A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 19-46, regarding whether the MBTA is in compliance with the amended Settlement Agreement in the District of Massachusetts case Daniels-Finegold et al. v. Massachusetts Bay Transportation Authority

Nancy E. Glowa ^^^^^^^^. Assistant City Solicitors City Solicitor P^ S. Kawai Keplm K. U. AUwaters Arthur J. Goldberg JU S?®IK,.lil Scan M. McKendry Dep^Ci^Sol^or Meg^B:B^ Brian A. Sch^ Samuel A. Aylesworth ''^iiii&SiSsSSS^' Katherine Sarmini Hoffman First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 October 7, 2019 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Awaiting Report 19-46 Re: Request to Review Whether the Massachusetts Bay Transportation Authority Is in Compliance with the Amended Settlement Agreement in the District of Massachusetts Case, Daniels-Finegold et al. v. Massachusetts Bay Transportation Authority Dear Mr. DePasquale: We have prepared this legal opinion in response to Awaiting Report No. 19-46 (Council Order No. 0-9 of April 8, 2019), which requests that the City Solicitor's Office review the Amended Settlement Agreement in the District of Massachusetts case Daniels- Finegold et al. v. Massachusetts Bay Transportation Authority, C.A. No. 02CV11504 (D. Mass. 2006), and determine whether the Massachusetts Bay Transportation Authority (the "MBTA") is in compliance with its obligation to install an updated elevator in the Central Square Station. In preparing this legal opinion, my office has communicated with MBTA representatives to obtain additional information about the status of construction at the Central Square Station. Enclosed please find a letter dated October 27, 2019 from Laura Brelsford, the System-Wide Accessibility Coordinator for the MBTA, and Michelle Kalowski, Chief Legal Counsel for the MBTA, which provides an explanation for the construction delay and estimates that construction will be completed in early 2020. In my opinion, the MBTA has represented that they have made efforts to comply with their * The Council Order also references dangerous stairwells in the Central Square Station. My office spoke with MBTA representatives and they indicated that the MBTA did not have any immediate plans to fix the stairs in the Central Square Station. In addition, the MBTA representatives denied being aware of any complaints regarding the condition of the Central Square Station stairs and asked for clarification regarding which stairs were an issue. There are several entrances to the Central Square Station all of which have stairwells. In order to move forward with this matter, more information is needed regarding which stairs on which stairwells present a safety concern to passengers. Telephone [phone removed] Facsimile [phone removed] TTY/TTD (61 7) 349-4242

obligations under the Amended Settlement Agreement to install an updated elevator in the Central Square Station. Amended Settlement Agreement On July 25, 2002, the plaintiffs brought a civil action in the United States District Court of Massachusetts for declaratory and injunctive relief against the MBTA, Daniels- Finegold et aL v. MBTA. C.A. No. 02CV11504. Specifically, the plaintiffs alleged that MBTA services were not readily accessible to and usable by individuals with mobility, hearing, and visual disabilities In violation of the Americans with Disabilities Act. On June 15, 2006, the Court accepted the parties' Settlement Agreement. In the Settlement Agreement, the MBTA agreed to establish, operate, and maintain its services in a manner which made them readily accessible and usable to all persons, including individuals with disabilities. The case remained open with the Court retaining jurisdiction to ensure that the MBTA performed its obligations under the Settlement Agreement. On December 4, 2018, the parties executed an Amended Settlement Agreement to reflect the progress that had been made since entering into the original Settlement Agreement. The Amended Settlement Agreement identified three (3) categories of obligations: substantially satisfied obligations, obligations requiring additional action, and obligations requiring modification. Under the Amended Settlement Agreement, one of the MBTA s ongoing obligations related to elevator usage. Specifically, the MBTA agreed to maintain and operate elevators in a manner which made them readily accessible and usable by persons with disabilities during all passenger service hours. To accomplish this goal, the MBTA agreed to "design, fund, and implement an elevator management plan to provide continuous, uninterrupted elevator service during all passenger service hours, subject only to temporary and isolated elevator outages for repairs, maintenance, and inspections." Amended Settlement Agreement at §53. Pursuant to the Amended Settlement Agreement, the MBTA would be considered out of compliance with its obligation to maintain continuous elevator service "if, during any one-month period, the number or duration of outages for any elevator in the MBTA passenger service system is more than insubstantial. Id. at §54. In addition, the MBTA agreed to replace certain elevators, including elevator #861 in the Central Square Station. Id. at §56. The Amended Settlement Agreement did not provide a specific date or timeframe for completion of this elevator replacement. During elevator outages, the MBTA is required to establish a dedicated means of alternative transportation and to promptly publicize this information to passengers. Id. at §§§62, 66,and 74. In addition, the MBTA is required to provide alternative transportation services in a "timely manner." M at §72. Specifically, with respect to the Central Square Station elevator replacement, the MBTA has established and publicized two (2) alternative transportation options: (1) a bus shuttle which transports passengers from Massachusetts Avenue to Kendall Square and (2) an outbound service elevator at the Harvard Square Station.

II. Status of Construction at the Central Square Station As detailed above, in accordance with the Amended Settlement Agreement, the MBTA is required to replace the elevator in the Central Square Station with a larger, more modem elevator. Based on earlier estimates, the MBTA anticipated that construction would be completed by spring 2019. According to MBTA representatives, construction has been delayed by several unforeseen issues. Specifically, during construction, workers observed a nearby stand pipe. A state building inspector conducted an inspection of the stand pipe, which included administration ofapre-air test. The stand pipe failed the pre-air test, and the state building inspector determined that the stand pipe was a safety hazard. The state building inspector refused to allow construction on the elevator to proceed until the stand pipe issue was remedied. Repair of the stand pipe required the expenditure of significant time and resources. In addition to the stand pipe, the MBTA discovered seventeen (17) existing conduits in the elevator shaft that needed to be relocated in order to continue with construction. Furthermore, the MBTA is only allowed to engage in construction and repair activities during off hours between 1:30am to 5:00am so as not to disrupt daily service. These limited work hours further contributed to the construction delays. The MBTA has remedied the unforeseen issues encountered during construction and is moving forward with replacement of the elevator. Based on these unforeseen issues, construction has been delayed approximately ten (10) months. The MBTA anticipates that construction will be completed by early 2020. III. Analysis The MBTA has represented to the City that they have made efforts to comply with their obligations under the Amended Settlement Agreement to install an updated elevator in the Central Square Station. Specifically, the MBTA has reported that they are in the midst of replacing the elevator in question. Unfortunately, because of previously unforeseen issues, construction was delayed for approximately ten (10) months. The MBTA remedied the stand pipe and conduit issues that were discovered during construction. Furthermore, the Amended Settlement Agreement does not specify a date or timeframe for completion of the elevator replacement; accordingly, the MBTA does not appear to be in direct violation of its replacement obligation because of the construction delays. While the Amended Settlement Agreement includes a provision regarding the MBTA's general requirement to maintain continuous elevator service and the standard for determining noncompliance with this requirement, this provision does not appear to apply to the Central Square Station elevator replacement. The Central Square Station elevator replacement is addressed in a different section of the Amended Settlement Agreement and, as detailed above, does not include a date or timeframe for required completion. Requiring the MBTA to provide continuous elevator service during a long-term, complicated construction project does not seem possible.

Finally, the MBTA has reported that it is in compliance with its obligation to establish and publicize alternative transportation routes during the Central Square Station elevator outage. Specifically, the MBTA has established and publicized two (2) alternative options, including a bus service option and an elevator service option at the nearby Harvard Square Station. The MBTA is required to provide alternative transportation in a timely manner and could be in violation of §72 of the Amended Settlement Agreement if alternative transportation is not being provided in a timely manner. To the extent that there are allegations that alternative transportation is not being provided in timely manner, it is not clear whether the alternative transportation delays are the same delays attributable to weather and mechanical issues, which effect all MBTA services and passengers. In conclusion, the MBTA has represented that it has made efforts to fulfill its Amended Settlement Agreement obligation to replace the elevator at the Central Square Station notwithstanding unforeseen issues. In addition, the MBTA has reported that it has established and publicized alternate transportation routes while construction is ongoing in accordance with its Amended Settlement Agreement requirements. Very truly yours, Nanc^E.^Glowa City SoTicitor Enclosure

Chcirk's D, B^hci. Governor Karyn E. Potito. Ueutenant Governor Stephanie Pollack, MassDOT Secrctjry h CEO Steve Poftak, General Mcinager Massachusetts Department of Transportation massDOT September 27, 2019 Cambridge City Council Cambridge City Hall 795 Massachusetts Ave. Cambridge, MA 02139 Re: Construction of Replacement Elevator at Central Square Station Dear Council Members, The Massachusetts Bay Transportation Authority (MBTA) understands that the City Solicitor is providing you with information regarding the delay to the construction of the replacement elevator at MBTA's Central Square (Inbound) station. The MBTA appreciates the Council's attention and concern regarding this issue. MBTA recognizes that the elevator outage at Central Square has had a serious impact on customers' commutes, and MBTA shares your desire that the elevator is returned to service as quickly as possible. As you may know, MBTA began construction to the elevator unit construction so that it could be replaced with a larger, safer and more modernized unit. Shortly after construction began, unfortunately, a number of unexpected complications arose (including standpipe repairs and conduit that needed relocating) that could only be addressed during non-revenue hours (three hours per day). These complications delayed the replacement of the elevator. The outstanding construction issues have now been resolved, and MBTA anticipates that the new unit will open for service in early 2020. The project team continues to look for opportunities to accelerate the schedule and will keep you updated if there are any changes. In the meantime, a shuttle bus will continue to connect customers between MBTA's Central and Kendail stations. The MBTA remains committed to being accessible for all of its customers and is striving to become a model of accessible public transportation. Please do not hesitate to contact us if we can provide further information or answer questions. Sincerely, 1^ \,,1 ^^-^\^ l^l';J ^/L Laura Brelsford Michelle Kalowski AGM, System-Wide Accessibility Chief Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Boston, MA 02116 www.mbta.com