and notes to the financial statements 3. SEFA and notes to the SEFA
a. All single audit reporting packages must contain a SEFA prepared by the subrecipient not the subrecipient's auditor. In accordance with §_.310(b) of OMB Circular A-133, all SEFAs, at a minimum, shall:
Exhibit "D" 1 of3

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 72 of 96

(1) List individual federal programs by federal agency. For federal programs included in a cluster

of programs, list individual programs within a cluster of programs. For research and development (R&D),

the total federal awards expended shall be shown either by individual award or by federal agency and

major subdivision within the federal agency;

(2) For federal awards received as a subrecipient, include the name of the pass-through entity

and the identifying number assigned by the pass-through entity;

(3) Provide the total federal awards expended for each individual federal program and the CFDA

number or other identifying number when the CFDA information is not available;

(4) Include notes that describe the significant accounting policies used in preparing the SEFA;

(5) For federal awards received as a pass-through entity, identify, to the extent practical, the total

amount provided to subrecipients from each federal program;

(6) Include, in either the SEFA or a note to the SEFA, the value of federal awards expended in

the form of noncash assistance, the amount of insurance in effect during the year, and loans or loan

guarantees outstanding at year end.

b. In addition to the requirements of OMB Circular A-133, single audit reporting packages

containing federal funding passed through a commonwealth agency must include the following

components in the SEFA as required by the pass through agency:

·

(1) A breakdown of federal funds passed through the commonwealth, by federal grantor, CFDA

number, CFDA name and state program name (if different from CFDA name), state program year, and

state contract number (if applicable);

(2) Contract period beginning and ending dates for federal funds passed through each

commonwealth agency, by contract;

(3) Program or award amount for each commonwealth agency, by contract;

(4) Total received during the year for each commonwealth agency, by contract;

(5) Accrued or deferred revenue at the beginning of the year for each commonwealth agency, by

contract;

(6) Revenue recognized during the year for each commonwealth agency, by contract; (7) Accrued or deferred revenue at the end of the year for each commonwealth agency, by

contract.

4. Schedule of Findings and Questioned Costs

5. Summary schedule of prior audit findings

6. Corrective action plan (if applicable)

7. Data collection form

8. Management letter (if applicable)

In instances where a federal program-specific audit guide is available, the audit report package

for a program-specific audit may be different and should be prepared in accordance with the appropriate

audit guide, Government Auditing Standards, and OMB Circular A-133.

SUBMISSION OF THE AUDIT REPORT The Office of the Budget, Office of Comptroller Operations, Bureau of Audits accepts only

electronic submissions of single audit/program-specific audit reporting packages. Instructions and

information regarding submission of the single audit/program-specific audit reporting package are

available to the public on Single Audit Submissions page of the Office of the Budget website

(http://www.budget.state.pa.us).

AUDIT OVERSIGHT PROVISIONS.

The [NAME OF SUBRECIPIENT] is responsible for obtaining the necessary audit and securing

the services of a certified public accountant or independent governmental

auditor.

The commonwealth reserves the right for federal and state agencies or their authorized

representatives to perform additional audits of a financial or performance nature, if deemed necessary by commonwealth or federal agencies. Any such additional audit work will rely on work already performed by the [NAME OF SUBRECIPIENT]'s auditor and the costs for any additional work performed by the federal

or state agencies will be borne by those agencies at no additional expense to the [NAME OF

SUBRECIPI ENT]. Audit documentation and audit reports must be retained by the [NAME OF SUBRECIPIENT]'s

auditor for a minimum of five years from the date of issuance of the audit report, unless the [NAME OF

SUBRECIPIENT]'s auditor is notified in writing by the commonwealth, the cognizant federal agency for

Exhibit "D" 2 of3

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 73 of 96

audit, or the oversight federal agency for audit to extend the retention period. Audit documentation will be

made available upon request to authorized representatives of the commonwealth, the cognizant federal

agency for audit, the oversight federal agency for audit, the federal funding agency, or the Government

Accountability Office.

·

Exhibit "D" 3 of3

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 74 of 96

FEDERAL NONDISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY CLAUSES
(All Federal Aid Contracts)* (1-76)

1.

Selection of Labor: During the performance of this contract, the contractor shall not discriminate

against labor from any other State, possession or territory of the United States.

2.

Employment Practices: During the performance of this contract, the contractor agrees as

follows:

a.

The contractor will not discriminate against any employee or applicant for employment

because of race, color, religion, sex, or national origin. The contractor will take affirmative

action to ensure that applicants are employed, and that employees are treated during

employment without regard to their race, color, religion, sex, or national origin. Such

action shall include, but not be limited to the following: employment, upgrading, demotion

or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or

other forms of compensation; and selection for training, including apprenticeship. The

contractor agrees to post in conspicuous places, available to employees and applicants

for employment, notice to be provided by the State highway department setting forth the

provisions of this nondiscrimination clause.

b.

The contractor will, in all solicitations or advertisements for employees placed by or on

behalf of the contractor, state that all qualified applicants will receive consideration for

employment without regard to race, color, religion, sex, or national origin.

c.

The contractor will send to each labor union or representative of workers with which he

has a collective bargaining agreement or other contract or understanding, a notice to be

provided by the State highway department advising the said labor union or workers'

representative of the contractors commitments under section 2 and shall post copies of

the notice in conspicuous places available to employees and applicants for employment.

d.

The contractor will comply with all provisions of Executive Order 11246 of September 24,

1965, and of the rules, regulations (41 CFR, Part 60) and relevant orders of the Secretary

of Labor.

e.

The contractor will furnish all information and reports required by Executive Order 11246

of September 24, 1965, and by rules, regulations and orders of the Secretary of Labor, or

pursuant thereto, and will permit access to his books, records and accounts by the

Federal Highway Administration and the Secretary of Labor for purposes of investigation

to ascertain compliance with such rules, regulations and orders.

f.

In the event of the contractor's noncompliance with the nondiscrimination clauses of this

contract or with any of the said rules, regulations or orders, this contract may be

canceled, terminated or suspended in whole or part and the contractor may be declared

ineligible for further Government contracts or Federally-assisted construction contracts in

accordance with procedures authorized in Executive Order 11246 of September 24,

1965, and such other sanctions may be imposed and remedies invoked as provided in

Executive Order 11246 of September 24, 1965, or by rule, regulation or order of the

Secretary of Labor, or as otherwise provided by law.

g.

The contractor will include the provisions of Section 2 in every subcontract or purchase

order unless exempted by rules, regulations or orders of the Secretary of Labor issued

pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such

provisions will be binding upon each subcontractor or vendor. The contractor will take

such action with respect to any subcontract or purchase order as the State highway

department or the Federal Highway Administration may direct as a means of enforcing

such provisions including sanctions for noncompliance: Provided, however, that in the

event a contractor becomes involved in, or is threatened with litigation with a

subcontractor or vendor as a result of such direction by the Federal Highway

Administration, the contractor may request the United States to enter into such litigation

to protect the Interests of the United States.

3.

Selection of Subcontractors, Procurement of Materials, and Leasing of Equipment: During

the performance of this contract, the contractor, for itself, its assignees and successors in interest

(hereinafter referred to as the "contractor") agrees as follows:

a.

Compliance with Regulations: The contractor shall complywlth the Regulations relative to

n~ndiscrimination ln. federally-ass\sted programs of the Department of Transpor:tation,

Title 49, Code of Federal Regulations, Part 21, as they may be amended from ttme to

time, (hereinafter referred to as the Regulations) which are herein incorporated by

reference and made a part of this contract.

.

b.

Nondiscrimination: The contractor, with regard to the work performed by it during the

contract, shall not discriminate on the grounds of race, color, sex or national origin in the

Exhibit "G" Page 1 of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 75 of 96

selection and retention of subcontractors, including procurements of materials and leases

of equipment. The contractor shall not participate either directly or indirectly in the

discrimination prohibited by section 21.5 of the Regulations, including employment

practices when the contract covers a program set forth in the Regulations,

c.

Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all

solicitations either by competitive bidding or negotiation made by the contractor for work

to be performed under a subcontract, includin~ procurements of materials or leases of

equipment, each potential subcontract or supplier shall be notified by the contract of the

contractor's obligations under this contract and the Regulations relative to

nondiscrimination on the grounds of race, color, sex or national origin.

d.

Information and Reports: The contractor shall provide all information and reports required

by the Regulations, or directives issued pursuant thereto, and shall permit access to its

books, records, accounts, other sources of information and its facilities as may be

determined by the State highway department or the Federal Highway Administration to be

pertinent to ascertain compliance with such Regulations or directives. Where any

information required of a contractor is in the exclusive possession of another who fails or

refuses to furnish this information, the contractor shall so certify to the State highway

department, or the Federal Hi9hway Administration as appropriate, and shall set forth

what efforts it hasl made to obtam the information.

e.

Sanctions for Noncompliance: In the event of the contractor's noncompliance with the

nondiscrimination provisions of this contract, the State highway department shall impose

such contract sanctions as it or the Federal Highway Administration may determine to be

appropriate, including, but not limited to:

(1) withholding of payments to the contractor under the contract until the contractor

complies, and/or

(2) cancellation, termination or suspension of the contract, in whole or in part.

f.

Incorporation of Provisions: The contractor shall include the provisions of this paragraph

3 In every subcontract, including procurements of materials and leases of equipment,

unless except by the Regulations, or directives issued pursuant thereto. The contractor

shall take such action with respect to any subcontractor or procurement as the State

highway department or the Federal Highway Administration my direct as a means of

enforcing such provisions Including sanctions for noncompliance: Provided, however,

that, in the event a contractor becomes involved ln1 or is threatened with, litigation With a subcontractor or supplier as a result of such direction, the contractor may request the

State highway department or enter Into such litigation to protect the interest of the State,

and , in addition, the contractor may request the United States to enter into such litigation

to protect the interests of the United States.

Wherever hereinabove the word "contractor" is used, it shall also include the word engineer,

consultant, researcher, or other entity (governmental, corporate, or otherwise), its successors and

assigns as may be appropriate.

*Not to be used if otherwise included in Construction or Appalachian Contract Provisions.

Exhibit "G" Page 2 of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 76 of 96
(Revised March 4, 2011) CONTRACTOR INTEGRITY PROVISIONS It is essential that those who seek to contract with the Commonwealth of Pennsylvania ("Commonwealth") observe high standards of honesty and integrity. They must conduct themselves in a manner that fosters public confidence in the integrity of the Commonwealth procurement process. In furtherance of this policy, Contractor agrees to the following: 1. Contractor shall maintain the highest standards of honesty and integrity during the performance of this contract and shall take no action in violation of state or federal l~;tws or regulations or any other applicable laws or regulations, or other requirements applicable to Contractor or that govern contracting with the Commonwealth. 2. Contractor shall establish and implement a written business integrity policy, which includes, at a minimum, the requirements of these provisions as they relate to Contractor employee activity with the Commonw~alth and Commonwealth employees, and which is distributed and made known to all Contractor employees. 3. Contractor, its affiliates, agents and employees shall not influence, or attempt to influence, any Commonwealth employee to breach the standards of ethical conduct for Commonwealth employees set forth in the Public Official and Employees Ethics Act, 65 Pa.C.S. §§1101 et seq.; the State Adverse Interest Act, 71 P.S. §776.1 et seq.; and the Governor 's Code of' Conduct. Executive Order 1980-18, 4 Pa. Code §7.151 et seq., or to breach any other state or federal law or regulation. 4. Contractor, its affiliates, agents and employees shall not offer, give, or agree or promise to give any gratuity to a Commonwealth official or employee or to any other person at the direction or request of any Commonwealth official or employee. 5. Contractor, its affiliates, agents and employees shall not offer, give, or agree or promise to give any gratuity to a Commonwealth official or employee or to any other person, the acceptance of which would violate the Governor's Code ol Conduct, Executive Order 1980-18, 4 Pa. Code §7.151 et seq. or any statute, regulation, statement of policy, management directive or any other published standard of the Commonwealth. 6. Contractor, its affiliates, agents and employees shall not, directly or indirectly, offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for the decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty by any Commonwealth official or employee. 7. Contractor, its affiliates, agents, employees, or anyone in privity with him or her shall not accept or agree to accept from any person, any gratuity in connection with the perfonnance of work under the contract, except as provided in the contract. 8. Contractor shall not have a financial· interest in any other contractor, subcontractor, or supplier providing services, labor, or material on this project, unless the financial interest is disclosed to the Commonwealth in writing and the Commonwealth consents to Contractor's financial interest prior to Commonwealth execution of the contract. Contractor shall disclose the financial interest to the Commonwealth at the time of bid or proposal submission, or if no bids or proposals are solicited, no later than Contractor's submission of the contract signed by Contractor.
9. Contractor, its affiliates, agents and employees shall not disclose to others any information, documents, reports, data, or records provided to, or prepared by, Contractor
Exhibit "H" Page 1 ofS

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 77 of 96

under this contract without the prior written approval of the Commonwealth, except as

required by the Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-3104, or other

applicable hiw or as otherwise provided in this contract. Any information, documents,

re.ports, data, or records secured by Contractor from the Commonwealth or a third party

in connection with the performance of this contract shall be kept confidential unless

disclosure of such information is:

a. Approved in writing by the Commonwealth prior to its disclosure; or

b. Directed by a court or other tribunal of competent jurisdiction unless the contract

requires prior Commonwealth approval; or

c. Required for compliance with federal or state securities laws or the requirements

of national securities exchanges; or

d. Necessary for purposes of Contractor's internal assessment and review; or

e. Deemed necessary by Contractor in any action to enforce the provisions of this

contract or to defend or prosecute claims by or against parties other than the

Commonwealth; or

f.

Permitted by the valid authorization of a third party to whom the information,

documents, reports, data, or records pertain: or

g. Otherwise required by law.

10. Contractor certifies that neither it nor any of its oflicers, directors, associates, partners,

limited partners or individual owners ·has been officially notified of, charged with, or

convicted of any of the following and agrees to immediately notify the Commonwealth

agency contracting officer in writing if and when it or any officer, director, associate,

partner, limited partner or individual owner has been officially notified of, charged with,

convicted of, or officially notified of a governmental determination of any of the

following:

a. Commission of embezzlement, theft, forgery, bribery, falsification or destruction

ofrecords, making false statements or receiving stolen property.

b. Commission of fraud or a criminal offense or other improper conduct or

knowledge of, approval of or acquiescence in such activities by Contractor or any

affiliate, officer, director, associate, partner, limited partner, individual owner, or

employee or other individual or entity associated with:

(1) obtaining;

(2) attempting to obtain; or

(3) performing a public contract or subcontract.

Contractor's acceptance of the benefits derived from the conduct shall be deemed

evidence of such knowledge, approval or acquiescence.

c. Violation of federal or state antitrust statutes.

d. Violation of any federal or state law regulating campaign contributions.

e. Violation of any federal or state environmental law.

f.

Violation of any federal or state law regulating hours of labor, minimum wage

standards or prevailing wage standards; discrimination in wages; or child labor

violations.

g. Violation oftheAct ofJune 2, 1915 (P.L.736, No. 338), known as the Workers'

Compensation Act, 77 P.S. 1 et seq.

·

Exhibit "H" Page 2 of5

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 78 of 96
h. Violation of any federal or state law prohibiting discrimination in employment. i. Debarment by any agency or department of the federal government or by any
other state. j. Any other crime involving moral turpitude or business honesty or integrity. Contractor acknowledges that the Commonwealth may, in its sole discretion, tenninate the contract for cause upon such notification or when the Commonwealth otherwise learns that Contractor has been officially notified, charged, or convicted. 11. If this contract was awarded to Contractor on a non-bid basis, Contractor must, (as required by Section 1641 of the Pennsylvania Election Code) fiie a report of political contributions with the Secretary of the Commonwealth on or before February 15 of the next calendar year. The report must include an itemized list of all political contributions known to Contractor by virtue of the knowledge possessed by every officer, director, associate, partner, limited partner, or individual owner that has been made by: a. Any officer, director, associate, partner, limited partner, individual owner or
members of the immediate family when the contributions exceed an aggregate of one thousand dollars ($1,000) by any individual during the preceding year; or b. Any employee or members of his immediate family whose political contribution exceeded one thousand dollars ($1,000) during the preceding year. To obtain a copy of the reporting form, Contractor shall contact the Bureau of Commissions, Elections and Legislation, Division of Campaign Finance and Lobbying Disclosure, Room 210, North Office Building, Harrisburg, PA 17120. 12. Contractor shall comply with requirements of the Lobbying Disclosure Act, 65 Pa.C.S. § 13AOJ et seq., and the regulations promulgated pursuantto that law. Contractor employee activities prior to or outside of formal Commonwealth procurement communication protocol are considered lobbying and subjects the Contractor employees to the registration and reporting requirements of the law. Actions by outside lobbyists on Contractor's behalf, no matter the procurement stage, are not exempt and must be reported.
13. When Contractor has reason to believe that any breach of ethical standards as set forth in law, the Governor's Code of Conduct, or in these provisions has occurred or may occur, including but not limited to contact by a Commonwealth officer or employee which, if acted upon, would violate such ethical standards, Contractor shall immediately notify the Commonwealth contracting officer or Commonwealth Inspector General in writing.
14. Contractor, by submission of its bid or proposal and/or execution ofthis contract and by the submission of any bills, invoices or requests for payment pursuant to the contract, certifies and represents that it has not violated any of these contractor integrity provisions in connection with the submission of the bid or prop9sal, during any contract negotiations or during the term of the contract.
15. Contractor shall cooperate with the Office of Inspector General in its investigation of any alleged Commonwealth employee breach of ethical standards and any alleged Contractor non"compliance with these provisions. Contractor agrees to make identified Contractor employees available for interviews at reasonable times and places. Contractor, upon the inquiry or request of the Office of Inspector General, shall provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by the Inspector General to Contractor's integrity and compliance with
Exhibit "H" Page 3 of5

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 79 of 96

these provisions. Such information may include, but shall not be limited to, Contractor's

business or financial records, documents or files of any type or form that refers to or

concern this contract.

16. For violation of any of these Contractor Integrity Provisions, the Commonwealth may

terminate this and any other contract with Contractor, claim liquidated damages in an

amount equal to the value of anything received in breach of these provisions, claim

damages for all additional costs and expenses incurred in obtaining another contractor to

complete performance under this contract, and debar and suspend Contractor from doing

business with the Commonwealth. These rights and remedies are cumulative, and the use

or non-use of any one shall not preclude the use of all or any other. These rights and

remedies are in addition to those the Com111onwealth may have under law, statute,

regulation, or otherwise.

17. For purposes of these Contractor Integrity Provisions, the following tenns shall have the

meanings found in this Paragraph 17.

a. "Confidential information" means information that a) is not already in the public

domain; b) is not available to the public upon request; c) is not or does not

become generally known to Contractor from a third party without an obligation to

maintain its confidentiality; d) has not become generally known to the public

through a act or omission of Contractor; or e) has not been independently

developed by Contractor without the use of confidential information of the

Commonwealth.

b. "Consent" means written permission signed by a duly authorized officer or

employee of the Commonwealth, provided that where the material facts have been

disclosed, in writing, by pre-qualification, bid, proposal, or contractual terms, the

Commonwealth shall be deemed to have consented by virtue of execution of this

contract.

c. "Contractor" means the individual or entity that has entered into this contract with

the Commonwealth, including those directors, officers, partners, managers, and

owners having more than a five percent interest in Contractor.

d. "Financial interest" means:

(1) Ownership of more than a five percent interest in any business; or

(2) Holding a position as an officer, director, trustee, partner, employee, or

holding any position of management.

e. "Gratuity" means tendering, giving or providing anything of more than nominal

monetary value including, but not limited to, cash, travel, entertainment, gifts,

meals, lodging, loans, subscriptions, advances, deposits of money, services,

employment, or contracts of any kind. The exceptions set forth in the Governor's

Code of' Conduct, Executive Order 1980-18, the 4 Pa. Code §7.153(b), shall

apply.

f.

"Immediate family" means a spouse and any unemancipated child.

g. "Non-bid basis" means a contract awarded or executed by the Commonwealth

with Contractor without seeking bids or proposals from any other potential bidder

or offeror.

h. "Political contribution" means any payment, gift, subscription, assessment,

contract, payment for services, dues, loan, forbearance, advance or deposit of

money or any valuable thing, to a candidate for public office or to a political

Exhibit "H" Page4 of5

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 80 of 96 committee, including but not limited to a political action committee, made for the purpose of influencing any election in the Commonwealth ofPennsylvania or for paying debts incurred by or for a candidate or committee before or after any election.
Exhibit "H" Page 5 of5

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 81 of 96 January 29, 2001
Disadvantaged Business Enterprise & Small Business Concern Involvement
The Commonwealth of Pennsylvania is committed to providing opportunities for Disadvantaged Business Enterprises and small business concerns to compete for work. Small business concerns are those entities seeking to participate in Commonwealth contracts that meet the definition of a small business concern set forth in Section 3 of the Small Business Act and Small Business
regulations implementing it at 13 C.F.R. Part 21. Contractors are encouraged to involve
Disadvantaged Business Enterprises and small business concerns in the required work and to submit documentation of any such involvement in the proposal/project.
Exhibit "I" Page 1 of 1

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 82 of 96
January 2, 2002 DISADVANTAGED BUSINESS ENTERPRISEREQUIREMENTS-Prequalification Exempt
1. POLICY
A. The Pennsylvania Department of Transportation (PennDOT) does not discriminate on the basis of race, color, national origin or sex. It is the policy of PennDOT and the United States Department of Transportation that Disadvantaged Business Enterprises (DBEs) be given the opportunity to participate in the performance of contracts financed, in whole or in part, with federal funds.
B. The requirement of 49 CFR 26 apply to this contract. C. Only DBE firms certified by PennDOT count toward the DBE Goal.
2. DEFINITIONS
A. Disadvantaged Business Enterprise or DBE means a for-profit small business concern: 1) That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and 2) Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.
B. Small business concern means, with respect to firms seeking to participate as DBEs in DOT-assisted contracts, a small business concern as defined pursuant to section 3 of the Small Business Act and Small Business Administration regulations implementing it (13 CFR Part 121) that also does not exceed the cap on average annual gross receipts specified in § 26.65(b).
C. Socially and economically disadvantaged individual means any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is: I) Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged: i) ''Black Americans," which includes persons having origins in any of the Black racial groups ofAfrica; ii) "Hispanic Americans," which includes persons of Mexican,· Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; iii) "Native Americans, 11 which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; iv) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated S~ates of Micronesia, or Hong Kong;
Exhibit "J" Page 1 of6

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 83 of 96

v) "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;
vi) Women;
vii) Any additional groups whose members are designated as socially and economically disadvantaged by the SBA, at such time as the SBA designation becomes effective.
2) Any individual who the Department finds to be a socially and economically disadvantaged individual on a case-by-case basis.
D. DBE Goal means the amount of DBE participation stated by PennDOT in the proposal. This DBE Goal is stated in terms of total project cost and is based on the project's potential for subcontracted work and the availability of DBEs to perform such subcontract work.
E. Certified DBE means those firms certified by PennDOT's Bureau of Equal Opportunity. Refer to PennDOT's Disadvantaged Business Enterprise Directory. For information regarding DBE Certification, please see our web site at www. dot. state. pa. us or contact the Bureau's DBE Division at 1-800-468-4201 or (717) 787-5891.

3. FAILURE TO COMPLY WITH DBE REQUIREMENTS

A. Failure of a bidder to meet the DBE Goal and failure to provide a verifiable "good faith

effort" in a response to the proposal will result in rejection ofthe bid. Furthermore, if

PennDOT does not approve the "good faith effort," the bid will be rejected.

·

B. Failure by a prime contractor and subcontractors to carry out the DBE requirements constitutes a breach of contract and may result in termination ofthe contract or action as appropriate.

C. Upon completion of the project, PennDOT will review the actual DBE expenditures to determine compliance with the DBE Goal. If the DBE Goal is not met, written explanation from the contractor will be reviewed by PennDOT. If the shortfall in meeting the DBE Goal is determined to be unjustified and unwarranted, PennDOT may impose sanction as appropriate.

D. Failure to comply with any DBE requirements may result in termi,nation of the contract, being barred from bidding on PennDOT contracts for up to three years, or any other remedy, as PennDOT deems appropriate.

4. PROCEDURES
A. In response to the proposal, the bidder must mak~ a "good faith effort" to subcontract a portion of th.e project work to a certified DBEs. This portion should be equal to or greater than the DBE Goal stated in the proposal. Efforts to subcontract work include but are not limited to:
1) Efforts made to solicit through all reasonable and available means (e.g. use of the DBE Directory, attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. lbe bidder must provide written notification, at least 15 calendar days prior to the bid due date, to allow the DBEs to respond to the solicitation. The bidder must

Exhibit "J" Page 2 of6

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 84 of 96
determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations.
2) Efforts made to select portions of the work to be performed by DBEs in order to increase the likelihood that the DBE Goal will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces.
3) Efforts made to provide interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation.
4) Efforts made to negotiate in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. A
bidder using good business judgment would consider a number of factors in
negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE Goal, as long as such costs are reasonable. Also, the ability or desire of a bidder to perform the work of a contract with its own work force does not relieve the bidder of the responsibility to make good faith efforts. Bidders are not, however, required to accept · higher quotes from DBEs if the price difference is excessive or unreasonable. 5) Failure to accept DBE as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non;.solicitation of bids in the contractor's efforts to meet the DBE GoaL 6) Efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. 7) Efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. 8) Efforts to effectively use the Department's DBE Supportive Services Contractors, services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs.
B. The bidder is prohibited from requiring any DBE to agree not to provide subcontracted
effort to other bidders.
Exhibit "J" Page 3 of6

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 85 of 96
C. The bidder must submit Form(s) E0-380 meeting the DBE Goal, indicating the name of the DBE(s), contact person, phone nl.lmber, PennDOT DBE Certification Number, expiration date, and a narrative description of the service to be provided by the DBE(s) with the bid. Failure to submit Forni E0-380 with the bid will result in the rejection of the bid.
D. If a DBE cannot be located or if the percent of bid allocated to the DBE(s) is less than the DBE Goal, the bidder must provide a "good faith effort" in as mentioned Section 4-A, with the bid. Failure to submit the "good faith effort," if required, will result in the rejection of the bid. The "good faith effort" must explain and document the effort made by the bidder to ·obtain DBE participation. Documentation must be verifiable and must include: 1) The names, addresses and phone numbers of DBEs, DBE assistance agencies and general circulation media who were contacted, the dates of initial contact and the follow-up efforts made by the prime contractor; 2) A description of the information provided to the DBE, DBE assistance agency or general circulation media to define the work to be performed; 3) Documentation of the reasons why any DBE contacted would not agree to participate.
E. If the low bid contains a "good faith effort" because the low bidder failed to meet the established DBE Goal, PennDOT will review the "good faith effort" provided. If the
"good faith effort" is deemed to be satisfactory, the "good faith effort" will be approved.
In such a case the contractor shall continue a "good faith effort" throughout the life of the contract to increase the DBE participation to meet the contract DBE Goal. If PennDOT cannot accept the "good faith effort" submitted by the low bidder, the bid will be considered non-responsive and PennDOT will notify the low bidder that the bid is rejected.
F. Any low bid that does not meet the DBE Goal and does not provide a "good faith effort" which identified DBEs, DBE referral/assistance agencies and others, who were contacted, will be rejected without review. Use of a DBE certified by others and not by PennD01: use of a DBE whose certification has expired or cannot be confirmed by PennDOT's Bureau of Equal Opportunity, or statements that the DBE Goal will be met after a contractor is awarded a contract are unacceptable and will result in rejection of bid.
G. The prime contractor shall include the Disadvantaged Business Enterprise Requirements in all subcontracts. Subcontractors must conform to the intent of these requirements.
H. If it becomes necessary to replace a DBE subcontractor during the contract, make a "good faith effort" to re-contract the same or other work with another certified DBE firm. Such an effort must include: 1) Alert PennDOT immediately and document the problem in writing; 2) Contact available DBE referral sources and individual qualified DBEs in an effort to re-contract work to fulfill the DBE Goal stated in the proposal; and 3) Provide PennDOT with a revised form(s) E0-380 and additional "good faith effort" information if the original DBE Goal is not met, by the close of business of the 7th calendar day of PennDOT's receipt of written notice of the need to replace a DBE.
Exhibit "J" Page 4 of6

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 86 of 96
I. Inform PennDO'l: in writing, of any situation in which payments are not made to the DBE Subcontractor as required by the subcontract.
J. Keep records necessary for compliance with DBE utilization obligations by indicating: 1) The number of DBE and non-DBE subcontractors and the type of work, materials or services performed in the project; 2) Efforts to secure DBE firms and individual whenever a subc_ontractor is contemplated during a contact; 3) Documentation of all communication to obtain the services .of DBEs on a project; 4) The amounts paid to DBEs by invoice period.
K. Upon completion of a DBE's work, the prime contractor must submit a certification of the actual amount paid to the DBE. if the actual amount paid is less than the amount of the subcontract, an explanation is required and subject to the review and action of PennDOT.
5. COUNTING DBE PARTICIPATION
A. If the contractor submitting the bid and serving as prime contractor is a certified DBE, count the dollar amount of the work to be performed by the DBE toward the DBE Goal.
B. If the materials or supplies are purchased from a DBE supplier performing as regular dealer, count 60 percent of the cost of the materials or supplies toward DBE Goal. A regular dealer is a finn that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of .the general character described by the specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the publicin the usual course ofbusiness.
C. If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies toward DBE Goal. A manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications.
D. Count toward the DBE Goal 100% of expenditures of DBE services including professional, technical consultant or managerial services. Count fees or commissions charged for providing any bonds or insurance specifically required for the perfonnance of the contract.
E. Use the following factors in determining whether a DBE trucking company is perfonning a commercially useful function: 1) The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals. 2) The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract. 3) The DBE receives credit for the total value of the transportation services it provides on the contract using trucks its owns, insures, and operates using drivers it employs. 4) The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit
Exhibit "J" Page 5 of6

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 87 of 96
for the total value of the transportation services the lessee DBE provides on the contract. 5) The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by a DBE. 6) For purposes of this paragraph (E), a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. ·F. Any services to be performed by a DBE are required to be project related. The
use of DBEs is in addition to all other equal opportunity requirements of the contract.
Exhibit "J" Page 6 of6

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 88 of 96

DBE Special Requirements_;Engineering

The engineer shall attain the Disadvantaged Business Enterprise goal that applies to the total cost of the

agreement and all supplements thereto, or in the alternative a showing of good faith effort by the engineer shall be

made. Documentation of good faith effort shall be made by the engineer and subject to the concurrence of the

Department.

The following is a list of types of actions that should be considered as part of the engineer's good faith efforts to

obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or

exhaustive. Other factors or types of efforts may be relevant in appropriate cases.

A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or

written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The

engineer must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The

engineer must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial

solicitations.

B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals

will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime might otherwi~e prefer to perform these work items with

its own forces.

C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the

contract in a timely manner to. assist them in responding to a solicitation.

D.

(1) Negotiating in good faith with interested DBEs. It is the engineer's responsibility to make a portion of

the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of

such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description

of the information provided regarding the plans and specifications for the work selected for S!lbcontracting; and

evidence as to why additional agreements could not be reached for DBEs to perform the work.

(2) A engineer using good business judgment would consider a number of factors in negotiating with

subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract

goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a engineer's failure to meet the contract DBE goal, as long as such costs

are reasonable. Also, the ability or desire of a prime to perform the work of a contract with its own organization

does not relieve the engineer of the responsibility to make good faith efforts. Primes are not, however, required to

accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their

capabilities. The firm's standing within its industry, membership in specific groups, organizations, or associations

and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for

the rejection or non"solicitation ofbids in the firm's efforts to meet the project goal.

F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the

recipient or firm.

G. · Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related

assistance or services.

H. Effectively using the services of available minority/women community organizations; minority/women

contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as

allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs.

Exhibit "K"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 89 of 96
July 3, 2003 LOBBYING CERTIFICATION FORM Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: (1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any ·federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. (2) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, Disclosure of Lobbying Activities, in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (Including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed under Section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for such failure.
SIGNATURE: ----------------------------------------------~------
TDAITTEL:-E--: ·---------------- ----------------------- -- ----------------------- -- -------------------~--- -- -----------------------
Enclosure 1 to Management Directive 305.16 Amended Page 1 of 1
Exhibit "L"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 90 of 96

October 14, 2011 PROVISIONS CONCERNING THE AMERICANS WITH DISABILITIES ACT

For the purpose of these provisions, the term contractor Is defined as any person, including, but not limited to, a bidder, offeror, supplier, or grantee, who will furnish or perform or seeks to furnish or perform, goods, supplies, services, construction or other activity, under a purchase order, contract, or grant with the Commonwealth of Pennsylvania (Commonwealth).

During the term of this agreement, the contractor agrees as follows:

1. Pursuant to federal regulations promulgated under the authority of the Americans with

Disabilities Act, 28 C. F. R. § 35.101 et seq., the contractor understands and agrees that

no individual with a disability shall, on the basis of the disability, be excluded from

participation in this agreement or from activities provided for under this agreement. As a

condition of accepting and executing this agreement, the contractor agrees to comply

with the "General Prohibitions Against Discrimination/' 28 C. F. R. § 35.130, and all

other regulations promulgated under Title II of the Americans with Disabilities Act which

are applicable to the benefits, services, programs, and activities provided by the

Commonwealth

through

contracts

with

outside

contractors.

2. The contractor shall be responsible for and agrees to indemnify and hold harmless the Commonwealth from all losses, damages, expenses, claims, demands, suits, and actions brought by any party against the Commonwealth as a result of the contractor's failure to comply with the provisions of paragraph 1.

Enclosure l to Management Directive 215.12 Amended Page 1

Exhibit "M"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 91 of 96
October 25,2010 Contractor Responsibility Provisions For the purpose of these provisions, the term contractor is defined as any person, including, but not
limited to, a bidder, offeror, loan recipient, grantee or lessor, who has furnished or performed or seeks to
furnish or perform, goods, supplies, services, leased space, construction or other activity, under a contract, grant, lease, purchase order or reimbursement agreement with the Commonwealth of Pennsylvania (Commonwealth). The term contractor includes a permittee, licensee, or any agency, political subdivision, instrumentality, public authority, or other public entity in the Commonwealth. 1. The Contractor certifies, in writing, for itself and its subcontractors required to be disclosed or approved by the Commonwealth, that as of the date .of its execution of this Bid/Contract, that neither the Contractor, nor any such subcontractors, are under suspension or debarment by the Commonwealth or any governmental entity, instrumentality, or authority and, if the Contractor cannot so certifY, then it agrees to
submit, along with its Bid/Contract, a written explanation of why such certification cannot be made.
2. The Contractor also certifies, in writing, that as of the date of its execution of this Bid/Contract it has no tax liabilities or other Commonwealth obligations, or has filed a timely administrative or judicial appeal if such liabilities or obligations exist, or is subject to a duly approved deferred payment plan if such liabilities exist. 3. The Contractor's obligations pursuant to these provisions are ongoing from and after the effective date of the Contract through the termination date thereof. Accordingly, the Contractor shall have an obligation to inform the Commonwealth if, at any time during the term. of the Contract, it becomes delinquent in the payment of taxes, or other Commonwealth obligations, or if it or, to the best knowledge ofthe Contractor, any of its subcontractors are suspended or debarred by the Commonwealth, the federal government, or any other state or governmental entity. Such notification shall be made within IS days of the date of suspension or debarment. 4. The failure of the Contractor to notify the Commonwealth of its suspension or debarment by the Commonwealth, any other state, or the federal government shall constitute an event of default of the Contract with the Commonwealth.
5. The Contractor agrees to reimburse the Commonwealth for the reasonable costs of investigation
incurred by the Office of State Inspector General for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the Commonwealth that results in the suspension or debarment of the contractor. Such costs shall include, but shall not be limited to, salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for investigative costs for investigations that do not result in the Contractor's suspension or debarment. 6. The Contractor may obtain a current list of suspended and debarred Commonwealth contractors by either searching the Internet at http://www.dgs.state.pa.us/ or contacting the:
Department of General Services Office of Chief Counsel 603 North Office Building Harrisburg, PA 17125
Telephone No: (717) 783-6472 FAX No: (717) 787-9138
Enclosure 1 to Management Directive 215.9 Amended Page 1 of 1
Exhibit "N"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 92 of 96
SAMPLE LETTER OF AMENDMENT Date Municipality/Contractor Name ATTN: Contact Address City, State Zip Re: Amendment (Amendment Letter Designation)
Agreement# (Contract Number) Dear (Mr./Ms. Name), Per the terms of the subject agreement, the Department is willing to amend the terms by increasing the costs in Exhibit "A" and Paragraph (reference the location in the agreement document) from (current dollar amount) to (hew dollar amount). This amendment will become effective once all required signatures are affixed to this document. We are requesting your concurrence as to the amendment of the above referenced agreement. If you agree to the amendment, please indicate below by checking "Yes," and signing and dating where indicated. Please attach a resolution verifying your authorization to sign this amendment. IF APPLIC'ABLE: Since the date ofthe Original Agreement, some standard provisions and accompanying exhibits have been updated; copies ofthese updated Exhibits are attached hereto and hereby supersede and replace the corresponding exhibit attached to the Original Agreement. Your response is required no later than (Date). Please mail your response to the following address:
PENNDOT Attn: Your Name Your Organization Your Address
Exhibit "0" Page 1 of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 93 of 96

SAMPLE LETTER OF ADJUSTMENT

Date MuniCipality Name ATTN: Contact Address City, State Zip

Re:

Amendment (Amendment Letter Designation)

Agreement# (Contract Number)

Dear (Mr./Ms. Name)

Per the terms of the subject agreement, the Department will redistribute the costs in Exhibit "A", with no change in the total Project costs, by increasing/decreasing the costs of the phases within the project as shown below.

......... «•·············--·······--
' :fi~~l)?e~~gn : Utilities

Current · Phase :

New Phase Costs

Construction

$

A

'''' '''0'00'''"''"''''''''''''''''

0 hoo

[)~p~r,t~e!IU.t:t~ll!r~~ C()sts . .. .. . .

$

$

TOTAL PROJECT COST

$

$

All terms and conditions of the agreement and its amendments (if any) not affected by this letter of adjustment remain in full force and effect.

If you have any concerns of the redistribution of costs, please contact us within ten ( 10) days of this notice, otherwise the redistribution will be processed as detailed above.

This letter of adjustment is not effective until the Office of Comptroller Operations signs and dates this letter of adjustment. The Department will forward a copy of the fully executed letter of adjustment for your files.

Sincerely,

_ _ _ _ _[District Name, Title] [District/Organization]

Comptroller Signature

Date

Reimb.ursement Af::,rreement No. ___, is split _ _%, expenditure amount of

for

federal funds and __%, expenditure amount of

for state funds. The related federal

assistance program and number is - - - - - - · ' _ _ _ _ _ _. The state assistance program

name and SAP program is _ _; _ _ _ _ __

Exhibit "P"

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 94 of 96

Contract Provisions- Right to Know Law a. The Pennsylvania Right~to-Know Law, 65 P.S. §§ 67.101-3104, ("RTKL") applies to this Contract. For the purpose of these provisions, the term "the Commonwealth" shall refer to the contracting Commonwealth agency. b. If the Commonwealth needs the Contractor's assistance in any matter arising out of the RTKL related to this Contract, it shall notify the Contractor using the legal contact information provided in this Contract. The Contractor, at any time, may designate a different contact for such purpose upon reasonable prior written notice to the Commonwealth. c. Upon written notification from the Commonwealth that it requires the Contractor's assistance in responding to a request under the RTKL for information related to this Contract that may be in the Contractor's possession, constituting, or alleged to constitute, apublic record in accordance with the RTKL ("Requested Information"), the Contractor shall:
I. Provide the Commonwealth, within ten (1 0) calendar days after receipt of written notification, access to, and copies of, any document or information in the Contractor's possession arising out of this Contract that the Commonwealth reasonably believes is Requested Information and may be a public record under the RTKL; and 2. Provide such other assistance as the .Commonwealth may reasonably request, in order to comply with the RTKL with respect to this Contract. d. If the Contractor considers the Requested Information to include a request for a Trade Secret or Confidential Proprietary Information, as those terms are defined by the RTKL, or other information that the Contractor considers exempt from production under the RTKL, the Contractor must notify the Commonwealth and provide, within seven (7) calendar days of receiving the written notification, a written statement signed by a representative of the Contractor explaining why the requested material is exempt from public disclosure under the RTKL. e. The Commonwealth will rely upon the written statement from the Contractor in denying a RTKL request for the Requested Information unless the Commonwealth determines that the Requested Information is clearly not protected from disclosure under the RTKL. Should the Commonwealth determine that the Requested Information is clearly not exempt from disclosure, the Contractor shall provide the Requested Information within five (5) business days of receipt of written notification of the Commonwealth's determination. f. If the Contractor fails to provide the Requested Information within the time period required by these provisions, the Contractor shall indemnify and hold the Commonwealth hannless for any damages, penalties, costs, detriment or hann that the Commonwealth may incur as a result of the Contractor's failure, including any statutory damages assessed against the Commonwealth. g. The Commonwealth will reimburse the Contractor for any costs associated with complying with these provisions only to the extent allowed under the fee schedule established by the Office of Open Records or as otherwise provided by the RTKL if the fee schedule is inapplicable.
h. The Contractor may file a legal challenge to any Commonwealth decision to release a record to the public with the Office of Open Records, or in the Pennsylvania Courts, however, the Contractor shall indemnify the Commonwealth for any legal expenses incurred by the Commonwealth as a result of such a challenge and shall hold the Commonwealth harmless for any damages, penalties, costs, detriment or harm that the Commonwealth may incur as a result of the Contractor's failure, including any statutory damages assessed against the Commonwealth, regardless of the outcome of such legal challenge. As between the parties, the Contractor agrees to waive all rights or remedies that may be available to it as a result of the Commonwealth's disclosure of Requested Information pursuant to the RTKL i. The Contractor's duties relating to the RTKL are continuing duties that survive the expiration of this Contract and shall continue as long as the Contractor has Requested lnfonnation in its possession.

Revised February 1, 2010

Exhibit "Q"
Page J of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 95 of 96

On behalf of the above-named Municipality, I agree to the amendment of the above referenced

agreement for the

. I agree to all terms and conditions included in the subject agreement

and all previous amendments thereto, if any.

D Yes

NoD

Signature:_ _ _ __,_.'.".'"''-'-'"-'-'-"'-'"'"'"'-'_ _ _ __

Date:_ _ _ _ _ _ _ _ _ _ _ _ __

Indicate Title: 0 Chairman ..0 President 0 Executive DirectorD Commissioner

or D ____,,--__...,..------ (Indicate title)

All terms and conditions ofthe agreement and its amendments (if any) not affected by this Jetter of amendment remain in full force and effect.

This letter of amendment is not effective until the Office of Comptroller Operations signs and dates this letter of amendment. The Department will forward a copy of the fully executed letter of amendment for your files.

Sincerely,

Name, Title Organization Approved for Form and Legality:

for Chief Counsel

Date

Comptroller Signature............ Date

Reimbursement Agreement No.

, is spUt

funds and

%, expenditure amount of

program name and number is

program is

%, expenditure amount of

for federal

for state funds. The related federal assistance

The state assistance program name and SAP

Exhibit "Q" Page 2 of2

Case 1:11-cv-00016-MRH Document 162-1 Filed 11/21/16 Page 96 of 96

FEDERAL FUND.ING ACCOUNTABILITY AND TRANSPARENCY ACT
OF 2006- GRANTEE INFORMATION
1. Registration and Identification Information

Grantee must maintain current registration in the Central Contractor Registration (www.ccr.gov)

at all times during which they have active federal awards funded pursuant to this agreement. A

Dun and Bradstreet Data Universal Numbering System (DUNS) Number (www.dnb.com) is one

of the requirements for registration in the Central Contractor Registration.

\

Grantee must provide its assigned DUNS number, and DUNS+ 4 number if applicable, to the Commonwealth along with Grantee's return of the signed grant agreement. The Commonwealth will not process this grant until such time that Grantee provides this information.

2. Primary Location

Grantee must provide to the Commonwealth the primary location of performance under the award, including the city, State, and zip+4. If performance is to occur in multiple locations, then Grantee must list the location where the most amount of the grant award is to be expended pursuant to this grant agreement.

Grantee must provide this information to the Commonwealth along with Grantee's return of the signed grant agreement. The Commonwealth will not process this grant until such time that Grantee provides this information.

3. Compensation of Officers

Grantee must provide to the Commonwealth the names and total compensation of the five most highly compensated officers of the entity if-(i) the entity in the preceding fiscal year received(!) 80 percent or more of its annual gross revenues in Federal awards; and (II) $25,000,000 or more in annual gross revenues from Federal awards:. and

(ii) the public does not have access to information about the compensation of the senior executives of the entity through periodic reports filed under section 13(a) or 15(d) of the Securities Exchanges Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. If the Grantee does not meet the conditions listed above, then it must specifically affirm to the Commonwealth that the requirements of this clause are inapplicable to the Grantee. Grantee must provide information responding to this question along with Grantee's return of the signed grant agreement. The Commonwealth will not process this grant until such time that Grantee provides such infotmation responding to this question.

Exhibit "R" Page 1 of 1

 
 Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 1 of 152
Exhibit A to Joint Motion Fifth Consent Decree and Partial
Settlement Among Defendant Millcreek Township and Plaintiffs

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 2 of 152

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, ET AL.,

)

)

Plaintiffs,

)

) No. 1:11-cv-00016-MRH

vs.

)

) Judge Hornak

COMMONWEALTH OF PENNSYLVANIA )

DEPARTMENT OF TRANSPORTATION, )

ALLEN D. BIEHLER and MILLCREEK

)

TOWNSHIP, PA,

)

)

Defendants.

)

)

)

)

) Electronically Filed.

)

FIFTH CONSENT DECREE AND PARTIAL SETTLEMENT AMONG DEFENDANT MILLCREEK TOWNSHIP AND PLAINTIFFS WHEREAS Plaintiffs filed this lawsuit against Millcreek Township, Pennsylvania ("Millcreek" or "Township") alleging violations of Title II of the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973; and WHEREAS Plaintiffs and Millcreek agreed, and the Court previously has approved and has expressly retained jurisdiction over the parties to interpret and to enforce the terms of a First Consent Decree and Partial Settlement, (Doc. 16-1), entered by the Court on October 12, 2011, (Doc. 17); a Second Consent Decree and Partial Settlement, (Doc. 76-1), entered by the Court on January 15, 2014, (Doc. 82); a Third Consent Decree and Partial Settlement, (Doc. 104), entered by the Court on September 2, 2014, (Doc. 106); and a Fourth Consent Decree and Partial Settlement, (Doc. 120), entered by the Court on February 4, 2015, (Doc. 121); and

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 3 of 152
WHEREAS, all parties agreed, and the Court previously has approved and has expressly retained jurisdiction over the parties to interpret and to enforce the terms of a Joint Partial Settlement Agreement Among All Parties, filed on November 21, 2016, (Doc. 162-1), and entered by the Court on November 23, 2016, (Doc. 163); and
WHEREAS, pursuant to Section XXVII of the Fourth Consent Decree, Millcreek commissioned a survey (the "Facility Survey") of the buildings and parks that are used by Millcreek to offer a service, program or activity, to assist in determining whether each such building and park is readily accessible to and usable by individuals with disabilities participating in such programs, services and activities in accordance with the ADA and with 28 CFR Subpart D, which Facility Survey identified: (a.) each building and park inspected for the survey; (b.) the program, service and activities conducted in each such building and park; and (c.) any aspect of the building or park that was not consistent with current ADA regulations regarding accessibility of facilities; and
WHEREAS, based on the findings of the survey, Millcreek, on its own initiative, began making improvements and changes to various facilities and components of facilities where its services, programs and activities are held in an effort to ensure that such facilities or components of facilities are readily accessible to and usable by individuals with disabilities participating in such programs, services and activities in accordance with the ADA and with 28 CFR Subpart D; and
WHEREAS, pursuant to Section XXVII of the Fourth Consent Decree, after the Facility Survey was submitted to Plaintiffs, the Plaintiffs and Millcreek met and discussed the results of the survey, the improvements Millcreek had completed to date, and Millcreek's plan for additional improvements and changes, and the Plaintiffs and Millcreek reached a preliminary agreement in
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 4 of 152
April 2017 regarding which, if any, modifications to the buildings and/or parks are needed to make each of Millcreek's services, programs, and activities, when viewed in their entirety, readily accessible to and usable by individuals with disabilities participating in such programs, services, and activities; and
WHEREAS, subsequent to that preliminary agreement, the Township continued to make improvements and changes to various facilities and components of facilities where its services, programs and activities are held in an effort to ensure that such facilities or components of facilities are readily accessible to and usable by individuals with disabilities participating in such programs, services and activities in accordance with the ADA and with 28 CFR Subpart D; and
WHEREAS, based upon the Facility Survey, Millcreek's completed improvements and the discussions and preliminary agreement with the Plaintiffs, Millcreek subsequently prepared, proposed and adopted a transition plan, consistent with 28 C.F.R. § 35.150(d) (the "Transition Plan"), that identified the remaining physical obstacles in Millcreek's facilities that Millcreek had not yet improved or changed and which limit the accessibility of its programs, services, or activities and that described in detail the methods that will be used to make the facilities accessible and the schedule for taking the necessary steps to achieve program accessibility, which Transition Plan was adopted in October 2017 after providing an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the Transition Plan by submitting comments and making the Transition Plan available for public inspection; and
WHEREAS, the parties now desire to formalize the agreement regarding the modifications to the buildings and/or parks that are needed to make each of Millcreek's services, programs, and
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 5 of 152
activities, when viewed in their entirety, readily accessible to and usable by individuals with disabilities participating in such programs, services, and activities;
THEREFORE, the parties agree and the Court hereby enters the following Fifth Consent Decree and Partial Settlement Among Plaintiffs and Millcreek.
FIFTH CONSENT DECREE AND PARTIAL SETTLEMENT XXX. The Prior Consent Decrees and Settlement Agreements Remain in Effect The requirements of the First, Second, Third, and Fourth Consent Decrees remain in full force and effect, except to the extent expressly modified as set forth below.
XXXI. Program Accessibility and Millcreek's Transition Plan 1. Plaintiffs and Millcreek agree that, consistent with the prior preliminary agreement of the parties reached in April 2017, the Transition Plan identifies the remaining physical obstacles that limit accessibility of the facilities or parks where Millcreek offers a program, service, or activity, and that when the planned improvements and corrections described in the Transition Plan are completed, Millcreek's programs, services, and activities, as currently constituted and when viewed in their entirety, will be readily accessible to and useable by individuals with disabilities. A copy of the Transition Plan, with accompanying exhibits, is attached hereto as Exhibit 1. 2. The improvements and corrections described in Section 7 of the Transition Plan are to be completed by the respective date(s) for completion as stated in the Transition Plan, unless a change in a program, service, or activity of Millcreek eliminates the need for the improvement or correction in order for Millcreek's programs, services, or activities, when viewed in their entirety, to be readily accessible to and useable by individuals with disabilities.
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 6 of 152
3. If Millcreek learns or determines that a certain improvement or correction identified in Section 7 of the Transition Plan will not be able to be completed by the stated completion date or that a change in a program, service, or activity of Millcreek has obviated the need for the improvement or correction, Millcreek will notify the Plaintiffs in writing of that fact. Thereafter, the parties shall allow at least forty-five (45) days from the date of the written notification to attempt to resolve any differences or, if necessary, negotiate an alternate schedule for completion of the remaining items identified in Section 7 of the Transition Plan. If the Plaintiffs and Millcreek are unable to resolve the matter or, if applicable, mutually agree to a revised schedule of completion, then either party may submit a motion to the Court asking the Court to resolve the dispute, which Motion shall be filed and determined in accordance with the applicable Federal Rules of Civil Procedure, including any applicable local rules. The Plaintiffs and Millcreek expressly agree that the Court shall have jurisdiction to resolve these disputes.
4. In no event shall Millcreek be considered to be in violation or default of this Consent Decree if the improvements and corrections identified in Section 7 of the Transition Plan are not completed by the dates stated in the Transition Plan due to unexpected circumstances, because of factors outside of Millcreek's control, or because a change in a program, service, or activity of Millcreek eliminates the need for the improvement or correction in order for Millcreek's programs, services, or activities, when viewed in their entirety, to be readily accessible to and useable by individuals with disabilities.
XXXII. Attorneys Fees and Costs to Date. Within fifteen days of the approval of this document, Millcreek shall pay $12,061.31 to Heberle & Finnegan, PLLC, and $5,966.70 to the Elderkin Firm. These amounts will be payment in full for all fees and costs claimable by Plaintiffs
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 7 of 152 or Plaintiffs' counsel in this matter from the beginning of this matter up through November 16, 2017. By paying these amounts, Millcreek in no way admits liability for any future payments, and Plaintiffs do not waive any claims for payments for future fees and costs that may be incurred.
XXXIII. Nonwaiver of Defenses. Except as otherwise expressly provided in this Consent Decree or in the Parties' earlier Consent Decrees and Partial Settlement Agreements and Orders, neither Plaintiffs nor Millcreek Township waive any defenses or rights they may have to any presently stated or future claims as the result of negotiating and executing the present Consent Decree or as the result of any actions taken pursuant thereto.
XXXIV. Retention of Jurisdiction. The parties agree, and the Court expressly Orders, that the Court shall retain jurisdiction to enforce any and all terms of this Consent Decree.
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 8 of 152 Read on this 30th day of November, 2017 and Approved by:

/s/ Mark J. Shaw Mark J. Shaw, Esq. Mark T. Pavkov, Esq. MacDonald, Illig, Jones & Britton 100 State Street, Suite 700 Erie, PA 16507-1459 (814) 870-7613 (814) 454-4647 fax
Attorney for Defendant Millcreek

/s/ J. Mark Finnegan J. Mark Finnegan (40261) Denise M. Heberle (42453) HEBERLE & FINNEGAN, Ltd. 2580 Craig Road Ann Arbor, MI 48103 (734)-302-3233 (734)-302-3234 fax
/s/ Craig A. Markham_____________ Craig A. Markham (38531) ELDERKIN LAW FIRM 150 East Eighth Street Erie, PA 16501 (814)-456-4000 (814) 454-7411 fax
Attorneys for All Plaintiffs

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 9 of 152
Exhibit 1 to Fifth Consent Decree Final Transition Plan Report

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 10 of 152
Millcreek Township, Pennsylvania
American's with Disabilities Act of 1990 Transition Plan -- Facility Improvements and Curb Ramp Schedule
Final Transition Plan Report October 24, 2017

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 11 of 152
TABLE OF CONTENTS
Page
1. Purpose.......................................................................................................................................1 2. Statement Of Accessibility ........................................................................................................1 3. The ADA, Program Accessibility, And Transition Planning ....................................................1 4. Guiding Principles Followed By Millcreek ...............................................................................2 5. Millcreek Township's Services, Programs, And Activities .......................................................3 6. Millcreek Township's Facility Survey .......................................................................................5 7. Physical Obstacles That Limit Program Accessibility, Planned Improvements
To Achieve Program Accessibility, Schedule For Implementation Of Planned Improvements, And List of Completed Improvements .............................................................7 a. Asbury Barn/Park, 4106 Asbury Road ............................................................................ 7 b. Belle Valley Park, 5300 Henderson Road ....................................................................... 9 c. Belle Valley Pool, 5300 Henderson Road ..................................................................... 12 d. Bridger Park, Old Zimmerly Road................................................................................. 12 e. Erie Golf Course, 6050 Old Zuck Road......................................................................... 12 f. Millcreek Golf and Learning Center, 3100 West 17th Street ......................................... 14 g. Highland Park, West 22nd Street .................................................................................... 15 h. Lakewood Park, West 10th Street and Oakmont Avenue............................................... 15 i. Millcreek Township Municipal Building, 3608 West 26th Street .................................. 16 j. Scott Park, West 6th and Lowell Avenue ....................................................................... 18 k. Walnut Creek/David Long Complex, Thomas Road ..................................................... 19 l. Zuck Park, Zuck Road and West Grandview Boulevard ............................................... 20 m. J.S. Wilson Middle School, 901 W. 54th Street* .......................................................... 21 n. McDowell Intermediate High School, 3320 Caughey Road* ....................................... 22 o. Westlake Middle School, 4330 W. Lake Road* ............................................................ 22 8. Completed Improvements And Work To Eliminate Physical Obstacles And Achieve Program Accessibility................................................................................................23 a. Asbury Barn/Park, 4106 Asbury Road .......................................................................... 23 b. Belle Valley Park, 5300 Henderson Road ..................................................................... 24 c. Belle Valley Pool, 5300 Henderson Road ..................................................................... 25

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 12 of 152
d. Erie Golf Course, 6050 Old Zuck Road......................................................................... 28 e. Millcreek Golf and Learning Center, 3100 West 17th Street ......................................... 29 f. Highland Park, West 22nd Street .................................................................................... 31 g. Lakewood Park, West 10th Street and Oakmont Avenue............................................... 32 h. Millcreek Township Municipal Building, 3608 West 26th Street .................................. 32 i. Millcreek Township Recycling Center, 2301 Millfair Road ......................................... 35 j. Scott Park, West 6th and Lowell Avenue ....................................................................... 35 k. Veterans Park, Love Road and Zimmerly Road ............................................................ 35 l. Walnut Creek/David Long Complex, Thomas Road ..................................................... 36 m. Zuck Park, Zuck Road and West Grandview Boulevard ............................................... 36 n. J.S. Wilson Middle School, 901 W. 54th Street ............................................................ 36 o. McDowell Intermediate High School, 3320 Caughey Road ......................................... 37 p. Westlake Middle School, 4330 W. Lake Road .............................................................. 40 9. Curb Ramp Schedule ...............................................................................................................41 10. Officials Responsible For Implementing Transition Plan .......................................................42

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 13 of 152
1. Purpose
The purpose of this Transition Plan is to have a comprehensive written document that describes the remaining structural changes to facilities that Millcreek Township is undertaking to further the accessibility of each service, program, or activity of the Township. This Plan has been prepared after careful study of all of the Township's programs, services and activities, and after a comprehensive formal survey, conducted by an outside consultant, of the buildings and parks that are used by Millcreek to offer a service, program or activity. As required by federal regulations, this Plan also describes the remaining schedule for the Township's provision of curb ramps or other sloped areas where pedestrian walks cross curbs. This Plan complies with the requirements for transition plans for public entities found in the federal regulations implementing Title II of the American's with Disabilities Act of 1990 ("ADA").
2. Statement Of Accessibility
In accordance with the requirements of Title II of the ADA, Millcreek Township will not discriminate against qualified individuals with disabilities on the basis of disability in its services, programs, or activities. Millcreek Township shall make reasonable modifications in policies, practices, procedures, or programs when necessary to avoid discrimination on the basis of disability or to ensure that people with disabilities have an equal opportunity to enjoy all of the Township's programs, services, and activities. The ADA, however, does not require the Township to take any action or make any modification that would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial or administrative burdens. The Township will not place surcharges on any particular individual or group of individuals with disabilities to cover the cost involved in making programs accessible or providing auxiliary aids/services or reasonable modifications of policy. Anyone who requires an auxiliary aid or service for effective communication or a modification of policies in a program, service, or activity of Millcreek Township should contact Sheryl A. Williams at 814-833-1111, ext. 314 or swilliams@millcreektownship.com. Requests should be made as soon as possible but at least forty-eight (48) hours prior to the scheduled event.
3. The ADA, Program Accessibility, And Transition Planning
The ADA is a civil rights statute that prohibits discrimination against people who have disabilities. Federal regulations adopted to implement the ADA require that public entities, including Millcreek Township, "operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." Under the ADA's regulations, however, public entities are not necessarily required to make each of its existing facilities accessible to and usable by individuals with disabilities. Additionally, the ADA does not require a public entity to take any action that would fundamentally alter the nature of a service, program, or activity or that would cause an undue financial or administrative burden.
The ADA's "program accessibility" requirement evaluates a public entity's programs, services, and activities in their entirety, and therefore, public entities have flexibility in addressing accessibility issues. Public entities may achieve program accessibility by a number of different methods. A
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 14 of 152
public entity is not required to make structural changes in existing facilities where other methods are effective in achieving program accessibility, and a public entity is not required to make each of its existing facilities accessible to and usable by individuals with disabilities.
In determining how many facilities of a multi-site program must be made accessible in order to make the overall program accessible, a public entity must make an assessment of what is reasonable under the circumstances to make the program readily accessible to and usable by individuals with disabilities, taking into account such factors as the size of the public entity, the particular program features offered at each site, the geographical distance between sites, the travel times to the sites, the number of sites, and availability of public transportation to the sites.
Where a public entity will undertake structural changes to a facility to achieve program accessibility, the ADA requires the public entity to develop a transition plan setting forth the steps necessary to complete such changes. In developing a transition plan, the public entity must make a copy of the transition plan available for public inspection and also provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the transition plan by submitting comments. An ADA transition plan must:
a. identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to individuals with disabilities;
b. describe in detail the methods that will be used to make the facilities accessible;
c. specify the schedule for taking the steps necessary to achieve compliance, and if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the period;
d. include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs when the public entity has responsibility over streets or walkways; and
e. indicate the official(s) responsible for implementation of the transition plan.
4. Guiding Principles Followed By Millcreek
Millcreek used the following non-exhaustive list of principles gleaned from the law, regulations and guidance materials to guide Millcreek's decision-making regarding program accessibility:
a. The Township's programs, services or activities, when viewed in its entirety, must be readily accessible to disabled persons.
b. The Township is not required to make each of its existing facilities accessible.
c. The Township is not required to take any action that it can demonstrate that would result in a fundamental alteration in the nature of the service, program or activity.
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 15 of 152
d. The Township is not required to take any action that it can demonstrate would result in undue financial burdens and administrative burdens.
e. Options available to the Township to make meet the program accessibility requirements include, but are not limited to:  redesign or acquisition of equipment;  reassignment of services to accessible buildings;  assignment of aides to beneficiaries;  delivery of services at alternate accessible sites; and  alteration of existing facilities and construction of new facilities.
f. The Township is not required to make structural changes where other methods are effective in providing accessibility; however, when choosing how to provide access through non-structural changes, the method that results in the most integrated setting appropriate to encourage interaction among all users, including disabled persons must be given priority.
g. It is acceptable to relocate a program, service, or activity from inaccessible locations to accessible locations upon request.
h. If a facility has only limited accessibility, signs should direct the public to the areas of accessibility.
i. Where the Township has multiple facilities that provide the same service, program, or activity, the Township only needs to make some of those facilities accessible, not all. However, it must have scheduling policies in place to accommodate requests for accessible fields, player areas, or spectator seating.
j. In deciding whether to make all or some facilities accessible where the same service, program or activity is held in more than one location, the Township will consider what is reasonable under the circumstances to make the program readily accessible to and usable by individuals with disabilities, taking into account such factors as the size of the Township, the particular program features offered at each site, the geographical distance between sites, the travel times to the sites, the number of sites, and availability of public transportation to the sites.
5. Millcreek Township's Services, Programs, And Activities
Millcreek Township identified and considered the following programs, services, and activities in evaluating its compliance with the ADA's "program accessibility" requirement and developing this Transition Plan:
a. General Municipal Services: Millcreek provides a variety of general municipal services which are all located in the Township Municipal Building. The services
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 16 of 152
provided to the public at the Municipal Building on the first floor include the public meeting room where supervisors meetings and other meetings are held and services provided, a general information desk, the police department, the real estate tax department, the recycling coordinator's office and restrooms. The services provided on the second floor include the Supervisor's Office, the Parks & Recreation Department Office, the engineering office, and a conference room.
b. Recycling Center: The Millfair Compost & Recycling Center is a joint venture between Millcreek Township and Fairview Township. It allows the public to drop off specific types of organic yard materials. It also offers for sale landscaping materials such as topsoil, mulch, wood chips, and compost. This is simply a drive up and drop off or pick up location; it is not retail space.
c. Education Programs and Fitness/Dance Classes: The Township offers a variety of educational programs and fitness/dance classes at various facilities within Millcreek Township, some of which it owns and some of which are owned by the Millcreek Township School District ("MTSD"). Education classes include programs such as radio control airplane instruction, baby sitter clinic, painting, knitting and other arts and crafts classes. Fitness/dance classes include programs such as aerobics, weight training, yoga, martial arts, adult and youth dances (e.g., zumba, ballet, Hip Hop). These programs are held at the following locations: Asbury Barn; McDowell Intermediate High School; West Lake Middle School and JS Wilson Middle School.
d. Tennis Lessons: The Township offers tennis lessons at a variety of levels in three locations: Asbury Park, Zuck Park and McDowell High School. There are no viewing stands or other amenities offered at any of the tennis courts. The same lessons are offered at each location.
e. Public Pools and Recreational and Instructional Swimming: The Township offers swim lessons, swim exercise classes and open swim recreation in three (3) pools in Millcreek Township: the Belle Valley Pool (outdoor), Chestnut Hill Pool (outdoor) and the McDowell Intermediate School pool (indoor). The same swim lessons and recreational use programs are offered at all three locations; the exercise classes are offered at the McDowell Intermediate Pool year round and the Chestnut Hill Pool in the summer.
f. Golf Lessons: Golf lessons are offered at the Millcreek Golf and Learning Center. The golf course and club house have been closed for several years while the driving range remained open, but the Township plans to reopen the golf course and club house in 2018.
g. Community Parks: The Township has numerous Community Parks spread throughout the Township. Some include numerous amenities for recreation, including picnic pavilions, restrooms, hiking trails, tennis courts, ballfields,
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playground equipment, basketball courts, volleyball courts, and a fishing pier. Many others parks are simply green spaces with little or no amenities. The Community Parks in Millcreek are: (1) Asbury Park; (2) Atlantic Blvd. Park; (3) Avalon Park; (4) Belle Valley Park; (5) Boulevard Park; (6) Briar Park; (7) Bridger Park; (8) Edgevale/Bladen Park; (9) Highland Park; (10) Lakewood Park; (11) Maplewood Park; (12) Montclair Park; (13) Richmond & Gore Park; (14) Scott Park; (15) Venice Park; (16) Veterans Park; (17) Wander Park; (18) Westbury Park; (19) Wunch Park; and (20) Zuck Park.
h. Public Golf Courses: There are two public golf courses in the Township owned by the Township: Erie Golf Course and the Millcreek Golf and Learning Center. The golf course and club house at the Millcreek Golf and Learning Center have been closed for several years while the driving range remained open, but the Township plans to reopen the golf course and club house in 2018.
i. Summer Day Camps: Millcreek offers an annual summer day camp based at the Asbury Barn at Asbury Park.
j. Facility Rentals: The Township offers the following facilities for rental to the general public: Asbury Barn, and the picnic pavilions at Asbury Park, Veterans Park, Scott Park and Zuck Park.
6. Millcreek Township's Facility Survey
The physical obstacles at Millcreek's parks and facilities addressed in the next section were identified during an accessibility survey commissioned by Millcreek Township pursuant to the terms of a Consent Decree entered into between Millcreek Township and Voices for Independence, which was accepted and entered by the United States District Court for the Western District of Pennsylvania. The accessibility survey of Millcreek's buildings and parks was conducted by Accessibility Services, a program of the United Spinal Association, in conjunction with the Township's outside law firm for solicitor services, MacDonald, Illig, Jones & Britton, LLP. Accessibility Services, led by Vice President Dominic Marinelli, routinely evaluates buildings for ADA compliance. Accessibility Services is a nationally recognized ADA consultant that has assisted in ensuring that numerous high-profile projects met ADA standards, including numerous sporting venues such as Lincoln Financial Field in Philadelphia and Madison Square Garden, numerous universities including Cornell and Princeton, and many other public buildings/facilities in New York, New Jersey, Pennsylvania and across the country.
The Survey identified various existing Facility components that did not comply with current ADA standards. A copy of the Survey is attached as Exhibit A. The Township formed a committee comprised of representatives from the Engineering Department, the Streets Department, Building Maintenance Department, and the Parks and Recreation Department as well as the Township Solicitor and representatives from the United Spinal Association to review the findings of the Survey and make an assessment of what steps to take moving forward. Based upon a review of
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the programs, activities and services held at each of those Facilities, the committee proposed the following:
 First, improvements will be made at Millcreek Township's Municipal Building, and appropriate signage will be added at Millcreek Township's Recycling Center.
 Second, improvements will be made at the Erie Golf Course, and the driving range at the Millcreek Golf and Learning Center, which is the only portion of that facility that has been open for several years. Other improvements at the Millcreek Golf and Learning Center will be made before the club house or golf course reopens to the public.
 Third, with respect to the public parks within Millcreek:
o No action will be taken in the six (6) parks that consist only of green space: Boulevard; Briar; Edgevale/Bladen; Venice; Wander and Westbury.
o Of the fourteen (14) remaining parks, eight (8) parks will be improved (Asbury; Belle Valley; Bridger; Highland; Lakewood; Scott; Veterans and Zuck Parks), while no action will be taken at the remaining six (6) parks (Atlantic Blvd.; Avalon; Maplewood; Montclair; Richmond & Gore and Wunch Parks). The parks selected to be improved are distributed throughout the Township and contain all of the same amenities provided by the Parks that are not to be improved.
o Of the two other properties containing ballfields that are controlled in whole or in part by the Township, improvements will be made to four (4) of the ballfields at the David Long Complex at Walnut Creek Middle School and no action will be taken at the two (2) ballfields at the former Asbury Elementary School fields at 38th and Asbury. Improvements will also be made at the ballfields at Asbury, Belle Valley, and Scott Parks.
 Fourth, improvements will be made at three (3) facilities owned by the Millcreek Township School District that are used by the Township for its programs, services or activities. They are McDowell Intermediate High School; West Lake Middle School and JS Wilson Middle School
The proposed plan was then approved by the Township Supervisors and published for public input and comment. A PowerPoint summary of the Plan also was made available to the public to review, which is attached hereto as Exhibit B. Between the approval of the proposed plan and the adoption of this final Transition Plan, additional improvements for the Millcreek Golf and Learning Center were added into the Plan as the Township now anticipates reopening that facility in 2018.
Section 7 below contains a complete list of the improvements at each facility or location that will be made to achieve program accessibility, and Section 8 below contains a list of the work and improvements at each facility or location that already have been completed.
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7. Physical Obstacles That Limit Program Accessibility, Planned Improvements To Achieve Program Accessibility, Schedule For Implementation Of Planned Improvements, And List Of Completed Improvements

a. Asbury Barn/Park, 4106 Asbury Road

Item A

Space
Accessible Parking – Lower Level of Barn

Physical Obstacle
At 7.9%, slope of accessible parking spaces significantly exceeds 2% maximum running slope

Method or Improvements to Make Accessible
Accessible parking spaces for the lower level of the Asbury Barn will be provided on or before 12/31/2018.

B

Accessible 9.8% slope of accessible

No structural changes feasible

Parking – parking spaces significantly

due to topography and costs.

Upper

exceeds 2% maximum running To the extent a Township

Level

slope

program, service or activity is

held or provided in the upper

level of the Asbury Barn, the

Township will provide notice

that anyone needing special

access arrangements advise

the Township in advance, and

arrangements will be made to

assist with access or to move

the program, service or

activity to a different location.

The Township will be adding

ADA compliant railings on

each side of the entrance to

assist with access on or

before 12/31/2017.

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Item C

Space
Entrance – Lower Level of Barn

Physical Obstacle
Slope at entrance exceeds 2% maximum slope

Method or Improvements to Make Accessible
The slope from of the accessible route from the accessible parking to the lower level of the Asbury Barn entrance will be made compliant on or before 12/31/2018.

D

Accessible Accessible parking spaces

Accessible parking spaces in

Parking for have not been provided at

the lower lot to serve the

park areas upper park parking area near baseball playing field will be

tennis courts (1 sign provided, provided on or before

no striping, no access aisle, 12/31/2017. Accessible

surface uneven with

parking spaces in the upper

slopes/cross slopes greater

lot to serve the tennis courts,

than 2%) or lower park

picnic pavilion, volleyball

parking area near shelter

court, accessible play

equipment and the restrooms

will be provided on or before

12/31/2017. Accessible

parking spaces to serve the

basketball court and baseball

viewing area will be provided

on or before 12/31/2017.

E

Accessible Sidewalk from lower parking An accessible route to the

Route

slope exceeds 8.33% with

picnic pavilion, volleyball

cross slopes greater than 2%, court and accessible play

(approx. 120 feet)

equipment will be provided

on or before 12/31/2017.

F

Accessible Sidewalk from lower parking An accessible route to the

Route

to tennis courts cross slope

tennis courts and restroom

greater than 2%, damaged

will be provided from the

and uneven surface

upper lot on or before

12/31/2017.

G

Accessible Accessible route to playground Will install accessible play

Route

damaged and uneven

equipment in new location

adjacent to volleyball court

with accessible route on or

before 6/30/2018.

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Item H I J
K L

Space

Physical Obstacle

Accessible Route
Playground

Accessible route has not been provided to volleyball court from main sidewalk Solid surface has not been provided at playground area

Baseball Field

Route to ball field seating damaged and uneven

Baseball Field

Accessible seating area has not been provided

Accessible Accessible route has not been

Route

provided to playing field

Method or Improvements to Make Accessible
Will install accessible route on or before 12/31/2017.
Will install accessible play equipment in new location adjacent to volleyball court with accessible route on or before 6/30/2018. An accessible route will be provided on or before 12/31/2017 to the north dugout. Access to the east dugout via the hard packed playing field. Wheelchair accessible area will be provided in north and east dugout between the benches on or before 12/31/2017. An accessible route will be provided on or before 12/31/2017 to the north dugout. Access to the east dugout via the hard packed playing field.

b. Belle Valley Park, 5300 Henderson Road

Item Space

Physical Obstacle

A

Accessible Accessible Parking has not

Parking been provided with firm,

stable, slip-resistant surface.

Method or Improvements to Make Accessible
ADA Compliant parking will be added to the park in the vicinity of the restrooms, which will be relied upon to serve the entire park, except for the playground area, on or before 12/31/2018.

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Item Space

Physical Obstacle

B

Accessible Accessible Parking has not

Parking been provided proximate to

picnic pavilion

Method or Improvements to Make Accessible
ADA Compliant parking will be added to the park in the vicinity of the restrooms, which will be relied upon to serve the picnic pavilion, on or before 12/31/2018.

C

Picnic

Accessible Route has not been An accessible route will be

Pavilion provided between accessible added from the ADA

parking and pavilion.

compliant parking spaces to

the picnic pavilion on or

before 12/31/2018.

D

Basketball Accessible parking has not

ADA Compliant parking will be

Court

been provided

added to the park in the

vicinity of the restrooms,

which will be relied upon to

serve the entire park, except

for the playground area on or

before 12/31/2018.

E

Basketball Accessible route has not been An accessible route will be

Court

provided to Basketball Court added from the ADA

compliant parking spaces by

the restrooms to the picnic

pavilion, basketball court,

restrooms, ballfield and

volleyball court on or before

12/31/2018.

F

Baseball Accessible parking has not

ADA Compliant parking will be

Field

been provided

added to the park in the

vicinity of the restrooms,

which will be relied upon to

serve the entire park, except

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Item G
H I J

Space

Physical Obstacle

Baseball Field

Accessible route has not been provided

Playground Accessible parking has not been provided
Playground Accessible route has not been provided

Volleyball Accessible route has not been

Court

provided to Volleyball Court

Method or Improvements to Make Accessible
for the playground area, on or before 12/31/2018. An accessible route will be added from the ADA compliant parking spaces to the picnic pavilion, basketball court, restrooms, ballfield and volleyball court on or before 12/31/2018. ADA Compliant parking will be added to the park in the vicinity of the playground on or before 12/31/2018. An accessible route will be added from the ADA compliant parking spaces to the accessible play equipment on or before 12/31/2018. An accessible route will be added from the ADA compliant parking spaces to the picnic pavilion, basketball court, restrooms, ballfield and volleyball court on or before 12/31/2018

K

Men's

Door pull side clearance, floor The entrance to the bathroom

Single

surface cross slope measures will be made ADA Compliant

User Toilet 9.0%, requires 2.0%

on or before 12/31/2018.

Room

maximum cross slope, slope

measures 2.8%, requires

2.0% maximum slope

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 24 of 152

c. Belle Valley Pool, 5300 Henderson Road

Item A

Space

Physical Obstacle

Pool

Accessible Parking has not

Complex been provided with firm,

stable, slip-resistant surface.

Method or Improvements to Make Accessible
ADA Compliant parking will be provided at the Belle Valley Pool across from the main entrance on or before 12/31/2018.

B

Pool

Accessible route has not been An accessible route will be

Complex provided into Pool Complex. added from the ADA

compliant parking to the Belle

Valley Pool's main entrance

on or before 12/31/2018.

C

Exterior Accessible route has not been An accessible route will be

Shelter provided to shelter area

provided on or before

behind men’s changing room 12/31/2018.

d. Bridger Park, Old Zimmerly Road

Item Space

Physical Obstacle

A

Accessible Accessible parking space

parking running slope measures up to

3.3%, requires 2% maximum

Method or Improvements to Make Accessible
Running slope of accessible parking space to be corrected on or before 12/31/2017.

e. Erie Golf Course, 6050 Old Zuck Road

Item A

Space
Accessible parking, nearest

Physical Obstacle
Accessible parking space cross slope measures 3.7% to 4.2%,

Method or Improvements to Make Accessible
Improvements will be made to make parking and accessible routes from

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Item B C
D E F G

Space
exterior patio (space 1) Accessible Parking space (space 3)
Accessible Parking space (space 4 van accessible) Accessible Parking Signage
Accessible Parking Signage Signage
Accessible Route to Tees

Physical Obstacle
requires 2% maximum cross slope
Accessible parking space cross slope measures 2.8%, requires 2% maximum cross slope
Accessible parking space cross slope measures 2.9%, requires 2% maximum cross slope
(3) accessible spaces provided with accessible parking signage at 44 to 48 inches AFF, requires 60 inches to the bottom of sign, all locations (1) accessible parking space has not been provided with accessible parking sign Accessible route has not been identified with signage, through exterior patio into banquet hall door Accessible route to Tees has not been provided.

Method or Improvements to Make Accessible
parking ADA compliant on or before 12/31/2018.
Improvements will be made to make parking and accessible routes from parking ADA compliant on or before 12/31/2018. Improvements will be made to make parking and accessible routes from parking ADA compliant on or before 12/31/2018.
Appropriate signage will be added on or before 12/31/2018.
Appropriate signage will be added on or before 12/31/2018. Appropriate signage will be added on or before 12/31/2018.
An ADA accessible golf cart will be acquired by the Golf Course management company on or before 5/1/2018.

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f. Millcreek Golf and Learning Center, 3100 West 17th Street

Item

Space

Physical Obstacle

Method or

Improvements

to Make Accessible

Note: Building currently is not being used by or held open to the public. The

improvements below will be made before building is held open to the public.

A

Driving

Accessible Route has not been ADA compliant accessible

Range

provided to Driving Range

parking and an accessible

route will be provided for

the clubhouse building

before the golf course or

clubhouse reopens to the

public. An ADA accessible

golf cart will be available

when the golf course

reopens to the public for

access to the driving range.

B

Accessible At 6.2%, 9.3% slope of two ADA compliant accessible

Parking

(2) existing accessible parking parking will be provided for

spaces and access aisle

the clubhouse building

exceed 2% maximum running before the golf course or

slope

clubhouse reopens to the

public.

C

Building

Running slope of landing at An ADA compliant accessible

Entrance

rear entrance is 2.6%

route will be provided to a

building entrance from ADA

accessible parking before

the golf course or clubhouse

reopens to the public.

D

Bar

Height of bar counter is 41 inches AFF

Improvements will be made to make seating in the bar area ADA compliant before the clubhouse reopens to the public.

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Item

Space

Physical Obstacle

Method or Improvements to Make Accessible

E

Golf Course - Accessible Route has not been An ADA accessible golf cart

Driving

provided to Driving Range, will be available when the

Range and Holes

golf course reopens to the

Future Holes

public.

g. Highland Park, West 22nd Street

Item Space

Physical Obstacle

A

Accessible Accessible route has not been

Route

provided to Picnic Tables

Method or Improvements to Make Accessible
An ADA complaint accessible route will be provided on or before 12/31/2017.

B

Accessible Accessible route has not been An ADA compliant accessible

Route

provided between Picnic Tables route will be provided on or

and Play Area

before 12/31/2017.

h. Lakewood Park, West 10th Street and Oakmont Avenue

Item Space

Physical Obstacle

A

Dog Waste Dog waste dispenser has not

been provided on an

accessible route

Method or Improvements to Make Accessible
The dispenser will be moved to an accessible location on or before 12/31/2017.

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i. Millcreek Township Municipal Building, 3608 West 26th Street

Item

Space

1. Exterior Issues

A

Parking

B

Parking

C

Parking

D

Accessible

Route

E

Parking- West

side entrance

F

Access Aisles

Physical Obstacle
Accessible parking spaces right and left of the main entry have not been provided with access aisles
Left accessible parking space cross slope measures 2.7%, requires 2.0% Right accessible parking space slope at front corner measures 2.8% slope, requires 2.0% maximum Accessible route from parking to sidewalk uneven at transition (2) accessible space attempted- (1) designated as accessible Access aisles have not been provided for either space. Accessible parking spaces measures 13 feet wide

Method or Improvements to Make Accessible
A total of five (5) accessible parking spaces will be created in the parking lot. Four (4) accessible parking spaces will be created to the west of the main entrance providing access to the main and western entrances. One (1) accessible parking space will be created to access the Police Station entrance to the far east of the main entrance. Accessible routes from the parking spaces to the entrances will be ADA compliant. The existing attempted ADA parking spaces will be eliminated. These improvements will be made on or before 12/31/2017. See above.
See above.
See above.
See above.
See above.

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Item

Space

Physical Obstacle

G

Parking

Surface

H

Accessible

Route

I

Accessible

Route

J

Accessible

Route

K

Count total

spaces

provided

L

Route to

Public Right

Of Way

2. Interior

A

Reception

Desk

B

Recycle Office

C

Real Estate

Office

Accessible parking spaces surface uneven and damaged Accessible route from west side parking to west sidewalk damaged and uneven Ramp landing/transition from vehicular way, surface cross slope measures 4.4%, requires 2.0% cross slope Southwest portion of sidewalk cross slope measures 3.6% to 2.7%, requires 2.0% cross slope (4) accessible parking spaces attempted, (5) accessible parking spaces required While not required during the original site development, accessible route from Public Right of Way has not been provided from 26th Street and Caughey Road bus stop
Reception desk service counter has not been provided with accessible portion 36 inches AFF, 36 inches wide, measures 42 inches AFF Reception service desk height measures 41 ¾ inches AFF, requires 36 inches AFF maximum x 36 inches Reception service desk height measures 42 inches

Method or Improvements to Make Accessible
See above.
See above.
See above.
See above.
See above.
An ADA compliant accessible route will be installed between W. 26th Street and the front entrance of the municipal building on or before 12/31/2018.
The service desk will be modified to add an ADA compliant hinged counter on or before 12/31/2017.
The service desk will be modified to be ADA compliant on or before 12/31/2017.
The service desk will be modified to be ADA compliant on or before 12/31/2017.

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Item

Space

Physical Obstacle

AFF, requires 36 inches AFF

maximum x 36 inches

D

Income Tax Reception service desk

Office

height measures 42 inches

AFF, requires 36 inches AFF

maximum x 36 inches

E

Administrative Reception service desk

Office

height measures 42 ½

inches AFF, requires 36

inches AFF maximum x 36

inches

F

Engineering/ Engineering/Zoning

Zoning Office reception service desk

height measures 42 inches

AFF, requires 36 inches AFF

maximum x 36 inches

G

Police Office Service desk height

measures 42 inches AFF,

requires 36 inches AFF

maximum x 36 inches

H

Parks &

Reception service desk

Recreation height measures 42 inches

AFF, requires 36 inches AFF

maximum x 36 inches

Method or Improvements to Make Accessible
The service desk will be modified to be ADA compliant on or before 12/31/2017.
The service desk will be modified to be ADA compliant on or before 12/31/2017.
The service desk will be modified to be ADA compliant on or before 12/31/2017.
The service desk will be modified to be ADA compliant on or before 12/31/2017.
The service desk will be modified to be ADA compliant on or before 12/31/2017

j. Scott Park, West 6th and Lowell Avenue

Item Space

A

Parking

Physical Obstacle
Accessible parking spaces have not been designated or identified

Method or Improvements to Make Accessible
ADA compliant accessible parking will be provided for the north ball field on or before 12/31/2019. ADA compliant accessible parking will be provided for the restrooms on or before 12/31/2019. ADA compliant accessible parking will be provided for the volleyball and basketball courts on or

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Item
B C D E

Space

Physical Obstacle

Accessible route
Accessible route
Accessible route

Accessible route has not been provided from parking to basketball courts Accessible route has not been provided from parking to volleyball court Accessible route to toilet rooms incomplete

Accessible Accessible route to baseball

route

seating has not been provided

Method or Improvements to Make Accessible
before 12/31/2019. ADA compliant accessible parking will be provided for the south ball field, playground and picnic pavilion on or before 12/31/2019. An ADA compliant accessible route will be provided on or before 12/31/2019. An ADA compliant accessible route will be provided on or before 12/31/2019. An ADA compliant accessible route will be provided on or before 12/31/2019. An ADA compliant accessible route will be provided on or before 12/31/2019.

k. Walnut Creek/David Long Complex, Thomas Road

Item A

Space

Physical Obstacle

Accessible Accessible route has not been

Route

provided between ball fields

and concessions

Method or Improvements to Make Accessible
Accessible route from the accessible parking to two ballfields and concession stand have been provided. An ADA compliant accessible route to balance of complex will be provided on or before 12/31/2020. (Millcreek Youth Athletic Association responsible for this work).

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l. Zuck Park, Zuck Road and West Grandview Boulevard

Item A

Space
Accessible Parking at Picnic Pavilion

Physical Obstacle
Accessible parking has not been provided to picnic pavilion and West Grandview Play Area

Method or Improvements to Make Accessible
ADA compliant accessible parking will be provided on or before 12/31/2018.

B

Accessible Accessible route has not been An ADA compliant accessible

Parking at provided to West Grandview route will be provided on or

Play Area Play Area

before 12/31/2018.

C

Play Area Accessible route has not been An ADA compliant accessible

provided to West Grandview route will be provided on or

Play Area

before 12/31/2018.

D

Play Area Accessible route has not been An ADA compliant accessible

provided to and throughout

route will be provided on or

West Grandview Play Area

before 12/31/2018.

E

Play Area Accessible route has not been An ADA compliant accessible

provided to potential transfer route will be provided on or

station (12 inch high stairs)

before 12/31/2018.

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Item Space

Physical Obstacle

Method or Improvements to Make Accessible

m. J.S. Wilson Middle School, 901 W. 54th Street*

Item Space

Physical Obstacle

Method or Improvements

to Make Accessible

A

Parking - (4) accessible parking spaces ADA compliant accessible

(4)

at entry, slopes exceed 2%

parking will be provided on or

Accessible maximum, measures 0% to

before 12/31/2019.

Parking 6% slope; Access aisle slope

Spaces at exceeds 2% maximum,

Main

measures 4.2%; Accessible

Entry

parking signage is not located

at 60 inches AFF

B

Accessible Slope exceeds 5% maximum, An ADA compliant accessible

Route

measures 0% to 6.3%, cross route will be provided on or

from

slope exceeds 2% maximum, before 12/31/2019.

Parking measures 0% to 5.2%

Lot to

Main

Entry

C

Boys

ADA Bench Missing

An ADA bench will be

Locker

provided on or before August

Room

31, 2017.

D

Girls

ADA Bench Missing

An ADA bench will be

Locker

provided on or before August

Room

31, 2017.

*Work for accessible parking and accessible route through parking lot will be completed

by Township; remaining work will be completed by MTSD

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n. McDowell Intermediate High School, 3320 Caughey Road*

Item

Space

Physical Obstacle

Method or Improvements

to Make Accessible

A

Parking - (4) (4) Accessible Parking

ADA compliant accessible

Accessible Spaces At Entry, Slopes

parking will be provided on or

Parking

Exceed 2% Maximum,

before 12/31/2018.

Spaces At

Measures 0% To 8.3%

Main Entry Slope; Access Aisle Slope

Exceeds 2% Maximum,

Measures 4.2%; Accessible

Parking Signage Is Not

Located At 60 Inches AFF

B

Interior

Three interior ramps --

A second railing will be added

Accessible Railing On One Side, Two on or before August 31, 2018.

Route -

Required

Ramp

Railings

C

Route from Doors Do Not Provide 36” Accessible clearance will be

Auditorium Minimum Clear Width

provided on or before August

To Stage

31, 2018.

D

Fitness

Ramp Exceeds Slope

Ramp will be made ADA

Center/Dance Maximum

compliant on or before

- Ramp

August 31, 2018.

E

Gymnasium Threshold Change In Level - Threshold will be made ADA

Change In Level Of 2”

compliant or before August

Exceeds ½” Maximum

31, 2018.

F

Gymnasium No Signage

ADA compliant signage will be

provided on or before August

31, 2018.

* Work for accessible parking and accessible route through parking lot will be

completed by Township; remaining work will be completed by MTSD

o. Westlake Middle School, 4330 W. Lake Road*

Item A

Space
Parking (4) Accessible Parking Spaces At

Physical Obstacle
(4) Accessible Parking Spaces At Gymnasium Entry, Slopes Exceed 2% Maximum, Measures 0% To 10.4% Slope; Access Aisle Slope

Method or Improvements to Make Accessible
ADA compliant accessible parking will be provided on or before 12/31/2019.

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Gymnasium Exceeds 2% Maximum,

Entry

Measures 6.3%

B

Art Room - Depth greater than 6 ½”

The sink will be made ADA

Sink Depth

compliant by August 2018 or

the program will be moved to

an ADA compliant location.

*Work for accessible parking and accessible route through parking lot will be completed

by Township; remaining work will be completed by MTSD

8. Completed Improvements And Work To Eliminate Physical Obstacles And Achieve Program Accessibility

a. Asbury Barn/Park, 4106 Asbury Road

Item A

Space
Single-Use Toilet Room

Physical Obstacle
Door with closer does not provide 12 inches minimum push-side, latch-side clearance

Method or Improvements to Make Accessible
Improvements completed making bathroom make ADA compliant.

B

Grab Bar At 27 ½ inches, height of grab Improvements completed

bar is not 33 to 36 inches

making bathroom make ADA

maximum AFF required.

compliant.

C

Toilet

Toilet paper dispenser has

Improvements completed

Paper

been located above 30 inch making bathroom make ADA

Dispenser wall

compliant.

D

Baby

At 37 inches, baby-changing Improvements completed

Changing table exceeds 34 inch

making bathroom make ADA

Table

maximum height permitted

compliant.

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Item Space

E

Flush-

Valve

F

Mirror

G

Lavatory

Physical Obstacle
Flush-valve has not been located on open-side of water closet At 47 ½ inches, reflecting surface of mirror exceeds 40 inch maximum reflecting surface permitted Insulation has not been provided beneath water supply and drain pipes.

Method or Improvements to Make Accessible
Improvements completed making bathroom make ADA compliant. Improvements completed making bathroom make ADA compliant.
Improvements completed making bathroom make ADA compliant.

H

Picnic

Accessible portion of picnic

ADA Picnic Table has been

Table

table has not been provided provided

b. Belle Valley Park, 5300 Henderson Road

Item A B
C

Space
Picnic Table Women’s Single User Toilet Room Women’s Single User Toilet Room Water Closet

Physical Obstacle
Accessible Picnic Table has not been provided Side wall grab bar measures 36 inches, requires 42 inches minimum

Method or Improvements to Make Accessible
An accessible picnic table has been provided. Improvements completed making bathroom make ADA compliant.

Rear wall grab bar measures 11 inches from side wall, requires 6 inches from side wall

Improvements completed making bathroom make ADA compliant.

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Item D
E F G

Space
Women’s Single User Toilet Room Water Closet Women’s Single User Toilet Room Men’s Single User Toilet Room Men’s Single User Toilet Room

Physical Obstacle
Flush valve removed as part of winterization, ensure located on the open side of water closet away from side wall

Method or Improvements to Make Accessible
Improvements completed making bathroom make ADA compliant.

Knee space under lavatory obstructed and does not provide 17 inches clear

Improvements completed making bathroom make ADA compliant.

Side wall grab bar measures 36 inches, requires 42 inches minimum

Improvements completed making bathroom make ADA compliant.

Knee space under lavatory obstructed and does not provide 17 inches clear

Improvements completed making bathroom make ADA compliant.

c. Belle Valley Pool, 5300 Henderson Road

Item Space

A

Exterior

Drinking

Fountain

B

Exterior

Drinking

Fountain

C

Dinning

Surface

Physical Obstacle
Spout located at 39 inches AFF, requires 36 inches maximum Underside of drinking fountain measures 30 inches AFF, requires 27 inches AFF to provide knee clearance and cane detection Picnic table provided as dinning surface, accessible knee clearance obstructed with table seats and structure.

Method or Improvements to Make Accessible
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
An accessible picnic table has been provided.

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Item D E
F G H I J
K
L
M

Space
Emergency Phone
Concessions Service Counter
Men’s Changing Room Men’s Changing Room Men’s Changing Room
Men’s Changing Room Men’s Changing Room Accessible Stall Men’s Changing Room Accessible Stall Men’s Changing Room Accessible Stall Men’s Changing Room -

Physical Obstacle
(1) accessible dinning surface required Phone operable parts measure 59 inches AFF, requires 48 inches AFF maximum Service counter measures 41 ¾ inches AFF, requires 36 inches maximum AFF, 36 inches wide minimum for full depth Signage has not been provided at Men’s toile/Changing room, required Accessible bench required for changing room, no accessible bench provided Mirror measures 42 ¾ inches AFF, requires 40 inches maximum AFF to bottom of reflecting surface Pipe insulation has not been provide under accessible lavatory, required Side wall grab bar measures 33 inches, requires 42 inches minimum
Rear wall grab bar measures 8 ½ inches from side wall, requires 6 inches maximum. Bar measures 48 inches, requires 36 inches minimum. Compartment door has been provided with hardware one side, requires both sides
Flush valve located closed side towards side wall, requires location at open side (water

Method or Improvements to Make Accessible
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

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Item N O P Q R S T U V

Space
Accessible Stall Women’s Changing Room Women’s Changing Room
Women’s Changing Room Women’s Changing Room Ambulatory Stall Women’s Changing Room Accessible Stall Women’s Changing Room Accessible Stall Women’s Changing Room Accessible Stall Women’s Changing Room Accessible Stall Women’s Changing Room

Physical Obstacle
closet plumbing being repaired at time of inspection) Accessible bench required for changing room, no accessible bench provided Mirror measures 42 ¼ inches AFF, requires 40 inches maximum AFF to bottom of reflecting surface Pipe insulation has not been provide under accessible lavatory, required (6) toilet fixtures have been provided, ambulatory stall required, no ambulatory stall provided

Method or Improvements to Make Accessible
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.

Door hardware has been provided one side of door, requires both sides

Improvements have been completed that make this ADA compliant.

Coat hook installed at 66 ½ Improvements have been

inches AFF, requires 48 inches completed that make this

AFF maximum

ADA compliant.

Side wall grab bar measures 33 inches, requires 42 inches minimum

Improvements have been completed that make this ADA compliant.

Rear wall grab bar measures 8 ½ inches from side wall, requires 6 inches maximum. Bar measures 48 inches, requires 36 inches minimum. Baby changing table measures 37 inches AFF to work surface, requires 34 inches maximum

Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

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d. Erie Golf Course, 6050 Old Zuck Road

Item Space

A

Bar

B

Tables

C

Banquet

Room

D

Men’s

Toilet

Room

E

Men’s

Toilet

Room

F

Women’s

Toilet

Room

G

Women’s

Toilet

Room

H

Women’s

Toilet

Room

Physical Obstacle
Bar are area has not been provided with a portion for accessible seating, 34 inches AFF, 36 inches minimum width, with 27 inches toe/knee clearance (11) pedestal tables have been provided in eating/ drinking area, accessible option has not been provided Entry door from bar provided with 11 ½ inches pull side clearance, requires 18 inches minimum clearance 36 inch rear grab bar measures 12 inches from side wall, requires 6 inches Paper towel dispenser installed with highest operable part at 51 inches AFF, requires 48 inches maximum Door opening force exceeds 5 pounds maximum force as required 55 inches maneuvering clearance depth required on pull side of bathroom door; with 21 inches latch-side clearance Paper towel dispenser installed with highest operable part at 53 inches AFF, requires 48 inches maximum

Method or Improvements to Make Accessible
An accessible table has been provided.
An accessible table has been provided.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

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Item Space

I

Women’s

Toilet

Room

J

Women’s

Toilet

Room

Physical Obstacle
Compartment door hardware provided one side of door, requires both sides 36 inch rear grab bar measures 12 inches from side wall, requires 6 inches

Method or Improvements to Make Accessible
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.

e. Millcreek Golf and Learning Center, 3100 West 17th Street

Item

Space

Physical Obstacle

Method or

Improvements

to Make Accessible

Note: Building currently is not being used by or held open to the public. The

improvements below will be made before building is held open to the public.

A

Women’s

Maximum opening force of

Improvements have been

Toilet Room - entry door exceeds 5 pounds completed that make this

Entry Door maximum opening force

ADA compliant.

permitted

B

Women’s

At 53 ½ inches in depth,

Improvements have been

Toilet Room - accessible compartment does completed that make this

Accessible not provide 59 inch minimum ADA compliant.

Compartment depth required

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Item C D E F G
H I
J K L

Space
Women’s Toilet Room Water Closet Women’s Toilet Room Flush Valve Women’s Toilet Room Grab Bars Women’s Toilet Room Grab Bars Women’s Toilet Room - Coat Hook (on Compartment Door) Women’s Toilet Room - Mirror
Women’s Toilet Room - Paper Towel Dispenser Men’s Toilet Room - Entry Door
Men’s Toilet Room Accessible Compartment Men’s Toilet Room - Grab Bars

Physical Obstacle
At 18 ½ inches centerline of water closet > 18 inches from partition There is not 1 ½ inch minimum between flush valve and rear grab bar At 7 inches, 42 inch parallel (side) wall grab bar does not begin 12 inches from rear wall At 1 inch, rear grab bar does not begin 6 inches from parallel (side) wall Coat hook on compartment door > 54 inches maximum height permitted by 1991 ADA Standards
At 41 inches, reflecting surface of mirror exceeds 40 inch maximum reflecting surface permitted At 56 inches, operable part of paper towel dispenser exceeds 54 maximum height permitted by 1991 ADA Standards Maximum opening force of entry door exceeds 5 pounds maximum opening force permitted At 53 inches in depth, accessible compartment does not provide 59 inch minimum depth required At 9 ½ inches, 42 inch parallel (side) wall grab bar does not begin 12 inches from rear wall

Method or Improvements to Make Accessible Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 43 of 152

Item M N
O P

Space
Men’s Toilet Room - Grab Bars Men’s Toilet Room - Coat Hook (on Compartment Door) Men’s Toilet Room Mirror
Drinking Fountain Spout

Physical Obstacle
At 1 inch, rear grab bar does not begin 6 inches from parallel (side) wall Coat hook on compartment door > 54 inches maximum height permitted by 1991 ADA Standards
At 41 inches, reflecting surface of mirror exceeds 40 inch maximum reflecting surface permitted While spout height of drinking fountain is at compliant 36 inches, (i.e., 1991 ADA Standards did not require forward approach beneath drinking fountain); spout to accommodate individuals who have difficulty bending or stooping has not been provided.

Method or Improvements to Make Accessible Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

f. Highland Park, West 22nd Street

Item Space

Physical Obstacle

A

Accessible Accessible surface has not

Play

been provided throughout the

Surface Play Area

Method or Improvements to Make Accessible
An ADA compliant surface for access throughout the playground area has been provided.

B

Accessible Accessible route has not been An ADA compliant accessible

Route

provided to potential transfer route to the playground

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Item

Space

Physical Obstacle

station (6 inches high and 12 inch high stairs transfer has been provided)

Method or Improvements to Make Accessible
exists. An ADA compliant surface for access throughout the playground area has been provided.

C

Picnic

Accessible Picnic Table has not An accessible table has been

Table

been provided

provided.

g. Lakewood Park, West 10th Street and Oakmont Avenue

Item A B
C

Space

Physical Obstacle

Parking
Playground equipment

Accessible parking has not been provided Accessible route has not been provided to playground equipment from parking, public right of way or within park

Playground equipment

Accessible route has not been provided to playground equipment from parking, public right of way or within park

Method or Improvements to Make Accessible
ADA compliant accessible parking has been provided An ADA compliant accessible route to the playground has been provided. An ADA compliant accessible route within playground area has been provided. ADA compliant surface to existing ADA compliant swing-set has been provided.

h. Millcreek Township Municipal Building, 3608 West 26th Street

Item Space

A

Meeting

Space

Physical Obstacle
Raised platform for speaker/town council use has not been provided with accessible route

Method or Improvements to Make Accessible
An ADA compliant accessible speaker area has been provided for each public meeting.

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Item B C D E F G H I
J

Space

Physical Obstacle

Left Hall Brochure Cabinet Fire Extinguish ers First floor
Recycle Office Entry Door
Real Estate Office
Parks & Recreation
Administra tive Office
Fire Extinguish er 2nd Floor First Floor Men’s Toilet Room Accessible water closet compartm ent First Floor Men’s Toilet Room

Wall mounted cabinet top two rows mounted greater than 54 inches AFF (2) Wall mounted fire extinguisher mounted at 36 inches to 63 inches AFF and does not provide cane detection 57 inches pull side clearance depth provided at door maneuvering clearance, office storage obstructs required space Entry door recessed 14 ½ inches with 3 inches of pull side clearance. Requires 18 inches minimum Entry door pull side entry measures 9 ½ inches clear, requires 18 inches minimum Room signage located on door hinge side, required to be located door side (2) Wall mounted fire extinguisher mounted such that not provided with cane detection Hook installed at 66 ½ inches AFF, requires 48 inches AFF maximum
Water closet flush valve installed on the closed side of the water closet clear floor space, requires open side

Method or Improvements to Make Accessible
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant. Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

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Item K
L M N
O P Q

Space
First Floor Women’s Toilet Room Accessible Water Closet Compartm ent First Floor Women’s Toilet Room Men’s toilet room 2nd Floor Men’s toilet room 2nd Floor Water Closet Compartm ent Men’s toilet room 2nd Floor Women’s Toilet Room 2nd Floor Women’s Toilet Room 2nd Floor Water Closet Compartm ent

Physical Obstacle
Coat hook mounted at 66 ½ inches AFF, requires 48 inches maximum AFF
Entry door clear maneuvering space obstructed on pull side by chair
Entry door signage located on door, requires locating on latch side
Coat hook measures 66 ½ inches AFF, requires 48 inches maximum AFF
Flush valve required to be located on the water closet open side, existing has lush valve on closed side Entry door signage located on door, requires locating on latch side
Coat hook measures 66 ½ inches AFF, requires 48 inches maximum AFF

Method or Improvements to Make Accessible
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.
Improvements have been completed that make this ADA compliant.

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i. Millcreek Township Recycling Center, 2301 Millfair Road

Item A

Space Signage

Physical Obstacle
No directional signage has been provided directing users how to acquire assistance unloading at recycle center

Method or Improvements to Make Accessible
Signage has been provided.

j. Scott Park, West 6th and Lowell Avenue

Item Space

Physical Obstacle

A

Picnic

Accessible portion of picnic

Table

table has not been provided

Method or Improvements to Make Accessible
ADA Picnic Table has been provided

k. Veterans Park, Love Road and Zimmerly Road

Item A B
C
D

Space
Picnic Table Lower Level Accessible Parking Spaces Lower Level Accessible Parking Spaces Lower Level Accessible Parking Spaces

Physical Obstacle
Accessible portion of picnic table has not been provided (2) accessible parking spaces provided with 4.6% to 5.5% cross slope, requires 2% maximum cross slope
Access aisle has not been provided at one accessible parking space
Accessible parking signage has not been located at 60 inches AFF to the bottom of the sign, measures 54 inches and 56 inches

Method or Improvements to Make Accessible
ADA Picnic Table has been provided ADA compliant accessible parking has been provided.
ADA compliant accessible parking has been provided.
ADA compliant accessible parking signage has been provided.

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l. Walnut Creek/David Long Complex, Thomas Road

Item A B
C

Space
Accessible Route from Parking to Ball Fields Accessible Route between Ball Fields
Accessible Parking

Physical Obstacle Accessible route has not been provided from shared parking lot areas to ball fields
Accessible route has not been provided between ball fields and concessions
Site parking shared with school district parking lot, no accessible parking spaces designated from parking areas

Method or Improvements to Make Accessible
An ADA compliant accessible route has been provided.
An ADA compliant accessible route from two ballfields and concession stand have been provided. An ADA compliant accessible route to balance of complex will be provided on or before 12/31/2020. (MYAA responsible for the routes) ADA compliant accessible parking has been provided

m. Zuck Park, Zuck Road and West Grandview Boulevard

Item Space

Physical Obstacle

A

Picnic

Accessible portion of picnic

Table

table has not been provided

Method or Improvements to Make Accessible
ADA Picnic Table has been provided.

n. J.S. Wilson Middle School, 901 W. 54th Street

Item A
B

Space

Physical Obstacle

Art Room 606 - Sink Exposed Pipes Accessible Single User Toilet

Requires Covering Of Exposed Pipes
42” Side Grab Bar Provided, Only 47” From Rear Wall

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant.

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Item C D E F G H

Space
Room – Women’s Boy’s Locker Room
Girls Locker Room Sink Girls Locker Room
Accessible Single User Toilet Room – Mens Girls Locker Room
Girls Locker Room

Physical Obstacle
42” Side Grab Bar Provided, Only 48” from Rear Wall
Exposed Pipes
Toilet Seat
Grab Bar Side Wall - 42” Grab Bar Provided, Only 48” From Rear Wall
Grab Bar Side Wall - 42” Grab Bar Provided, Only 48-1 ½” From Rear Wall 5% ADA Lockers - ADA Lockers Need To Be Labeled

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant.

o. McDowell Intermediate High School, 3320 Caughey Road

Item A

Space
Men’s Accessible Toilet Rooms From Pool Deck

Physical Obstacle
Men’s Accessible Toilet Rooms From Pool Deck - Requires Covering Of Exposed Pipes Requires Tight Grasping

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant.

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Item B C D E F G

Space

Physical Obstacle

Men’s Accessible Toilet Rooms From Pool Deck Men’s Accessible Toilet Rooms From Pool Deck Men’s Accessible Toilet Rooms From Pool Deck Men’s Accessible Toilet Rooms From Pool Deck Women’s Accessible Toilet Rooms From Pool Deck Women’s Accessible Toilet Rooms From Pool Deck

Toilet Seat - Seat Cushion Provided For Student With Particular Needs
Grab Bar Side Wall Only 53” From Rear Wall
Grab Bar Back Wall - Missing 36” Grab Bar
Height To Top Of Grab Bars 32-1/2” High
Sink Requires Covering Of Exposed Pipes Requires Tight Grasping
Toilet Seat - Seat Cushion Provided For Student With Particular Needs

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.

H

Women’s Grab Bar Side Wall Only 53” Improvements already have

Accessible From Rear Wall

been completed by MTSD

Toilet

that make this ADA

Rooms

compliant.

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Item I J K L M N O P

Space

Physical Obstacle

From Pool Deck Women’s Accessible Toilet Rooms From Pool Deck Women’s Accessible Toilet Rooms From Pool Deck Grab Bar Back Wall
Grab Bar Back Wall

Grab Bar Back Wall - Missing 36” Grab Bar
Height To Top Of Grab Bars 32-1/2” High
Sink Exposed Pipes Sink Faucet - Requires Covering Of Exposed Pipes Requires Tight Grasping Grab Bar Side Wall Only 44” From Rear Wall

Grab Bar Grab Bar Back Wall - Missing Back Wall 36” Grab Bar

Women’s Accessible Band/Tech Ed Toilet Room Women’s Accessible Band/Tech Ed Toilet Room Women’s Accessible

Sink - Requires Covering Of Exposed Pipes Requires Tight Grasping
Grab Bar Side Wall Only 44” From Rear Wall
Grab Bar Back Wall - Missing 36” Grab Bar

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant. Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD

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Item Space

Physical Obstacle

Band/Tech

Ed

Toilet

Room

Q

Men’s

Turning Radius -- 54” – Less

Accessible Than 60” Required; Flush

Toilet

valve

Rooms

From Pool

Deck

R

Men’s

Grab Bar Back Wall - Missing

Accessible 36” Grab Bar; Flush valve

Band/Tech

- Toilet

Room

S

Men’s

Grab Bar Back Wall - Missing

Accessible 36” Grab Bar

Band/Tech

- Toilet

Room

Method or Improvements to Make Accessible
that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.

p. Westlake Middle School, 4330 W. Lake Road

Item A
B

Space
Accessible Single User Toilet Room – Men’s Accessible Single User Toilet Room – Men’s

Physical Obstacle
Grab Bar Side Wall - 42” Grab Bar Provided, Only 50” From Rear Wall
Height To Top Of Grab Bars 36- ½” Exceeds 36” Maximum Height

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant.
Improvements already have been completed by MTSD that make this ADA compliant.

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Item Space

Physical Obstacle

C

Accessible Mirror - 40-1/2” Exceeds 40”

Single

Maximum Height

User

Toilet

Room –

Men’s

Method or Improvements to Make Accessible
Improvements already have been completed by MTSD that make this ADA compliant.

9. Curb Ramp Schedule
In 2011, Millcreek Township entered into a Consent Decree with Voices for Independence that provided for Millcreek to compile an inventory of all locations within the Township under the Township's control where pedestrian access routes intersect or cross with Township roads or streets. The inventory identified locations where 1,236 curb ramps or other sloped areas were required under the ADA, excluding 133 ramps installed in 2011 prior to the inventory. In 2013, Millcreek Township entered into a Second Consent Decree with Voices for Independence in which Millcreek agreed to install 1,236 new compliant curb ramps at the locations identified along the following schedule: (a) all 1,236 curb ramps must be installed no later than December 31, 2022; (b) at least 110 curb ramps must be installed each year until all 1,236 ramps are installed; (c) at least 412 ramps must be completed in total by December 31, 2016; and (d) at least 824 ramps must be completed by December 31, 2019. Millcreek has remained ahead of schedule to complete the curb ramp installation required by the Second Consent Decree. As of September 30, 2017, Millcreek has installed a total of 1,049 curb ramps since 2011, and Millcreek has a total 187 curb ramps remaining to be installed under the Second Consent Decree. Millcreek installed a total of 183 total curb ramps during the 2017 construction season. Millcreek will continue to install at least 110 curb ramps each year until the remaining curb ramps are installed.

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10. Officials Responsible For Implementing Transition Plan The Millcreek Township Supervisors have designated the following Township officials to be responsible for implementing the following respective aspects of the Transition Plan:
 Ashley Marsteller Director of Millcreek's Parks and Recreation Department (814) 835-4122 Responsibilities: All improvements at Township parks and recreational facilities with the exception of the improvements to the accessible routes and accessible parking at those locations.
 Anne Sokol, P.E. Millcreek Township Assistant Engineer (814) 833-6096 Responsibilities: All accessible routes and accessible parking improvements at the Millcreek Township Municipal Building, Township parks and recreational facilities, and at the MTSD properties where Township programs, services, or activities are held; and oversight of curb ramp installation and compliance.
 Jerry Burger Millcreek Township Head Foreman, Building Maintenance (814) 833-1111 Responsibilities: All improvements at the Millcreek Township Municipal Building with the exception of the improvements to the accessible routes and accessible parking at the Municipal Building.
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ADA Transition Plan Exhibit A
Millcreek Township 2015 Facility Survey Report

 
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 56 of 152

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 57 of 152

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 58 of 152

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 59 of 152

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 60 of 152

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5

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 61 of 152

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 6


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6

 
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 62 of 152

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7

 
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 63 of 152

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8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 64 of 152

 
 





*
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,

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 *



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9

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 65 of 152

 
   -

8

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10

 
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 66 of 152


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11

 
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 67 of 152

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12

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 68 of 152

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13

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 69 of 152

 
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&$

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D!!

14

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 70 of 152

 
 





-
,

<,, 
,

 *



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 


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  "
 ""     % %    $ !!      %


                      

15

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 71 of 152

 
 





- 

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 *



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
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  "
 ""     % %    $ !!      %
                           

16

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 72 of 152

 
   0; 

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/@%@!! %!! @A!! ;;%%;!! //%;!! /%!! /@%@!! @A!! %!! //%;!! /A%!!
;@%!!

17

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 73 of 152

 
 
&$



4

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

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 "? 

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@%@!!

18

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 74 of 152

 
 





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 


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,)
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# ,-,# 

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 ""     %

%    $ !!      %

                        

19

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 75 of 152

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 76 of 152

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21

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 77 of 152

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22

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 78 of 152

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23

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 79 of 152

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24

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 80 of 152

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26

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 82 of 152

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27

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 83 of 152

 
   
, # # ,
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28

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 84 of 152

 
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



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29

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 85 of 152

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30

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 86 of 152

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31

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 87 of 152

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F@%;%!! @A!!

32

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 88 of 152

 
 





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 )0

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33

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 89 of 152

 
 



 $,,=

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 *6



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/%%/%%!!  /%%/%%!! 

            

34

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 90 of 152

 
    7@/

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

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@%!! /%%!! %!!  
33" !

35

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 91 of 152

 
 







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 


 



8 

8 # %0
 
# ,&$ 
# 

 *



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 %
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,# 
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 

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36

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 92 of 152

 
 







8

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
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/  

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> @;L !0 @; 

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

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!!//%@

37

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 93 of 152

 
 





7
0.# ,/)0$
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$,13 $
$,2

 *



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 


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 "

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 "  0 J  

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 " J 0 J 

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
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/@%@!!

F%!!


38

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 94 of 152

 
 





7,

0

,- %
,

 *6



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 


 

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  "
 ""     % %    $ !!      %



               

39

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 95 of 152

 
 



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7!4

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,*%
$


 
 





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1 11

 

11

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!!
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40

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 96 of 152

 
 





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 


 



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 
,(
, ,

 *



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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 101 of 152

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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 103 of 152

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48

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 104 of 152

Millcreek Township School District JS Wilson Middle School Final Updated: November 24, 2015

Space Parking
Accessible Route Main Entry Drinking Fountain Art Room 605

Item

Issue

(4) Accessible Parking Spaces at Main Entry
Accessible Route from Parking Lot to Main Entry
Main Entry Clearance and Threshold Change in Level Drinking Fountain Knee Clearance and Cane Protection Clearance at entry door

(4) accessible parking spaces at entry, slopes exceed 2% maximum, measures 0% to 6% slope Access aisle slope exceeds 2% maximum, measures 4.2% Van space signage has been provided. Space size and aisle size complies Accessible parking signage is not located at 60 inches AFF Slope exceeds 5% maximum, measures 0% to 6.3%, cross slope exceeds 2% maximum, measures 0% to 5.2% No Issues
No Issues
No Issues

Signage Door Hardware

No Issues No Issues

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 502.4
2010 ADA, 502.4

2010 ADA, 403, 404
2010 ADA, 303.3, 403.5.1, 404.2.6 2010 ADA, 306.3.1, 602.6
2010 ADA, 403, 403.5.1, 404 2010 ADA, 703.1 2010 ADA, 404.2.7
Page 1 of 6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 105 of 152

Space

Item

Issue

Art Room 606

Sink Height And Unobstructed Side Reach Clearance At Entry Door Signage Door Hardware Sink Height And Unobstructed Forward Approach Sink Exposed Pipes

Sink Height 34-1/2””, Exceeds 34” Maximum Height No Issues No Issues No Issues Sink Height 34-1/2””, Exceeds 34” Maximum Height Requires Covering Of Exposed Pipes

Accessible Single User Toilet Room – Men’s

Entry Door
Turning Radius Signage Height Sink

No Issues
No Issues No Issues No Issues

Paper Towel Dispenser Centerline Of Toilet - Location Toilet Seat Grab Bar Side Wall

Accessible Single User Toilet Room – Women’s

Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Entry Door
Turning Radius Signage Height Sink

No Issues 18-1/2” , Needs To Be 16”-18” No Issues 42” Grab Bar Provided, Only 48” From Rear Wall No Issues No Issues No Issues - Automatic No Issues No Issues
No Issues No Issues No Issues

Paper Towel Dispenser

No Issues

Centerline Of Toilet – Location No Issues

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 308.3.2, 606.3
2010 ADA, 403, 403.5.1, 404 2010 ADA, 703.1 2010 ADA, 404.2.7 2010 ADA, 308.3.2, 606.3
2010 ADA, 308.3.2, 606.3. 606.5 2010 ADA, 403, 403.5.1, 404
2010 ADA, 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA, 308.2.1 2010 ADA, 604.2 2010 ADA, 604.4 2010 ADA, 604.5.1
2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403, 403.5.1, 404
2010 ADA, 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA, 308.2.1
Page 2 of 6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 106 of 152

Space Auditorium

Item
Toilet Seat Grab Bar Side Wall
Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Clearance At Entry Door Signage Door Hardware Accessible Route

Issue
No Issues 42” Grab Bar Provided, Only 47” From Rear Wall No Issues No Issues No Issues - Automatic No Issues No Issues No Issues No Issues No Issues

Cafeteria

Wheelchair Spaces Clearance At Entry Door Signage Door Hardware Accessible Route

No Issues No Issues No Issues No Issues No Issues

Gymnasium

Clearance At Entry Door Signage Door Hardware Accessible Route

No Issues No Issues No Issues No Issues

Boy’s Locker Room

Entry Door Signage Sink

No Issues No Issues No Issues

Paper Towel Dispenser Urinal Centerline Of Toilet - Location Toilet Seat Turning Radius Grab Bar Side Wall

No Issues No Issues 19-1/4”, Needs To Be 16”-18” No Issues No Issues 42” Grab bar Provided, Only 48” from Rear Wall

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 604.4 2010 ADA, 604.5.1
2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6
2010 ADA, 403, 403.5.1,404 2010 ADA, 703.1 2010 ADA, 404.2.7 2010 ADA, 302.1, 302.2, 303, 304, 305, 307, 308, 309, 402, 403, 404, 405, 410 221.2 2010 ADA, 403, 403.5.1, 404 2010 ADA, 703.1 2010 ADA, 404.2.7 2010 ADA, 302.1, 302.2, 303, 304, 305, 307, 308, 309, 402, 403, 404, 405, 410 2010 ADA, 403, 403.5.1, 404 2010 ADA, 703.1 2010 ADA, 404.2.7 2010 ADA, 302.1, 302.2, 303, 304, 305, 307, 308, 309, 402, 403, 404, 405, 410 2010 ADA, 403.5.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA, 308.2.1 2010 ADA, 305.5, 605.2 2010 ADA, 604.2 2010 ADA, 604.4 2010 ADA, 304.3.1 2010 ADA, 604.5.1
Page 3 of 6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 107 of 152

Space Girls Locker Room

Item

Issue

Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror 5% ADA Lockers
ADA Bench ADA Showers Entry Door Signage Sink

No Issues No Issues No Issues No Issues ADA Lockers Need To Be Labeled
Missing No Issues No Issues No Issues Exposed Pipes

Paper Towel Dispenser Centerline Of Toilet - Location Toilet Seat Turning Radius
Grab Bar Side Wall
Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror
5% ADA Lockers ADA Bench ADA Showers

No Issues 18-1/2”, Needs To Be 16”-18”
58-1 ½” Provided, 60” Minimum Required 42” Grab Bar Provided, Only 48-1 ½” From Rear Wall No Issues No Issues No Issues - Automatic 41” to Reflective Surface, 40” Maximum Required ADA Lockers Need To Be Labeled Missing No Issues

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 225.2.1 2010 ADA, 903 2010 ADA, 608.2, 608.2.1 2010 ADA, 403.5.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA, 308.2.1 2010 ADA, 604.2 2010 ADA, 604.4 2010 ADA, 304.3.1
2010 ADA, 604.5.1
2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3
2010 ADA, 225.2.1 2010 ADA, 903 2010 ADA, 608.2, 608.2.1

Page 4 of 6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 108 of 152 JS Wilson Middle School Photos

Parking

Accessible Route

Main Entry

Art Room 605

Art Room 605 Sink

Art Room 606 Sink

Men’s Tlt. Rm Door Men’s Toilet

Page 5 of 6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 109 of 152 JS Wilson Middle School Photos

Men’s Sink

Women’s Tlt. Rm. Women’s Toilet Women’s Sink

Cafeteria

Gym Doors

Gym

Locker Rooms

Page 6 of 6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 110 of 152

Millcreek Township School District McDowell Intermediate High School Final Updated: November 25, 2015

Space Parking
Accessible Route
Main Entry Interior Accessible Route

Item

Issue

(4) Accessible Parking Spaces At Main Entry
Accessible Route From Parking Lot To Ramp Thru 4” Curb Cut With Detectable Warning Surface Accessible Route Over Ramp To Main Entry Ramp Railings Main Entry Clearance

(4) Accessible Parking Spaces At Entry, Slopes Exceed 2% Maximum, Measures 0% To 8.3% Slope Access Aisle Slope Exceeds 2% Maximum, Measures 4.2% Van Space Signage Has Been Provided. Space Size And Aisle Size Complies Accessible Parking Signage Is Not Located At 60 Inches AFF No Issues
No Issues
No Issues No Issues

Ramp 1 Rise

No Issues

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 502.4
2010 ADA, 502.4

2010 ADA, 406
2010 ADA, 405 2010 ADA, 505.4 2010 ADA, 403.5.1, 404.2.6 2010 ADA, 405.2
Page 1 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 111 of 152

Space
Natatorium Men’s Accessible Toilet Rooms From Pool Deck

Item
Ramp 1 Clear Width Ramp 1 Railings Ramp 2 Rise Ramp 2 Clear Width Ramp 2 Railings Ramp 3 Rise Ramp 3 Clear Width Ramp 3 Railings Route Thru Auditorium To Stage Clear Width Lift To Pool Level
Entry Door Clearance Changing Area
Entry Door

Issue
No Issues Railing On One Side, Two Required No Issues No Issues No Railings No Issues No Issues Railing On One Side, Two Required Doors Do Not Provide 36” Minimum Clear Width
No Issues
No Issues No Issues
No Issues

Turning Radius
Signage Height
Sink Exposed Pipes Sink Faucet Hand Dryer

54” – Less Than 60” Required
No Issues
Requires Covering Of Exposed Pipes Requires Tight Grasping No Issues

Centerline Of Toilet - Location Toilet Seat
Grab Bar Side Wall Grab Bar Back Wall

No Issues
Seat Cushion Provided For Student With Particular Needs Only 53” From Rear Wall
Missing 36” Grab Bar

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 405.5 2010 ADA, 505.2 2010 ADA, 405.2 2010 ADA, 405.5 2010 ADA, 505.2 2010 ADA, 405.2 2010 ADA, 405.5 2010 ADA, 505.2 2010 ADA, 403.5.1
2010 ADA 403.5.1, 404.2.7, 703.1 2010 ADA, 408 2010 ADA, 403.5.1 2010 ADA, 403.5.1
2010 ADA , 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA,308.2.1
2010 ADA, 604.2 2010 ADA, 604.4
2010 ADA, 604.5.1 2010 ADA, 604.5.2
Page 2 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 112 of 152

Space
Women’s Accessible Toilet Rooms From Pool Deck
Men’s Accessible Band/Tech Ed Toilet Room

Item
Height To Top Of Grab Bars Flush Valve On Open Side Mirror Entry Door

Issue
32-1/2” High No 41-1/4” Exceeds 40” Maximum No Issues

Turning Radius Signage Height Sink
Hand Dryer

58” – Less Than 60” Required
No Issues
Requires Covering Of Exposed Pipes Requires Tight Grasping No Issues

Centerline Of Toilet - Location Toilet Seat
Grab Bar Side Wall Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Entry Door

18-1/4” Exceeds 18” Maximum Seat Cushion Provided For Student With Particular Needs Only 53” From Rear Wall Missing 36” Grab Bar 32-1/2” High Yes 41-3/4” Exceeds 40” Maximum No Issues

Turning Radius
Signage Height
Sink Exposed Pipes Sink Faucet Hand Dryer

No Issues
No Issues
Requires Covering Of Exposed Pipes Requires Tight Grasping No Issues

Centerline Of Toilet - Location No Issues

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403.5.1
2010 ADA , 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA,308.2.1
2010 ADA, 604.2 2010 ADA, 604.4
2010 ADA, 604.5.1 2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403.5.1
2010 ADA , 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA,308.2.1
2010 ADA, 604.2
Page 3 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 113 of 152

Space
Women’s Accessible Band/Tech Ed Toilet Room
Classroom 4-102

Item
Toilet Seat Grab Bar Side Wall Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Entry Door

Issue
No Issues Only 44” From Rear Wall Missing 36” Grab Bar No Issues No No Issues No Issues

Turning Radius Signage Height Sink
Hand Dryer

No Issues
No Issues
Requires Covering Of Exposed Pipes Requires Tight Grasping No Issues

Centerline Of Toilet - Location Toilet Seat Grab Bar Side Wall Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Clearance At Entry Door
Signage Door Hardware

15-1/2” – Less Than 16” Minimum No Issues Only 44” From Rear Wall Missing 36” Grab Bar No Issues Yes No Issues Only 11” Clear On Pull Side Of Door Does Not Meet 18” Minimum. No Signage Needs Lever Handle Hardware

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 604.4 2010 ADA, 604.5.1 2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403.5.1
2010 ADA , 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA,308.2.1
2010 ADA, 604.2 2010 ADA, 604.4 2010 ADA, 604.5.1 2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403, 403.5.1, 404
2010 ADA, 703.1 2010 ADA, 404.2.7

Page 4 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 114 of 152

Space

Item Accessible Route

No Issues

Issue

Classroom 6-106

Clearance At Entry Door
Signage Door Hardware Accessible Route

Clear width of 30” Does Not Meet 32” Clear Minimum Requirement No Signage
Needs Lever Handle Hardware
No Issues

Fitness Center/Dance Gymnasium

Clearance At Entry Door Signage Door Hardware Ramp Clearance At Entry Door Threshold Change In Level

Signage Door Hardware Commons/ Lunch Area Accessible Route

No Issues No Signage No Issues Ramp Exceeds Slope Maximum No Issues Change In Level Of 2” Exceeds ½” Maximum No Signage No Issues No Issues

Signage

No Signage

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 302.1, 302.2, 303, 304, 305, 307, 308, 309, 402, 403, 404, 405, 410 2010 ADA, 403, 403.5.1, 404
2010 ADA, 703.1
2010 ADA, 404.2.7
2010 ADA, 302.1, 302.2, 303, 304, 305, 307, 308, 309, 402, 403, 404, 405, 410 2010 ADA, 403, 403.5.1, 404
2010 ADA, 703.1
2010 ADA, 404.2.7
2010 ADA, 505.2, 405.2
2010 ADA, 403, 403.5.1, 404
2010 ADA, 303.3
2010 ADA, 703.1
2010 ADA, 404.2.7
2010 ADA, 302.1, 302.2, 303, 304, 305, 307, 308, 309, 402, 403, 404, 405, 410 2010 ADA, 703.1

Page 5 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 115 of 152 McDowell Intermediate High School Photos

Parking

Accessible Route

Main Entry

Ramp 1

Ramp 2

Ramp

Natatorium Lift

Natatorium Doors

Page 6 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 116 of 152 McDowell Intermediate High School Photos

Natatorium Lift

Nat. Changing Area Men’s Nat. Toilet Rm Women’s Nat. Tlt. Rm Men’s Toilet Room Men’s Urinal

Men’s Toilet

Men’s Sink

Classroom 4-102 Classroom 6-106

Fitness Center/ Dance Door

Page 7 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 117 of 152

Gymnasium Doors

Commons/ Lunch Area

Page 8 of 8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 118 of 152

Millcreek Township School District Westlake Middle School Final Updated: November 25, 2015

Space Parking
Accessible Route Gymnasium Entry Drinking Fountain Gymnasium Entry Interior

Item

Issue

(4) Accessible Parking Spaces At Gymnasium Entry
Accessible Route From Parking Lot To Gymnasium Entry Entry Clearance And Threshold Change In Level Drinking Fountain Knee Clearance And Cane Protection Clearance At Entry Door, Signage And Door Hardware

(4) Accessible Parking Spaces At Gymnasium Entry, Slopes Exceed 2% Maximum, Measures 0% To 10.4% Slope Access Aisle Slope Exceeds 2% Maximum, Measures 6.3% Van Space Signage Has Been Provided. Space Size And Aisle Size Complies Accessible Parking Signage Is Not Located At 60 Inches AFF And Is Missing On Two Spots No Issues
No Issues
26-3/4” Clearance, Less Than 27” Clear Required
No Issues

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 502.4
2010 ADA, 502.4
2010 ADA, 403.3 2010 ADA, 303.3, 403.5.1, 404.2.6 2010 ADA, 306.3.1, 602.6 2010 ADA, 403.5.1,404.2.7, 703.1
Page 1 of 3

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 119 of 152

Space

Item

Issue

Accessible Single User Toilet Room – Men’s

Entry Door
Turning Radius Signage Height Sink

No Issues
No Issues No Issues No Issues

Accessible Single User Toilet Room – Women’s

Hand Dryer
Urinal Centerline Of Toilet – Location Grab Bar Side Wall
Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Entry Door
Turning Radius Signage Height Sink

No Issues
No Issues No Issues 42” Grab Bar Provided, Only 50” From Rear Wall No Issues 36- ½” Exceeds 36” Maximum Height No Issues 40-1/2” Exceeds 40” Maximum Height No Issues
No Issues No Issues No Issues

Art Room

Hand Dryer Centerline Of Toilet – Location Toilet Seat Grab Bar Side Wall Grab Bar Back Wall Height To Top Of Grab Bars Flush Valve On Open Side Mirror Clearance At Entry Door Signage Door Hardware Sink Depth

No Issues No Issues No Issues No Issues No Issues 37”, Exceeds 36” Maximum No Issues 40-1/2”, Exceeds 40” Maximum No Issues No Issues No Issues Depth greater than 6 ½”

Recommendation

Applicable Citation 2010 ADA
2010 ADA, 403.5.1
2010 ADA, 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA, 308.2.1
2010 ADA, 305.5, 605.2 2010 ADA, 604.2 2010 ADA, 604.5.1
2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403.5.1
2010 ADA, 304.3.1 2010 ADA, 703.4.1 2010 ADA, 308.3.2, 606.3, 606.5 2010 ADA, 308.2.1 2010 ADA, 604.2 2010 ADA, 604.4 2010 ADA, 604.5.1 2010 ADA, 604.5.2 2010 ADA, 609.4 2010 ADA, 604.6 2010 ADA, 603.3 2010 ADA, 403, 403.5.1, 404 2010 ADA, 703.1 2010 ADA, 404.2.7 2010 ADA
Page 2 of 3

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 120 of 152

Space Pod/Family Room

Item

Issue

Sink Height And Unobstructed Side Reach Accessible Route

36” Height Exceeds 34” Maximum Requirement No Issues

Recommendation

Westlake Middle School Photos

Applicable Citation 2010 ADA
2010 ADA, 308.3.2, 606.3
2010 ADA, 403.3

Parking

Accessible Route Gym Entry

Men’s Toilet Room Men’s Toilet Rm

Drinking Fountain Women’s Toilet Rm Women’s Toilet Rm Art Room Door Art Room Sink

Pod/ Family Area

Page 3 of 3

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 121 of 152
ADA Transition Plan Exhibit B
PowerPoint Summary of Transition Plan

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 858

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
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  -  
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6

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 128 of 152

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
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
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
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7

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 129 of 152

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8

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 130 of 152

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9

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 131 of 152

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10

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 132 of 152
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11

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 133 of 152

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12

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 134 of 152

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  130%:  2$*30%:  7

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

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13

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 135 of 152

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  =M5 
 /

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14

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 136 of 152

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
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 =1*7/ 
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"1*#
 



5
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

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
  


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15

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 137 of 152

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<8


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 - 1*
16

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 138 of 152

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?
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
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
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
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17

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 139 of 152

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
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

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 
  
  

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
,

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  +
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F %:JA%:A  
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18

Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 140 of 152

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
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
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
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I1I<1I*I+ +
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 146 of 152
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 147 of 152
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 148 of 152
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 149 of 152
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Case 1:11-cv-00016-MRH Document 181-1 Filed 11/30/17 Page 150 of 152
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31

 
 Case 1:11-cv-00016-MRH Document 182 Filed 12/01/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL PECUNAS, ET AL.,
Plaintiffs,
vs.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER and MILLCREEK TOWNSHIP, PA
Defendants.

} } } } No. l:l l-cv-00016-MRH } } Judge Hornak } } } }
} Electronically Filed.
}

ORDER

Upon consideration of the Joint Motion to Approve Fifth Consent Decree and Partial Settlement Agreement Among Defendant Millcreek Township and Plaintiffs, it is hereby ORDERED, ADJUDGED and DECREED that said Motion is hereby GRANTED and the Fifth Consent Decree and Partial Settlement Agreement Among Defendant Millcreek Township and Plaintiffs, attached to the Motion as Exhibit A, with accompanying exhibits, is hereby APPROVED and ACCEPTED by the Court. The Court retains jurisdiction to enforce all terms of this Joint Motion to Approve Fifth Consent Decree and Partial Settlement Agreement Among Defendant Millcreek Township and Plaintiffs.

~~ '•-Zc>l)
Date

Honorable Mark R. Hornak

 
 Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 1 of 18
U.S. District Court Western District of Pennsylvania (Erie) CIVIL DOCKET FOR CASE #: 1:11−cv−00016−MRH

PECUNAS et al v. COMMONWEALTH OF PENNSYLVANIA Date Filed: 01/20/2011

DEPARTMENT OF TRANSPORTATION et al

Jury Demand: Defendant

Assigned to: Judge Mark R. Hornak

Nature of Suit: 446 Civil Rights:

related Case: 1:06−cv−00078−BR

Americans with Disabilities − Other

Cause: 42:12101 The Americans with Disabilities Act of 1990 Jurisdiction: Federal Question

Plaintiff

PAUL PECUNAS

represented by Craig A. Markham Elderkin, Martin, Kelly & Messina 150 East Eighth Street Erie, PA 16501−1819 (814) 456−4000 Fax: (814) 454−7411 Email: camarkham@elderkinlaw.com ATTORNEY TO BE NOTICED

Plaintiff SHONA EAKIN

represented by Craig A. Markham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MARK ZAHAR

represented by Craig A. Markham (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
VOICES FOR INDEPENDENCE, (VFI) on behalf of themselves and all others similarly situated

represented by Craig A. Markham (See above for address) ATTORNEY TO BE NOTICED
J. Mark Finnegan Heberle & Finnegan 2580 Craig Road Ann Arbor, MI 48103 (734) 302−3233 Email: hffirm@comcast.net ATTORNEY TO BE NOTICED

V. Defendant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
Defendant ALLEN D. BIEHLER P.E., in his official capacity as Secretary of Transportation of the Commonwealth

represented by Scott A. Bradley Office of the Attorney General 564 Forbes Avenue 6th Floor, Manor Complex Pittsburgh, PA 15219 (412) 565−7680 Email: sbradley@attorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott A. Bradley (See above for address) LEAD ATTORNEY

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 2 of 18

of Pennsylvania

ATTORNEY TO BE NOTICED

Defendant MILLCREEK TOWNSHIP, PA

represented by Marissa Savastana Watts MacDonald, Illig, Jones & Britton 100 State Street Suite 700 Erie, PA 16507−1459 (814) 870−7613 Email: mwatts@mijb.com TERMINATED: 11/14/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark T. Pavkov MacDonald, Illig, Jones & Britton, LLP 100 State Street Suite 700 Erie, PA 16507−1459 814−870−7605 Fax: 814−454−4647 Email: mpavkov@mijb.com ATTORNEY TO BE NOTICED

Mark J. Shaw MacDonald, Illig, Jones & Britton 100 State Street Suite 700 Erie, PA 16507−1459 (814) 870−7607 Email: mshaw@mijb.com ATTORNEY TO BE NOTICED

Cross Claimant MILLCREEK TOWNSHIP, PA

represented by Marissa Savastana Watts (See above for address) TERMINATED: 11/14/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark T. Pavkov (See above for address) ATTORNEY TO BE NOTICED

Mark J. Shaw (See above for address) ATTORNEY TO BE NOTICED

V.
Cross Defendant
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION

represented by Scott A. Bradley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/20/2011

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $350, receipt number 315−1844102), filed by PAUL PECUNAS, SHONA EAKIN, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet) (sdp) (Entered: 01/20/2011)

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01/20/2011 01/27/2011
02/07/2011 02/08/2011 02/14/2011
03/04/2011 03/04/2011 03/10/2011
03/31/2011 03/31/2011 03/31/2011 04/29/2011 07/08/2011
08/01/2011

Summons Issued as to * All Defendants * (sdp) (Entered: 01/20/2011)
2 AFFIDAVIT of Service for complaint and summons served on Millcreek Twp.−receptionist on 1/24/11, filed by PAUL PECUNAS, SHONA EAKIN, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR., SUMMONS/Return of Service Returned Executed by PAUL PECUNAS, SHONA EAKIN, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. MILLCREEK TOWNSHIP, PA served on 1/24/2011, answer due 2/14/2011. (Markham, Craig) (Entered: 01/27/2011)
3 NOTICE of Appearance by Scott A. Bradley on behalf of ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Bradley, Scott) (Entered: 02/07/2011)
4 NOTICE of Appearance by J. Mark Finnegan on behalf of VOICES FOR INDEPENDENCE, (VFI). (Finnegan, J.) (Entered: 02/08/2011)
5 AFFIDAVIT of Service of summons and complaint, filed by PAUL PECUNAS, SHONA EAKIN, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR., SUMMONS/Return of Service Returned Executed by PAUL PECUNAS, SHONA EAKIN, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. ALLEN D. BIEHLER served on 1/28/2011, answer due 2/18/2011. (Markham, Craig) (Entered: 02/14/2011)
6 NOTICE of Appearance by Marissa Savastana Watts on behalf of MILLCREEK TOWNSHIP, PA. (Watts, Marissa) (Entered: 03/04/2011)
7 Stipulation for Extension of Time to Answer by PAUL PECUNAS, MILLCREEK TOWNSHIP, PA, SHONA EAKIN, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR Answer due from MILLCREEK TOWNSHIP, PA on 3/31/2011. (Watts, Marissa) (Entered: 03/04/2011)
8 Stipulation for Extension of Time to Answer by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER Answer due from COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION on 3/31/2011; ALLEN D. BIEHLER on 3/31/2011. (Bradley, Scott) (Entered: 03/10/2011)
9 NOTICE of Appearance by Mark J. Shaw on behalf of MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 03/31/2011)
10 ANSWER to 1 Complaint, CROSSCLAIM against COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION by MILLCREEK TOWNSHIP, PA. (Watts, Marissa) (Entered: 03/31/2011)
11 ANSWER to 1 Complaint by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Bradley, Scott) (Entered: 03/31/2011)
12 ANSWER to 10 Answer to Complaint, Crossclaim by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Bradley, Scott) (Entered: 04/29/2011)
13 ORDER that the parties will conduct their Rule 26(f) meeting on or before July 18, 2011. The parties will then exchange their initial disclosures per Fed. R. Civ. P. 26(a)(1)(A)(B)(C) and (D). A joint or individualized report of the Rule 26(f) discovery plan that includes stipulated exceptions to disclosure per Rule 26(a)(1) not to exceed 3 pages in length shall be filed on or before August 8, 2011. In preparing the Rule 26(f) report, the parties must engage in discussion of the available Alternate Dispute Resolution (ADR) mechanisms and fully comply with paragraph 6 of the report, including the submission of their stipulation selecting the appropriate ADR Process. A Fed. R. Civ. P. 16(b) and Local Rule 16.1.1 Case Management Conference will be held before the undersigned on September 1, 2011 at 10:30 a.m. Room A−250, U.S. Courthouse, 17 South Park Row, Erie, Pennsylvania. Signed by Judge Sean J. McLaughlin on 7/8/11. (nk) (Entered: 07/08/2011)
14 REPORT of Rule 26(f) Planning Meeting. (Watts, Marissa) (Entered: 08/01/2011)

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08/02/2011
08/02/2011 09/02/2011
10/04/2011 10/12/2011
10/17/2011 10/17/2011 10/17/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011

CLERK'S OFFICE QUALITY CONTROL MESSAGE re 14 Report of Rule 26(f) Planning Meeting. ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event. This message is for informational purposes only. (sdp) (Entered: 08/02/2011)
15 Errata re 14 Report of Rule 26(f) Planning Meeting by MILLCREEK TOWNSHIP, PA. Reason for Correction: Attorney filer correction. (Watts, Marissa) (Entered: 08/02/2011)
Minute Entry for proceedings held before Judge Sean J. McLaughlin: Case Management Conference held on 9/2/2011. Court Adopts Rule 26 F report; Post Discovery Conference to be Scheduled at the close of discovery. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (Court Reporter: Ron Bench) (nk) (Entered: 09/02/2011)
16 MOTION to Approve Consent Decree and Partial Settlement Among Defendant Millcreek Township and Plaintiffs by SHONA EAKIN, MILLCREEK TOWNSHIP, PA, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit, # 2 Proposed Order) (Shaw, Mark) (Entered: 10/04/2011)
17 ORDER granting 16 Motion to approve Consent Decree; IT IS HEREBY ORDERED that this Consent Decree and Partial Settlement Among Defendant Millcreek Township, PA and Plaintiffs is ORDERED AND ENTERED this 12th day of October, 2011. The Court will retain jurisdiction to enforce all terms of this Consent Decree. Signed by Judge Sean J. McLaughlin on 11/12/11. (nk) Modified on 10/13/2011. (Entered: 10/12/2011)
18 STATUS REPORT Millcreek Township Report of Projects Undertaken After January 1992 and Through December 31, 2010 by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Affidavit of Mark Dietz, # 2 Affidavit of Peter Dion, # 3 Affidavit of John Orr, # 4 Affidavit of Charles Pierce) (Shaw, Mark) (Entered: 10/17/2011)
19 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K) (Shaw, Mark) (Entered: 10/17/2011)
20 Appendix to 19 Appendix, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit N, # 4 Exhibit O) (Shaw, Mark) (Entered: 10/17/2011)
21 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−1 (1−3), # 2 Exhibit L−1 (4−53)) (Shaw, Mark) (Entered: 10/18/2011)
22 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−2 (1−3), # 2 Exhibit L−2 (4−6), # 3 Exhibit L−2 (7−9), # 4 Exhibit L−2 (10−40), # 5 Exhibit L−2 (41−80), # 6 Exhibit L−2 (81−101)) (Shaw, Mark) (Entered: 10/18/2011)
23 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−3 (1−3), # 2 Exhibit L−3 (4−6), # 3 Exhibit L−3 (7), # 4 Exhibit L−3 (8−40), # 5 Exhibit L−3 (41−75)) (Shaw, Mark) (Entered: 10/18/2011)
24 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−4 (1−3), # 2 Exhibit L−4 (4−5), # 3 Exhibit L−4 (6−40)) (Shaw, Mark) (Entered: 10/18/2011)
25 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−5 (1−3), # 2 Exhibit L−5 (4), # 3 Exhibit L−5 (5−30)) (Shaw, Mark) (Entered: 10/18/2011)
26 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−6 (1−3), # 2 Exhibit L−6 (4−33), # 3 Exhibit L−7 (1−3), # 4 Exhibit L−7 (4−33)) (Shaw, Mark) (Entered: 10/18/2011)
27 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−8 (1−2), # 2 Exhibit L−8 (3−22), # 3 Exhibit L−9, # 4 Exhibit L−10 (1−2), # 5 Exhibit L−10 (3−18)) (Shaw, Mark) (Entered: 10/18/2011)

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10/18/2011
10/18/2011
10/18/2011
10/18/2011 10/18/2011
10/18/2011
10/18/2011 01/31/2012
01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012

28 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−11 (1−3), # 2 Exhibit L−11 (4−43), # 3 Exhibit L−12 (1−3), # 4 Exhibit L−12 (4), # 5 Exhibit L−12 (5−40), # 6 Exhibit L−12 (41−64)) (Shaw, Mark) (Entered: 10/18/2011)
29 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−13 (1−3), # 2 Exhibit L−13 (4−25), # 3 Exhibit L−14 (1−5), # 4 Exhibit L−14 (6−35), # 5 Exhibit L−14 (36−67)) (Shaw, Mark) (Entered: 10/18/2011)
30 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit L−15 (1−5), # 2 Exhibit L−15 (6−25), # 3 Exhibit L−15 (26−45), # 4 Exhibit M−1 (1−25), # 5 Exhibit M−1 (26−42)) (Shaw, Mark) (Entered: 10/18/2011)
31 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit N−1) (Shaw, Mark) (Entered: 10/18/2011)
32 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit N−2 (1−80), # 2 Exhibit N−2 (81−125), # 3 Exhibit N−2 (126−180)) (Shaw, Mark) (Entered: 10/18/2011)
33 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit O−1 (1−10), # 2 Exhibit O−1 (11−20), # 3 Exhibit O−1 (21−35), # 4 Exhibit O−1 (36−49)) (Shaw, Mark) (Entered: 10/18/2011)
34 Appendix to 18 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit O−2) (Shaw, Mark) (Entered: 10/18/2011)
35 STATUS REPORT Millcreek Township 2011 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
36 AFFIDAVIT re 35 Status Report by MILLCREEK TOWNSHIP, PA Affiant: Mark Dietz. (Shaw, Mark) (Entered: 01/31/2012)
37 AFFIDAVIT re 35 Status Report by MILLCREEK TOWNSHIP, PA Affiant: Peter Dion. (Shaw, Mark) (Entered: 01/31/2012)
38 AFFIDAVIT re 35 Status Report by MILLCREEK TOWNSHIP, PA Affiant: John Orr. (Shaw, Mark) (Entered: 01/31/2012)
39 AFFIDAVIT re 35 Status Report by MILLCREEK TOWNSHIP, PA Affiant: Charles Pierce. (Shaw, Mark) (Entered: 01/31/2012)
40 Appendix to 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
41 EXHIBITS Exhibit A in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
42 EXHIBITS Exhibit B in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
43 EXHIBITS Exhibit C in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
44 EXHIBITS Exhibit D in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
45 EXHIBITS Exhibit E in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
46 EXHIBITS Exhibit F in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
47 EXHIBITS Exhibit G in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
48 EXHIBITS Exhibit H in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)

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01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 04/27/2012
05/01/2012
08/14/2012
08/15/2012 01/31/2013
01/31/2013

49 EXHIBITS Exhibit I in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
50 EXHIBITS Exhibit J in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
51 EXHIBITS Exhibit J−1 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
52 EXHIBITS Exhibit K in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
53 EXHIBITS Exhibit K−1 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
54 EXHIBITS Exhibit K−2 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
55 EXHIBITS Exhibit L in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
56 EXHIBITS Exhibit L−1 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
57 EXHIBITS Exhibit L−2 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
58 EXHIBITS Exhibit M in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
59 EXHIBITS Exhibit M−1 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
60 EXHIBITS Exhibit N in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
61 EXHIBITS Exhibit N−1 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
62 EXHIBITS Exhibit N−2 in Support of 35 Status Report by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 01/31/2012)
63 Joint MOTION for Extension of Time to Complete Discovery filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 04/27/2012)
64 ORDER granting 63 Motion for Extension of Time to Complete Discovery. Discovery due by 7/30/2012. Plaintiffs Expert Reports due by 8/30/2012 Defendants Expert Reports due by 10/1/2012 Plaintiff's Expert Depositions to be completed by 10/30/2012. Defendant's Expert Depositions to be completed by 11/30/2012. Signed by Judge Sean J. McLaughlin on 5/1/12. (nk, ) (Entered: 05/01/2012)
65 Joint MOTION to Extend Time to File Expert Reports by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 08/14/2012)
66 ORDER granting 65 Motion to Extend Time for expert reports. Signed by Judge Sean J. McLaughlin on 8/15/12. (nk) (Entered: 08/15/2012)
67 STATUS REPORT 2012 Report by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Affidavit of Mark Dietz, # 2 Affidavit of Peter Dion, # 3 Affidavit of John Orr, # 4 Affidavit of Charles Pierce) (Shaw, Mark) (Entered: 01/31/2013)
68 Appendix to 67 Status Report by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A 2012 Paving List, # 2 Exhibit B Map, # 3 Exhibit C 2012 Reclaim List, # 4 Exhibit D 2012 Slurry Seal List, # 5 Exhibit E 2012 Crack Sealed List, # 6 Exhibit F 2012 Hot Patches, # 7 Exhibit G 2012 Millcreek Streets Accepted, # 8 Exhibit H 2012 Intersection Ramps, # 9 Exhibit H−1 Supporting documents (Ramps), # 10 Exhibit I

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08/28/2013 08/29/2013 09/17/2013
09/26/2013 09/26/2013
11/12/2013 11/13/2013
11/13/2013 12/09/2013 12/16/2013 12/17/2013 12/17/2013
12/20/2013

2012 Pedestrian Street Crossing Measurements, # 11 Exhibit I−1 Supporting documents (Crossings), # 12 Exhibit J 2012 Sidewalks Installed By Others, # 13 Exhibit J−1 Supporting documents (Sidewalks)) (Shaw, Mark) (Entered: 01/31/2013)
69 ORDER REASSIGNING CASE. Case transferred to the docket of the Honorable Mark R. Hornak, United States District Judge for all further proceedings. Signed by Chief Judge Joy Flowers Conti on 8/28/2013. (nk) (Entered: 08/28/2013)
70 ORDER ON MOTION PRACTICE. Signed by Judge Mark R. Hornak on 8/29/13. (bdb) (Entered: 08/29/2013)
71 SCHEDULING ORDER. A Telephonic Status Conference is SCHEDULED for 9/26/13 at 3:00 PM before Judge Mark R. Hornak. Due to the number of participants, the Court will conduct the conference via an AT&T call−in number, which requires participants to dial in and provide an access code. Signed by Judge Mark R. Hornak on 9/17/13. (bdb) (Entered: 09/17/2013)
72 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 9/26/13. (Court Reporter: Sandra Wenger) (jad) (Entered: 09/26/2013)
SCHEDULING ORDER. A Telephonic Status Conference is SCHEDULED for 11/12/13 at 1:30 PM before Judge Mark R. Hornak. Participating counsel shall contact Chambers at 412−208−7433 by 4:00 PM on 11/8/13 with their preferred contact number for the conference. The Court will initiate the call. Counsel for PennDOT shall provide opposing counsel with a response indicating its current position by 10/4/13. Signed by Judge Mark R. Hornak on 9/26/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 09/26/2013)
73 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 11/12/13. (Court Reporter: Sandra Wenger) (jad) (Entered: 11/12/2013)
TEXT ORDER. On or before December 10, 2013, the parties shall file papers in furtherance of their proposed settlement agreements. On or before December 23, 2013, the parties shall file a joint status report listing the remaining issues to resolved. For each such remaining issue, the parties shall provide the Court with either an agreed−upon process of resolution for that issue or the respective positions of the parties with regard to that issue. Signed by Judge Mark R. Hornak on 11/13/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 11/13/2013)
74 NOTICE of Withdrawal of Counsel (Marissa Savastana Watts) by MILLCREEK TOWNSHIP, PA (Shaw, Mark) (Entered: 11/13/2013)
75 STATUS REPORT FILED by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Markham, Craig) (Entered: 12/09/2013)
76 CONSENT DECREE by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit secod consent decree, # 2 Proposed Order) (Markham, Craig) (Entered: 12/16/2013)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 76 Consent Decree. ERROR: Wrong event selected. CORRECTION: Re−docketed as Motion to Approve Second Consent Decree and Partial Settlement. This message is for informational purposes only. (sdp) (Entered: 12/17/2013)
77 MOTION to Approve Second Consent Decree, MOTION for Partial Settlement Among Defendant Millcreek Township and Plaintiffs by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Second Consent Decree and Partial Settlement, # 2 Proposed Order) (sdp) (Entered: 12/17/2013)
78 SCHEDULING ORDER. A Telephonic Status Conference is SCHEDULED for 1/7/14 at 9:30 AM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T dial−in number, which requires participants to call−in and provide an access code. Signed by Judge Mark R. Hornak on 12/20/13. (bdb) (Entered: 12/20/2013)

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 8 of 18

12/23/2013 12/23/2013 01/06/2014
01/09/2014 01/13/2014 01/15/2014 01/28/2014 01/29/2014 02/07/2014 02/07/2014
02/21/2014

79 STATUS REPORT OF THE PARTIES, filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Markham, Craig) (Entered: 12/23/2013)
ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 1/7/14 at 9:30 AM is hereby RESCHEDULED for 1/7/14 at 4:00 PM before Judge Mark R. Hornak. The Court will still conduct the call via the AT&T dial−in number. Signed by Judge Mark R. Hornak on 12/23/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 12/23/2013)
ORDER RESCHEDULING CONFERENCE. Due to the Order of Court entered by Chief Judge Conti on 1/6/14 closing the United States District Court for the Western District of Pennsylvania for business on 1/7/14, the Telephonic Status Conference set for 1/7/14 at 4:00 PM is hereby RESCHEDULED for 1/9/14 at 3:00 PM before Judge Mark R. Hornak. The conference will be conducted via the same AT&T dial−in information previously provided. Signed by Judge Mark R. Hornak on 1/6/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 01/06/2014)
80 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 1/9/14. (Court Reporter: Sandra Wenger) (jad) (Entered: 01/09/2014)
81 EXHIBITS To Second Consent Decree filed in Support of 77 Motion to Approve Consent Judgment, Motion for Settlement, by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Markham, Craig) (Entered: 01/13/2014)
82 ORDER OF COURT. It is hereby ORDERED that 77 Motion to Approve Second Consent Decree and Partial Settlement is ORDERED AND ENTERED. The Motion is hereby GRANTED and the Second Consent Decree is hereby APPROVED and ACCEPTED by the Court. The Court will retain jurisdiction to enforce all terms of this Decree. Signed by Judge Mark R. Hornak on 1/15/14. (bdb) (Entered: 01/15/2014)
83 Consent MOTION for Extension of Time to File 2013 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Proposed Order) (Shaw, Mark) (Entered: 01/28/2014)
84 ORDER GRANTING 83 Consent Motion for Extension of Time to File 2013 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement. Consent Decree and Partial Settlement is hereby EXTENDED to 2/7/14. Signed by Judge Mark R. Hornak on 1/29/14. (bdb) (Entered: 01/29/2014)
85 STATUS REPORT 2013 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Affidavit of Mark Dietz, # 2 Affidavit of John Orr, # 3 Affidavit of Charles Pierce, # 4 Affidavit of Matthew Waldinger) (Shaw, Mark) (Entered: 02/07/2014)
86 Appendix to 85 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A 2013 Paving List, # 2 Exhibit B Millcreek Township Street Map, # 3 Exhibit C 2013 Reclaim List, # 4 Exhibit D 2013 Slurry Seal List, # 5 Exhibit E 2013 Crack Seal List, # 6 Exhibit F 2013 Tar and Chip List, # 7 Exhibit G 2013 Hot Patch List, # 8 Exhibit H 2013 Ramps Completed List, # 9 Exhibit H−1 (pgs 1−40) Curb Ramp Compliance Forms, # 10 Exhibit H−1 (pgs 41−78) Curb Ramp Compliance Forms, # 11 Exhibit H−1 (pgs 79−117) Curb Ramp Compliance Forms, # 12 Exhibit I Comparison of 2nd Consent Decree Ramp List with 2013 Ramps Completed) (Shaw, Mark) (Entered: 02/07/2014)
87 SCHEDULING ORDER. A Telephonic Status Conference is SCHEDULED for 2/26/14 at 11:00 AM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 2/21/14. (bdb) (Entered:

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 9 of 18

02/26/2014 02/26/2014
02/27/2014 03/04/2014 03/06/2014 03/07/2014 03/07/2014 05/05/2014 05/12/2014
05/12/2014 07/01/2014 07/07/2014 07/08/2014

02/21/2014)
88 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 2/26/14. (Court Reporter: Sandra Wenger) (jad) (Entered: 02/26/2014)
89 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 5/12/14 at 11:00 AM before Judge Mark R. Hornak. A Joint Status Report as to the remaining issues in the case shall be filed on or before 5/5/14. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 2/26/14. (bdb) (Entered: 02/26/2014)
90 NOTICE of Appearance by Mark T. Pavkov on behalf of MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 02/27/2014)
91 SETTLEMENT AGREEMENT BETWEEN COMMONWEALTH OF PA. and PLAINTIFFS, filed by by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) (Markham, Craig) (Entered: 03/04/2014)
92 Joint MOTION for Settlement Agreement Approval by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 03/06/2014)
93 ORDER APPROVING 91 Settlement Agreement Between Commonwealth of PA and Plaintiffs. This Court, by Settlement Agreement, resolves certain issues in this lawsuit as contained within, and expressly retains jurisdiction to enforce this Settlement Agreement. Signed by Judge Mark R. Hornak on 3/7/14. (bdb) (Entered: 03/07/2014)
94 ORDER GRANTING 92 Joint Motion for Settlement Agreement Approval. The Court retains jurisdiction of the parties and this action for purposes of interpretation and enforcement of the Settlement Agreement. Signed by Judge Mark R. Hornak on 3/7/14. (bdb) (Entered: 03/07/2014)
95 STATUS REPORT filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Markham, Craig) (Entered: 05/05/2014)
96 SCHEDULING ORDER. On or before 7/1/14, the parties shall submit both a joint status report and a joint proposed Case Management Order detailing their plan for bringing the case to its conclusion. A Telephonic Status Conference is hereby SCHEDULED for 7/7/14 at 1:30 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 5/12/14. (bdb) (Entered: 05/12/2014)
97 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 5/12/14. (Court Reporter: Sanda Wenger) (jad) (Entered: 05/12/2014)
98 STATUS REPORT Of The Parties, filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Markham, Craig) (Entered: 07/01/2014)
99 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 7/7/14. (Court Reporter: Richard Ford) (jad) (Entered: 07/07/2014)
100 CASE MANAGEMENT ORDER. On or before 9/5/14, the parties shall meet and discuss the resolution of all outstanding claims and issues. A Telephonic Status Conference is hereby SCHEDULED for 9/15/14 at 2:00 PM before Judge Mark R.

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 10 of 18

07/08/2014
08/28/2014 08/28/2014 08/28/2014
09/02/2014 09/02/2014 09/02/2014
09/05/2014 09/05/2014 09/08/2014 09/15/2014
09/15/2014 09/15/2014

Hornak. All filing deadlines are held in abeyance during this process. Signed by Judge Mark R. Hornak on 7/8/14. (bdb) (Entered: 07/08/2014)
101 NOTICE to Counsel. The Court will conduct the Telephonic Status Conference on 9/15/14 at 2:00 PM via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. (bdb) (Entered: 07/08/2014)
102 SETTLEMENT AGREEMENT between PennDOT and Plaintiffs by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit 2) (Markham, Craig) (Entered: 08/28/2014)
103 MOTION for Settlement Agreement Approval by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 08/28/2014)
ORDER deferring ruling on 103 Motion for Settlement. Defendants shall file a statement of position as to this Motion on or before September 5, 2014. Signed by Judge Mark R. Hornak on 08/28/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Hornak, Mark) (Entered: 08/28/2014)
104 SETTLEMENT AGREEMENT (Third) Between Millcreek Township Pa. and Plaintiffs by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit A) (Markham, Craig) (Entered: 09/02/2014)
105 Joint MOTION for Settlement Approval Between Millcreek Township, Pa. and Plaintiffs by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 09/02/2014)
106 ORDER GRANTING 105 Joint Motion for Settlement. The Third Consent Decree and Partial Settlement Agreement is hereby APPROVED and ACCEPTED by the Court. The Court retains jurisdiction to enforce all terms of this Third Consent Decree and Partial Settlement Authority. Signed by Judge Mark R. Hornak on 9/2/14. (bdb) (Entered: 09/02/2014)
107 RESPONSE to Motion re 103 MOTION for Settlement Agreement Approval filed by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Bradley, Scott) (Entered: 09/05/2014)
108 RESPONSE to Motion re 103 MOTION for Settlement Agreement Approval filed by MILLCREEK TOWNSHIP, PA. (Shaw, Mark) (Entered: 09/05/2014)
109 ORDER GRANTING 103 Motion for Settlement Agreement Approval. The Second Partial Settlement Order is hereby APPROVED and ACCEPTED by the Court. Signed by Judge Mark R. Hornak on 9/8/14. (bdb) (Entered: 09/08/2014)
ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 9/15/14 at 2:00 PM is hereby RESCHEDULED for 9/15/14 at 2:30 PM before Judge Mark R. Hornak. Signed by Judge Mark R. Hornak on 9/15/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 09/15/2014)
110 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 9/15/14. (Court Reporter: Julie Kienzle) (jad) (Entered: 09/15/2014)
111 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 11/10/14 at 2:30 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 11 of 18

11/07/2014 11/13/2014 11/13/2014 11/14/2014
11/14/2014 01/12/2015 01/20/2015 01/20/2015
01/20/2015

setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 9/15/14. (jad) (Entered: 09/15/2014)
ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 11/10/14 at 2:30 PM is hereby RESCHEDULED for 11/13/14 at 3:00 PM before Judge Mark R. Hornak. The information required to participate can be found at 111 Scheduling Order. Signed by Judge Mark R. Hornak on 11/7/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 11/07/2014)
ORDER RESCHEDULING CONFERENCE. The Telephone Status Conference set for 11/13/14 at 3:00 PM is hereby RESCHEDULED for 11/13/14 at 3:30 PM before Judge Mark R. Hornak. The information required to participate can be found at 111 Scheduling Order. Signed by Judge Mark R. Hornak on 11/13/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jad) (Entered: 11/13/2014)
112 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 11/13/14. (Court Reporter: Shirley Hall) (jad) (Entered: 11/13/2014)
113 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 1/20/15 at 9:30 AM before Judge Mark R. Hornak. Counsel should be prepared to discuss any outstanding matters and to recommend any preferred procedures to reach a resolution of those issues. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 11/14/14. (bdb) (Entered: 11/14/2014)
ORDER. It is hereby ORDERED that counsel shall meet and confer and file with the Court a Joint Status Report and any Proposed Orders regarding outstanding issues for the Court's review on or before 1/12/15. Signed by Judge Mark R. Hornak on 11/14/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 11/14/2014)
114 STATUS REPORT OF THE PARTIES, filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Markham, Craig) (Entered: 01/12/2015)
115 Minute Entry for proceedings held before Judge Mark R. Hornak: AT&T Telephone Status Conference held on 1/20/15. (Court Reporter: Shirley Hall) (jad) (Entered: 01/20/2015)
ORDER. The Court hereby orders the following: Mr. Bradley shall, on or before 1/30/2015, respond to the settlement offer; Plaintiffs shall give Mill Creek a settlement proposal on or before 1/23/2015; a Telephone Status Conference is scheduled 2/26/2015 at 3:00 p.m.; and, finally, not later than 10 days before the conference, counsel shall confer regarding (1) all open conflicts and possible resolutions, (2) potential ADR procedures; and (3) the order and timing of pretrial scheduling orders. Signed by Judge Mark R. Hornak on 1/20/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 01/20/2015)
116 SCHEDULING ORDER. A Telephonic Status Conference is SCHEDULED for 2/26/15 at 3:00 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 1/20/15. (bdb) (Entered: 01/20/2015)

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 12 of 18

01/30/2015
02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/26/2015 02/26/2015
02/27/2015 02/27/2015 03/16/2015 03/31/2015 04/01/2015

117 STATUS REPORT Millcreek Township 2014 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement, Section XII of the January 15, 2014 Consent Decree and Partial Settlement and Section XX.3 of the September 2, 2014 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A − 2014 Paving List, # 2 Exhibit B − 2014 Paved, No Top and Accepted Roads, # 3 Exhibit C − 2014 Reclaim List, # 4 Exhibit D − 2014 Slurry Seal List, # 5 Exhibit E − 2014 Hot Patch List, # 6 Exhibit F−1 − Resolution 2014−R−28, # 7 Exhibit F−2 − Resolution 2014−R−34, # 8 Exhibit F−3 − Resolution 2014−R−35, # 9 Exhibit G − 2014 Ramps Installed by Millcreek Township, # 10 Exhibit G−1−60 − Curb Ramp Compliance Forms, # 11 Exhibit H − 2014 Ramps on Accepted Streets and−or Added by Others, # 12 Exhibit H−1−32 − Certificates of Approval, # 13 Exhibit I − Cumulative Ramps Completed Through 2014, # 14 Exhibit J − 2014 Street Crossings, # 15 Exhibit J−1−23 − Crosswalk data forms, # 16 Affidavit Certification of John Orr, # 17 Affidavit Certification of Charles Pierce, # 18 Affidavit Certification of Matthew Waldinger, # 19 Affidavit Certification of Gary Walters) (Shaw, Mark) (Entered: 01/30/2015)
118 SETTLEMENT AGREEMENT and Fourth Consent Decree by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit A) (Markham, Craig) (Entered: 02/04/2015)
119 Joint MOTION for Settlement Approval Between Millcreek Township, Pa. and Plaintiffs by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 02/04/2015)
120 ORDER APPROVING 118 Settlement Agreement and Fourth Consent Decree. Signed by Judge Mark R. Hornak on 2/4/15. (bdb) (Entered: 02/04/2015)
121 ORDER GRANTING 119 Joint Motion for Settlement Approval Between Millcreek Township, Pa. and Plaintiffs. 118 Fourth Consent Decree and Partial Settlement Agreement is hereby APPROVED and ACCEPTED by the Court. Signed by Judge Mark R. Hornak on 2/4/15. (bdb) (Entered: 02/04/2015)
122 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephonic Status Conference held on 2/26/15. (Court Reporter: Richard Ford) (jad) (Entered: 02/26/2015)
123 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 4/21/15 at 4:45 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 2/26/15. (bdb) (Entered: 02/26/2015)
124 SETTLEMENT AGREEMENT (3d) Between Plaintiffs and PennDOT filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Markham, Craig) (Entered: 02/27/2015)
125 Joint MOTION for Settlement (3d) Approval filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Attachments: # 1 Proposed Order) (Markham, Craig) (Entered: 02/27/2015)
126 ORDER GRANTING 125 Joint Motion to Approve Third Partial Settlement Agreement. It is ORDERED that 124 Third Partial Settlement Agreement is hereby APPROVED and ACCEPTED by the Court. Signed by Judge Mark R. Hornak on 3/16/15. (bdb) (Entered: 03/16/2015)
127 STATUS REPORT by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A) (Bradley, Scott) (Entered: 03/31/2015)
128 ORDER ACCEPTING 127 Status Report. The Status Report filed at ECF docket no. 127 is hereby APPROVED and ACCEPTED by the Court. Signed by Judge Mark R.

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 13 of 18

04/07/2015 04/20/2015 05/11/2015 05/11/2015 07/01/2015
07/13/2015 07/13/2015
08/24/2015 08/24/2015
09/08/2015

Hornak on 4/1/15. (bdb) (Entered: 04/01/2015)
129 ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 4/21/15 at 4:45 PM is hereby RESCHEDULED for 4/22/15 at 11:00 AM before Judge Mark R. Hornak. The information required to participate can be found at 123 Scheduling Order. Signed by Judge Mark R. Hornak on 4/7/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jad) (Entered: 04/07/2015)
130 ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 4/22/15 at 11:00 AM is hereby RESCHEDULED for 5/12/15 at 3:30 PM before Judge Mark R. Hornak. The information required to participate can be found at 123 Scheduling Order. Signed by Judge Mark R. Hornak on 4/20/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jad) (Entered: 04/20/2015)
131 Joint MOTION to Continue Status Conference by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Proposed Order) (Shaw, Mark) (Entered: 05/11/2015)
132 ORDER GRANTING 131 Motion to Continue. The Telephonic Status Conference set for 5/12/15 at 3:30 PM is hereby CONTINUED pending further Order of Court. Signed by Judge Mark R. Hornak on 5/11/15. (bdb) (Entered: 05/11/2015)
133 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for Monday, July 13, 2015 at 10:00 AM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 7/1/15. (bdb) (Entered: 07/01/2015)
134 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephonic Status Conference held on 7/13/15. (Court Reporter: Shirley Hall) (jad) (Entered: 07/13/2015)
135 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 8/24/15 at 3:30 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 7/13/15. (jad) (Entered: 07/13/2015)
136 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephone Status Conference held on 8/24/15. (Court Reporter: Shirley Hall) (jad) (Entered: 08/24/2015)
137 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 9/9/15 at 4:15 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 8/24/15. (jad) (Main Document 137 replaced on 8/25/2015) (bdb) Modified on 8/25/2015 to correct date on document. (bdb) (Entered: 08/24/2015)
138 ORDER. The Telephonic Status Conference set for 9/9/15 at 4:15 PM is hereby CONTINUED pending further Order of Court. Signed by Judge Mark R. Hornak on 9/8/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 09/08/2015)

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 14 of 18

09/23/2015 09/24/2015 01/05/2016
01/21/2016
01/22/2016 01/25/2016 01/25/2016
01/26/2016
01/29/2016 01/29/2016
03/03/2016

139 Joint MOTION to Extend Time to Joint Motion for Extensions of Deadlines in Fourth Consent Decree by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Proposed Order) (Shaw, Mark) (Entered: 09/23/2015)
140 ORDER GRANTING 139 Joint Motion to Extend Time of Deadlines in Fourth Consent Decree. The deadline for Millcreek Township's submission of the sidewalk survey report and facility survey report is EXTENDED to 12/2/15. Signed by Judge Mark R. Hornak on 9/24/15. (bdb) (Entered: 09/24/2015)
141 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 1/21/16 at 3:30 PM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 1/5/16. (jad) (Entered: 01/05/2016)
142 ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for THIS DATE, January 21, 2016, at 3:30 PM is hereby RESCHEDULED for THIS DATE, January 21, 2016, at 5:00 PM before Judge Mark R. Hornak. The information required to particiapte can be found at 141 Scheduling Order. Signed by Judge Mark R. Hornak on 1/21/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 01/21/2016)
143 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephonic Status Conference held on 1/21/16. (Court Reporter: Leah Attanucci − Pittsburgh Reporting Service) (bdb) (Entered: 01/22/2016)
144 Proposed Order filed by SHONA EAKIN, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR. (Markham, Craig) (Entered: 01/25/2016)
145 ORDER APPROVING 144 Proposed Order. By February 5, 2016, Defendants shall serve upon Plaintiffs' counsel a written substantive response to Plaintiffs' outstanding settlement proposals. By February 19, 2016, the Plaintiffs shall serve upon defense counsel a written response to the Defendants' February 5, 2016 proposal. If a settlement is not reached, a telephonic status conference is SCHEDULED for March 3, 2016 at 11:00 AM before Judge Mark R. Hornak. Signed by Judge Mark R. Hornak on 1/25/16. (bdb) (Entered: 01/25/2016)
146 NOTICE to Counsel. The Telephonic Status Conference set for 3/3/16 at 11:00 AM will be conducted via an AT&T dial−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. (jad) (Entered: 01/26/2016)
147 STATUS REPORT 2015 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Affidavit (Certification of Matthew D. Waldinger), # 2 Affidavit (Certification of Charles Pierce), # 3 Affidavit (Certification of John Orr), # 4 Affidavit (Certification of Gary Walters)) (Shaw, Mark) (Entered: 01/29/2016)
148 Appendix to 147 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A − 2015 Paving List, # 2 Exhibit B − 2015 Paved Accepted, # 3 Exhibit C − 2015 Reclaim List, # 4 Exhibit D − 2015 Crack Seal List, # 5 Exhibit E − 2015 Tar and Chip List, # 6 Exhibit F − 2015 Hot Patch List, # 7 Exhibit G − 2015 Ramps Installed, # 8 Exhibit G−1 (pgs 1−78) Curb Ramp Compliance Forms, # 9 Exhibit H − 2015 Ramps Installed by Others, # 10 Exhibit H−1 (pgs 1−6) Certificate of Approval, # 11 Exhibit I − Cumulative Ramps Through 2015, # 12 Exhibit J − 2015 Street Crossings, # 13 Exhibit J−1 (pgs 1−20) 2015 Streets Resurfaced) (Shaw, Mark) (Entered: 01/29/2016)
149 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephonic Status Conference held on 3/3/16. (Court Reporter: Julie Kienzle) (jad) (Entered: 03/03/2016)

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 15 of 18

03/03/2016
03/04/2016 03/04/2016
03/29/2016 05/10/2016 05/11/2016 09/23/2016
10/03/2016 10/05/2016 10/06/2016

150 ORDER. It is hereby ORDERED that Defendants shall file their position with respect to the Caughey Drive matter on or before March 17, 2016. Counsel for Defendants shall also circulate the documents used to implement the agreements that have already been reached at that time. Any response by Plaintiffs shall be filed on or before March 31, 2016. A telephone status conference is scheduled for May 10, 2016 at 4:00 p.m. Signed by Judge Mark R. Hornak on 3/3/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 03/03/2016)
151 NOTICE to Counsel. The Telephonic Status Conference set for 5/10/16 at 4:00 PM will be conducted via an AT&T dial−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. (jad) (Entered: 03/04/2016)
152 ORDER CLARIFYING COURT'S PREVIOUS ORDER [ECF No. 150]: Defendant Millcreek Township shall serve its position with respect to the Caughey Drive matter on or before March 17, 2016. Counsel for Defendant PennDOT shall serve the documents used to implement the agreements that have already been reached at that time. Any response by Plaintiffs shall be served on or before March 31, 2016; it need not be filed on the docket. Signed by Judge Mark R. Hornak on 3/4/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 03/04/2016)
153 STATUS REPORT by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A) (Bradley, Scott) (Entered: 03/29/2016)
154 ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 5/10/16 at 4:00 PM is hereby RESCHEDULED for 5/10/16 at 4:30 PM before Judge Mark R. Hornak. The information required to participate can be found at 151 Scheduling Order. Signed by Judge Mark R. Hornak on 5/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jad) (Entered: 05/10/2016)
155 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephonic Status Conference held on 5/10/16. (Court Reporter: Julie Kienzle) (jad) (Entered: 05/11/2016)
156 SCHEDULING ORDER. A Telephonic Status Conference is hereby SCHEDULED for 10/6/16 at 9:30 AM before Judge Mark R. Hornak. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 9/23/16. (jad) (Entered: 09/23/2016)
157 NOTICE Of Death Of Plaintiff, Mark Zahar, filed by SHONA EAKIN, MILLCREEK TOWNSHIP, PA, PAUL PECUNAS, VOICES FOR INDEPENDENCE, (VFI), MARK ZAHAR (Markham, Craig) (Entered: 10/03/2016)
158 ORDER RESCHEDULING CONFERENCE. The Telephonic Status Conference set for 10/6/16 at 9:30 AM is hereby RESCHEDULED for 10/6/16 at 3:00 PM before Judge Mark R. Hornak. The information required to participate can be found at 156 Scheduling Order. Signed by Judge Mark R. Hornak on 10/5/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jad) (Entered: 10/05/2016)
159 Minute Entry for proceedings held before Judge Mark R. Hornak: Telephonic Status Conference held on 10/6/16. (Court Reporter: Deborah Rowe) (jad) (Entered: 10/06/2016)

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10/07/2016
11/15/2016 11/21/2016 11/23/2016
01/10/2017 01/12/2017 01/30/2017 01/30/2017
03/31/2017 03/31/2017 04/05/2017

160 ORDER. Following the status conference on October 6, 2016, and with agreement of the parties, a telephonic status conference is hereby SCHEDULED for November 15, 2016 at 11:30 AM, by which time all parties anticipate the bus−stop agreement will be finalized and the sidewalk survey will be completed. The purpose of this conference will be to schedule next steps in the case. The Court will conduct the call via an AT&T call−in number, which requires participants to dial−in and provide an access code. To obtain the information required to participate in the conference, please log−in to ECF and open the attached document from the docket of the case (the document will not open from the link in the e−mail). The document has a security setting of "Case Participants Only", so only those individuals will have access to view the document. Signed by Judge Mark R. Hornak on 10/7/16. (bdb) (Entered: 10/07/2016)
161 ORDER CONTINUING CONFERENCE. The Telephonic Status Conference set for THIS DATE at 11:30 AM is hereby CONTINUED and will be reset by further Order of Court. Signed by Judge Mark R. Hornak on 11/15/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 11/15/2016)
162 Joint MOTION for Settlement −− Joint Motion to Approve Joint Partial Settlement Agreement Among All Parties by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit 1 − Joint Settlement Agreement Among All Parties, # 2 Proposed Order) (Pavkov, Mark) (Entered: 11/21/2016)
163 ORDER GRANTING 162 Joint Motion for Settlement −− Joint Motion to Approve Joint Partial Settlement Agreement Among All Parties. The Joint Partial Settlement Agreement Among All Parties, attached to 162 Joint Motion as Exhibit 1, is hereby APPROVED and ACCEPTED by the Court. The Court retains jurisdiction to enforce all terms of this Joint Partial Settlement Agreement Among All Parties. It is further ORDERED that the parties shall file a Joint Status Report on or before January 13, 2017, setting forth a statement of open, remaining issues, and the parties joint plan for their resolution. Signed by Judge Mark R. Hornak on 11/23/16. (bdb) (Entered: 11/23/2016)
164 STATUS REPORT Joint Status Report of All Parties by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 01/10/2017)
165 ORDER. On or before 3/31/17, counsel shall file a further Joint Status Report. Signed by Judge Mark R. Hornak on 1/12/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 01/12/2017)
166 STATUS REPORT 2016 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Affidavit (Certification of Anne M. Sokol), # 2 Affidavit (Certification of Matthew D. Waldinger), # 3 Affidavit (Certification of Charles Pierce), # 4 Affidavit (Certification of John Orr), # 5 Affidavit (Certification of Sean Kern)) (Shaw, Mark) (Entered: 01/30/2017)
167 Appendix to 166 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A − 2016 Paving List, # 2 Exhibit B − Map of Millcreek Township owned−controlled roads paved in 2016, # 3 Exhibit C − 2016 Crack Sealing List, # 4 Exhibit D − 2016 Tar Chip List, # 5 Exhibit E − 2016 Ramp List, # 6 Exhibit E−1−1−71 Curb Ramp Compliance Forms, # 7 Exhibit F − Section of sidewalk installed along Merilee at Springland Terrace, # 8 Exhibit G − Cumulative Ramps Through 2016, # 9 Exhibit H − 2016 Pedestrian Street Crossings, # 10 Exhibit H−1−1−19 Streets Resurfaced) (Shaw, Mark) (Entered: 01/30/2017)
168 STATUS REPORT (PennDOT Annual Report) by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A (Annual Report)) (Bradley, Scott) (Entered: 03/31/2017)
169 STATUS REPORT Joint Status Report of All Parties by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 03/31/2017)
170 ORDER. On or before 5/15/17, counsel shall file a further Joint Status Report. Signed by Judge Mark R. Hornak on 4/5/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jad)

Case: 1:11-cv-16 As of: 03/31/2018 08:36 PM EDT 17 of 18

04/05/2017 05/15/2017 05/16/2017 06/30/2017 07/03/2017 07/03/2017 07/03/2017
10/04/2017 10/10/2017 11/15/2017 11/17/2017 11/30/2017
12/01/2017
01/31/2018 01/31/2018

(Entered: 04/05/2017)
171 ORDER ACCEPTING 168 Status Report (PennDOT Annual Report) filed by COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, ALLEN D. BIEHLER. Signed by Judge Mark R. Hornak on 4/5/17. (bdb) (Entered: 04/05/2017)
172 STATUS REPORT Joint Status Report of All Parties by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 05/15/2017)
173 ORDER. The parties shall file a further Joint Status Report on or before 6/30/17. Signed by Judge Mark R. Hornak on 5/16/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 05/16/2017)
174 STATUS REPORT Joint Status Report by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 06/30/2017)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 174 Status Report. ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event. This message is for informational purposes only. (sdp) (Entered: 07/03/2017)
175 Errata re 174 Status Report Joint Status Report by MILLCREEK TOWNSHIP, PA. Reason for Correction: Signatures did not match. (Shaw, Mark) (Entered: 07/03/2017)
176 ORDER. On or before October 4, 2017, the parties shall file a further detailed Joint Status Report. The status report filed on June 30, 2017 174 is hereby accepted. Signed by Judge Mark R. Hornak on 07/03/2017. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (Hornak, Mark) (Entered: 07/03/2017)
177 STATUS REPORT Joint Status Report of All Parties by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 10/04/2017)
178 ORDER. On or before 11/15/17, counsel shall file a further Joint Status Report. Signed by Judge Mark R. Hornak on 10/10/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 10/10/2017)
179 STATUS REPORT Joint Status Report of All Parties by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 11/15/2017)
180 ORDER. On or before 1/31/18, counsel shall file a further Joint Status Report. Signed by Judge Mark R. Hornak on 11/17/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bdb) (Entered: 11/17/2017)
181 Joint MOTION to Approve Fifth Consent Decree and Partial Settlement Agreement among Defendant Millcreek Township and Plaintiffs by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A − Fifth Consent Decree and Partial Settlement Among Defendant Millcreek Township and Plaintiffs, # 2 Proposed Order) (Pavkov, Mark) (Entered: 11/30/2017)
182 ORDER GRANTING 181 Joint Motion to Approve Fifth Consent Decree and Partial Settlement Agreement. The Fifth Consent Decree and Partial Settlement Agreement is APPROVED and ACCEPTED by the Court. The Court retains jurisdiction to enforce all terms of this Joint Motion to Approve Fifth Consent Decree and Partial Settlement Agreement. Signed by Judge Mark R. Hornak on 12/1/17. (jad) (Entered: 12/01/2017)
183 STATUS REPORT Joint Status Report of All Parties by MILLCREEK TOWNSHIP, PA. (Pavkov, Mark) (Entered: 01/31/2018)
184 STATUS REPORT 2017 Report Under Section III of the October 12, 2011 Consent Decree and Partial Settlement by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Affidavit (Certification of Sean Kern), # 2 Affidavit (Certification of Robert Donikowski), # 3 Affidavit (Certification of Anne Sokol), # 4 Affidavit (Certification of Julie Maggio), # 5 Affidavit (Certification of Matthew D. Waldinger)) (Shaw, Mark) (Entered: 01/31/2018)

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01/31/2018 03/30/2018

185 Appendix to 184 Status Report, by MILLCREEK TOWNSHIP, PA. (Attachments: # 1 Exhibit A − 2017 Paving List, # 2 Exhibit B − Map of Millcreek Township owned−controlled roads paved in 2017, # 3 Exhibit C − 2017 Crack Seal List, # 4 Exhibit D − Resolution 2017−R−35 accepting public streets, # 5 Exhibit E − 2017 Accepted Road Ramps, # 6 Exhibit E−1−1−4 Specific Measurement Forms − each ramp, # 7 Exhibit F − 2017 New Ramps, # 8 Exhibit F−1−1−84 Specific Measurement Forms − new ramps, # 9 Exhibit G − 2017 existing Ramps on Paved Roads, # 10 Exhibit G−1−1−34 Specific Measurement Forms − existing ramps on paved roads, # 11 Exhibit H − Argyle Avenue Sidewalk Installation, # 12 Exhibit I − 2017 Ramps by Others, # 13 Exhibit I−1−1−14 Certificate of Approval − 2017 Ramps by Others, # 14 Exhibit J − Cumulative Ramps List Through 2017, # 15 Exhibit K − 2017 Pedestrian Street Crossing, # 16 Exhibit K−1−1−48 Measurement Data Sheets for 2017 Pedestrian Street Crossing) (Shaw, Mark) (Entered: 01/31/2018)
186 STATUS REPORT (PennDOT) by ALLEN D. BIEHLER, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. (Attachments: # 1 Exhibit A) (Bradley, Scott) (Entered: 03/30/2018)